EXHIBIT 4.20
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this ___ day of
October 2000 (the "Effective Date"), by and between SGI International, a Utah
corporation ("SGI") and Xxxxx Xxxxxxx ("Consultant").
1. Performance by Consultant. Consultant agrees to provide consulting services
(the "Services") to SGI. Such Services will include, but not be limited to:
o Assist the Company in choosing the lowest price engineer/construction firm
for the CDL upgrade unit. Coordinate the activities associated with
engineering, construction and start up of the CDL upgrade unit and the
activities associated with the start up of the ENCOAL plant.
Assist the VP of LFC Operations in the engineering, construction and testing of
the new equipment being added to the ENCOAL plant. Responsibility for the
start up of the CDL upgrade unit.
Responsibility to insure that TEC for CDL upgrade unit is within budget
established in the Cinergy/SGI negotiations. Responsibility to insure that CDL
upgrade unit produces on spec products in the quantities anticipated at no
additional cost to SGI.
Such other services as may be requested by SGI.
2. Payment for Services.
a) Consulting Fee. SGI agrees to pay Consultant for the Services at the rate
of One Hundred Fifty Dollars ($150.00) per hour, plus travel expenses
(traveling rate charge will be half the standard hourly rate), plus 25,000
shares per month (144 Restricted Stock) during the term of this Agreement
no matter how many hours Consultant works during that month. Consultant
shall be paid by SGI within fifteen (15) days of receipt of an acceptable
invoice from Consultant. The restricted stock shall be issued at the end of
each calendar quarter.
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 $0.325 a mile for all business travel.
c) Invoices. Consultant shall invoice SGI bi-weekly for Services actually
rendered. The invoice will describe the work performed during such period,
set out the hours of work by day and by task, and reflect the amount and
details of any expenses. Consultant agrees that SGI may audit the billing and
expense documentation for a period of one year from the date of the invoice
submittal. All invoices will be paid as described above.
3. Personal Service Contract. SGI and Consultant agree that the Services will
be performed personally by Consultant. If the services are not performed by
Consultant, then SGI has the right to terminate this Agreement immediately.
4. Obligations of SGI. SGI agrees to make available to Consultant, upon
reasonable notice, an office, telephone, computer, computer programs,
combination printer-scanner-fax machine, data, and any other resources
required by Consultant to complete the Services. All equipment supplied is
to be returned at the end of the contract or retained with a buy-out at a
mutually agreeable price.
5. Term. This Agreement shall be effective and shall continue for a period
from the Effective Date through the completion of all Services stated in
Paragraph 1. Either party may terminate this Agreement by giving three (3)
days advance written notice to the other party in its sole discretion for
cause at any time, which shall include the failure of Consultant to make
progress in performing the Services.
6. Ownership. Consultant agrees that SGI and an affiliate (LFC Technologies)
are the owners of all right, title and interest in the technical information,
data and business information and data (the "Proprietary Information") relating
to the business of SGI and to the LFC Process, and
to the drying, cleaning and other processing of coal, as well as any
developments or improvement related thereto, and as well as any related
process control technology, computational techniques or related trade
secrets or intellectual property. SGI shall also own all other commercial
information, technical information and related material used by, developed
for, or paid for, by it in connection with the performance of any Services
provided by Consultant before or after the date set forth above.
7. Reporting. Consultant shall report to and receive work direction as to the
Services from the Executive Vice President and President of SGI.
8. Confidentially and Disclosure.
a. Disclosure. Consultant desires to have the Proprietary Information disclosed
to him to enable him to render the Services to SGI. SGI is prepared to make
such Proprietary Information, as it deems necessary, available to Consultant for
the aforesaid purpose on the following understanding:
For the purpose of the Agreement:
The term "Proprietary 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 written publication,
and shall not include information which is only available by a substantial
searching of the published literature, and information the substance of which
must be pieced together from a number of different publications and sources;
(ii) is known to Consultant from sources other than SGI or its Affiliates prior
to the receipt of the same hereunder from SGI 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 SGI shall mean any person or entity directly or
indirectly controlling, controlled by or under common control with SGI.
(v) "Developments" shall mean and include inventions, discoveries,
modifications, and improvements, whether patentable or not, together with the
physical embodiment of the same whether copyrightable or not, related to SGI's
business.
Notwithstanding anything herein to the contrary in this Agreement, 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.
b. Confidentiality. Consultant agrees to hold the Proprietary 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 SGI.
c. Usage. Both parties agree that the Consultant may use such Proprietary
Information in connection with, but only in connection with, providing Services
to SGI.
9. Purchase Order and Contract Authorization. SGI hereby delegates to
Consultant the responsibility for reviewing and negotiating purchase orders and
contracts for the purchase of goods, materials, equipment and services as
described in Section 1 of this Agreement.
10. Warranties. Consultant hereby warrants that he will carry out his work in
accord with generally accepted professional practices applicable to the
services.
11. Termination. This Agreement shall be effective on the Effective Date and
continue in full force and effect until terminated in writing by either party
providing the other party at any time with thirty (30) days advance written
notice of termination.
12. Independent Contractor. Consultant is and at all times during the term of
this Agreement shall be an independent contractor providing professional
consulting services to SGI. 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. Except as described in Section 9, Consultant shall have no power
to commit or bind SGI in any manner whatsoever. SGI shall defend, indemnify
and hold the Consultant harmless against any claim, loss or liability,
including reasonable attorney's fees, for personal injury or bodily injury,
damage to property, or other claims of any third party arising out of any
negligent act or omission on SGI's part, as well as on the part of its
employees, subcontractors, and agents in and during the performance of the
Services.
13. Limitation of Liability. In no event shall either of the parties hereto be
liable to the other for the payment of any consequential, indirect, or special
damages, including lost profits.
14. Injunctive Relief. It is hereby understood and agreed that damages are an
inadequate remedy in the event of a breach by Consultant of the Confidentiality
provisions of this Agreement and that any such breach by Consultant will cause
SGI great and irreparable injury and damage. Accordingly, Consultant agrees
that SGI shall be entitled, without waiving any additional rights or remedies
otherwise available to SGI at law or in equity or by statute, and without
posting any bond, to obtain injunctive or other equitable relief in the event
of a breach or intended or threatened breach by Consultant of such provisions.
15. Assignment. Consultant shall not assign or subcontract the whole or any
part of this Agreement without SGI's written consent, which can be withheld for
any reason.
16. Conflicting Assignments. During the term of this Agreement, Consultant
shall not accept conflicting assignments, which would put Consultant in a
position where he would be rendering advice or providing information to
any party who might be a potential competitor of SGI presently or in the
future, nor shall Consultant provide any advice, which might disclose any
Developments or Proprietary Information.
17. 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 making an application to the San Diego Superior Court to order
an appointment. Reasonable discovery, including but not limited to depositions
and interrogatories, shall be allowed in any such arbitration. The decision of
the arbitrator shall be binding and enforceable to the same extent as if the
award were made by a court of competent jurisdiction.
18. 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 from time to time designate in writing to the other party.
SGI: SGI International
0000 Xxxxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Consultant: Xxxxx Xxxxxxx
0 Xxxxx Xxxx, Xx 0
Xxxxxxxxxx, XX 00000
19. Applicable Law. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of California.
20. 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.
21. 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.
22. 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 on the day and in
the year first above written.
SGI Consultant
SGI International
a Utah Corporation
By: /S/ XXXXXXX X. XXXXXXX By: XXXXX XXXXXXX
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Xxxxxxx X. Xxxxxxx Xxxxx Xxxxxxx
