EXHIBIT 4.22
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into effective as of
January 1, 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") relative to introducing SGI to parties, which might invest in
SGI's ENCOAL Plant, located in Gillette, Wyoming. Consultant will provide such
other assistance as SGI may request related to the Services. The Services shall
also 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.
2. Payment for Services.
a. Consulting Fee. SGI agrees to pay Consultant for the Services in a fixed
amount of _______ shares of restricted stock issuable during the term, after
execution of this Agreement. In the event SGI files a registration statement
with the SEC within the next calendar year under which it could register the
restricted stock issued Consultant, then it shall do so, absent a determination
by its Board of Directors that such registration would cause SGI economical or
other harm.
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 $.30 a mile for all business travel.
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.
4. Obligations of SGI. SGI agrees to make available to Consultant, upon
reasonable notice, computer programs, data, and any documentation required by
Consultant to complete the Services.
5. Term. This Agreement shall be effective on the Effective Date and shall
continue for a period of one year.
6. Warranties. Consultant hereby warrants that he will carry out his work in
accord with generally accepted practices.
7. 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.
Consultant shall have no power to commit or bind SGI in any manner whatsoever.
8. 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.
9. 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.
10. Assignment.
a. Consent Required. 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.
b. Subcontracting. Any subcontract made by Consultant with the consent of SGI,
which must be obtained before Consultant enters into any subcontract, shall
incorporate by reference all of the terms of this Agreement. Consultant agrees
to guarantee the performance of any subcontractor used in the performance of
the Services.
11. 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 confidential
Information.
12. 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.
13. 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 U. S.
Mail, 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.
14. SGI: SGI International
0000 Xxxxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Consultant: Xxxxx Xxxxxxx
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
15. Applicable Law. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of California.
16. Entire Agreement and Amendments. Except for the confidentiality agreement
previously entered into between the parties, 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.
17. 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.
18. 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.
Consultant
SGI International
a Utah Corporation
By: /S/ XXXXXXX X. XXXX By: XXXXX XXXXXXX
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Xxxxxxx X. Xxxx Xxxxx Xxxxxxx
