EXHIBIT 4.19
FORM OF CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is entered into this 1st day of April
1998 (the "Effective Date"), by and between SGI International, a Utah
corporation ("SGI") and ____________ ("Consultant").
1. Performance by Consultant. Consultant agrees to provide consulting services
(the "Services") to SGI. Such Services will include consultation relative to the
performance, data, measurement, analysis, and recommendations as to the
development and improvement of the LFC Process, the products of such process,
and business related thereto. 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 at the rate
of __________Dollars ($____) per hour, plus travel expenses. Consultant shall
be paid by SGI within fifteen (15) days of receipt of an acceptable invoice
from Consultant.
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 monthly for Services rendered during
each month. 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, computer programs, data, and any documentation required by
Consultant to complete the Services.
5. Term. This Agreement shall be effective and shall continue for a period for
one year. Absent termination in writing by either party within a thirty day
period prior to the end of each one year term, the Agreement shall continue for
an additional one year term.
6. Ownership. Consultant agrees that SGI is the owner 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 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. Confidentially and Disclosure.
a. Disclosure. Consultant desires to have the Proprietary Information disclosed
to him to enable him to render the Services to SGI, including but not limited
to the Proprietary Information. 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 obligation 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.
8. Developments and Assignment.
a. Developments. Consultant recognizes that Developments have occurred and/or
are expected and likely to occur in the future as the result of the performance
of Consultant's Services, and Consultant covenants and agrees to hold all
Developments as a result of the performance of such Services or based on SGI's
Proprietary Information in trust for the use and benefit of SGI, and hereby
assigns and agrees to assign all such Developments to SGI.
b. Consultant Disclosure. Consultant shall promptly disclose in writing to SGI
any and all Developments made by Consultant, and or by any members of his
staff, incident to or as a result of the performance of such Services; and
Consultant hereby assigns and agrees to assign all of its right, title and
interest, in all such Developments to SGI. All such Developments shall be
treated as Proprietary Information of SGI and the obligations of Consultant
under this Agreement shall apply thereto. Consultant further agrees to and does
hereby assign to SGI all right, title and interest in and to the intellectual
property, rights, and processes or techniques embodying the Developments,
including all rights of copyright or rights to patent or use as a trade secret
such Developments, both within the United States and throughout the world. The
obligation of Sections 7 and 8 are continuing and shall survive the termination
of this Agreement.
c. Assignment. Consultant shall execute and/or require his agents, servants or
employees to execute all applications, assignments, or other instruments of any
kind which SGI, at SGI's expense, shall deem proper or necessary to apply for,
obtain and enforce letters patent and/or copyrights of the United States or of
any foreign country or otherwise to protect SGI's interest in such Developments.
d. Retention. Unless otherwise authorized in writing by SGI, all documents,
drawings and writings provided to Consultant by SGI hereunder or developed by
Consultant hereunder, and all copies thereof shall be returned promptly to SGI
upon completion or termination of Services.
9. Warranties. Consultant hereby warrants that he will carry out his work in
accord with generally accepted professional practices applicable to the
services.
10. Termination. This Agreement shall be effective on the Effective Date and
continue in full force and effect until terminated in writing by either party
during a thirty (30) day period prior to the end of the term of the Agreement.
11. 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.
12. 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.
13. Injunctive Relief. It is hereby understood and agreed that damages are an
inadequate remedy in the event of a breach by Consultant 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 this Agreement.
14. 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.
15. 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.
16. 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 to the same extent as if the award were made by a court of competent
jurisdiction.
17. 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
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Consultant:
18. Applicable Law. The provisions of this Agreement shall be construed and
enforced in accordance with the laws of the State of California.
19. 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.
20. 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.
21. 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By:
------------------------- -------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇