-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L3C7LZEWSYffm6+dI7YiDaQTDfW35iWUJfNqrh93SWVIhMv6apuMLhsNFkXMgmch GpGMZZe67GMKA9pMYZqE3w== 0000936392-96-000218.txt : 19960806 0000936392-96-000218.hdr.sgml : 19960806 ACCESSION NUMBER: 0000936392-96-000218 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19960331 FILED AS OF DATE: 19960515 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SGI INTERNATIONAL CENTRAL INDEX KEY: 0000737955 STANDARD INDUSTRIAL CLASSIFICATION: 8711 IRS NUMBER: 330119035 STATE OF INCORPORATION: UT FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: 1934 Act SEC FILE NUMBER: 000-16675 FILM NUMBER: 96567220 BUSINESS ADDRESS: STREET 1: 1200 PROSPECT ST STE 325 CITY: LA JOLLA STATE: CA ZIP: 92037 BUSINESS PHONE: 6195511090 FORMER COMPANY: FORMER CONFORMED NAME: VISION DEVELOPMENT INC DATE OF NAME CHANGE: 19850807 10-Q 1 FORM 10-Q FOR THE PERIOD ENDED MARCH 31, 1996 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549 FORM 10-Q QUARTERLY REPORT UNDER SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR QUARTER ENDED MARCH 31, 1996 COMMISSION FILE NO. 2-93124 SGI INTERNATIONAL (Exact name of registrant as specified in its Charter) UTAH 33-0119035 (State or other jurisdiction of (I.R.S. Employer Incorporation or organization) Identification No.) 1200 PROSPECT STREET, SUITE 325, LA JOLLA, CALIFORNIA 92037 (Address of principal executive offices - Zip Code) REGISTRANT'S TELEPHONE NUMBER INCLUDING AREA CODE: (619) 551-1090 SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE SECURITIES EXCHANGE ACT OF 1934: NONE SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934: COMMON STOCK (NO PAR VALUE) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. [X] Yes [ ] No THE NUMBER OF SHARES OF COMMON STOCK, NO PAR VALUE, OUTSTANDING AS OF MAY 10, 1996, WAS 5,252,000. 2 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-Q (Mark One) [X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the period ended March 31, 1996 or [ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 For the transition period from_________________to_________________ Commission File Number 2-93124 SGI International (Exact name of registrant as specified in its charter) Utah 33-0119035 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 1200 Prospect Street, Suite 325, La Jolla, California 92037 (Address of principal executive offices) (619) 551-1090 Registrant's telephone number, including area code Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. [X] Yes [ ] No The number of shares of Common Stock, no par value, outstanding as of May 10, 1996 was 5,252,000. 3 - - -------------------------------------------------------------------------------- TABLE OF CONTENTS FORM 10-Q - - -------------------------------------------------------------------------------- PART I. FINANCIAL INFORMATION ITEM 1. FINANCIAL STATEMENTS Condensed Consolidated Balance Sheets 3 - 4 Condensed Consolidated Statements of Operations 5 Condensed Consolidated Statement of Stockholders' Deficit 6 Condensed Consolidated Statements of Cash Flows 7 Notes to Condensed Consolidated Financial Statements 8 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS 9 - 11 PART II. OTHER INFORMATION 12 SIGNATURES 13
- 2 - 4 SGI International Consolidated Balance Sheets
MARCH 31, December 31, 1996 1995 --------------------------- (UNAUDITED) Assets Current assets: Cash $ 285,589 $ 74,154 Trade accounts receivable, less allowance for doubtful accounts of $7,343 in 1996 and 1995 649,501 341,352 Costs and estimated earnings in excess of billings on uncompleted contracts 86,074 271,448 Inventories 69,292 68,289 Prepaid expenses and other current assets 117,940 114,143 --------------------------- Total current assets 1,208,396 869,386 LFC Process related assets: Notes receivable 1,067,932 1,123,948 Royalty rights 2,121,188 2,199,750 LFC cogeneration project 605,384 631,705 Investment in TEK-KOL partnership 672,379 596,276 Australia LFC project 166,515 173,754 Other technological assets 26,440 26,440 Process demonstration equipment, net of accumulated depreciation of $646,711 and $608,592 in 1996 and 1995, respectively 115,662 153,781 --------------------------- 4,775,500 4,905,654 Property and equipment, net of accumulated depreciation and amortization of $291,072 and $269,040 in 1996 and 1995, respectively 252,250 249,328 Other assets -- 12,876 Goodwill, net 467,335 479,318 --------------------------- $6,703,481 $6,516,562 ========== ==========
See notes to condensed consolidated financial statements. - 3 - 5 SGI International Consolidated Balance Sheets
MARCH 31, December 31, 1996 1995 -------------------------------- (UNAUDITED) Liabilities and stockholders' deficit Current liabilities: Accounts payable $ 566,461 $ 683,583 Billings in excess of costs and estimated earnings on uncompleted contracts 184,403 175,745 Current maturities of long-term obligations 511,625 909,016 Notes payable to Director -- 304,000 Accrued salaries, benefits and related taxes 176,870 139,103 Royalties payable to related party -- 141,790 Contributions payable to TEK-KOL Partnership 336,476 336,476 Interest payable 78,219 139,663 Other accrued expenses 477,241 409,089 -------------------------------- Total current liabilities 2,331,295 3,238,465 Interest payable 377,275 276,425 Long-term notes payable, less current maturities 4,524,246 4,631,250 Commitments and contingencies Stockholders' deficit: Convertible preferred stock, $.01 par value; 20,000,000 shares authorized 103,765 shares issued and outstanding (103,729 at December 31, 1995), preference in liquidation of $2,960,000 1,037 1,037 Common stock, no par value; 75,000,000 shares authorized, 4,826,770 shares issued and outstanding (3,859,671 at December 31, 1995) 33,369,542 32,255,357 Paid-in capital 5,131,397 4,582,215 Accumulated deficit (38,722,888) (38,159,764) Notes receivable from employees for common stock (308,423) (308,423) -------------------------------- Total stockholders' deficit (529,335) (1,629,578) -------------------------------- $ 6,703,481 $ 6,516,562 ============ ============
See notes to condensed consolidated financial statements. - 4 - 6 SGI International Consolidated Statements of Operations (Unaudited)
Three months ended March 31, 1996 1995 ------------------------------ Revenues: Net sales $ 1,056,677 $ -- Income from Investment in TEK-KOL 76,103 -- Other 141,936 11,856 ------------------------------ 1,274,716 11,856 Expenses: Cost of sales 794,066 Engineering, research and consulting 154,774 665,654 Selling, general and administrative 432,344 276,577 Legal and accounting 139,144 207,166 Depreciation and amortization 165,734 251,110 Interest 151,778 241,516 ------------------------------ 1,837,840 1,642,023 ------------------------------ Net loss $ (563,124) $(1,630,167) ============================== Net loss per share $ (.13) $ (.76) ============================== Weighted average shares outstanding 4,270,607 2,138,618 ==============================
See notes to condensed consolidated financial statements. -5- 7 SGI International Consolidated Statement of Stockholders' Deficit (Unaudited)
Convertible preferred stock Common stock ------------------ ----------------- Shares Amount Shares Amount Paid-in capital ------ ------ ------ ------ --------------- Balances at December 31, 1995 103,729 $ 1,037 3,859,671 $32,255,357 $ 4,582,215 Issuance of common stock for cash 677,306 737,392 Exercise of warrants to purchase common stock for cash 6,593 1,654 Issuance of convertible preferred stock for notes payable and interest 36 -- 407,579 Issuance of common stock for notes payable and interest 283,200 375,139 Warrants granted for accounts payable, notes payable, interest and services 141,603 Net loss ------------------------------------------------------------------- Balances at March 31, 1996 103,765 $ 1,037 4,826,770 $33,369,542 $ 5,131,397 ===================================================================
Total Accumulated Notes stockholders' deficit receivable deficit ------- ---------- ------- Balances at December 31, 1995 $ (38,159,764) $(308,423) $(1,629,578) Issuance of common stock for cash 737,392 Exercise of warrants to purchase common stock for cash 1,654 Issuance of convertible preferred stock for notes payable and interest 407,579 Issuance of common stock for notes payable and interest 375,139 Warrants granted for accounts payable, notes payable, interest and services 141,603 Net loss (563,124) (563,124) ----------------------------------------- Balances at March 31, 1996 $ (38,722,888) $(308,423) $ (529,335) =========================================
See accompanying notes to consolidated financial statements. - 6 - 8 SGI International Consolidated Statements of Cash Flows (Unaudited)
Three months ended March 31, 1996 1995 -------------------------------------- Operating activities Net loss $ (563,124) $ (1,630,167) Adjustments to reconcile net loss to net cash flows used for operating activities: Depreciation and amortization 184,256 251,110 Amortization of note discounts -- 46,610 Preferred stock issued for interest 23,170 -- Changes in assets and liabilities: Receivable from joint venture partner -- 45,823 Trade accounts receivable (122,775) -- Inventories (1,003) -- Receivable from officers and directors -- (7,752) Prepaid expenses and other current assets (3,797) 842 Accounts payable (117,122) 2,922 Billings in excess of costs and estimated earnings uncompleted contracts 8,658 -- Accrued salaries, benefits and related taxes 37,767 (4,841) Royalty payable to related party (141,790) 12,500 Interest payable 100,162 21,976 Other accrued expenses 68,152 -- -------------------------------------- Net cash flows used for operating activities (527,446) (1,260,977) Investing activities LFC process related assets: Collection of notes receivable and related interest 56,016 -- Additions to other technological assets -- (20,876) Additions to process demonstration equipment -- (23,268) Investment in TEK-KOL (76,103) -- Purchase of property and equipment (24,954) -- Other assets 12,876 (406) -------------------------------------- Net cash flows used for investing activities (32,165) (44,550) Financing activities Proceeds from issuance of notes payable 50,000 14,696 Payments of notes payable (18,000) (419,750) Proceeds from issuance of preferred stock -- 1,113,943 Proceeds from issuance of common stock 739,046 280,125 -------------------------------------- Net cash flows provided by financing activities 771,046 989,014 -------------------------------------- Net increase (decrease) in cash 211,435 (316,513) Cash at beginning of the period 74,154 551,299 -------------------------------------- Cash at end of the period $ 285,589 $ 234,786 ===================================== Supplemental disclosure of non-cash activities: Series 96 convertible preferred stock issued for notes payable $ 360,000 -- ===================================== Warrants granted for accounts payable, notes payable, interest and services $ 141,603 -- =====================================
See accompanying notes to consolidated financial statements. - 7 - 9 SGI International Notes to Condensed Consolidated Financial Statements March 31, 1996 (Unaudited) (1) BASIS OF PRESENTATION The accompanying condensed consolidated financial statements of SGI International (the Company) for the three months ended March 31, 1996 and 1995 are unaudited. These financial statements reflect all adjustments, consisting of only normal recurring adjustments which, in the opinion of management, are necessary for a fair statement of the consolidated financial position as of March 31, 1996, and the consolidated results of operations for the three months ended March 31, 1996 and 1995. The results of operations for the three months ended March 31, 1996 are not necessarily indicative of the results to be expected for the year ending December 31, 1996. For more complete financial information, these financial statements, and the notes thereto, should be read in conjunction with the consolidated audited financial statements for the year ended December 31, 1995 included in the Company's Form 10-K filed with the Securities and Exchange Commission. (2) ORGANIZATION AND BUSINESS The principal businesses of the Company are developing, commercializing, and licensing new energy technologies; and manufacturing automated assembly equipment. The Company's principal assets are related to the LFC (Liquid From Coal) Process. The recovery of these assets is dependent upon future events, including the Company's ability to attract sufficient additional equity and/or financing needed to fund its portion of the TEK-KOL Partnership, that is responsible for completion and commercialization of the LFC Process. The Company is engaged in continuing negotiations to secure additional capital and financing, and while management believes it will be successful, there is no assurance that these efforts will be successful. - 8 - 10 ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS PROJECTIONS AND ESTIMATES The projections, estimates and opinions of management contained herein relative to the LFC and OCET Processes and to the business of Company set forth herein are forward looking statements and statements of management's belief: thus, there can be no assurance that these projections, estimates, or opinions of management will ultimately be correct or that actual results or events will not differ materially from those discussed herein. Further, until agreements are actually executed, LFC plants actually begin construction, the OCET Process is actually commercialized and operating revenues are actually earned, there can be no assurance that such events will occur. The Company undertakes no obligation to publicly release the results of any revisions to these forward-looking statements, which are made herein to reflect events or circumstances after the date hereof or to reflect the occurrence of unanticipated events. OVERVIEW The Company's stockholders' deficit has decreased from $1.63 million at December 31, 1995 to $529,000 at March 31, 1996. The improvement results from the continuing conversion of debt into equity and significantly reduced expenditure of the Company's funds. Management believes the financial condition of the Company has improved and will continue to improve in the coming months. Many challenges are ahead as the Company and TEK-KOL commercialize the LFC process. Expenditures for OCET process development are continuing and are expected to increase. During the first quarter, TEK-KOL entered into an agreement with Mitsubishi pursuant to which MHI will pay a royalty to TEK-KOL based on the revenue received by MHI from its sale of equipment and services to LFC plants, if and when constructed. MHI will also assist in completing engineering for a potential Powder River LFC plant and adapt that engineering to specific international projects. Further, MHI has an option to obtain a four year scope-of-supply exclusive in the Pacific Rim. If the option is exercised, MHI will pay TEK- KOL $1 million per year during the exclusivity period, which is subject to termination on written notice by either party. TEK-KOL representatives are negotiating an agreement with Mitsui, which, if executed, will provide for a LFC product marketing study by Mitsui, an analysis of the opportunity for development of LFC plants at several Mitsui mines, and assistance by Mitsui in developing and optimizing an upgrading process for CDL. The OCET process is designed to convert refinery Resid into higher value petroleum distillate products and a synthetic coal. OCET Corporation, a wholly-owned SGI subsidiary, entered into an agreement in 1995 to test a series of crude oil and Resid oil samples provided by Maraven, a Venezuelan state-owned oil company. Laboratory data is currently being extrapolated to a larger bench scale continuous process design in order to complete this testing. Favorable results could lead to licensing and royalty agreements with Maraven and its affiliates. The Company also continued discussions in the first quarter of 1996 with the Department of Energy regarding a cooperative agreement and funding for OCET's research and development efforts. The Company is drafting a written program plan to submit to the DOE, which management expects will form the basis for a cooperative research and development agreement. The continuing need to fund Company operations with equity based financing is causing significant dilution. Management is committed to accelerating commercialization of the LFC and OCET technologies and increasing cash flows from AMS's operations, rather than obtaining funds through the sale of equity. However, equity sales will be required in the short-term. - 9 - 11 RESULTS OF OPERATIONS THREE MONTHS ENDED MARCH 31, 1996 COMPARED TO THREE MONTHS ENDED MARCH 31, 1995. The Company acquired AMS effective October 30, 1995. AMS recorded net sales, cost of sales, and selling, general and administrative expense of $1.1 million, $794,000, and $208,000 for the three months ended March 31, 1996. The following discussion does not include AMS's results of operations for that period. The Company recorded $76,000 as its share of income from TEK-KOL for the three months ended March 31, 1996. TEK-KOL recorded no activity during the three months ended March 31, 1995 as the partners were bearing the expenses directly. Other income for the three months ended March 31, 1996 includes $142,000 from the forgiveness of certain royalty obligations by a related party. Engineering, research and development expenses for the three months ended March 31, 1996 decreased 77% ($511,000) from the same prior year period. SGI previously incurred LFC process marketing and candidate coal testing expenditures which are now TEK-KOL's responsibility. General and administrative expense for the three months ended March 31, 1996 decreased 19% ($52,000) from the same prior year period. Personnel and overhead reductions, instituted during the last two quarters of 1995, have caused on-going general and administrative expenses to decrease. Legal and accounting expense for the three months ended March 31, 1996 decreased 33% ($68,000) from the same prior year period. The prior year period included legal expense related to implementing the one-for-twenty share reduction. Depreciation and amortization expense for the three months ended March 31, 1996 decreased 34% ($85,000) from the same prior year period. Certain LFC process related assets were written down in 1995 based on management's net realizable value estimates. The 1995 write-downs cause depreciation and amortization to be lower future periods. Interest expense deceased 37% ($90,000) from the same prior year period. The conversion of debt into equity during 1995 and 1996 has caused interest expense to decrease. LIQUIDITY AND CAPITAL RESOURCES The Company acquired AMS effective October 30, 1995. The discussion on Liquidity and Capital Resources includes the effect of this transaction unless otherwise indicated. The Company had short-term liquidity deficiencies at March 31, 1996 and 1995 of $1.1 million and $3.4 million, respectively. The net improvement was achieved primarily through the conversion of notes payable and accrued interest into equity. Current notes payable and accrued interest of $590,000 contribute to the Company's short-term deficiency at March 31, 1996. Based on continuing interaction with the noteholders, management believes that the Company should procure subscriptions to convert the remaining current notes payable to preferred stock or secure agreements to extend the note due dates to September 30, 1997. Dr. Esztergar has agreed to forego any and all royalties owed him for the transfer of the LFC process patent to the Company. The Company raised approximately $1.58 million through the issuance of 1,084,000 common shares through May 10, 1996. These funds have been used to fund current operations and to satisfy a portion of the Company's short-term liquidity deficiency. The Company plans to satisfy the remaining short-term liquidity deficiency through the sale of equity securities and the collection of receivables. The Company had a long-term liquidity deficiency at March 31, 1996. The Company expects this long-term liquidity deficiency to be satisfied by equity sales, and increased positive cash flows from AMS's operations until such - 10 - 12 time as the commercialization of the LFC and OCET Processes results in positive cash flows. The Company's first quarter 1996 cash flows used for operating activities decreased 59% ($746,000) from 1995. This decrease is primarily attributable to TEK-KOL's assuming candidate coal testing and LFC plant marketing activities, and the personnel and overhead reductions made in 1995. The Company's financing activities raised approximately $789,000 and $1,409,000 during the first quarter of 1996 and 1995, respectively. These funds were raised primarily through the private placement of debt and equity securities. The amount of money raised during a given period is dependent upon financial market conditions, technological progress, and the Company's projected funding requirements. The Company anticipates that future financing activities will be influenced by the aforementioned factors. Significant future financing activities will be required to fund future operating and investing activities and to maintain debt service. At present, the Company has no commitments for future purchases of its securities. The Company's investing activities were minimal in the first quarter of 1996 and 1995. Additional capital contributions to the TEK-KOL Partnership are expected to be required from time to time prior to profitable operations. The Company is required to contribute one-half of any such required capital contributions. The Company has recorded contributions payable to TEK-KOL of $412,000 at March 31, 1996. Management believes substantially all of the 1996 funding requirements for TEK-KOL will be paid by third parties with whom TEK-KOL has or expects to have agreements. The Company will be required to contribute approximately $750,000 towards the 1996 TEK-KOL operating budget if none of these agreements are consummated. The Company does not have material commitments for capital expenditures as of March 31, 1996. - 11 - 13 - - -------------------------------------------------------------------------------- PART II. OTHER INFORMATION - - -------------------------------------------------------------------------------- ITEM 1. LEGAL PROCEEDINGS None ITEM 5. EXHIBITS AND REPORTS ON FORM 8-K 1. EXHIBITS 4.44 Form of Series 96-A Convertible Preferred Stock 10.3.3 Second Amendment to Assignment Agreement and Release dated as of 3/29/96 with Ernest P. Esztergar 27 Financial Data Schedule 28.9 Acquisition Agreement dated as of 3/4/96 with Kerr Foundation 28.9.1 Settlement & General Release dated as of 3/4/96 with Kerr Foundation 2. REPORTS ON FORM 8-K None - 12 - 14 - - -------------------------------------------------------------------------------- SIGNATURES - - -------------------------------------------------------------------------------- Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. SGI INTERNATIONAL By: /s/ JOSEPH A. SAVOCA May 10 , 1996 ---------------------------- Joseph A. Savoca, Chief Executive Officer Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated.
Name Title Date ---- ----- ---- Chief Executive Officer May 10, 1996 /s/JOSEPH A. SAVOCA and Chairman of the Board - - -------------------------- Joseph A. Savoca
- 13 - EX-4.44 2 FORM OF SERIES 96-A CONVERTIBLE PREFERRED STOCK 1 EXHIBIT 4.44 [SGI INTERNATIONAL LETTERHEAD] NUMBER SHARES 96A-00 * * THIS CERTIFIES THAT: is the registered Holder of ** ** FULLY PAID AND NON-ASSESSABLE SERIES 96-A PREFERRED SHARE(S), $.01 PAR VALUE, OF SGI INTERNATIONAL 1. Each Series 96-A Preferred Share evidenced by this Certificate is transferrable on the books of the Corporation by the Holder hereof, in person or by duly authorized attorney, upon surrender of this Certificate properly endorsed. 2. On or after April 30, 1998, each Series 96-A Convertible Preferred Share shall be convertible into 13,500 SGI Common Shares. 3. Series 96-A Preferred Shares have no voting rights. 4. Series 96-A Preferred Shares and the Common Stock into which they are convertible will, upon issuance, be fully paid and non-assessable. 5. In the event that the Corporation shall at any time after issuance of a Series 96-A Preferred Share: (i) declare or pay to the holders of the Common Stock a dividend payable in any kind of shares of stock of the Corporation; or (ii) split, reverse split or otherwise reclassify its Common Stock into the same or a different number of shares with or without par value or into shares of any class or classes; or (iii) consolidate or merge with or transfer its property as an entirety or substantially as an entirety to any other corporation; or (iv) make any distribution of its assets to holders of its Common Stock as a liquidation or partial liquidation dividend or by way of return of capital; then, upon subsequent conversion of a Series 96-A Preferred Share, a shareholder shall receive in exchange for a Series 96-A Preferred Share, in addition to, in reduction of, or in substitution for, the shares of Common Stock to which he would otherwise be entitled upon such exercise, such additional shares of Common Stock, or lesser number shares 2 of Common Stock, as the case may be, or stock or script of the Corporation, or such reclassified shares of stock of the Corporation, or such shares of securities or property of the Corporation resulting from such consolidation or merger or transfer, or such assets of the Corporation, so that the value so received by the shareholder is equivalent to the value which would have been received (and the total consideration exchangeable by the shareholder is equivalent to the total consideration which would otherwise have been exchangeable) had the shareholder converted a Series 96-A Preferred Share into shares of Common Stock immediately prior to the happening of any of the foregoing events. 1. THE SERIES 96-A PREFERRED SHARE(S) REPRESENTED BY THIS CERTIFICATE AND THE COMMON STOCK INTO WHICH THEY ARE CONVERTIBLE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARE(S) HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF 1933, OR A PRIOR OPINION OF COUNSEL SATISFACTORY TO THE ISSUER, THAT REGISTRATION IS NOT REQUIRED UNDER THAT ACT. 2. In the event of the voluntary liquidation, dissolution or other termination of the Corporation, the holders of the Series 96-A Preferred Shares shall be entitled to recover only a cash payment of Ten Thousand Dollars ($10,000.00) per Series 96-A Preferred Share. Such payment shall be made before any payment or distribution is made to the holders of the Common Stock, or any other series of Preferred Stock of the Corporation, other than previously issued Series of Preferred Shares. In witness whereof the said Corporation has caused this Certificate to be signed by its duly authorized officers and its Corporate Seal to be affixed hereto this ____ day of ____________, 1996. CHAIRMAN OF THE BOARD SECRETARY - - ------------------------------ ------------------ 2 3 The following abbreviations, when used in the inscription on the fact of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED, ______________hereby sell, assign and transfer unto Please insert Social Security or other identifying number of assignee ______________________________________ (Please print or typewrite name and address, including zip code, of assignee) ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ _________________________Shares of capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint ______________________________________________________________________Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. DATED:______________________________ NOTICE: The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever. 3 EX-10.3.3 3 SECOND AMENDMENT TO ASSIGNMENT AGREEMENT & RELEASE 1 SECOND AMENDMENT TO ASSIGNMENT AGREEMENT AND RELEASE This Second Amendment to Assignment Agreement and Release ("Agreement") is entered into effective as of March 29, 1996 (the "Effective Date") by and between SGI International ("SGI") and Ernest P. Esztergar ("Esztergar"). RECITALS A. SGI and Esztergar entered into an Assignment Agreement dated November 13, 1994 (the "Assignment"), by and between Esztergar and Synfuel Genesis, Inc., a predecessor to SGI by merger. B. Pursuant to the Assignment, Esztergar was to be paid a royalty or certain income in accordance with the terms of the Assignment. C. Esztergar and SGI desire to amend the Assignment and the First Amendment dated November 13, 1994 to provide for a waiver and release of the royalty in return for other good and valuable consideration to be paid to Esztergar. AGREEMENT NOW THEREFORE, in consideration of the matters set forth in the Recitals and for other good and valuable consideration the parties hereto agree as follows: 1. WAIVER AND RELEASE. Esztergar agrees to waive and release all of his past, present, and future rights (hereafter "Claims" as further defined) to any income of any kind or any other payment to be made in accordance with the Assignment and any amendments or modifications thereto. 2. WARRANTY. Each of the parties hereto represent and warrant to the other that to the extent of his or their knowledge, the recitals set forth herein are true, correct, and accurate. 3. CLAIMS. As used herein, "Claims" shall mean any and all claims, demands, agreements, contracts, covenants, representations, warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, fees, costs, expenses, accounts, damages, judgments, losses, injuries and liabilities of whatsoever kind or nature in law related to the Assignment and only to the Assignment, whether in equity or otherwise, present or future, known or unknown, suspected or unsuspected, asserted or unasserted, whether against any party hereto or not, and whether or not concealed or hidden, based upon any facts, acts, or omissions occurring prior to the date hereof in any way involved in or related to any of the matters which are or were the subject of, or directly or indirectly involved with the facts relating or comprising this Agreement. EXHIBIT 10.3.3 2 4. RELEASE. Esztergar, on behalf of himself, including assignees, representatives, agents, or successors (collectively the "Releasors") do hereby and forever remise, release and discharge SGI and any of its agents or representatives, and any successors of and from any and all Claims, and in particular any claims relating to the Assignment and only the Assignment, which any of said Releasors have, have had, may have had, or now have or hereafter, can shall or may have against SGI or any of its officers, directors, representatives or successors. 5. WAIVERS. IT IS EXPRESSLY UNDERSTOOD THAT Section 1542 of the Civil Code of California provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." The provisions of Section 1542 of the Civil Code of California, if in any way applicable to this Release, as well as any similar provisions of the law of California or any other jurisdiction, ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVED AND RELINQUISHED by all parties hereto, and each of them. Each of the parties acknowledges that he, she, or it, or his, her, or its representatives, may hereafter discover facts in addition to or different from those which he, she, or it now believes concerning the subject matter of this Agreement, and that notwithstanding any such new or different facts, this General Release shall remain in full force and effect and shall not be challenged in any way or sought to be voided or avoided. Such parties acknowledge and agree that this waiver is an essential and material term of this Release without which consideration agreed to have been given by each of the parties would not have been delivered or agreed to by the parties. All of the parties have been advised of their respective rights by legal counsel regarding this Agreement and this waiver and understand and acknowledge its significance and the consequence of the release and waiver of Section 1542. 6. NO ADMISSIONS. The parties hereby acknowledge and agree that this is a compromise settlement, which is not in any respect nor for any purpose to be deemed or construed to be, or in any way to be used as evidence of any admission or concession of any liability whatsoever on the part of any of them or any other person, firm or corporation whatsoever. 7. FURTHER REPRESENTATIONS AND WARRANTY. Each of the parties hereto warrants and represents that such party has not assigned or in any way conveyed, transferred or encumbered all or any portion of the Claims or other rights covered by this Agreement and that this Agreement has been duly authorized, executed and delivered on behalf of each party and is valid and enforceable against such party in accordance with its terms and each party further acknowledges and agrees that these warranties and representations are an essential and material term of this Agreement without which consideration would not have been given and delivered. 2 3 8. ATTORNEYS FEES. Each party agrees to bear all of its own costs and attorneys' fees and all other costs with respect to the matters described in this Agreement. 9. GOVERNING LAW. This Agreement is made and entered into in the State of California and is to be governed by and interpreted in accordance with the laws of the State of California. 10. INTERPRETATION. If there is any dispute with respect to this Agreement the interpretation of the words herein shall be made with respect to the fair meaning of the words and not for or against any party because one party drafted the document. 11. COUNTERPARTS. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have this day and year executed and delivered this instrument. SGI International Ernest P. Esztergar By: /s/Joseph A. Savoca By:/s/Ernest P. Esztergar - - ------------------------------ ------------------------------ Joseph A. Savoca, President Ernest P. Esztergar 3 EX-28.9 4 ACQUISITION AGREEMENT DATED MARCH 4, 1996 1 ACQUISITION AGREEMENT This Acquisition Agreement ("Acquisition Agreement") is entered into effective as of March 4, 1996 (the "Effective Date") by and between SGI International ("SGI" or "Seller") and the A. H. Kerr Foundation ("Foundation" or "Buyer"). RECITALS A. Foundation loaned SGI at various times during 1995 and early 1996 an amount of money, which as of March 1996, including principal and interest, approximates three hundred and fifty four thousand dollars ($354,000) (the "Loan"). Each of the loans was memorialized by the issuance by SGI of Promissory Notes (the "Notes"), with an interest rate of ten percent (10%) , payable on December 31, 1996. B. The Foundation is interested in converting the Loan into the common stock of SGI International by using the Loan to purchase common stock. C. SGI is interesting in selling common stock in the amount of 283,200 shares valued as of March 4, 1996. The closing bid price for SGI common stock on the Effective Date was $1.71875. AGREEMENT 1. ACQUISITION. In return for the cancellation and delivery of the Notes, which constitute good and valuable consideration, receipt of which is hereby acknowledged, SGI International, an Utah corporation ("COMPANY") whose address is 1200 Prospect, Suite 325, La Jolla, Ca., 92037, hereby agrees to and does sell and tender to the Foundation, two hundred eighty three thousand and two hundred (283,200) shares of its common stock. 2. PURCHASE PRICE. The purchase price for the two hundred eighty three thousand and two hundred (283,200) shares shall be the sum of three hundred and fifty four thousand dollars ($354,000), which amount is evidenced by the Notes. Copies of the Notes, which shall be tendered to SGI by the Foundation and canceled upon issuance of the Shares are attached hereto as Exhibits A. 3. DELIVERY. SGI agrees that upon receipt of the Notes it shall immediately issue in the name of the Foundation a certificate for 283,200 shares of 144 stock, which shall immediately be transmitted to Foundation by registered U. S. mail. A copy of the form of that certificate is attached as Exhibit B. EXHIBIT 28.9 2 4. TIME AND PLACE OF SALE. For the purposes of this Agreement the parties agree that the date of the transfer and sale shall be as of March 4, 1996. 5. APPLICABLE LAW. The provisions of this Agreement shall be construed and enforced in accordance with the laws of the State of California. 6. 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. 7. 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. 8. 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. A. H. Kerr Foundation SGI International , a Utah corporation /s/William Kerr /s/Joseph A. Savoca - - ------------------- ----------------------- By: William Kerr By: Joseph A. Savoca President 2 EX-28.9.1 5 SETTLEMENT AND GENERAL RELEASE 1 2 SETTLEMENT AND GENERAL RELEASE This Settlement and General Release ("Agreement") is entered into effective as of March 4, 1996 (the "Effective Date") by and between SGI International ("SGI") and the A. H. Kerr Foundation ("Foundation"). RECITALS A. Foundation loaned SGI at various times during 1995 and during early 1996 an amount of money, the principal amount of which as of March 1996, approximated three hundred and fifty four thousand dollars ($354,000) (the "Loan"). Each of the loans was memorialized by the issuance by SGI of Promissory Notes (the "Notes"), with an interest rate of ten percent (10%) , payable on December 31, 1996. B. The Foundation agreed to convert the Loan into the common stock of SGI International by using the Loan to purchase common stock. As part of that conversion the Foundation entered into an Acquisition Agreement dated March 4, 1996, and agreed to surrender all Notes. C. One of the Notes was lost and the parties desire to consummate the Acquisition Agreement by entering into this Agreement to provide for a surrender, cancellation of the one lost note for $50,000, as well as the cancellation and release of all obligations under the other notes that were surrendered. AGREEMENT NOW THEREFORE, in consideration of the matters set forth in the Recitals and for other good and valuable consideration the parties hereto agree as follows: 1. ACQUISITION. The parties agree that the Foundation has tendered all of the Notes, except for one for $50,000, which is apparently misplaced. Since the Acquisition Agreement requires the surrender of all of the Notes as a precondition to the issuance of SGI's stock to the Foundation the obligations of SGI under the Acquisition Agreement have not been performed. The parties intend to substitute this Release in place of requiring that the last of the Notes be surrendered to SGI for cancellation and SGI shall then perform its obligations under the Acquisition Agreement. 2. WARRANTY. Each of the parties hereto represent and warrant to the other that to the extent of his or its knowledge, the recitals set forth herein are true, correct, and accurate. EXHIBIT 28.9.1 2 3. CLAIMS. As used herein, "Claims" shall mean any and all claims, demands, agreements, contracts, covenants, representations, warranties, promises, undertakings, actions, suits, causes of action, obligations, debts, fees, costs, expenses, accounts, damages, judgments, losses, injuries and liabilities of whatsoever kind or nature in law, equity or otherwise, present or future, known or unknown, suspected or unsuspected, asserted or unasserted, whether against any party hereto or not, and whether or not concealed or hidden, based upon any facts, acts, or omissions occurring prior to the date hereof in any way involved in or related to any of the matters which are or were the subject of, or directly or indirectly involved with the facts relating or comprising this Agreement. 4. RELEASE. Foundation, on behalf of itself, including assignees, representatives, agents, or successors (collectively the "Releasors") do hereby and forever remise, release and discharge SGI and any of its agents or representatives, and any successors of and from any and all Claims, and in particular any claims relating to the Notes, which any of said Releasors have, have had, may have had, or now have or hereafter, can shall or may have against SGI or any of its officers, directors, representatives or successors. 5. WAIVERS. IT IS EXPRESSLY UNDERSTOOD THAT Section 1542 of the Civil Code of California provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." The provisions of Section 1542 of the Civil Code of California, if in any way applicable to this Release, as well as any similar provisions of the law of California or any other jurisdiction, ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVED AND RELINQUISHED by all parties hereto, and each of them. Each of the parties acknowledges that he, she, or it, or his, her, or its representatives, may hereafter discover facts in addition to or different from those which he, she, or it now believes concerning the subject matter of this General Release, and that notwithstanding any such new or different facts, this General Release shall remain in full force and effect and shall not be challenged in any way or sought to be voided or avoided. Such parties acknowledge and agree that this waiver is an essential and material term of this Release without which consideration agreed to have been given by each of the parties would not have been delivered or agreed to by the parties. All of the parties have been advised of their respective rights by legal counsel regarding this General Release and this waiver and understand and acknowledge its significance and the consequence of the release and waiver of Section 1542. 6. NO ADMISSIONS. The parties hereby acknowledge and agree that this is a compromise settlement, which is not in any respect nor for any purpose to be deemed or construed to be, or in any way to be used as evidence of any admission or concession of any liability whatsoever on the part of any of them or any other person, 3 firm or corporation whatsoever. 7. FURTHER REPRESENTATIONS AND WARRANTY. Each of the parties hereto warrants and represents that such party has not assigned or in any way conveyed, transferred or encumbered all or any portion of the Claims or other rights covered by this General Release and that this General Release has been duly authorized, executed and delivered on behalf of each party and is valid and enforceable against such party in accordance with its terms and each party further acknowledges and agrees that these warranties and representations are an essential and material term of this General Release without which consideration would not have been given and delivered. 8. ATTORNEYS FEES. Each party agrees to bear all of its own costs and attorneys' fees and all other costs with respect to the matters described in this General Release. 9. GOVERNING LAW. This General Release is made and entered into in the State of California and is to be governed by and interpreted in accordance with the laws of the State of California. 10. INTERPRETATION. If there is any dispute with respect to this General Release the interpretation of the words herein shall be made with respect to the fair meaning of the words and not for or against any party because one party drafted the document. 11. COUNTERPARTS. This General Release may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have this day and year executed and delivered this instrument. SGI International A. H. Kerr Foundation By:/s/ Joseph A. Savoca By: /s/William A. Kerr - - ---------------------------------- ------------------------------- Joseph A. Savoca, President William A. Kerr, Vice President 3 -----END PRIVACY-ENHANCED MESSAGE-----