-----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, QDqsNjjIh6Ug3s2L/yiQqHsY3sUlkb54SpqrLbBvY2S7ImKOT65LxZkVLkOueAAz +1f31tPepDGaBPGAyilIzg== 0000936392-96-000316.txt : 19960612 0000936392-96-000316.hdr.sgml : 19960612 ACCESSION NUMBER: 0000936392-96-000316 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960607 EFFECTIVENESS DATE: 19960626 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SGI INTERNATIONAL CENTRAL INDEX KEY: 0000737955 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING SERVICES [8711] IRS NUMBER: 330119035 STATE OF INCORPORATION: UT FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-05547 FILM NUMBER: 96578507 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 S-8 1 SGI INTERNATIONAL -- FORM S-8 1 As filed with the Securities and Exchange Commission on June 6, 1996 File No. 2-93124 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------- SGI INTERNATIONAL (Exact Name of Registrant as Specified in its Charter) -------------- UTAH 33-0119035 (State or Other Jurisdiction (I.R.S. Employer of Incorporation) Identification No.) 1200 PROSPECT STREET, SUITE 325 92037 LA JOLLA, CALIFORNIA (Zip Code) (Address of Registrant's Principal Executive Office) -------------- EMPLOYMENT AGREEMENTS DATED AS OF MARCH 1, 1994, MARCH 31, 1994 AUGUST 15, 1994, DECEMBER 1, 1994, MARCH 16, 1995,JUNE 12, 1995, MARCH 1, 1996, AMENDMENTS TO EMPLOYMENT AGREEMENTS DATED AS OF MARCH 31, 1993, MARCH 31, 1994 MARCH 31, 1995, JULY 15, 1995, OCTOBER 31, 1995, CONSULTING AGREEMENT DATED AS OF JUNE 1, 1995. (Full title of the plan) MR. LYNN MABEY MURPHY, TOLBOE & MABEY 124 SOUTH 600 EAST, SUITE 100 SALT LAKE CITY, UTAH 84102 (Name and Address of Agent for Service) (801) 533-8505 (Telephone number, including area code, of agent for service) -------------- Copies of correspondence to: David A. Fisher Fisher Thurber, LLP 4225 Executive Square, Suite 1600 La Jolla, California 92037-1483 (619) 535-9400 ================================================================================ 2
Calculation of Registration Fee ==================================================================================================================== Proposed Maximum Proposed Maximum Amount of Title of Securities Amount to be Offering Price Aggregate Offering Registration to be Registered Registered(1) per Share (2) Price (2) Fee ----------------- ------------- ------------- --------- --- Common Stock, No 606,341 Shares $1.32 $800,370 $275.99 Par Value ====================================================================================================================
(1) Includes 320,341 shares previously issued. (2) Solely for the purpose of determining the registration fee, based on the average price of the Common Stock issued, and to be issued upon exercise of the Warrants which were granted in connection with the referenced Employment Agreements, Amended Employment Agreements and Consulting Agreements. ii 3 PART II ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents which have been filed with the Securities and Exchange Commission are incorporated by reference as of their respective dates and are a part hereof: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1995; (b) The Quarterly Report on Form 10-Q/A for the quarter ended March 31, 1996; and (c) The description of the Common Stock contained in the Company's Registration Statement on Form 8-A dated April 6, 1988, as amended by an amendment to Application or Report on Form 8 dated April 13, 1988. Additionally, all documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a post-effective amendment hereto which indicates that all of the shares of the Common Stock offered hereby have been sold or which deregisters all such shares then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL None. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Bylaws of the Company provide that, subject to any limitations imposed by the Utah Revised Business Corporation Act, the officers and directors of the Company shall be indemnified by the Company against expenses, including attorneys' fees, reasonably incurred in connection with or resulting from the defense of any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which such person becomes or is threatened to be made part of by reason of his position as an officer, director, employee or agent of the Company or his service at the request of the Company as an officer, director, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, provided that, in the context of such action, such officer or director acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company, and with respect to any criminal action or proceeding, such officer or director had no reasonable cause to believe his conduct was unlawful. Any indemnification made pursuant to the Bylaws shall be made only upon the determination by a majority vote of a quorum of the Board of Directors, provided, however, that such indemnification shall be made without such determination to the extent that the officer or director is successful in the defense of the action at issue. Additionally, any expenses incurred in defense of an action against an officer or director shall be paid in advance of final disposition of the action upon receipt of an undertaking by or on behalf of such officer or director to repay the amount advanced if it is ultimately determined that he is not entitled to be indemnified for such expenses. The Utah Revised Business Corporation Act (the "Code") permits the Company to indemnify an Officer or Director who was or is a party or is threatened to be made a party to any proceeding because of his or her position, if the Officer or Director acted in good faith and in a manner he or she reasonably believed to be in the best interests of the 1 4 Company. The Code authorizes the Company to advance expenses incurred in defending any such proceeding under certain circumstances, and if the Officer or Director is successful on the merits, it authorizes the Company to indemnify the Officer or Director against all expenses, including attorneys' fees, incurred in connection with any such proceeding. The Company's Bylaws reflect the indemnification provisions contained in the Utah Revised Business Corporation Act, except that pursuant to the Utah Revised Business Corporation Act no indemnification may be made to an officer or director in connection with an action by or in the right of the Company. Additionally, no indemnification may be made where the officer or director has been adjudged to be liable to the Company, unless and only to the extent that the court in which the action or suit was brought shall determine upon application that such person is fairly and reasonably entitled to indemnity for such expenses as the court considers proper. Registrant has currently in effect a claims made directors and officers liability insurance and company reimbursement insurance policy protecting its directors and officers against liability by reason of their being or having been directors or officers. The directors and officers liability portion of such policy covers all directors and officers of the registrant and of certain subsidiary companies. The policy provides for a payment on behalf of the directors and officers up to the policy limits for all Losses (as defined) which the directors and officers, or any of them, shall become legally obligated to pay, from claims made against them during the policy period for defined Wrongful Acts. The directors and officers or any of them shall become legally obligated to pay, from claims made against them during the policy period for defined wrongful acts, which include; errors, misstatements, misleading statements, acts or omissions, neglect or breach of duty by the directors or officers in the discharge of their duties solely in their capacity as directors and officers of the company, individually or collectively. The insurance includes the cost of defenses, appeals, bonds, settlements and judgments. The insurers limit of liability under the policy is $1 million in the aggregate for all losses per year. The policy contains various reporting requirements, deductibles, and exclusions. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS The following exhibits are filed pursuant to Item 601 of Regulation S-K: 3.1.2 Restated Articles of Incorporation(1) 4.2 Employment Agreement dated as of March 16, 1995, between Registrant and Ernest P. Esztergar(2) 4.3 Employment Agreement and First Amendment to Employment Agreement dated as of March 31, 1994, between Registrant and Richard J. Gibbens(2) 4.4 Employment Agreement and Second Amendment to Employment Agreement dated as of March 1, 1993, between Registrant and Joan Juhasz(2) 4.6.1 Third Amendment to Employment Agreement dated October 31, 1995 between Registrant and R. Brent Lassetter(3) 4.8 Employment Agreement and Fourth Amendment to Employment Agreement dated as of July 15, 1995, between Registrant and Jeffrey N. Montag(2) 4.9 Employment Agreement and Third Amendment to Employment Agreement dated March 31, 1995, between Registrant and Elon A. Place(2) 4.10 Employment Agreement dated as of March 1, 1994, between Registrant and Nancy C. Propp(2) 4.11 Employment Agreement and First Amendment to the Employment Agreement dated as of March 31, 1994, between Registrant and Claudine R. Savatt(2) 2 5 4.12 Employment Agreement dated as of June 12, 1995, between Registrant and Joseph A. Savoca(2) 4.13 Employment Agreement dated as of December 1, 1994, between Registrant and John Taylor(2) 4.15 Employment Agreement dated as of August 15, 1994, between Registrant and Ming Wang(2) 4.18 Employment Agreement dated as of March 1, 1996, between Registrant and Kimberly Krmpotich(4) 4.19 Consulting Agreement dated as of June 1, 1995, between Registrant and Franklin Rinker(4) 5. Opinion of Fisher Thurber, Ltd. regarding the legality of the Common Stock registered hereby(4) 23. Consent of Ernst & Young LLP, Independent Auditors(4) 23.1 Consent of Fisher Thurber, Ltd. (included in Exhibit 5)(4) (1) Incorporated by reference to Annual Report on Form 10-K (File No. 2-93124) for the year ended December 31, 1987. (2) Incorporated by reference to Registration Statement on Form S-8 (File No. 2-93124) filed on August 23, 1995. (3) Incorporated by reference to Registration Statement on Form S-8 (File No. 2-93124) filed on February 16, 1996. (4) Filed herewith. ITEM 9. UNDERTAKINGS The Company hereby undertakes: (1) to file, during any period in which offers or sales of the Common Stock are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided that if the information in paragraphs (i) and (ii) above and to be included in a post-effective amendment hereto is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Exchange Act and is incorporated by reference in the S-8 Registration Statement, no post-effective amendment hereto shall be filed; (2) that, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. Additionally, the undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the Exchange Act), that is incorporated by reference in the registration statement shall be deemed to be a new registration 3 6 statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expense incurred or paid by a director, officer or controlling person in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on June 6, 1996. SGI INTERNATIONAL By: /s/ JOSEPH A. SAVOCA ----------------------------------------- Joseph A. Savoca, Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- Chairman of the Board and /s/ JOSEPH A. SAVOCA Chief Executive Officer June 6, 1996 - --------------------------------------- Joseph A. Savoca /s/ ERNEST P. ESZTERGAR Director June 6, 1996 - ---------------------------------------- Ernest P. Esztergar /s/ NORMAN A. GRANT Director June 6, 1996 - ---------------------------------------- Norman A. Grant /s/ WILLIAM A. KERR Director June 6, 1996 - ---------------------------------------- William A. Kerr
5 8 Exhibit Index
No. Description Page - --- ----------- ---- 4.18 Employment Agreement dated as of March 1, 1996, between Registrant and Kimberly Krmpotich 10 4.19 Consulting Agreement dated as of June 1, 1995, between Registrant and Franklin Rinker 12 5. Opinion of Fisher Thurber, Ltd. regarding the legality of the Common Stock registered hereby 14 23. Consent of Ernst & Young LLP, Independent Auditors 16 23.1 Consent of Fisher Thurber, Ltd. (included in Exhibit 5) 14
EX-4.18 2 EMPLOYMENT AGREEMENT DATED AS OF MARCH 1, 1996 1 EXHIBIT 4.18 2 EMPLOYMENT AGREEMENT This agreement ("Agreement") is effective as of the 1st day of March, 1994, by and between SGI International, a Utah Corporation ("Employer"), and Kimberly A. Krmpotich, an individual ("Employee"). In consideration of the mutual agreements and the promises herein contained, the parties hereto agree as follows: 1. Employer hereby agrees to employ Employee, and Employee agrees to be employed, upon the terms and conditions set forth herein, as Administrative Assistant/Receptionist, commencing on the date hereof and ending March 1, 1997. 2. Employee shall receive a salary of One thousand four hundred eighty dollars ($1,520.00) per month, payable no less frequently than the fifteenth and the last day of each month. (a) As additional incentive compensation, Employer shall grant to Employee a Warrant to purchase one thousand (1,000) shares of SGI restricted common stock at an exercise price of $1.72 per share, which Warrant shall expire on 12/31/01. (b) As further Incentive Compensation, such bonuses and benefits as Employer's Board of Directors, in its sole discretion shall determine. (c) Compensation shall be reviewed by Employer and Employee at least annually. (d) Additional terms in Employer's Employee Handbook are hereby incorporated by reference as if fully set forth herein. 3. This Agreement cannot be modified except by a writing signed by the parties. 4. This Agreement shall constitute a contract under the laws of the State of California and shall be governed and construed in accordance with the laws of said state as to both interpretation and performance. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed at La Jolla, California as of the day first above written. SGI INTERNATIONAL EMPLOYEE By /s/ JOSEPH A. SAVOCA /s/ KIMBERLY A. KRMPOTICH -------------------------- ----------------------------- Joseph A. Savoca Kimberly A. Krmpotich EX-4.19 3 CONSULTING AGREEMENT DATED AS OF JUNE 1, 1995 1 EXHIBIT 4.19 2 CONSULTING AGREEMENT THIS AGREEMENT is made and entered into as of June 1, 1995, by and between FRANKLIN G. RINKER, an individual, 27457 Holiday Lane, Suite G, Perrysburg, Ohio 43551 ("CONSULTANT") and SGI INTERNATIONAL, a Utah corporation, 1200 Prospect Street, Suite 325, La Jolla, California 92037 ("COMPANY"). WITNESSETH that: COMPANY agrees to engage CONSULTANT and CONSULTANT agrees to serve as a consultant to COMPANY upon the following terms and conditions: 1. Independent Contractor: CONSULTANT shall have sole discretion as to the manner in which the consulting services performed hereunder are carried out and shall be an independent contractor and not an agent or employee of COMPANY. 2. Technical Consulting Services: CONSULTANT shall provide technical consulting services at such time as COMPANY may from time to time reasonably designate, with due regard for other obligations of the CONSULTANT, on a project-by-project basis, for a consulting fee as is mutually agreed prior to commencement thereof. In addition to consulting fees, CONSULTANT shall be entitled to warrants to purchase SGI common stock. Specific warrant terms, including but not limited to number of shares and exercise price, shall be set by SGI's Board of Directors. 3. Advance Estimates: Upon the request of the COMPANY, CONSULTANT shall without cost to COMPANY, provide an advance estimate which shall state: (a) The estimated total cost of consulting services and expenses for such project. (b) The estimated completion date for the performance of such services and a not-to- exceed final completion date, assuming no scope changes in the meantime. 4. Project Definition: Upon receipt of such advance estimates by COMPANY, COMPANY and CONSULTANT shall cooperate in defining the project, payments, times and all other provisions related to the performance of services by CONSULTANT with respect to such project, and shall enter into a supplemental letter agreement specifying the same. 5. Advance Authorization: COMPANY shall have no obligation to pay any fees, costs or expenses not authorized in writing by COMPANY before such fees, costs or expenses are incurred. 6. Records: CONSULTANT shall provide statements for services, fees and costs according to generally accepted accounting standards in sufficient detail to satisfy all state and federal taxing authorities. 7. Term: This Agreement shall commence as of June 1, 1995 and shall continue until December 31, 1996, unless extended by mutual written agreement. Either party may terminate this Agreement upon thirty (30) days prior written notice. 8. Enforcement: In the event of any litigation to enforce or interpret any provision of this Agreement, a court of competent jurisdiction may award either party reasonable attorneys fees and costs, in addition to any other appropriate relief. IN WITNESS WHEREOF, this Agreement is executed as of the day and year first written above. SGI INTERNATIONAL FRANKLIN G. RINKER By /s/ JOSEPH A. SAVOCO /s/ FRANKLIN G. RINKER ------------------------- ----------------------------- EX-5 4 OPINION OF FISHER THURBER, LTD. 1 EXHIBIT 5. 2 [FISHER THURBER LLP LETTERHEAD] June 6, 1996 SGI International 1200 Prospect Street La Jolla, CA 92037 Re: Form S-8 Registration Statement Gentlemen: We have acted as special counsel to SGI International, a Utah corporation (the "Company") in connection with the review of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission in order to register 512,509 shares of the Company's common stock, no par value per share (the "Common Stock"), issued and issuable upon exercise of the Warrants accompanying the Employment Agreements and Consulting Agreements referenced in the Registration Statement. For purposes of rendering this opinion, we have made such legal and factual examinations as we have deemed necessary under the circumstances and, as part of such examination, we have examined among other things, originals and copies, certified or otherwise, identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary or appropriate. For the purposes of such examination, we have assumed the genuineness of all signatures on original documents and the conformity to original documents of all copies submitted to us. On the basis of and relying upon the foregoing examination and assumptions, we are of the opinion that, assuming the Registration Statement shall have become effective pursuant to the provisions of the Securities Act of 1933, as amended, the shares of Common Stock being offered in the Registration Statement, when issued in accordance with the Registration Statement and the provisions of the Employment Agreement, Consulting Agreements and Warrants referenced in the Registration Statement, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, Fisher Thurber, Ltd. By: /s/ David A. Fisher -------------------------- David A. Fisher EX-23 5 CONSENT OF ERNST & YOUNG LLP 1 EXHIBIT 23 2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Employment Agreements dated as of March 1, 1994, March 31, 1994, August 15, 1994, December 1, 1994, March 16, 1995, June 12, 1995, March 1, 1996, Amendments to Employment Agreements dated as of March 31, 1993, March 31, 1994, March 31, 1995, July 15, 1995, October 31, 1995 and Consulting Agreement dated as of June 1, 1995 of our report dated March 11, 1996 with respect to the consolidated financial statements of SGI International included in its Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the Securities and Exchange Commission. ERNST & YOUNG LLP San Diego, California June 6, 1996 EX-23.1 6 CONSENT OF FISHER THURBER LLP 1 EXHIBIT 23.1 (included in Exhibit 5) -----END PRIVACY-ENHANCED MESSAGE-----