As filed with the Securities and Exchange
Commission on February 11, 1997 Reg. No. 33- ______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
WORLDPORT COMMUNICATIONS, INC.
(formerly Sage Resources, Inc.)
(Exact name of registration as specified in charter)
Delaware 84-1127336
(State of incorporation) (I.R.S. Employer Identification Number)
100 California Street, Suite 1400
San Francisco, California 94111
(Address of principal Executive Offices)
1996 Consultant Stock Grants Pursuant to
Written Consulting Agreements
(Full title of the Plan)
WILLIAM C. GIBBS, ESQ.
Snell & Wilmer, L.L.P.
111 East Broadway, Suite 900
Salt Lake City, Utah 84111
(801) 237-1900
(Name, address, including zip code, and
(telephone number, including area code, of agent for service)
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IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR INTEREST
REINVESTMENT PLANS, CHECK THE FOLLOWING BOX: [ ]
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share (1) Offering Price (1) Fee(1)
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Common Stock 650,000 $ 0.75 $ 487,500 $ 147.73
$.0001
par value
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(1) Estimated solely for purposes of calculating registration fee pursuant
to Rule 457(c) and 457(h) under the Securities Act of 1933, as amended
(the "Securities Act") based on the fair market value of the Common
Stock on February 10, 1997.
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PART I
INFORMATION REQUIRED IN SECTION 10(A) PROSPECTUS
This Registration statement is filed with the Securities and Exchange
Commission (the "Commission") for the purpose of registering shares of common
stock, $.0001 par value ("Common Stock") of the Registrant in connection with
its 1996 Consultant Stock Grants pursuant to written consulting agreements
(the "Plan").
Information required by Part I (Items 1 and 2) is included in documents
sent or given to participants in the Plan pursuant to Rule 428(b)(1) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference into this
Registration Statement, and are made a part hereof:
(a) The Registrant's annual report on Form 10-KSB, for
the fiscal year ended December 31, 1995.
(b) The Registrant's quarterly report on Form 10-QSB, for
the fiscal quarter ended March 31, 1996.
(c) The Registrant's quarterly report on Form 10-QSB for
the fiscal quarter ended June 30, 1996.
(d) The Registrant's quarterly report on Form 10-QSB for
the fiscal quarter ended September 30, 1996.
(e) The Registrant's Form 8-K Reports filed on June 20,
1996 and August 12, 1996.
(f) All documents filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after
the date of this Registration Statement and prior to the filing of a
post-effective amendment indicating that all of the securities offered
hereby have been sold, or deregistering all such securities then
remaining unsold, shall be deemed to be incorporated by reference and
to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed
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document which also is incorporated or deemed incorporated by reference
herein modifies or supersedes such statement. Any such document so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Authorized Shares.
Under the Registrant's Certificate of Incorporation ("Certificate of
Incorporation"), the authorized Stock of the Company consists of 65,000,000
shares of Common Stock, $.0001 par value per share and 10,000,000 shares of
Preferred Stock, $.0001 par value per share. As of January 31, 1997, there are
9,053,666 shares of Common Stock issued and outstanding. No shares of Preferred
Stock have been issued.
Common Stock.
Holders of Common Stock are entitled to one vote for each share on all
matters voted by the shareholders and have no pre-emptive or other right to
subscribe for additional securities of the Company.
Each share of Common Stock has an equal and ratable right to receive
dividends when, as if declared by the Board of Directors out of assets legally
available therefore. In the event of a liquidation, dissolution, or winding up
of the Company, the holders of Common Stock will be entitled to share equally
and ratably in the assets available for distribution after the payment of
liabilities, subject only to any preferential distributions of holders of
Preferred Stock, if applicable.
Preferred Stock.
The Registrant's Certificate of Incorporation authorizes the Board, to
provide for the issuance of all or any shares of Preferred Stock in one or more
classes or series, to affix for each such class or series such voting of powers,
full or limited, or non-voting powers, and such distinctive designations,
limitations or restrictions thereof, as shall be stated and expressed in the
resolutions adopted by the Board of Directors providing for the issuance of such
class or series and as may be permitted by Delaware general corporation law,
including, without limitation, the authority to provide that any such class or
series may be (i) subject to redemption at such times and at such price or
prices; (ii) entitled to receive dividends (which may be cumulative or
non-cumulative) at such rates, on such conditions and at such times, and payable
in preference to, or in such relation to, the dividends payable in any other
class or classes or any other series; or (iii) entitled to such rights upon the
dissolution of, or upon any distribution of the assets of the Registrant, all as
may be stated in such resolution or resolutions.
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Stock Options.
The Company has reserved 2,000,000 shares of Common Stock under its
Long-Term Incentive Plan (the "LTI Plan"), for issuance in respect of stock
options granted under such LTI Plan. As of January 31, 1997, there were 50,000
outstanding options under the LTI Plan. In addition, the Company has also
authorized the issuance of 25,000 stock options to Daniel McGinnis.
Warrants.
Class A Warrants
The Company issued 40,000 Class A Common Stock Purchase Warrants (the
"Class A Warrants") to the original officers, directors and shareholders of the
Company. Each Class A Warrant allows the holder thereof to purchase one share of
the Company's Common Stock at an exercise price of twenty five dollars ($25) at
any time on or before April 24, 1997, subject to certain conditions and
limitations. Except as otherwise indicated, the Class A Warrants have the same
terms and conditions as the Class C Warrants described below. When used herein,
the term "Warrant" shall refer to the Class A, B and C Common Stock Purchase
Warrants.
Class B Warrants
The Company issued 40,000 Class B Common Stock Purchase Warrants (the
"Class B Warrants") to the original officers, directors and shareholders of the
Company. Each Class B Warrant allows the holder thereof to purchase one share of
the Company's Common Stock at an exercise price of fifty dollars ($50) at any
time on or before April 24, 1997, subject to certain conditions and limitations.
Except as otherwise indicated, the Class B Warrants have the same terms and
conditions as the Class C Warrants described below.
Class C Warrants
In its initial public offering the Company sold Class C Common Stock
Purchase Warrants and currently has 12,000 outstanding (the "Class C Warrants").
Each Class C Warrant entitles the warrant holder to purchase one share of the
Company's Common Stock at an exercise price of one hundred dollars ($100) per
share. The exercise period has been extended by the Company through April 24,
1997. The Company's board of directors may extend the exercise period at its
option, provided that written notice of such extension is given to the warrant
holders prior to the expiration date then in effect. The board of directors may,
at its discretion, reduce the exercise price for the Warrants, but in no event
will the exercise price be reduced below $5.00. The Warrants also contain
anti-dilution provisions in the case of stock dividend or stock splits.
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Transfer Agent and Registrar.
OTC Stock Transfer, Inc. is the transfer agent and registrar for the
Common Stock.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws provide that the Registrant may
indemnify any person who was or is made a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the Registrant), by reason of the fact that he or she is
or was a director, officer, employee, fiduciary or agent of the Registrant or is
or was serving at the request of the Registrant as a director, officer,
employee, fiduciary or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with such action, suit or proceeding if he or she
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to the best interests of the Registrant and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
The Registrant's Bylaws also provide that the Registrant may indemnify
a person who was or is made a party or is threatened to be made a party to any
proceeding by or in the right of the Registrant to procure a judgment in its
favor by reason of the fact that he or she is or was a director, officer,
employee or agent of the Registrant, or is or was serving at the request of the
Registrant as a director, officer, employee, fiduciary or agent of another
corporation or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action if he or she acted in good faith and in a manner he or
she reasonably believed to be in, or not opposed to, the best interests of the
Registrant. No indemnification shall be made in respect of any claim, issue or
matter as to which such person has been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the Registrant unless and
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only to the extent that the court in which the action is brought determines that
in view of all the circumstances such person is fairly and reasonably entitled
to indemnification for expenses which the court deems proper.
The Registrant's Bylaws also provide that to the extent that an
authorized representative of the Registrant who neither was nor is a director or
officer of the Registrant has been successful on the merits or otherwise in
defense of any action, suit or proceeding, he or she shall be indemnified by the
Registrant for and against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith. Such an authorized
representative may, at the discretion of the Registrant's Board of Directors, be
indemnified by the Registrant in certain circumstances to the same extent he or
she would have been had he or she been a director or officer of the Registrant.
A determination of whether indemnification is proper shall be made by
the Board of Directors by a majority vote of a quorum consisting of
disinterested directors or, if such a quorum is not obtainable or, even if
obtainable, as a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or by the Registrant's shareholders. The
Registrant shall advance expenses (including attorneys' fees) upon receipt of an
undertaking by or on behalf of the director to repay such amount unless it is
determined that he or she is entitled to be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the Exhibit Index which is included on page 9 of
this Registration Statement following the Signature Page.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(a) To include any prospectus required by Section 10(a)
(3) of the Securities Act;
(b) 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 this registration statement;
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(c) To include any material information with respect to
the plan of distribution not previously disclosed in
this registration statement or any material change to
such information in this registration statement.
Provided, however, that paragraphs (1)(a) and (1)(b) above do not apply
if the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this
registration statement.
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.
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.
4. For purposes of determining any liability under the 1933 Act, each
filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of
the 1934 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 statement relating to the securities at that time and shall be
deemed to be the initial bona fide offering thereof.
5. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission 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 expenses incurred or paid by a director, officer or controlling
person of the registrant 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.
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SIGNATURES
Pursuant to the requirements of the Act, the Registrant 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 Lake
Bluff, State of Illinois, on this 11 day of February, 1997.
WORLDPORT COMMUNICATIONS, INC.
By:/s/Jonathan Y. Hicks
Jonathan Y. Hicks
Principal Accounting 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 date indicated.
Signature Title Date
/s/Edward P. Mooney
Edward P. Mooney President, Chief Executive February 11, 1997
Officer, and Director
(Principal Executive Officer)
/s/Jonathan Y. Hicks
Jonathan Y. Hicks Vice President, Secretary, February 11, 1997
Treasurer, and Principal
Accounting Officer
/s/Phillip S. Magiera
Phillip S. Magiera Director February 11, 1997
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EXHIBIT INDEX
Exhibit numbers are in accordance with the Exhibit Table in Item 601 of
Regulation S-K.
SEQUENTIAL
EXHIBIT PAGE NO. OR
NUMBER DESCRIPTION REFERENCE
4.1 Consulting Agreement with Jonathan Y. Hicks 1
4.2 Consulting Agreement with Phillip S. Magiera 1
4.3 Consulting Agreement with Edward P. Mooney 1
4.4 Consulting Agreement with Paul A. Moore 1
4.5 Consulting Agreement with Theodore H. Swindells 1
5.1 Opinion of Snell & Wilmer L.L.P. 1
24.1 Consent of Snell & Wilmer L.L.P. 1
(included in the opinion filed as Exhibit 5.1).
24.2 Consent of Schumacher & Associates, Inc. 1
24.3 Consent of Wright & Seibert, P.C. 1
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CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 15th day of
July, 1996, by and between SAGE RESOURCES, INC., a Colorado corporation (the
"Company"), and JONATHAN Y. HICKS (the "Consultant").
R E C I T A L S
WHEREAS, the Company wishes to engage the Consultant to consult with
respect to certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in this Agreement as set forth below;
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM.
The term of this Agreement shall commence on the date hereof and end on
September 30, 1996.
2. CONSULTING SERVICES.
(a) For the term of this Agreement, the Consultant agrees
to render, or has rendered, the following consulting services to the
Company:
(i) Financial Analysis;
(ii) Strategic planning;
(iii) Market analysis; and
(iv) Due diligence regarding potential
acquisition candidates, excluding any of the Company's
subsidiaries or affiliates.
(b) Compensation. In consideration of the consulting services
set forth in paragraph 2(a), and subject to the terms and conditions
set forth herein, the Company hereby agrees to compensate the
Consultant with $1,250, payable by issuing to the Consultant 25,000
shares of Common Stock (the "Shares") of the Company, as of the
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Closing Date (as defined below), and to register such shares at the
time of issuance, or immediately thereafter, on Form S-8 under the
Securities Act of 1933, as amended.
(c) Issuance. Issuance and delivery of the Shares shall
be made at the offices of the Company on September 20, 1996 (the
"Closing Date"). On the Closing Date, the Company shall deliver to the
Consultant:
(i) the certificate or certificates evidencing the
Shares to be issued to the Consultant hereunder, registered in
the name of the Consultant; and
(ii) evidence that the Shares have been registered on
Form S-8, or an appropriately prepared Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering the
resale thereof.
(d) Expenses. During the term of the Consultant's engagement
hereunder, the Consultant shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Consultant in
performing services hereunder, including all travel and living expenses
while away from home on business at the request of and in the service
of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the
Company, and that any expenses in excess of $500 have been preapproved
in writing by the Company. Notwithstanding the foregoing, the
Consultant shall bear all expenses in connection with the initial
mailing of material describing the Company to brokers and dealers.
3. CONFIDENTIAL INFORMATION.
(a) Confidential Information. In connection with the providing
of consulting services hereunder, the Company may provide the
Consultant with information concerning the Company which the Company
deems confidential (the "Confidential Information"). The Consultant
understands and agrees that any Confidential Information disclosed
pursuant to this Agreement is secret, proprietary and of great value to
the Company, which value may be impaired if the secrecy of such
information is not maintained. The Consultant further agrees that he
will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information
in confidence and not to disclose such information, either directly or
indirectly, to any person or entity during the term of this Agreement
or any time following the expiration or termination hereof; provided,
however, that the Consultant may disclose the Confidential Information
to an assistant to whom disclosure is necessary for the providing of
services under this Agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
Confidential Information shall not include information which (i)
becomes generally available to the public other than as a result of a
disclosure by the Consultant or his assistants, agents or advisors, or
(ii) becomes available on a non-confidential basis to the Consultant
from a source other than the Company or its advisors, provided that
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such source is not known to the Consultant to be bound by a
confidentiality agreement with or other obligation of secrecy to the
Company or another party.
(c) Government Order. Notwithstanding anything to the contrary
in this Agreement, the Consultant shall not be precluded from
disclosing any of the Confidential Information pursuant to a valid
order of any governmental or regulatory authority, or pursuant to the
order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a
violation of this paragraph 3 would cause irreparable injury to the
Company, and that there may not be an adequate remedy at law for such
violation, the Company shall have the right, in addition to any other
remedies available at law or in equity, to enjoin the Consultant in a
court of equity for violating the provisions of this paragraph 3.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Consultant that as of
the date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation and has full power and authority to own
its respective property, carry on its respective business as now being
conducted, and enter into and perform its obligations under this
Agreement and to issue and deliver the Shares to be issued by it
hereunder. The Company is duly qualified as a foreign corporation and
is in good standing in all jurisdictions in which it is necessary to be
so qualified to transact business as currently conducted. This
Agreement has been duly authorized by all necessary corporate action,
executed, and delivered by the Company, and constitutes the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and to general
principles of equity.
(b) Authorization and Validity of Shares. The Shares have been
duly authorized and are validly issued and outstanding, fully paid and
nonassessable and free of any preemptive rights. The Shares are not
subject to any lien, pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all
actions and obtained all consents or approvals necessary to authorize
it to enter into and perform its obligations under this Agreement, to
issue the Shares to be issued by it and to consummate the transactions
contemplated hereby.
(d) No Violation. Neither the execution or delivery of this
Agreement, the issuance or delivery of the Shares, the performance by
the Company of its obligations under this Agreement, nor the
consummation of the transactions contemplated hereby will
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conflict with, violate, constitute a breach of or a default (with the
passage of time or otherwise) under, require the consent or approval of
or filing with any person (other than consents and approvals which have
been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or
assets of the Company, pursuant to the charter or bylaws of the
Company, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Company is party or to
which any such person or any of their respective properties or assets
is subject.
(e) Registration. The Shares have been, or will be upon the
filing of an S-8 Registration Statement, registered pursuant to the
Securities Act of 1933, as amended, and all applicable state laws.
5. FILINGS.
The Company shall furnish to the Consultant, promptly after the sending
or filing thereof, copies of all reports which the Company sends to its equity
security holders generally, and copies of all reports and registration
statements which the Company files with the Securities and Exchange Commission
(the "Commission"), any other securities exchange or the National Association of
Securities Dealers, Inc. ("NASD").
6. SUPPLYING INFORMATION.
The Company shall cooperate with the Consultant in supplying such
publicly available information as may be reasonably necessary for the Consultant
to complete and file any information reporting forms.
7. INDEMNIFICATION.
(a) The Company shall indemnify the Consultant from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Consultant in connection with such action, suit or proceeding if
(i) the Consultant was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not
opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Consultant did not act in good faith and in a
manner reasonably believed by the Consultant to be in or not opposed to
the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not
indemnify the Consultant with respect to any claim, issue or matter as
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to which the Consultant shall have been adjudged to be liable for gross
negligence or wilful misconduct in the performance of his duties
pursuant to this Agreement unless and only to the extent that the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, but in view of
all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(b) The Consultant shall indemnify the Company from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Company in connection with such action, suit or proceeding if
(i) the Company was made a party to any action, suit or proceeding by
reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good
faith and in a manner reasonably believed by the Consultant to be in or
not opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, did not reasonably believe his conduct
was lawful. Notwithstanding the foregoing, the Consultant shall not
indemnify the Company with respect to any claim, issue or matter as to
which the Company shall have been adjudged to be liable for gross
negligence or wilful misconduct in connection with the performance of
the Consultant's duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, the
Company is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS.
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the Consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that
Consultant is an independent contractor and that the Company shall have no right
to control the activities of the Consultant other than during the express period
of time in which the Consultant is performing services hereunder, and that such
control by the Company is solely predicated upon the consulting services
provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the Company.
The parties further acknowledge that the Consultant's services
hereunder are not exclusive, but that the Consultant shall be performing
services, and undertaking other responsibilities, for and with other entities or
persons, which may directly or indirectly compete with the Company. Accordingly,
the services of the Consultant hereunder are on a part-time basis only, and the
Company shall have no direction, control of, or interest in, the Consultant's
services which are not covered by the terms of this Agreement. The Company
hereby waives any conflict of interest which now exists or may hereafter arise
with respect to Consultant's current employment and future employment.
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9. NOTICE.
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder.
Notice shall be deemed properly given on the date of delivery.
To Consultant: Jonathan Y. Hicks
101 Waukegan, Suite 930
Lake Bluff, IL 60044
To the Company: Jonathon Winters, President
Sage Resources, Inc.
10 Exchange Place
Salt Lake City, UT 84111
10. MISCELLANEOUS.
(a) Waiver. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a
written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and may not be amended, modified, or
altered except by an instrument in writing signed by the party against
whom such amendment, modification, or alteration is sought to be
enforced. This Agreement supersedes and replaces all other agreements
between the parties with respect to any services to be performed by the
Consultant on behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Utah.
(d) Binding Effect. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(e) Construction. The captions and headings contained herein
are inserted for convenient reference only, are not a part hereof and
the same shall not limit or construe the provisions to which they
apply. References in this Agreement to "paragraphs" are to the
paragraphs in this Agreement, unless otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the
costs and expenses, including, without limitation, attorney's fees,
incurred by such party in connection with the negotiation, preparation
and execution of this Agreement and the transactions contemplated
hereby.
- 6 -
<PAGE>
(g) Assignment. No party hereto may assign any of its rights
or delegate any of its obligations under this Agreement without the
express written consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied
is intended or shall be construed to confer upon or give to any person,
firm or corporation, other than the parties hereto.
(i) Counterparts. This Agreement may be executed
simultaneously in two counterparts, each of which shall be deemed an
original, but both of which together shall constitute one and the same
agreement, binding upon both parties hereto, notwithstanding that both
parties are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
THE "COMPANY"
SAGE RESOURCES, INC.
By: /s/Jonathon Winters
Its: President
THE "CONSULTANT"
JONATHAN Y. HICKS
By: /s/Jonathan Y. Kicks
- 7 -
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 15th day of
July, 1996, by and between SAGE RESOURCES, INC., a Colorado corporation (the
"Company"), and PHILLIP S. MAGIERA (the "Consultant").
R E C I T A L S
WHEREAS, the Company wishes to engage the Consultant to consult with
respect to certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in this Agreement as set forth below;
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM.
The term of this Agreement shall commence on the date hereof and end on
September 30, 1996.
2. CONSULTING SERVICES.
(a) For the term of this Agreement, the Consultant agrees
to render, or has rendered, the following consulting services to the
Company:
(i) Identify telecommunications acquisition
targets, excluding any of the Company's subsidiaries or
affiliates;
(ii) Provide analysis regarding the
telecommunications market in relation to the Company's
Business Plan; and
(iii) Provide advice pertaining to corporate
governance.
(b) Compensation. In consideration of the consulting services
set forth in paragraph 2(a), and subject to the terms and conditions
set forth herein, the Company hereby agrees to compensate the
Consultant with $10,000, payable by issuing to the Consultant 200,000
shares of Common Stock (the "Shares") of the Company, as of the
- 1 -
<PAGE>
Closing Date (as defined below), and to register such shares at the
time of issuance, or immediately thereafter, on Form S-8 under the
Securities Act of 1933, as amended.
(c) Issuance. Issuance and delivery of the Shares shall
be made at the offices of the Company on September 20, 1996 (the
"Closing Date"). On the Closing Date, the Company shall deliver to the
Consultant:
(i) the certificate or certificates evidencing the
Shares to be issued to the Consultant hereunder, registered in
the name of the Consultant; and
(ii) evidence that the Shares have been registered on
Form S-8, or an appropriately prepared Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering the
resale thereof.
(d) Expenses. During the term of the Consultant's engagement
hereunder, the Consultant shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Consultant in
performing services hereunder, including all travel and living expenses
while away from home on business at the request of and in the service
of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the
Company, and that any expenses in excess of $500 have been preapproved
in writing by the Company. Notwithstanding the foregoing, the
Consultant shall bear all expenses in connection with the initial
mailing of material describing the Company to brokers and dealers.
3. CONFIDENTIAL INFORMATION.
(a) Confidential Information. In connection with the providing
of consulting services hereunder, the Company may provide the
Consultant with information concerning the Company which the Company
deems confidential (the "Confidential Information"). The Consultant
understands and agrees that any Confidential Information disclosed
pursuant to this Agreement is secret, proprietary and of great value to
the Company, which value may be impaired if the secrecy of such
information is not maintained. The Consultant further agrees that he
will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information
in confidence and not to disclose such information, either directly or
indirectly, to any person or entity during the term of this Agreement
or any time following the expiration or termination hereof; provided,
however, that the Consultant may disclose the Confidential Information
to an assistant to whom disclosure is necessary for the providing of
services under this Agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
Confidential Information shall not include information which (i)
becomes generally available to the public other than as a result of a
disclosure by the Consultant or his assistants, agents or advisors, or
(ii) becomes available on a non-confidential basis to the Consultant
from a source other than the Company or its advisors, provided that
- 2 -
<PAGE>
such source is not known to the Consultant to be bound by a
confidentiality agreement with or other obligation of secrecy to the
Company or another party.
(c) Government Order. Notwithstanding anything to the contrary
in this Agreement, the Consultant shall not be precluded from
disclosing any of the Confidential Information pursuant to a valid
order of any governmental or regulatory authority, or pursuant to the
order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a
violation of this paragraph 3 would cause irreparable injury to the
Company, and that there may not be an adequate remedy at law for such
violation, the Company shall have the right, in addition to any other
remedies available at law or in equity, to enjoin the Consultant in a
court of equity for violating the provisions of this paragraph 3.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Consultant that as of
the date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation and has full power and authority to own
its respective property, carry on its respective business as now being
conducted, and enter into and perform its obligations under this
Agreement and to issue and deliver the Shares to be issued by it
hereunder. The Company is duly qualified as a foreign corporation and
is in good standing in all jurisdictions in which it is necessary to be
so qualified to transact business as currently conducted. This
Agreement has been duly authorized by all necessary corporate action,
executed, and delivered by the Company, and constitutes the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and to general
principles of equity.
(b) Authorization and Validity of Shares. The Shares have been
duly authorized and are validly issued and outstanding, fully paid and
nonassessable and free of any preemptive rights. The Shares are not
subject to any lien, pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all
actions and obtained all consents or approvals necessary to authorize
it to enter into and perform its obligations under this Agreement, to
issue the Shares to be issued by it and to consummate the transactions
contemplated hereby.
(d) No Violation. Neither the execution or delivery of this
Agreement, the issuance or delivery of the Shares, the performance by
the Company of its obligations under this Agreement, nor the
consummation of the transactions contemplated hereby will
- 3 -
<PAGE>
conflict with, violate, constitute a breach of or a default (with the
passage of time or otherwise) under, require the consent or approval of
or filing with any person (other than consents and approvals which have
been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or
assets of the Company, pursuant to the charter or bylaws of the
Company, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Company is party or to
which any such person or any of their respective properties or assets
is subject.
(e) Registration. The Shares have been, or will be upon the
filing of an S-8 Registration Statement, registered pursuant to the
Securities Act of 1933, as amended, and all applicable state laws.
5. FILINGS.
The Company shall furnish to the Consultant, promptly after the sending
or filing thereof, copies of all reports which the Company sends to its equity
security holders generally, and copies of all reports and registration
statements which the Company files with the Securities and Exchange Commission
(the "Commission"), any other securities exchange or the National Association of
Securities Dealers, Inc. ("NASD").
6. SUPPLYING INFORMATION.
The Company shall cooperate with the Consultant in supplying such
publicly available information as may be reasonably necessary for the Consultant
to complete and file any information reporting forms.
7. INDEMNIFICATION.
(a) The Company shall indemnify the Consultant from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Consultant in connection with such action, suit or proceeding if
(i) the Consultant was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not
opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Consultant did not act in good faith and in a
manner reasonably believed by the Consultant to be in or not opposed to
the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not
indemnify the Consultant with respect to any claim, issue or matter as
- 4 -
<PAGE>
to which the Consultant shall have been adjudged to be liable for gross
negligence or wilful misconduct in the performance of his duties
pursuant to this Agreement unless and only to the extent that the
court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, but in view
of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(b) The Consultant shall indemnify the Company from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Company in connection with such action, suit or proceeding if
(i) the Company was made a party to any action, suit or proceeding by
reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good
faith and in a manner reasonably believed by the Consultant to be in or
not opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, did not reasonably believe his conduct
was lawful. Notwithstanding the foregoing, the Consultant shall not
indemnify the Company with respect to any claim, issue or matter as to
which the Company shall have been adjudged to be liable for gross
negligence or wilful misconduct in connection with the performance of
the Consultant's duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, the
Company is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS.
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the Consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that
Consultant is an independent contractor and that the Company shall have no right
to control the activities of the Consultant other than during the express period
of time in which the Consultant is performing services hereunder, and that such
control by the Company is solely predicated upon the consulting services
provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the Company.
The parties further acknowledge that the Consultant's services
hereunder are not exclusive, but that the Consultant shall be performing
services, and undertaking other responsibilities, for and with other entities or
persons, which may directly or indirectly compete with the Company. Accordingly,
the services of the Consultant hereunder are on a part-time basis only, and the
Company shall have no direction, control of, or interest in, the Consultant's
services which are not covered by the terms of this Agreement. The Company
hereby waives any conflict of interest which now exists or may hereafter arise
with respect to Consultant's current employment and future employment.
- 5 -
<PAGE>
9. NOTICE.
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder.
Notice shall be deemed properly given on the date of delivery.
To Consultant: Phillip S. Magiera
1 Colonial Road
Dover, MA 02030
To the Company: Jonathon Winters, President
Sage Resources, Inc.
10 Exchange Place
Salt Lake City, UT 84111
10. MISCELLANEOUS.
(a) Waiver. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a
written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and may not be amended, modified, or
altered except by an instrument in writing signed by the party against
whom such amendment, modification, or alteration is sought to be
enforced. This Agreement supersedes and replaces all other agreements
between the parties with respect to any services to be performed by the
Consultant on behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Utah.
(d) Binding Effect. This Agreement shall bind and inure
to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(e) Construction. The captions and headings contained herein
are inserted for convenient reference only, are not a part hereof and
the same shall not limit or construe the provisions to which they
apply. References in this Agreement to "paragraphs" are to the
paragraphs in this Agreement, unless otherwise noted.
(f) Expenses. Each party shall pay and be responsible
for the costs and expenses, including, without limitation, attorney's
- 6 -
<PAGE>
fees, incurred by such party in connection with the negotiation,
preparation and execution of this Agreement and the transactions
contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights
or delegate any of its obligations under this Agreement without the
express written consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied
is intended or shall be construed to confer upon or give to any person,
firm or corporation, other than the parties hereto.
(i) Counterparts. This Agreement may be executed
simultaneously in two counterparts, each of which shall be deemed an
original, but both of which together shall constitute one and the same
agreement, binding upon both parties hereto, notwithstanding that both
parties are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
THE "COMPANY"
SAGE RESOURCES, INC.
By: /s/Jonathon Winters
Its: President
THE "CONSULTANT"
PHILLIP S. MAGIERA
By: /s/Phillip S. Magiera
- 7 -
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 15th day of
July, 1996, by and between SAGE RESOURCES, INC., a Colorado corporation (the
"Company"), and EDWARD P. MOONEY (the "Consultant").
R E C I T A L S
WHEREAS, the Company wishes to engage the Consultant to consult with
respect to certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in this Agreement as set forth below;
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM.
The term of this Agreement shall commence on the date hereof and end on
September 30, 1996.
2. CONSULTING SERVICES.
(a) For the term of this Agreement, the Consultant agrees
to render, or has rendered, the following consulting services to the
Company:
(i) Strategic planning;
(ii) Preparation of corporate materials; and
(iii) Due diligence regarding potential
acquisition candidates, excluding any of the Company's
subsidiaries or affiliates.
(b) Compensation. In consideration of the consulting services
set forth in paragraph 2(a), and subject to the terms and conditions
set forth herein, the Company hereby agrees to compensate the
Consultant with $1,250, payable by issuing to the Consultant 25,000
shares of Common Stock (the "Shares") of the Company, as of the Closing
Date (as defined below), and to register such shares at the time of
issuance, or immediately thereafter, on Form S-8 under the Securities
Act of 1933, as amended.
- 1 -
<PAGE>
(c) Issuance. Issuance and delivery of the Shares shall
be made at the offices of the Company on September 20, 1996 (the
"Closing Date"). On the Closing Date, the Company shall deliver to the
Consultant:
(i) the certificate or certificates evidencing the
Shares to be issued to the Consultant hereunder, registered in
the name of the Consultant; and
(ii) evidence that the Shares have been registered on
Form S-8, or an appropriately prepared Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering the
resale thereof.
(d) Expenses. During the term of the Consultant's engagement
hereunder, the Consultant shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Consultant in
performing services hereunder, including all travel and living expenses
while away from home on business at the request of and in the service
of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the
Company, and that any expenses in excess of $500 have been preapproved
in writing by the Company. Notwithstanding the foregoing, the
Consultant shall bear all expenses in connection with the initial
mailing of material describing the Company to brokers and dealers.
3. CONFIDENTIAL INFORMATION.
(a) Confidential Information. In connection with the providing
of consulting services hereunder, the Company may provide the
Consultant with information concerning the Company which the Company
deems confidential (the "Confidential Information"). The Consultant
understands and agrees that any Confidential Information disclosed
pursuant to this Agreement is secret, proprietary and of great value to
the Company, which value may be impaired if the secrecy of such
information is not maintained. The Consultant further agrees that he
will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information
in confidence and not to disclose such information, either directly or
indirectly, to any person or entity during the term of this Agreement
or any time following the expiration or termination hereof; provided,
however, that the Consultant may disclose the Confidential Information
to an assistant to whom disclosure is necessary for the providing of
services under this Agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
Confidential Information shall not include information which (i)
becomes generally available to the public other than as a result of a
disclosure by the Consultant or his assistants, agents or advisors, or
(ii) becomes available on a non-confidential basis to the Consultant
from a source other than the Company or its advisors, provided that
such source is not known to the Consultant to be bound by a
confidentiality agreement with or other obligation of secrecy to the
Company or another party.
- 2 -
<PAGE>
(c) Government Order. Notwithstanding anything to the contrary
in this Agreement, the Consultant shall not be precluded from
disclosing any of the Confidential Information pursuant to a valid
order of any governmental or regulatory authority, or pursuant to the
order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a
violation of this paragraph 3 would cause irreparable injury to the
Company, and that there may not be an adequate remedy at law for such
violation, the Company shall have the right, in addition to any other
remedies available at law or in equity, to enjoin the Consultant in a
court of equity for violating the provisions of this paragraph 3.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Consultant that as of
the date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation and has full power and authority to own
its respective property, carry on its respective business as now being
conducted, and enter into and perform its obligations under this
Agreement and to issue and deliver the Shares to be issued by it
hereunder. The Company is duly qualified as a foreign corporation and
is in good standing in all jurisdictions in which it is necessary to be
so qualified to transact business as currently conducted. This
Agreement has been duly authorized by all necessary corporate action,
executed, and delivered by the Company, and constitutes the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and to general
principles of equity.
(b) Authorization and Validity of Shares. The Shares have been
duly authorized and are validly issued and outstanding, fully paid and
nonassessable and free of any preemptive rights. The Shares are not
subject to any lien, pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all
actions and obtained all consents or approvals necessary to authorize
it to enter into and perform its obligations under this Agreement, to
issue the Shares to be issued by it and to consummate the transactions
contemplated hereby.
(d) No Violation. Neither the execution or delivery of this
Agreement, the issuance or delivery of the Shares, the performance by
the Company of its obligations under this Agreement, nor the
consummation of the transactions contemplated hereby will conflict
with, violate, constitute a breach of or a default (with the passage of
time or otherwise) under, require the consent or approval of or filing
with any person (other than consents and approvals which have been
- 3 -
<PAGE>
obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or
assets of the Company, pursuant to the charter or bylaws of the
Company, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Company is party or to
which any such person or any of their respective properties or assets
is subject.
(e) Registration. The Shares have been, or will be upon the
filing of an S-8 Registration Statement, registered pursuant to the
Securities Act of 1933, as amended, and all applicable state laws.
5. FILINGS.
The Company shall furnish to the Consultant, promptly after the sending
or filing thereof, copies of all reports which the Company sends to its equity
security holders generally, and copies of all reports and registration
statements which the Company files with the Securities and Exchange Commission
(the "Commission"), any other securities exchange or the National Association of
Securities Dealers, Inc. ("NASD").
6. SUPPLYING INFORMATION.
The Company shall cooperate with the Consultant in supplying such
publicly available information as may be reasonably necessary for the Consultant
to complete and file any information reporting forms.
7. INDEMNIFICATION.
(a) The Company shall indemnify the Consultant from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Consultant in connection with such action, suit or proceeding if
(i) the Consultant was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not
opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Consultant did not act in good faith and in a
manner reasonably believed by the Consultant to be in or not opposed to
the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not
indemnify the Consultant with respect to any claim, issue or matter as
to which the Consultant shall have been adjudged to be liable for gross
negligence or wilful misconduct in the performance of his duties
pursuant to this Agreement unless and only to the extent that the court
in which such action or suit was brought shall determine upon
- 4 -
<PAGE>
application that, despite the adjudication of liability, but in view of
all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(b) The Consultant shall indemnify the Company from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Company in connection with such action, suit or proceeding if
(i) the Company was made a party to any action, suit or proceeding by
reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good
faith and in a manner reasonably believed by the Consultant to be in or
not opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, did not reasonably believe his conduct
was lawful. Notwithstanding the foregoing, the Consultant shall not
indemnify the Company with respect to any claim, issue or matter as to
which the Company shall have been adjudged to be liable for gross
negligence or wilful misconduct in connection with the performance of
the Consultant's duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, the
Company is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS.
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the Consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that
Consultant is an independent contractor and that the Company shall have no right
to control the activities of the Consultant other than during the express period
of time in which the Consultant is performing services hereunder, and that such
control by the Company is solely predicated upon the consulting services
provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the Company.
The parties further acknowledge that the Consultant's services
hereunder are not exclusive, but that the Consultant shall be performing
services, and undertaking other responsibilities, for and with other entities or
persons, which may directly or indirectly compete with the Company. Accordingly,
the services of the Consultant hereunder are on a part-time basis only, and the
Company shall have no direction, control of, or interest in, the Consultant's
services which are not covered by the terms of this Agreement. The Company
hereby waives any conflict of interest which now exists or may hereafter arise
with respect to Consultant's current employment and future employment.
- 5 -
<PAGE>
9. NOTICE.
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder.
Notice shall be deemed properly given on the date of delivery.
To Consultant: Edward P. Mooney
100 California Street, Suite 1400
San Francisco, CA 94111
To the Company: Jonathon Winters, President
Sage Resources, Inc.
10 Exchange Place
Salt Lake City, UT 84111
10. MISCELLANEOUS.
(a) Waiver. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a
written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and may not be amended, modified, or
altered except by an instrument in writing signed by the party against
whom such amendment, modification, or alteration is sought to be
enforced. This Agreement supersedes and replaces all other agreements
between the parties with respect to any services to be performed by the
Consultant on behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Utah.
(d) Binding Effect. This Agreement shall bind and inure
to the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(e) Construction. The captions and headings contained herein
are inserted for convenient reference only, are not a part hereof and
the same shall not limit or construe the provisions to which they
apply. References in this Agreement to "paragraphs" are to the
paragraphs in this Agreement, unless otherwise noted.
(f) Expenses. Each party shall pay and be responsible
for the costs and expenses, including, without limitation, attorney's
- 6 -
<PAGE>
fees, incurred by such party in connection with the negotiation,
preparation and execution of this Agreement and the transactions
contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights
or delegate any of its obligations under this Agreement without the
express written consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied
is intended or shall be construed to confer upon or give to any person,
firm or corporation, other than the parties hereto.
(i) Counterparts. This Agreement may be executed
simultaneously in two counterparts, each of which shall be deemed an
original, but both of which together shall constitute one and the same
agreement, binding upon both parties hereto, notwithstanding that both
parties are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
THE "COMPANY"
SAGE RESOURCES, INC.
By: /s/Jonathon Winters
Its: President
THE "CONSULTANT"
EDWARD P. MOONEY
By: /s/Edward P. Mooney
- 7 -
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 15th day of
July, 1996, by and between SAGE RESOURCES, INC., a Colorado corporation (the
"Company"), and PAUL A. MOORE (the "Consultant").
R E C I T A L S
WHEREAS, the Company wishes to engage the Consultant to consult with
respect to certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in this Agreement as set forth below;
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM.
The term of this Agreement shall commence on the date hereof and end on
September 30, 1996.
2. CONSULTING SERVICES.
(a) For the term of this Agreement, the Consultant agrees
to render, or has rendered, the following consulting services to the
Company:
(i) Identify telecommunications acquisition
targets; excluding any of the Company's subsidiaries and affiliates;
(ii) Interface with potential executive management
personnel; and
(iii) Conceive and develop a business development
strategy for the Company.
(b) Compensation. In consideration of the consulting services
set forth in paragraph 2(a), and subject to the terms and conditions
set forth herein, the Company hereby agrees to compensate the
consultant with $10,000, payable by issuing to the Consultant 200,000
shares of Common Stock (the "Shares") of the Company, as of the
- 1 -
<PAGE>
Closing Date (as defined below), and to register such shares at the
time of issuance, or immediately thereafter, on Form S-8 under the
Securities Act of 1933, as amended.
(c) Issuance. Issuance and delivery of the Shares shall
be made at the offices of the Company on September 20, 1996 (the
"Closing Date"). On the Closing Date, the Company shall deliver to the
Consultant:
(i) the certificate or certificates evidencing the
Shares to be issued to the Consultant hereunder, registered in
the name of the Consultant; and
(ii) evidence that the Shares have been registered on
Form S-8, or an appropriately prepared Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering the
resale thereof.
(d) Expenses. During the term of the Consultant's engagement
hereunder, the Consultant shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Consultant in
performing services hereunder, including all travel and living expenses
while away from home on business at the request of and in the service
of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the
Company, and that any expenses in excess of $500 have been preapproved
in writing by the Company. Notwithstanding the foregoing, the
Consultant shall bear all expenses in connection with the initial
mailing of material describing the Company to brokers and dealers.
3. CONFIDENTIAL INFORMATION.
(a) Confidential Information. In connection with the providing
of consulting services hereunder, the Company may provide the
Consultant with information concerning the Company which the Company
deems confidential (the "Confidential Information"). The Consultant
understands and agrees that any Confidential Information disclosed
pursuant to this Agreement is secret, proprietary and of great value to
the Company, which value may be impaired if the secrecy of such
information is not maintained. The Consultant further agrees that he
will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information
in confidence and not to disclose such information, either directly or
indirectly, to any person or entity during the term of this Agreement
or any time following the expiration or termination hereof; provided,
however, that the Consultant may disclose the Confidential Information
to an assistant to whom disclosure is necessary for the providing of
services under this Agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
Confidential Information shall not include information which (i)
becomes generally available to the public other than as a result of a
disclosure by the Consultant or his assistants, agents or advisors, or
(ii) becomes available on a non-confidential basis to the Consultant
from a source other than the Company or its advisors, provided that
- 2 -
<PAGE>
such source is not known to the Consultant to be bound by a
confidentiality agreement with or other obligation of secrecy to the
Company or another party.
(c) Government Order. Notwithstanding anything to the contrary
in this Agreement, the Consultant shall not be precluded from
disclosing any of the Confidential Information pursuant to a valid
order of any governmental or regulatory authority, or pursuant to the
order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a
violation of this paragraph 3 would cause irreparable injury to the
Company, and that there may not be an adequate remedy at law for such
violation, the Company shall have the right, in addition to any other
remedies available at law or in equity, to enjoin the Consultant in a
court of equity for violating the provisions of this paragraph 3.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Consultant that as of
the date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation and has full power and authority to own
its respective property, carry on its respective business as now being
conducted, and enter into and perform its obligations under this
Agreement and to issue and deliver the Shares to be issued by it
hereunder. The Company is duly qualified as a foreign corporation and
is in good standing in all jurisdictions in which it is necessary to be
so qualified to transact business as currently conducted. This
Agreement has been duly authorized by all necessary corporate action,
executed, and delivered by the Company, and constitutes the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and to general
principles of equity.
(b) Authorization and Validity of Shares. The Shares have been
duly authorized and are validly issued and outstanding, fully paid and
nonassessable and free of any preemptive rights. The Shares are not
subject to any lien, pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all
actions and obtained all consents or approvals necessary to authorize
it to enter into and perform its obligations under this Agreement, to
issue the Shares to be issued by it and to consummate the transactions
contemplated hereby.
(d) No Violation. Neither the execution or delivery of this
Agreement, the issuance or delivery of the Shares, the performance by
the Company of its obligations under this Agreement, nor the
consummation of the transactions contemplated hereby will
- 3 -
<PAGE>
conflict with, violate, constitute a breach of or a default (with the
passage of time or otherwise) under, require the consent or approval of
or filing with any person (other than consents and approvals which have
been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or
assets of the Company, pursuant to the charter or bylaws of the
Company, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Company is party or to
which any such person or any of their respective properties or assets
is subject.
(e) Registration. The Shares have been, or will be upon the
filing of an S-8 Registration Statement, registered pursuant to the
Securities Act of 1933, as amended, and all applicable state laws.
5. FILINGS.
The Company shall furnish to the Consultant, promptly after the sending
or filing thereof, copies of all reports which the Company sends to its equity
security holders generally, and copies of all reports and registration
statements which the Company files with the Securities and Exchange Commission
(the "Commission"), any other securities exchange or the National Association of
Securities Dealers, Inc. ("NASD").
6. SUPPLYING INFORMATION.
The Company shall cooperate with the Consultant in supplying such
publicly available information as may be reasonably necessary for the Consultant
to complete and file any information reporting forms.
7. INDEMNIFICATION.
(a) The Company shall indemnify the Consultant from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Consultant in connection with such action, suit or proceeding if
(i) the Consultant was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not
opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Consultant did not act in good faith and in a
manner reasonably believed by the Consultant to be in or not opposed to
the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not
indemnify the Consultant with respect to any claim, issue or matter as
- 4 -
<PAGE>
to which the Consultant shall have been adjudged to be liable for gross
negligence or wilful misconduct in the performance of his duties
pursuant to this Agreement unless and only to the extent that the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, but in view
of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(b) The Consultant shall indemnify the Company from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Company in connection with such action, suit or proceeding if
(i) the Company was made a party to any action, suit or proceeding by
reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good
faith and in a manner reasonably believed by the Consultant to be in or
not opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, did not reasonably believe his conduct
was lawful. Notwithstanding the foregoing, the Consultant shall not
indemnify the Company with respect to any claim, issue or matter as to
which the Company shall have been adjudged to be liable for gross
negligence or wilful misconduct in connection with the performance of
the Consultant's duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, the
Company is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS.
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the Consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that
Consultant is an independent contractor and that the Company shall have no right
to control the activities of the Consultant other than during the express period
of time in which the Consultant is performing services hereunder, and that such
control by the Company is solely predicated upon the consulting services
provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the Company.
The parties further acknowledge that the Consultant's services
hereunder are not exclusive, but that the Consultant shall be performing
services, and undertaking other responsibilities, for and with other entities or
persons, which may directly or indirectly compete with the Company. Accordingly,
the services of the Consultant hereunder are on a part-time basis only, and the
Company shall have no direction, control of, or interest in, the Consultant's
services which are not covered by the terms of this Agreement. The Company
hereby waives any conflict of interest which now exists or may hereafter arise
with respect to Consultant's current employment and future employment.
- 5 -
<PAGE>
9. NOTICE.
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder.
Notice shall be deemed properly given on the date of delivery.
To Consultant: Paul A. Moore
101 North Waukegan, Suite 930
Lake Bluff, IL 60044
To the Company: Jonathon Winters, President
Sage Resources, Inc.
10 Exchange Place
Salt Lake City, UT 84111
10. MISCELLANEOUS.
(a) Waiver. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a
written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and may not be amended, modified, or
altered except by an instrument in writing signed by the party against
whom such amendment, modification, or alteration is sought to be
enforced. This Agreement supersedes and replaces all other agreements
between the parties with respect to any services to be performed by the
Consultant on behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Utah.
(d) Binding Effect. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and assigns.
(e) Construction. The captions and headings contained herein
are inserted for convenient reference only, are not a part hereof and
the same shall not limit or construe the provisions to which they
apply. References in this Agreement to "paragraphs" are to the
paragraphs in this Agreement, unless otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the
costs and expenses, including, without limitation, attorney's fees,
- 6 -
<PAGE>
incurred by such party in connection with the negotiation, preparation
and execution of this Agreement and the transactions contemplated
hereby.
(g) Assignment. No party hereto may assign any of its rights
or delegate any of its obligations under this Agreement without the
express written consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied
is intended or shall be construed to confer upon or give to any person,
firm or corporation, other than the parties hereto.
(i) Counterparts. This Agreement may be executed
simultaneously in two counterparts, each of which shall be deemed an
original, but both of which together shall constitute one and the same
agreement, binding upon both parties hereto, notwithstanding that both
parties are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
THE "COMPANY"
SAGE RESOURCES, INC.
By: /s/Jonathon Winters
Its: President
THE "CONSULTANT"
PAUL A. MOORE
By: /s/Paul A. Moore
- 7 -
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 15th day of
July, 1996, by and between SAGE RESOURCES, INC., a Colorado corporation (the
"Company"), and THEODORE H. SWINDELLS (the "Consultant").
R E C I T A L S
WHEREAS, the Company wishes to engage the Consultant to consult with
respect to certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in this Agreement as set forth below;
A G R E E M E N T
NOW, THEREFORE, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM.
The term of this Agreement shall commence on the date hereof and end on
September 30, 1996.
2. CONSULTING SERVICES.
(a) For the term of this Agreement, the Consultant agrees
to render, or has rendered, the following consulting services to the
Company:
(i) Identify telecommunications acquisition
targets, excluding any of the Company's subsidiaries or
affiliates;
(ii) Strategic planning services; and
(iii) Conduct preliminary negotiations with
potential acquisition targets, excluding any of the Company's
subsidiaries or affiliates.
(b) Compensation. In consideration of the consulting services
set forth in paragraph 2(a), and subject to the terms and conditions
set forth herein, the Company hereby agrees to compensate the
Consultant with $10,000, payable by issuing to the Consultant 200,000
shares of Common Stock (the "Shares") of the Company, as of the
- 1 -
<PAGE>
Closing Date (as defined below), and to register such shares at the
time of issuance, or immediately thereafter, on Form S-8 under the
Securities Act of 1933, as amended.
(c) Issuance. Issuance and delivery of the Shares shall
be made at the offices of the Company on September 20, 1996 (the
"Closing Date"). On the Closing Date, the Company shall deliver to the
Consultant:
(i) the certificate or certificates evidencing the
Shares to be issued to the Consultant hereunder, registered in
the name of the Consultant; and
(ii) evidence that the Shares have been registered on
Form S-8, or an appropriately prepared Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering the
resale thereof.
(d) Expenses. During the term of the Consultant's engagement
hereunder, the Consultant shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by the Consultant in
performing services hereunder, including all travel and living expenses
while away from home on business at the request of and in the service
of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the
Company, and that any expenses in excess of $500 have been preapproved
in writing by the Company. Notwithstanding the foregoing, the
Consultant shall bear all expenses in connection with the initial
mailing of material describing the Company to brokers and dealers.
3. CONFIDENTIAL INFORMATION.
(a) Confidential Information. In connection with the providing
of consulting services hereunder, the Company may provide the
Consultant with information concerning the Company which the Company
deems confidential (the "Confidential Information"). The Consultant
understands and agrees that any Confidential Information disclosed
pursuant to this Agreement is secret, proprietary and of great value to
the Company, which value may be impaired if the secrecy of such
information is not maintained. The Consultant further agrees that he
will take reasonable security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such information
in confidence and not to disclose such information, either directly or
indirectly, to any person or entity during the term of this Agreement
or any time following the expiration or termination hereof; provided,
however, that the Consultant may disclose the Confidential Information
to an assistant to whom disclosure is necessary for the providing of
services under this Agreement.
(b) Exclusions. For purposes of this paragraph 3, the term
Confidential Information shall not include information which (i)
becomes generally available to the public other than as a result of a
disclosure by the Consultant or his assistants, agents or advisors, or
(ii) becomes available on a non-confidential basis to the Consultant
from a source other than the Company or its advisors, provided that
- 2 -
<PAGE>
such source is not known to the Consultant to be bound by a
confidentiality agreement with or other obligation of secrecy to the
Company or another party.
(c) Government Order. Notwithstanding anything to the contrary
in this Agreement, the Consultant shall not be precluded from
disclosing any of the Confidential Information pursuant to a valid
order of any governmental or regulatory authority, or pursuant to the
order of any court or arbitrator.
(d) Injunctive Relief. The Consultant agrees that, since a
violation of this paragraph 3 would cause irreparable injury to the
Company, and that there may not be an adequate remedy at law for such
violation, the Company shall have the right, in addition to any other
remedies available at law or in equity, to enjoin the Consultant in a
court of equity for violating the provisions of this paragraph 3.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Consultant that as of
the date hereof and as of the Closing Date (after giving effect to the
transactions contemplated hereby):
(a) Existence and Authority. The Company is a corporation duly
organized and validly existing in good standing under the laws of its
jurisdiction of incorporation and has full power and authority to own
its respective property, carry on its respective business as now being
conducted, and enter into and perform its obligations under this
Agreement and to issue and deliver the Shares to be issued by it
hereunder. The Company is duly qualified as a foreign corporation and
is in good standing in all jurisdictions in which it is necessary to be
so qualified to transact business as currently conducted. This
Agreement has been duly authorized by all necessary corporate action,
executed, and delivered by the Company, and constitutes the legal,
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and to general
principles of equity.
(b) Authorization and Validity of Shares. The Shares have been
duly authorized and are validly issued and outstanding, fully paid and
nonassessable and free of any preemptive rights. The Shares are not
subject to any lien, pledge, security interest or other encumbrance.
(c) Authorization of Agreement. The Company has taken all
actions and obtained all consents or approvals necessary to authorize
it to enter into and perform its obligations under this Agreement, to
issue the Shares to be issued by it and to consummate the transactions
contemplated hereby.
(d) No Violation. Neither the execution or delivery of this
Agreement, the issuance or delivery of the Shares, the performance by
the Company of its obligations under this Agreement, nor the
consummation of the transactions contemplated hereby will
- 3 -
<PAGE>
conflict with, violate, constitute a breach of or a default (with the
passage of time or otherwise) under, require the consent or approval of
or filing with any person (other than consents and approvals which have
been obtained and filings which have been made) under, or result in the
imposition of a lien on or security interest in any properties or
assets of the Company, pursuant to the charter or bylaws of the
Company, any award of any arbitrator or any agreement (including any
agreement with stockholders), instrument, order, judgment, decree,
statute, law, rule or regulation to which the Company is party or to
which any such person or any of their respective properties or assets
is subject.
(e) Registration. The Shares have been, or will be upon the
filing of an S-8 Registration Statement, registered pursuant to the
Securities Act of 1933, as amended, and all applicable state laws.
5. FILINGS.
The Company shall furnish to the Consultant, promptly after the sending
or filing thereof, copies of all reports which the Company sends to its equity
security holders generally, and copies of all reports and registration
statements which the Company files with the Securities and Exchange Commission
(the "Commission"), any other securities exchange or the National Association of
Securities Dealers, Inc. ("NASD").
6. SUPPLYING INFORMATION.
The Company shall cooperate with the Consultant in supplying such
publicly available information as may be reasonably necessary for the Consultant
to complete and file any information reporting forms.
7. INDEMNIFICATION.
(a) The Company shall indemnify the Consultant from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Consultant in connection with such action, suit or proceeding if
(i) the Consultant was made a party to any action, suit or proceeding
by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not
opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the Consultant did not act in good faith and in a
manner reasonably believed by the Consultant to be in or not opposed to
the best interests of the Company, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not
indemnify the Consultant with respect to any claim, issue or matter as
- 4 -
<PAGE>
to which the Consultant shall have been adjudged to be liable for gross
negligence or wilful misconduct in the performance of his duties
pursuant to this Agreement unless and only to the extent that the court
in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability, but in view
of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(b) The Consultant shall indemnify the Company from and
against any and all expenses (including attorneys' fees), judgments,
fines, claims, causes of action, liabilities and other amounts paid
(whether in settlement or otherwise actually and reasonably incurred)
by the Company in connection with such action, suit or proceeding if
(i) the Company was made a party to any action, suit or proceeding by
reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good
faith and in a manner reasonably believed by the Consultant to be in or
not opposed to the interests of the Company, and, with respect to any
criminal action or proceeding, did not reasonably believe his conduct
was lawful. Notwithstanding the foregoing, the Consultant shall not
indemnify the Company with respect to any claim, issue or matter as to
which the Company shall have been adjudged to be liable for gross
negligence or wilful misconduct in connection with the performance of
the Consultant's duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability, but in view of all the circumstances of the case, the
Company is fairly and reasonably entitled to indemnity for such
expenses which such court shall deem proper.
8. INDEPENDENT CONTRACTOR STATUS.
It is expressly understood and agreed that this is a consulting
agreement only and does not constitute an employer-employee relationship.
Accordingly, the Consultant agrees that the Consultant shall be solely
responsible for payment of his own taxes or sums due to the federal, state or
local governments, overhead, workmen's compensation, fringe benefits, pension
contributions and other expenses. It is further understood and agreed that
Consultant is an independent contractor and that the Company shall have no right
to control the activities of the Consultant other than during the express period
of time in which the Consultant is performing services hereunder, and that such
control by the Company is solely predicated upon the consulting services
provided hereunder and not because of any presumed employer-employee
relationship. The Consultant shall have no authority to bind the Company.
The parties further acknowledge that the Consultant's services
hereunder are not exclusive, but that the Consultant shall be performing
services, and undertaking other responsibilities, for and with other entities or
persons, which may directly or indirectly compete with the Company. Accordingly,
the services of the Consultant hereunder are on a part-time basis only, and the
Company shall have no direction, control of, or interest in, the Consultant's
services which are not covered by the terms of this Agreement. The Company
hereby waives any conflict of interest which now exists or may hereafter arise
with respect to Consultant's current employment and future employment.
- 5 -
<PAGE>
9. NOTICE.
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder.
Notice shall be deemed properly given on the date of delivery.
To Consultant: Theodore H. Swindells
100 California Street, Suite 1400
San Francisco, CA 94111
To the Company: Jonathon Winters, President
Sage Resources, Inc.
10 Exchange Place
Salt Lake City, UT 84111
10. MISCELLANEOUS.
(a) Waiver. Any term or provision of this Agreement may be
waived at any time by the party entitled to the benefit thereof by a
written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire
understanding between the parties hereto with respect to the
transactions contemplated hereby, and may not be amended, modified, or
altered except by an instrument in writing signed by the party against
whom such amendment, modification, or alteration is sought to be
enforced. This Agreement supersedes and replaces all other agreements
between the parties with respect to any services to be performed by the
Consultant on behalf of the Company.
(c) Governing Law. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Utah.
(d) Binding Effect. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective heirs,
executors, administrators, successors and assigns.
(e) Construction. The captions and headings contained herein
are inserted for convenient reference only, are not a part hereof and
the same shall not limit or construe the provisions to which they
apply. References in this Agreement to "paragraphs" are to the
paragraphs in this Agreement, unless otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the
costs and expenses, including, without limitation, attorney's fees,
incurred by such party in connection with the negotiation, preparation
and execution of this Agreement and the transactions contemplated
hereby.
- 6 -
<PAGE>
(g) Assignment. No party hereto may assign any of its rights
or delegate any of its obligations under this Agreement without the
express written consent of the other party hereto.
(h) No Rights to Others. Nothing herein contained or implied
is intended or shall be construed to confer upon or give to any person,
firm or corporation, other than the parties hereto.
(i) Counterparts. This Agreement may be executed
simultaneously in two counterparts, each of which shall be deemed an
original, but both of which together shall constitute one and the same
agreement, binding upon both parties hereto, notwithstanding that both
parties are not signatories to the original or the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
THE "COMPANY"
SAGE RESOURCES, INC.
By: /s/Jonathon Winters
Its: President
THE "CONSULTANT"
THEODORE H. SWINDELLS
By: /s/Theodore H. Swindells
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February 11, 1997
WORLDPORT COMMUNICATIONS, INC.
100 California Street, Suite 1400
San Francisco, California 94111
Ladies and Gentlemen:
Reference is made to your proposed registration and offering of 650,000
shares of Common Stock of WorldPort Communications, Inc., as contemplated by the
Registration Statement (the "Registration Statement") on Form S-8 filed by you
on February 11, 1997 ,with the Securities and Exchange Commission under the
Securities Act of 1933, as amended.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such corporate records, agreements, and other
instruments, certificates, orders, opinions, correspondence with public
officials, certificates provided by your officers and representatives, and other
documents, as we have deemed necessary or advisable for the purposes of
rendering the opinions set forth herein.
Based on the foregoing, it is our opinion that after the Registration
Statement shall have become effective and the shares shall have been issued and
delivered as described therein, such shares of Common Stock will be validly
issued, fully paid and non-assessable.
Consent is hereby given to the use of this opinion as part of the
Registration Statement referred to above and to the use of our name wherever it
appears in said Registration Statement and the related prospectus.
Very truly yours,
SNELL & WILMER, L.L.P.
Consent of Snell & Wilmer L.L.P.
(Included in the opinion filed as Exhibit 5.1)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of WorldPort Communications, Inc. on Form S-8 of our report dated
March 25, 1996, appearing in the Annual Report on Form 10-KSB of Sage Resources,
Inc. for the year ended December 31, 1995.
/s/Schumacher & Associates, Inc.
SCHUMACHER & ASSOCIATES, INC.
12835 East Arapahoe Road
Tower II, Suite 110
Englewood, CO 80112
February 6, 1997
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of WorldPort Communications, Inc. on Form S-8 of our report dated
February 15, 1996, on our audit of the financial statements of Sage Resources,
Inc. as of December 31, 1994, appearing in the Annual Report on Form 10-KSB of
Sabe Resources, Inc. for year ended December 31, 1995.
/s/Wright & Seibert P.C.
WRIGHT & SEIBERT, P.C.
12687 West Cedar Drive, Suite 330
Lakewood Colorado 80228
February 6, 1997
