EXHIBIT 10.12
AMENDMENT NO. 1
TO THE
CONSULTING AGREEMENT
THIS AMENDMENT NO. 1 TO THE CONSULTING AGREEMENT ("Amendment No. 1")
executed on the 19th day of August, 2002, amends that certain Consulting
Agreement (the "Original Agreement") entered into as of August 1, 2002, by and
between HiEnergy Technologies, Inc., a Washington corporation (the "Company")
and Primoris Group Inc., an Ontario corporation (the "Consultant") (together,
the "parties").
1. DEFINITIONS; REFERENCES. All capitalized terms used in this Amendment
------------------------
No. 1 not defined herein shall have the meanings given them in the Original
Agreement. References in this Amendment No. 1 and in the Original Agreement to
"this Agreement," "herein," "hereto" and words of similar import shall mean the
Original Agreement as modified by this Amendment No. 1.
2. SECTION REFERENCES. References to Sections herein shall refer to
-------------------
Sections in this Amendment No. 1. References to the Original Agreement Sections
shall refer to Sections in the Original Agreement.
3. EFFECT OF AMENDMENT NO. 1. This Amendment No. 1 modifies the Original
----------------------------
Agreement. The Original Agreement, as amended by this Amendment No. 1, is in
full force and effect, and the parties hereby ratify and affirm the same. In
the event of any conflict between the provisions of the Original Agreement and
this Amendment No. 1, the provisions of this Amendment No. 1 shall control.
4. AMENDMENT OF ORIGINAL AGREEMENT SECTION 4.1. The Original Agreement
------------------------------------------------
Section 4.1 is hereby amended to add a sentence to the end of Section 4.1 that
reads as follows: "The Consultant shall diligently perform its services in a
manner consistent with generally accepted industry standards."
5. AMENDMENT OF ORIGINAL AGREEMENT SECTION 4.5. The Original Agreement
------------------------------------------------
Section 4.5 is hereby superseded and replaced in its entirety by the following:
4.5 The Consultant agrees to indemnify and save the Company harmless with
respect to any investigation, claim, suit, proceedings or judgment
(including attorney fees whether or not a suit is filed and in
bankruptcy and in appeal), whether regulatory or of a court of
competent jurisdiction arising from any breach of the Agreement by the
Consultant. The Consultant's indemnity given hereunder shall survive
the termination of this Agreement. The Company shall conduct the
defense of any third party action unless the Consultant and the
Company mutually agree that the Consultant will conduct the defense.
6. ADD SECTION 4.6. A Section 4.6 is hereby added to the Original Agreement
---------------
that reads as follows:
4.6 If the indemnification provided for in Section 4.5 is held by a court
of competent jurisdiction to be unavailable to the Company with
respect to any losses, claims, damages or liabilities referred to
therein, the Consultant, in lieu of indemnifying the Company
thereunder, shall to the extent permitted by applicable law contribute
to the amount paid or payable by the Company as a result of such loss,
claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of each party in connection with the breach
or violation that resulted in such loss, claim, damage or liability,
as well as any other relevant equitable considerations. The relative
fault of the Consultant and the Company shall be determined by a court
of law.
7. ADD SECTION 5.3. A Section 5.3 is hereby added to the Original Agreement
---------------
that reads as follows:
5.3 If the indemnification provided for in Section 5.2 is held by a court
of competent jurisdiction to be unavailable to the Consultant with
respect to any losses, claims, damages or liabilities referred to
therein, the Company, in lieu of indemnifying the Consultant
thereunder, shall to the extent permitted by applicable law contribute
to the amount paid or payable by the Consultant as a result of such
loss, claim, damage or liability in such proportion as is appropriate
to reflect the relative fault of each party in connection with the
breach or violation that resulted in such loss, claim, damage or
liability, as well as any other relevant equitable considerations. The
relative fault of the Company and the Consultant shall be determined
by a court of law.
8. AMENDMENT OF ORIGINAL AGREEMENT SECTION 6.3. The first sentence of the
---------------------------------------------
Original Agreement Section 6.3 is hereby amended to include the following words
between "that exceeds US$1,500" and "without obtaining": "in a calendar month".
9. AMENDMENT OF ORIGINAL AGREEMENT SECTION 6.5. The Original Agreement
------------------------------------------------
Section 6.5 is hereby superseded and replaced in its entirety by the following:
6.5 In addition to the compensation and expense reimbursements detailed in
Sections 6.1 through 6.4, inclusive, and subject to approval by the
Board of Directors of the Company, the Company shall issue to the
Consultant an option to purchase 400,000 shares of common stock of the
Company at an exercise price of $2.00 per share with a term of two (2)
years. The Company agrees that the Consultant may elect to exercise
the option in whole or in part on one or more dates subject to the
limitation that the total number of shares purchased under the option
agreement shall not exceed 400,000. The Company agrees to make all
necessary legal and regulatory filings to enable the issuance of the
option agreement to the Consultant. The Company shall include the
securities to be issued to the Consultant under the option agreement
in each registration statement filed on Form SB-2 (or any other
applicable form) by the Company to register securities subsequent to
execution of this Agreement in the Registration Rights Agreement
between the parties. The Consultant agrees not to make any purchases
or sales of shares of the Company's common stock while in possession
of material nonpublic information about the Company.
10. AMENDMENT OF ORIGINAL AGREEMENT SECTION 7.2. The Original Agreement
-----------------------------------------------
Section 7.2 is hereby superseded and replaced in its entirety by the following:
7.2 Either party may terminate this Agreement at any time without notice
to the other party if the other party becomes insolvent or commences
proceedings or any proceedings are commenced against it under any
bankruptcy, insolvency or creditor protector legislation or the other
party does not remedy any breach of this Agreement within 30 days of
such breach.
11. AMENDMENT OF ORIGINAL AGREEMENT SECTION 10.4. The Original Agreement
-----------------------------------------------
Section 10.4 is hereby superseded and replaced in its entirety by the following:
10.4 This Agreement shall be construed and enforced according to the laws
of the State of California, without regard to conflicts of laws
principles thereof. All legal actions arising under this Agreement may
be instituted in, and the Consultant and the Company consent to
jurisdiction and venue in, the County of Orange, State of California.
All claims of breach of this Agreement by either party not barred and
foreclosed shall be resolved by arbitration between the parties in
Orange County, California and pursuant to the rules for commercial
arbitration of the American Arbitration Association. Any award thereon
may include mandatory or injunctive relief or a direction therefore in
the discretion of the arbitrator(s). Judgment upon an award duly
rendered in such an arbitration proceeding may be entered by the party
in whose favor the award has been made in any court having
jurisdiction to do so and over the party (including by contractual
consent) against whom such award has been rendered. Arbitration awards
for money in favor of the Company shall also be enforceable by it by
charging the amounts awarded it thereunder, in whole or in part,
against and deducting such amounts from amounts then owed to the
Consultant by the Company under this Agreement.
12. ADD SECTION 10.7. A Section 10.7 is hereby added to the Original
------------------
Agreement that reads as follows:
10.7 The failure of either party to enforce any provision of this Agreement
shall not be construed as a waiver or limitation of that party's right
to subsequently enforce and compel strict compliance with every
provision of this Agreement.
13. ADD SECTION 10.8. A Section 10.8 is hereby added to the Original
------------------
Agreement that reads as follows:
10.8 In the event one or more of the provisions of this Agreement should,
for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
14. COUNTERPARTS AND FACSIMILE SIGNATURE. This Amendment No. 1 may be
---------------------------------------
signed in counterparts, all of which when taken together shall constitute a
single executed document. Signatures transmitted by facsimile shall be deemed
valid execution of this Amendment No. 1 binding on the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
as of the date first above written.
THE COMPANY:
HIENERGY TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxx
-----------------
Xxxxx Xxxxx, President and CEO
THE OPTIONEE:
PRIMORIS GROUP INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------
Xxxxxx Xxxxxxxx, President
