Exhibit 10.44
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into this 15 day
of April, 2003
BETWEEN:
XXXXXXX VAN MUSSCHER, a businessman residing in Gruenwald, Germany
(hereinafter referred to as the "Consultant")
OF THE FIRST PART
AND
HIENERGY TECHNOLOGIES, INC., a company incorporated pursuant to the laws of the
State of Delaware.
(hereinafter referred to as the "Client")
OF THE SECOND PART
WHEREAS the Consultant and Client are desirous that the Consultant provide
certain services to the Client as set out herein.
NOW THEREFORE, in consideration of the mutual promises and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
I. CONSULTING SERVICES
The Client hereby retains the Consultant as an independent consultant to the
Client and the Consultant hereby accepts and agrees to such retention. The
Consultant shall:
(a) Develop a marketing plan for the expansion of the Clients business to
Europe;
(b) Introduce the business of the Client to Consultants contacts throughout
Europe;
(c) Introduce Client to Consultant's German contacts for the purpose concluding
a joint-venture relationship, licensee or distributor for carrying on
business in Germany and assist in such negotiations;
(d) Identify companies and/or product lines that Client might acquire that
would be complimentary to the Client's business and assist in such
acquisitions.
(e) Work as a liaison with the company and the specialist firm in Germany on
the company's exchange listing.
II. TIME, MANNER AND PLACE PERFORMANCE
The Consultant provides services similar to those provided for herein to other
clients that may include publicly traded companies. The Client agrees that the
Consultant does not and shall not be required to devote its full time and
efforts to the Client. The Consultant shall devote such time to the Client as is
reasonable and necessary to provide the Consulting Services to the Client.
Consultant shall be available for advice and counsel to the officers and
directors of the Client at such reasonable and convenient times and places as
may mutually be agreed upon.
III. TERM OF THE AGREEMENT
The Term of this Agreement shall be twelve (12) months, commencing on the date
of this Agreement set forth above ending twelve months of such date (the
"Term"), subject however, to prior termination as provided in Section XI of this
Agreement.
IV. COMPENSATION
In consideration of the Consulting Services to be provided to the Client by the
Consultant, Client hereby agrees to compensate Consultant as follows:
a. Client shall use best efforts to issue 20,000, subject to adjustment,
shares the common stock of the Client on or before May 1st, 2003 to
the Consultant. The number of shares of free trading stock shall have
a value of $20,000 as of the date of issuance as follows: the number
of shares to be issued to be determined by dividing $20,000 by the
average of the reported closing sale prices for the Company's common
stock for the five (5) trading days immediately preceding the date of
issuance.
V. SALES OF SHARES RECEIVED
It is Consultant's intention to sell the Shares received during the term of this
Agreement or shortly thereafter. The Client agrees that the Consultant may sell
the Shares at such times and in such manner as may be determined in the sole
discretion of the Consultant. Client understands that any sales of the Shares by
Consultant may have the effect of decreasing the trading price of the Client's
stock, particularly if Client's stock is thinly traded. The Consultant will use
reasonable efforts to make such sales at such times and in such a manner so as
to minimize any adverse effect to the Client from sales of the Shares. Under no
circumstances will the Client place stop transfer instructions ("Stop Transfer
Instructions") with its transfer agent with respect to the Shares. In the event
places Stop Transfer Instructions with respect to the Shares, Consultant may
deliver this Agreement to the transfer agent of Client, and notwithstanding the
Stop Transfer Instructions, transfer agent may then transfer the Shares at the
direction of the Consultant or Consultant's agent.
VI. DISCLOSURE OF INFORMATION
The Consultant recognizes and acknowledges that it has and will have access to
certain confidential information of the Client's and its affiliates that are
valuable, special and unique assets and property of the Client and such
affiliates ("Confidential Information"). The Consultant will not, during and
after the term of this Agreement, disclose, without the prior written consent or
authorization of the Client, any Confidential Information to any person, except
authorized representatives of the Consultant or its affiliates, for any reason
or purpose whatsoever. In this regard, the Client agrees that such authorization
or consent to disclose may be conditioned upon the disclosure being made
pursuant to a secrecy agreement, protective order, provision of statute, rule,
regulation or procedure under which the confidentiality of the information is
maintained in the hands of the person to whom the information is to be disclosed
or in compliance with the terms of a judicial order or administrative process.
Any information which has been disclosed to the public by the Client or upon the
specific written authorization of the client shall not be considered
Confidential Information.
VII. NATURE OF RELATIONSHIP
Nothing in this Agreement shall render any party a general partner of the other.
Except as set forth in this Agreement neither party is nor shall be a general
agent for the other and neither party is given authority to act on behalf of the
other. The Consultant is retained by the Client in an independent capacity and
except as set forth in this Agreement; Consultant shall not enter into any
agreement or incur any obligation on behalf of the Client. The Consultant shall
be responsible for the manner, means, and methods of performance of all services
under this Agreement and shall bear all of the costs thereof, including taxes,
insurance, travel, and lodging.
VIII. CONFLICT OF INTEREST
This Agreement is non-exclusive. The Consultant shall be free to perform
services for other companies and persons. Consultant will use its best efforts
to avoid conflicts of interest. Client agrees that it shall not be a conflict of
interest that Consultant devotes time and resources to companies and persons
other than Client. In the event that Consultant believes a conflict of interest
arises which may affect the performance of the Consulting Services for Client,
Consultant shall promptly notify the Client of such conflict. Upon receiving
such notice, the Client may terminate this Agreement pursuant to Section XI.
Failure to terminate this Agreement within 30 days of notification of any
conflict of interest shall constitute the Client's ongoing consent to the
Consultant's continued activities, which would be in conflict with client.
IX. INDEMNIFICATION FOR SECURITIES LAWS VIOLATIONS AND LIMITATION OF LIABILITY
a. The Client agrees to indemnify and hold harmless the Consultant
against any losses, claims, damages, liabilities and/or expenses
(including any legal or other expenses reasonably incurred in
investigating or defending any action or claim in respect thereof) to
which the Consultant may become subject under the Securities Act of
1933 as amended or the Securities Exchange Act of 1934 as amended or
German legislation and regulations, because of actions of the Client
or its agent(s), Client's material publicly available to the
Consultant, or materials provided to Consultant by Client for use by
Consultant in its performance under this Agreement.
b. The Consultant agrees to indemnify and hold the Client and each
officer, director and controlling person of the Client against any
loses, claims, damages, liabilities and/or expenses (including any
legal or other expenses reasonability incurred in investigating or
defending any action or claim in respect thereof) to which the Client
of such officer, director or controlling person may become subject
under the Securities Act of 1933 as amended or the Securities Exchange
Act of 1934 as amended or German legislation and regulations, solely
because of actions of the Consultant or his agent (s).
X. TRADING IN CLIENT'S SECURITY
During the term of this Agreement, except for the sale of the Shares received by
Consultant under this Agreement, the Consultant shall not engage in the purchase
or sale of any of the Client's securities.
XI. TERMINATION
Notwithstanding Section III of this Agreement, this Agreement may be terminated:
a. By the Client for any reason upon 30 days prior written notice to
Consultant. The Consultant will return a pro rata portion of the
Shares that reflects the portion of the Term completed by Consultant
prior to termination pursuant to this Section XI.
b. By Consultant upon 30 days prior written notice to the Client in the
event;
(i) Client requests Consultant to perform acts or services in
violation of any law, rule, regulation, policy or order of any federal
or state regulatory agency,
(ii) Client distributes to the public information containing material
misrepresentations or omissions, or
(iii) Client is engaging in conduct in violation of any law, including
rules, regulations, orders and policies of any federal or state
regulatory agency.
In the event of termination by Consultant pursuant to Section XI b,
the Consultant will return a pro rata portion of the Shares that
reflects the portion of the Term completed by Consultant prior to
termination pursuant to this Section XI.
XII. NOTICES
Any notices required or permitted to be given under this Agreement
shall be sufficient if in writing and delivered via FAX, to the FAX
number set forth below, or if sent by registered or certified mail,
return receipt requested, to the address set forth below.
a. If to Consultant:
Xxxxxxx Van Musscher
Xxxxxx-Xxxx-Xxxxxxx 00
00000 Xxxxxxxxx, Xxxxxxx
Fax: xx00 00 00 00 00 00
b. If to Client:
Xxxxxx Xxxxxxx
HiEnergy Technologies, Inc.
0000 Xxxxx Xxxxxxx,
Xxxx X
Xxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
XIII. APPLICABLE LAW
This Agreement shall be interpreted and construed in accordance with
and pursuant to the laws of the State of Delaware.
XIV. ARBITRATION
Any dispute, difference or question which may arise at any time
hereinafter between the Shareholders touching on the true construction
of this Agreement and the respective rights and obligations of each
party hereto to the other shall be referred to and settled by binding
arbitration under the American Arbitration Association. No arbitration
shall be commenced until the aggrieved party shall send to the other
party a written notice describing the problem and stating a proposed
solution ("Settlement Notice"). For Thirty (30) days after the sending
of the Settlement Notice, the parties shall try to settle the dispute
in good faith. During this Thirty (30) day settlement period, each
party shall send to the other an additional written notice with
further proposal for resolving the dispute and responding in detail to
the last proposal of the other party. The contents of the Settlement
Notice and of all discussions and writings during the Thirty (30) day
settlement period shall be without prejudice and shall be privileged
as settlement discussion and may not be used in any legal proceedings
or arbitration. The place of arbitration shall be in the State of
California. Judgement on the Arbitral award may be entered in any
court in the State of California or in any court having jurisdiction.
The parties hereby waive all defences as to personal jurisdiction,
venue and sovereign immunity from attachment, exception and
jurisdiction in any proceeding to confirm or enforce the award. The
laws of the State of Delaware shall govern all issues during the
arbitration. The decision of the Arbitrator shall be final and finding
on the parties.
XV. SEVERABILITY
The provisions contained herein are severable and in the event any of
them shall be held invalid, the Agreement shall be interpreted as if
such invalid provisions were not contained herein.
XVI. ENTIRE AGREEMENT
This entire Agreement constitutes and embodies the entire
understanding and agreement of the parties and supersedes and replaces
all prior understandings, agreements and negotiations of the parties.
This Agreement may not be modified, except in writing and signed by
all parties hereto.
XVII. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall
constitute and be deemed an original, but both of which taken together
shall constitute to one and the same document.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement the day and year first above written.
/s/ Xxxxxxx Van Musscher
------------------------------------
XXXXXXX VAN MUSSCHER, CONSULTANT
HIENERGY TECHNOLOGIES, INC.
By: /s/ X.X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx, Ph. D.
Its: Chairman, CEO & Chief Scientist
