EXHIBIT 10.1
AMENDMENT NO. 1 TO THE
CONSULTING AGREEMENT
This AMENDMENT NO. 1, dated as of October 19, 2005 (this "Amendment"), is
made to that certain CONSULTING AGREEMENT, effective as of August 9, 2005 (the
"Agreement"), by and between Xenonics Holdings, Inc., a Nevada corporation
having its principal offices at 0000 Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000-0000 (the "Company"), and Patriot Associates LLC, a New York
limited liability company having its principal offices at 000 X. 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Consultant").
Capitalized terms used but not defined herein shall have the meaning given
thereto in the Agreement.
WITNESSETH
WHEREAS, pursuant to the terms of the Agreement, the Consultant is to
provide marketing advice and perform related consulting services regarding the
marketing, positioning, sales strategies and sales processes of products in
foreign markets as an independent contractor on behalf of the Company;
WHEREAS, in return for such services Consultant is to receive the
Compensation set forth on Appendix 2 of the Agreement;
WHEREAS, Appendix 2 of the Agreement also provides that the Company shall
evaluate the performance of Consultant semi-annually and determine whether any
bonus compensation is appropriate to be paid to Consultant under the Agreement;
WHEREAS, the Company has made such evaluation and desires to grant the
bonus compensation as set forth herein; and
WHEREAS, the Consultant wishes to accept such bonus compensation in
accordance with the provisions hereof.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Consultant and the Company hereby agree as follows:
1. Amendment. The following amendment is made to the Agreement effective
as of the date hereof:
a. Appendix 2 of the Agreement is hereby amended by adding the
following sentence to the end of such paragraph:
"As of October 19, 2005, the Company has made an evaluation of the
Consultant's performance under the Agreement and agrees to issue to
the Consultant as of the date hereof (a) 187,500 shares of the
Company's common stock, par value $0.001 per share (the "Common
Stock") (such shares shall be issued subject to, and in accordance
with, applicable laws and the Registration Rights Agreement) and (b)
warrants to purchase 1,312,500 shares of Common Stock at an exercise
price of $2.00 per share; all such warrants shall vest and become
fully exercisable on the ninetieth (90th) day following the date
hereof based on the Consultant's performance under the Agreement,
subject to such earlier vesting date as shall be approved by the
Company based on the Consultant's performance under the Agreement
following the date hereof; the fair market value of the Company's
Common Stock, as of the issuance date of said warrants, as reported
by the American Stock Exchange was $1.95."
2. Ratification and Confirmation of the Agreement; No Other Changes.
Except as modified by this Amendment, the Agreement is hereby ratified and
confirmed in all respects. Nothing herein shall be held to alter, vary or
otherwise affect the terms, conditions and provisions of the Agreement, other
than as contemplated herein.
3. Effectiveness. This Amendment shall be effective as of the date hereof.
4. Counterparts. This Amendment may be executed in counterparts, each of
which shall constitute an original and both of which shall be deemed a single
agreement.
5. Governing Law. This Amendment shall be subject to the provisions of the
Procurement Integrity Act, The Lobby Disclosure Act of 1995, the Armed Services
Procurement Act of 1947, the Defense Procurement Improvement Act of 1985 and all
other applicable United States laws and regulations governing contacts and
conduct with the United States Congress and covered Executive Branch Officials;
and shall be subject to the laws of the STATE OF NEW YORK.
[Signature Page Follows]
EXECUTED as an instrument under seal as of the date first above written.
XENONICS HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Fax No.: 000-000-0000
Consultant:
PATRIOT ASSOCIATES LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Senior Partner
Fax No.: 000-000-0000
