EXHIBIT 10.11
CONSULTING AGREEMENT
BETWEEN
HIENERGY TECHNOLOGIES, INC.
- AND -
PRIMORIS GROUP INC.
DATE: JULY 18, 2002
THIS CONSULTING AGREEMENT made as of the 1st day of August, 2002.
BETWEEN:
HiEnergy Technologies, Inc.
a corporation incorporated pursuant to the laws of the
State of Washington and having its head office at
00 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Tel: (000)000-0000
Fax: (000)000-0000
(hereinafter referred to as the "Company") OF THE FIRST PART
PRIMORIS GROUP INC.
a corporation incorporated pursuant to the laws of the
Province Ontario and having its head office at
00 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX X0X 0X0
Tel: (000)000-0000
Fax: (000)000-0000
(hereinafter referred to as the "Consultant") OF THE SECOND PART
WHEREAS the Company wishes to engage the Consultant to provide certain investor
relations services for the Company's business and the Consultant has agreed to
provide such services to the Company.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual
covenants and agreements herein contained and for other good and valuable
consideration, it is hereby agreed by and between the parties as follows:
1.0 DEFINITIONS
For the purpose of this Agreement, the following terms shall have the
following meanings:
"Agreement" means this agreement and all schedules attached hereto and
all amendments and modifications made by written agreement;
"Consulting Services" shall mean the corporate, media and investor
relations services relating to the Company's business, products, and
services of the Company to be provided by the Consultant as summarized
in Schedule A attached hereto, and in particular but without
restricting the generality of the foregoing, includes arranging
contacts and meetings, arranging attendance or representation of the
Company at conferences and, subject to the control and direction of
The Company, preparing corporate and product related materials for
Distribution to media, shareholders, brokers, analysts, investment
advisers and investors, and distributing same to media, shareholders,
brokers, analysts, investment advisors and investors
"Licensed Marks" means the licensed and unlicensed trademarks, trade
names and logos owned or licensed by the Company and used in
connection with the Company's
Business.
2.0 ENGAGEMENT
2.1 The Company hereby engages the Consultant to provide the Consulting
Services. The Consultant hereby accepts the engagement by the Company and
hereby agrees to provide the Consulting Services subject to the terms and
conditions hereinafter contained and subject to obtaining all necessary
regulatory approval hereto.
3.0 TERM
3.1 The term of this Agreement shall be for a period of one (1) year,
commencing on the 1st day of August, 2002 and, subject to the termination
provisions contained herein, shall terminate on July 31, 2003. This
Agreement may be renewed for such subsequent term and with such amendments
as may be agreed to in writing by the Company and the Consultant.
4.0 CONSULTANT'S OBLIGATIONS AND INDEMNITY
4.1 The Consultant agrees that during the term of this Agreement, it shall:
a) provide such of the Consulting Services to the Company in the manner
as the Company and the Consultant may reasonably agree from time to
time in writing;
b) use such of its effort, skill, attention and resources to properly
render the Consulting Services to the Company;
c) subject to the terms herein, provide materials relating to the
Company's business to persons requesting information about the Company
in a manner consistent with the provision of the Consulting Services;
d) provide the Consulting Services on a basis which does not impair the
activities and business interests of the Company;
e) perform the Consulting Services in accordance with all applicable
laws, including but not limited to, applicable securities rules and
regulations and the rules and policies of any stock exchange or stock
quotation service on which the Company's securities are traded or
quoted.
4.2 The Company acknowledges that it is aware the Consultant has outside
business activities, duties and financial interests. The Company agrees
that the performance by the Consultant of such activities and duties and
involvement in such financial interests shall not be construed as a
conflict of interest of the Consultant's obligations set out in this
Agreement.
4.3 In the course of providing the Consulting Services hereunder, the
Consultant shall be entitled to rely upon information received from the
Company, and will so disclose this fact in all communications.
4.4 The Consultant shall be responsible for the management and remuneration of
its employees and agents, including without limiting the generality of the
foregoing, the payment to the proper authorities of all employee and
employer taxes, insurance premiums, pension plan contributions, worker's
compensation premiums and all other employment expenses for all of the
Consultant's employees. Consultant agrees to maintain appropriate business
loss and liability insurance during the term this Agreement
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4.5 The Consultant agrees to indemnify and save the Company harmless with
respect to any claim, suit, proceedings or judgement, 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.
5.0 COMPANY'S OBLIGATIONS AND INDEMNITY
5.1 The Company hereby agrees that during the term of this Agreement it shall
provide, at the expense of the Company, the Consultant with such
information, resources (which includes Company staff members), financial
records, documents, product information and materials relating to the
Company's business as reasonably requested from time to time by the
Consultant, and which the Company is willing to disclose and provide, in
order for the Consultant to provide the Consulting Services in the manner
contemplated by this Agreement.
5.2 In the event of any act or omission by the Company or those at law for
which it is responsible during the term of this Agreement that results in
any loss or liability to the Consultant arising out of any claims against
the Consultant as a result of such act or omission by the Company,
including without limiting the generality of the foregoing any
misstatements, misrepresentations or omissions in information as provided
by the Company to the Consultant and as utilized by the Consultant in the
performance of the Consulting Services, the Company agrees to indemnify and
save harmless the Consultant against any such claims or liabilities, except
for those claims or liabilities arising out of or resulting from the
negligence or misconduct of Consultant. The Company's indemnity given
hereunder shall survive the termination of this Agreement.
6.0 COMPENSATION
6.1 In consideration of the provision by the Consultant of the Consulting
Services to the Company, the Company agrees to pay the Consultant, the sum
of Ten Thousand ($10,000) United States Dollars per month payable in
advance of the month in which services are to be rendered.
6.2 The Company agrees to pay the Consultant the sum of Twenty Thousand
($20,000) United States Dollars upon execution of this Agreement, such sum
representing payment for the first and last months of services to be
provided under this Agreement.
6.3 The Company agrees to reimburse the Consultant on a monthly basis for
approved expenses to be incurred by or on behalf of the Company pursuant to
the Consulting Services including reasonable disbursements for travel and
accommodation expenses, printing and mailing costs, long-distance charges,
outside services, and all other out-of-pocket expenses incurred by the
Consultant in the performance of its obligations pursuant to this
Agreement, provided that the Consultant will not incur any expenditure or
series of expenditures that exceeds US$1,500 without obtaining the prior
consent of the Company. The Consultant agrees to provide the Company with
support documentation for the disbursements and expenses incurred. The
Company agrees to pay any approved outstanding expenses prior to
termination of this Agreement.
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6.4 Notwithstanding Section 6.3, the Company further agrees to pay in advance
any single expenditure in excess of US$3,000, upon prior written consent,
if requested to do so by the Consultant.
6.5 In addition to the compensation and expense reimbursements detailed in
Sections 6.1 through 6.4 inclusive, the Company shall, upon execution of
this agreement, issue to the Consultant an option to purchase 400,000
unrestricted free-trading common shares of the Company at a price of
US$2.00 per share exercisable for a period 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 the first registration statement filed on form S-2 (or
any other Applicable form) by the Company to register securities subsequent
to execution of this Agreement.
7.0 TERMINATION
7.1 Either party may at any time after six (6) months after the commencement
date of this Agreement, terminate this Agreement by providing the other
party with at least sixty (60) days written notice.
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 the time period allowed for in
writing for the remedy of any such breach.
7.3 Upon termination of this Agreement, Consultant shall return to the Company
all material that is the property of the Company.
8.0 RELATIONSHIP
8.1 The Consultant shall at all times be an independent contractor and not the
servant or agent of the Company. No partnership, joint venture or agency
will be created or will be deemed to be created by this Agreement or by any
action of the parties under this Agreement. The Consultant shall not
represent itself as an agent, servant or employee of the Company. The
Consultant shall be an independent contractor with control over the manner
and means of its performance. Neither the Consultant nor its employees or
agents shall be entitled to rights or privileges applicable to employees of
the Company including, but not limited to, liability insurance, group
insurance, pension plans, holiday paid vacation and other benefit plans
which may be available from time to time between the Company and its
employees.
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9.0 CONFIDENTIALITY AND USE OF LICENSED MARKS
9.1 The Consultant will not, directly or indirectly, use, disseminate,
disclose, communicate, divulge, reveal, publish, use for its own benefit,
copy, make notes of, input into a computer data base or preserve in any way
any Confidential Information relating to the Company or its subsidiaries,
associates or affiliated Company's whether during the term of this
Agreement or thereafter, unless it first received written permission to do
so from an authorized officer of the Company.
9.2 For the purposes of this Agreement, "Confidential Information" is
information disclosed to or acquired by the Consultant relating to the
business of the Company, or its subsidiaries, associates or affiliated
Companies, their projects or the personal affairs of their directors,
officers and shareholders, including information developed or gathered by
the Consultant which has not been approved by the Company for public
dissemination. Confidential Information does not include information in the
public domain, information released from the provisions of this Agreement
by written authorization of an authorized officer of the Company,
information which is part of the general skill and knowledge of the
Consultant and does not relate specifically to the business of the Company,
and information which is authorized by the Company to be disclosed in the
ordinary course or is required by law or applicable regulatory policy to be
disclosed.
9.3 The Consultant shall consult with the Company before disseminating
information from the Company, including issuing any press release from the
Company or making any public statement from the Company contemplated hereby
and will not issue any such press release or make any such public statement
without the prior written consent of the Company.
9.4 Consultant agrees that all work performed under this Agreement, and all
materials made, conceived, expressed, developed, or actually or
constructively reduced to practice by Consultant solely or jointly with
others in connection with any services under this Agreement ("Work
Product") are Confidential Information and the property of the Company.
Upon the expiration or termination of this Agreement, or upon the earlier
request of the Company, Consultant will deliver to the Company all property
of the Company relating to, and all tangible embodiments of, Work Product
in Consultant's possession or control. Lists and databases of investor,
media and other contact information derived from the Consultant's own
proprietary lists and databases shall not be considered Work Product under
this Agreement, nor shall same be returned to the Company at the
termination of this Agreement.
9.5 The Company hereby licenses the Consultant to use the Licensed Marks in
connection with the provision of the Consulting Services. The Consultant
acknowledges that neither it nor any of its affiliates have or will obtain
any interest (proprietary or otherwise) in the Licensed Marks and shall
discontinue all use thereof (or of any similarly confusing trademarks,
trade names or other intellectual property or rights) immediately upon the
Company's written request or upon termination of this Agreement. The
Consultant will not contest the validity of the Licensed Marks and no
monetary amount shall be attributable to any goodwill associated with the
Company's use of the Licensed Marks.
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10.0 GENERAL CONTRACT TERMS
10.1 Any notice required or permitted to be given hereunder shall be given by
hand delivery, facsimile transmission or by registered mail, postage
prepaid, addressed to the parties at their respective addresses as set
forth in this Agreement and any such notices given by hand delivery or by
facsimile transmission shall be deemed to have been received on the date of
delivery or transmission and if given by prepaid registered mail, shall be
deemed to have been received on the third (3rd) business day immediately
following the date of mailing. The parties shall be entitled to give notice
of changes of addresses from time to time in the manner hereinbefore
provided for the giving of notice.
10.2 The provisions of this Agreement shall inure to the benefit of and be
binding upon the Company and the Consultant and their respective successors
and assigns. This Agreement shall not be assignable by either party without
the prior written consent of the other party.
10.3 This Agreement constitutes the entire agreement between the parties hereto
pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussions,
whether oral or written, of the parties hereto in connection with the
subject matter hereof. No supplement, modification, waiver or termination
of this Agreement shall be binding, unless executed in writing by the
parties to be bound thereby.
10.4 This Agreement shall be governed by the laws of the Province of Ontario.
Any controversy or claim arising out of or relating to this Agreement
shall, if not resolved within thirty (30) days, then either party may by
written notice to the other submit the dispute for resolution in accordance
with the Arbitrations Act (Ontario). The parties shall decide prior to the
commencement of any such arbitration whether the award of the arbitrator
shall be final and binding on the parties hereto. If the parties cannot
agree on whether the arbitration shall be final and binding, then either
party may proceed to have the matter dealt with by a court of competent
jurisdiction.
10.5 All dollar amounts herein are made in lawful money of the United States of
America and are exclusive of any applicable taxes the Consultant is
obligated by law to charge and/or collect from the Company in connection
with the rendering of its services.
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10.6 Time shall be of the essence of this Agreement
IN WITNESS WHEREOF this Agreement has been executed by the parties.
HIENERGY TECHNOLOGIES, INC.
/s/ Xxxxx Xxxxx
PER: _____________________
XXXXX XXXXX, PRESIDENT
AND CEO
PRIMORIS GROUP INC.
/s/ Xxxxxx Xxxxxxxx
PER: ______________________
XXXXXX XXXXXXXX, PRESIDENT
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SCHEDULE A
CONSULTING SERVICES TO BE PROVIDED
---------------------------------------
The following list contains an overview of the on-going services to be provided
to the Company by the Consultant.
CATEGORY DESCRIPTION
INVESTOR Account executives and staff payroll etc.
MEDIA AND Services include:
RELATIONS - Investor relations specialist
- Business media specialist
- Ongoing advice and guidance on all corporate events/news
- Creative guidance and coordination
- Media contact and follow-up on all news
- Media expertise
- Press release review and comments
- Dissemination coordination
- Database maintenance
- Updating of investor packages
- Updating of due diligence kits
- Corporate updates via email and/or fax
- Mailing/couriering of all packages
- Monitoring Internet forums and competition
- Agency-style management of direct marketing initiatives
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