EXHIBIT 10.1
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CONSULTANT AGREEMENT
THIS CONSULTANT SERVICES AGREEMENT ("Agreement") is made effective on
this the 21st day of October, 1999, by IRT INDUSTRIES, INC., a Florida
corporation ("IRT"), and Xxxxxxx X. Xxxxxx ("Consultant"), for consulting as
designated by the Board of Directors of IRT, in relation to the License
Agreement with Commerce Capital Group a South Carolina Limited Liability Company
"CCG".
WHEREAS the Consultant shall be responsible for all communications
between CCG and IRT, and for project management and programming oversight with
CCG in the development and timely implementation of the Internet software
application referenced in a license agreement between IRT and CCG.
R E C I T A L S:
The Company wishes to grant the Consultant, and Consultant wishes to
receive, as full compensation for such consultation services to the Company,
options to purchase 300,000 Shares of the common stock of the Company ("Common
Stock"), all pursuant to the provisions set forth herein;
NOW, THEREFORE, in consideration of the sum of twenty ($20.00) Dollars,
and other good and valuable consideration, the premises, mutual promises,
covenants, terms and conditions herein, the receipt and sufficiency of which,
are hereby acknowledged by the parties, and the parties do hereby agree as
follows:
1. GRANT OF SHARES. The Company hereby grants to the Consultant options
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redeemable for shares of Common Stock (the "Shares") in the Company.
2. SHARE DELIVERY. The Company shall deliver, subject to the terms and
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conditions of this Agreement, to the Consultant, the Shares in the form
of options for common stock at an exercise price of .0001 per share.
The options will be made available to the consultant in two increments
of 150,000 shares each. The first option for 150,000 shares may be
exercised immediately upon execution of the agreement and
implementation of a stock plan for payment to consultants. The second
option for 150,000 shares may be exercised on September 30, 2000. Both
options will expire three (3) years after the completion of the
contract period.
3. EXPENSES. In addition to the Consultant's direct compensation, during
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the time period in which the Consultant is employed on a full-time
basis, the Company will reimburse the Consultants direct and indirect
expenses through the payment of a "per diem" expense allotment of one
hundred dollars ($100) per working day.
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4. SERVICES. Consultant has been engaged by IRT and Consultant agrees
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that he will render IRT business consultation services as they relate
to implementation of the web based application and related interfaces
with IRT's contract with Commerce Capital Group LLC (CCG). Consultant
promises services until September 30, 2000. Such services shall
include coordinating software development between IRT and CCG
including implementation, supervision and support of the related
websites and their integration with CCG's applications. Consultant
will work on a full-time basis until the full estate planning
application is implemented. After the full estate planning application
is implemented, the Consultant will work on a part-time basis. While
working part-time the Consultant will be on-call to support resolution
of system issues, and will make himself available to supply such
assistance for up to 15 hours per week. Should business requirements
dictate that the consultant work on a full-time basis beyond February
28th, 2000, the Consultant shall have the option to attain additional
consideration/compensation. Such compensation must be agreed upon by
both the Consultant and IRT and will be effective March 1, 2000.
Should the Consultant and IRT be unable to agree upon terms for an
extension of full-time service beyond February 28th, 2000 the
Consultant will retain full ownership of the stock options already
vested, but will waive rights on options scheduled to be vested at the
end of the contract.
5. COMPENSATION. The Consultant is not entitled to receive cash
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compensation from any party in connection herewith, other than the
reimbursement of expenses as noted in "Paragraph 3" above. Also in
connection herewith, Consultant acknowledges that due to the
appearance of potential conflicts of interest and/or undue influence
that no outside compensation will be paid to Consultant for services
rendered in relation to this agreement, including CCG, or any related
person or entity. All Compensation shall be made in the form of
"Common Stock" of IRT Industries, Inc., as listed on the NASDAQ OTC-BB
symbol "IRTG" and the receipt of the shares as referenced herein shall
constitute full compensation. Consultant agrees that such sole
compensation shall be the Shares as identified in "Paragraph 2" above.
IRT shall incur no direct or indirect liabilities for expenses that
Consultant may incur or cause CCG to incur. The Consultant also
acknowledges that his employment with IRT shall be as an "independent
contractor" within the meaning of such as defined by the Internal
Revenue Code, and consultant further acknowledges that he will be
solely responsible for all taxes resulting from his compensation in
connection herewith.
6. REGISTRATION OR EXEMPTION. Notwithstanding anything to the contrary
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issued upon exercise of the option, unless the Shares are registered
pursuant to the Securities Act of 1933, as amended ("Act"), or an
exemption from such registration is available.
7. COMPANY'S RIGHTS. The existence of the Shares and/or this Plan shall
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not affect in any way the rights of IRT to conduct its normal or any
legal business of IRT.
8. AMENDMENTS. This Agreement may not be amended unless by the written
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consent of the Board of IRT and Consultant.
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9. EXCLUSIVE. The Consultant agrees that during the period from the
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beginning of this Agreement until September 30, 2000, Consultant will
not engage any outside commitments, which will render him unable to
comply fully as anticipated herein with his duties and obligations to
IRT.
10. GOOD FAITH AND FAIR DEALING. The Consultant will use every reasonable
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precaution to ensure that no material facts, representations or
promises are made without reasonable ability of any party to comply
with such. Consultant shall at all times use every precaution to
ensure that a high level of integrity and security is maintained in
carrying out his duties in connection herewith, with the understanding
that Consultant and IRT may be liable to CCG for unwarranted
disclosure or loss.
11. HOLD HARMLESS. The Consultant agrees to hold IRT and CCG harmless for
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any and all liabilities, direct or indirect, hereafter that may arise
from the action(s), or lack thereof, of the Consultant.
12. GOVERNING LAW. This Agreement shall be governed entirely by the laws
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of the State of North Carolina. The sole venue for any action arising
hereunder shall be Mecklenburg County, North Carolina. Consultant
hereby consents to and waives jurisdiction in any other forum.
13. BINDING EFFECT. This Agreement shall be binding upon and for the
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benefit of the parties hereto and their respective heirs, permitted
successors, assigns and/or delegates.
14. CAPTIONS. The captions herein are for convenience and shall not
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control the interpretation of this Agreement.
15. COOPERATION. The parties agree to execute such reasonable necessary
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documents in order to carry out the intent and purpose of this
Agreement as set forth herein.
16. GENDER AND NUMBER. Unless the context otherwise requires, references
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in this Agreement in any gender shall be construed to include all
other genders, references in the singular shall be construed to
include the plural, and references in the plural shall be construed to
include the singular.
17. SEVERABILITY. In the event anyone or more of the provisions of this
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Agreement shall be deemed unenforceable by any court of competent
jurisdiction for any reason whatsoever, this Agreement shall be
construed as if such unenforceable provision was never contained
herein.
18. ENTIRE AGREEMENT. This Agreement supersedes, circumvents and replaces
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any and all other agreements that may have been reached, and it shall
replace such other agreements whether written or oral, in their
entirety, except as otherwise provided herein.
19. MULTIPLE COUNTERPARTS. This Agreement may be made and executed in
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multiple counterparts each being considered an Original, the validity
of which may not be contested.
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20. COLLABORATION WITH COMMERCE CAPITAL GROUP LLC. CCG has agreed to
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confidentially make available to IRT's Consultant all "Information"
necessary to perform his services hereunder. CCG shall provide to
Consultant access to programmers, software, code, resources and
programming theory, etc., as necessary to fulfill such requirements.
Consultant agrees that he will not personally for his own use or
benefit, or allow or cause another to use such information for his
personal benefit or that of another including IRT, except as expressly
set forth in the license agreement in relation hereto. Such
Information, in its entirety, including any derivatives thereof, shall
be considered the intellectual property of CCG and/or its licensors,
and such shall remain the sole and absolute work product, property and
intellectual property of CCG. Additionally, CCG may require, by
separate agreement, and Consultant hereby agrees and consents to the
execution of any other agreement including but not limited to a
confidentiality agreement necessary to ensure such confidentiality,
prior to the termination of this Agreement.
NOW WHEREAS, in consideration of the foregoing, the parties having
read, and understanding the same, or having had the opportunity to seek advice
on same, the parties do hereby sign, and affix their seals and agree to be bound
by the terms, conditions and provisions hereof, on this the day same bears date.
IRT Industries, Inc. Consultant
By:/s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxx X. Xxxxxxx, President, IRT Industries, Inc. Xxxxxxx X. Xxxxxx, Consultant
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