EXHIBIT 10.2
CONSULTANT AGREEMENT
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This Agreement is made and entered into as of the 15th day of
October, 1999, between IRT Industries, Inc., a Florida corporation (the
"Company") and Xxxxx X. Xxxx ("Consultant").
In consideration of and for the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. Purpose. The Company hereby employed the Consultant during the
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Term (as defined below) to render consulting advice and services to the Company
in connection with the identification of suitable candidates for purchaseand/or
sales agreements, including introduction, negotiation and successful conclusion
negotiations, upon the terms and conditions set forth herein.
2. Term. This Agreement shall be effective for a period of one
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year (the "Term") commencing on the date hereof and shall be terminate by the
Company at its will at any time upon five business days' written notice.
3. Duties of Consultant. During the term of this Agreement, the
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Consultant shall provide the Company with such regular and customary advisory
services as is reasonably requested by the Company, provided that the
Consultant shall not be required to undertake duties not reasonably within
the scope of the services contemplated by this Agreement. In performance of
these duties, the Consultant shall provide the Company with the benefits of
Consultant's best judgment and efforts. It is understood and acknowledged by
the parties that the value of the Consultant's advice is not measurable in
any quantitive manner, and the Consultant shall be obligated to render
advice, upon the request of the Company, in good faith, but shall not be
obligated to spend any specific amount of time in doing so. The Consultant's
duties may include at the Company's request, but will not necessarily be limited
to:
a. Identifying candidate companies for acquisition and/or sales
agreements for product distribution;.
b. Introducing the Company to candidate companies;
c. Negotiating contracts with candidate companies.
Notwithstanding the foregoing, it is understood and
acknowledged by the parties that the Consultant shall not render advice and/or
services to the Company in any manner directly or indirectly, that is in
connection with the offer or sale of securities in a capital raising transaction
or that could result in market making.
4. Compensation. For services to be rendered by the Consultant
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hereunder, on the date hereof the Consultant shall receive options to purchase
a total of 700,000 shares of the Company's common stock, for a strike price
equal to the par value $0.0001 per share (the
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"Shares"). The value of the Shares at the time of this Agreement is $ 0.25 per
share. The first option for 450,000 shares may be exercised immediately upon
execution of this Agreement. The second option for 250,000 shares may be
exercised on March 1, 2000. Both options expire three (3) years after the
completion of the contract period. The Consultant represents to the Company that
(a) he is not a registered broker-dealer; (b) he is not affiliated with any
registered broker-dealers; and (c) he does not purchase or sell securities or
structure the purchase or sale of securities for third parties as his business.
5. Further Agreements. Because of the nature of the services being
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provided by Consultant hereunder, Consultant acknowledges that he may receive
access to Confidential Information (as defined in Section 6 hereof) and that, as
a consultant to the Company, he will attempt to provide advice that serves the
best interests of the Company. Because of the uniqueness of this relationship,
the Consultant covenants and agrees that, with respect to the Shares that he
receives, Consultant shall, at all times that he is the beneficial owner of such
Shares, vote such shares on all matters coming before him as a stockholder of
the Company in the same manner as the majority of the Board of Directors of the
Company shall recommend.
6. Confidentiality. Consultant acknowledges that as a consequence
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of his relationship with the Company, he may be given access to confidential
information which may include the following types of information: financial
statements and related financial information with respect to the Company and its
subsidiaries (the "Confidential Financial Information"), trade secrets,
products, product development, product packaging, future marketing materials,
business plans, certain methods of operations, procedures, improvements,
systems, customer lists, supplier lists and specifications, and other private
and confidential materials concerning the Company's business (collectively,
"Confidential Information").
Consultant covenants and agrees to hold such Confidential
Information strictly confidential and shall only use such information solely to
perform his duties under this Agreement, and Consultant shall refrain from
allowing such information to be used in any way for his own private or
commercial purposes. Consultant shall also refrain from disclosing any such
Confidential Information to any third parties. Consultant further agrees that
upon termination or expiration of this Agreement, he will return all
Confidential Information and copies thereof to the Company and will destroy all
notes, reports and other material prepared by or for him containing Confidential
Information. Consultant understands and agrees that the Company might be
irreparably harmed by violation of this Agreement and that monetary damages may
be inadequate to compensate the Company. Accordingly, the Consultant agrees
that, in addition to any other remedies available to it at law or in equity, the
Company shall be entitled to injunctive relief to enforce the terms of this
Agreement.
Notwithstanding the foregoing, nothing herein shall be
construed as prohibiting Consultant from disclosing any Confidential Information
(a) which at the time of disclosure, Consultant can demonstrate either was in
the public domain and generally available to the public or thereafter becomes a
part of the public domain and is generally available to the public by
publication or otherwise through no act of the Consultant; (b) which Consultant
can establish was independently developed by a third party who developed it
without the use of the Confidential Information and who did not acquire it
directly or indirectly from Consultant under
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an obligation of confidence; (c) which Consultant can show was received by him
after the termination of this Agreement from a third party who did not acquire
it directly or indirectly from the Company under an obligation of confidence; or
(d) to the extent that the Consultant can reasonably demonstrate such disclosure
is required by law or in any legal proceeding, governmental investigation, or
other similar proceeding.
7. Severability. If any provision of this Agreement shall be
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held or made invalid by a statute, rule, regulation, decision of a tribunal or
otherwise, the remainder of this Agreement shall not be affected thereby and, to
this extent, the provisions of this Agreement shall be deemed to be severable.
8. Governing Law; Venue; Jurisdiction. This Agreement shall be
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construed and enforced in accordance with and governed by the laws of the State
of Florida, without reference to principles of conflicts or choice of law
thereof. Each of the parties consents to the jurisdiction of the U.S. District
Court sitting in the 11th District of the State of Florida or the state courts
of the State of Florida sitting in Dade County in connection with any dispute
arising under this Agreement and hereby waives, to the maximum extent permitted
by law, any objection, including any objection based on forum non conveniens, to
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the bringing of any such proceeding in such jurisdictions. Each party hereby
agrees that if another party to this Agreement obtains a judgment against it in
such a proceeding, the party which obtained such judgment may enforce same by
summary judgment in the courts of any country having jurisdiction over the party
against whom such judgment was obtained, and each party hereby waives any
defenses available to it under local law and agrees to the enforcement of such a
judgment. Each party to this Agreement irrevocably consents to the service of
process in any such proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to such party at its address set forth herein.
Nothing herein shall affect the right of any party to serve process in any other
manner permitted by law. Each party waives its right to a trial by jury.
9. Miscellaneous.
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a. Any notice or other communication between
parties hereto shall be sufficiently given if sent by certified
or registered mail, postage prepaid, if to the Company, addressed
to it at IRT Industries, Inc., 0000 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxx, President,
telephone number (000) 000-0000, facsimile number: (704)
364-7172, or if to the Consultant, addressed to him at 0000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, XX 00000, or to such address as
may hereafter be designated in writing by one party to the other.
Any notice or other communication hereunder shall be deemed given
three days after deposit in the mail if mailed by certified mail,
return receipt requested, or on the day after deposit with an
overnight courier service for next day delivery, or on the date
delivered by hand or by facsimile with accurate confirmation
generated by the transmitting facsimile machine, at the address
or number designated above (if delivered on a business day during
normal business hours where such notice is to be received), or
the first business day following such delivery (if delivered
other than on a business day during normal business hours where
such notice is to be received).
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b. This Agreement embodies the entire Agreement
and understanding between the Company and the Consultant and
supersedes any and all negotiations, prior discussions and
preliminary and prior arrangements and understandings related to
the central subject matter hereof.
c. This Agreement has been duly authorized,
executed and delivered by and on behalf of the Company and the
Consultant.
d. This Agreement and all rights, liabilities and
obligations hereunder shall be binding upon and inure to the
benefit of each party's successors but may not be assigned
without the prior written approval of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date hereof.
IRT INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx, President
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, Consultant
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