EXHIBIT 10.9
AGREEMENT
THIS AGREEMENT is made as of the __________ day of May, 2000, between
Incubate This! Inc., a Colorado Corporation whose address is 000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Incubate") and Xxxxxxx X. Xxxxxxx, a
Florida individual whose address is 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000 ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, Incubate is a Florida corporation which has recently changed its
business plan so as to act as an Internet incubator; and
WHEREAS, Incubate desires to obtain the services of Xxxxxxx for the purpose
of establishing an Internet incubator, introducing Incubate to potential
acquisition candidates and investors and assisting Incubate in financing and
general business consulting services.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Incubate and Xxxxxxx agree as follows:
1. Incubate hereby appoints Xxxxxxx and Xxxxxxx hereby agrees to assist
Incubate in the establishment of an Internet incubator, introduce Incubate to
potential acquisition candidates and investors and assist Incubate in obtaining
financing and general business consulting services.
2. Xxxxxxx agrees to assist Incubate in the establishment of an Internet
incubator, introduce Incubate to potential acquisition candidates and investors
and assist Incubate in obtaining financing and general business consulting
services. It is agreed that Xxxxxxx shall also establish and manage a Florida
office for Incubate, seek legal counsel and assist Incubate in coordinating any
audits to be undertaken.
3. Incubate agrees to pay Xxxxxxx for services an initial nonrefundable
retainer of 200,000 shares of the common stock of Incubate for services
previously rendered and to be rendered, plus an hourly rate equal to $250.00 per
hour plus all expenses. Incubate and Xxxxxxx acknowledge and agree that from
time to time special projects and assignments may arise and that specific and
additional compensation to Xxxxxxx may be provided to Xxxxxxx under such
circumstances of which shall be agreed to by Incubate and Xxxxxxx prior to
Xxxxxxx undertaking such services.
At the request of Xxxxxxx, Incubate agrees to compensate Xxxxxxx in S-8
shares from time to time and Xxxxxxx shall accept such shares if offered by the
Company in lieu of cash compensation.
4. Xxxxxxx acknowledges that in the performance of this Agreement, Xxxxxxx
will have access to some or all of the following (hereinafter "Proprietary
Information"):
(a) Trade secrets of Incubate, its Products and its Trademarks.
(b) Information, documents and records, including without limitation,
customer lists, performance standards, policies, handbooks and
manuals, operations, production and servicing techniques, methods,
data, procedures and manuals and financial information concerning
Incubate.
Xxxxxxx hereby agrees always to regard and preserve as confidential,
both during the term of this Agreement and thereafter, all Proprietary
Information that has been or may be obtained by Xxxxxxx. Xxxxxxx further agrees
never to use for its own benefit or purposes, nor to disclose to others, any
Proprietary Information, except as required in connection with the performance
of this Agreement or as may otherwise be specifically authorized in advance by
Incubate in writing.
All Proprietary Information shall be and remain the exclusive property
of Incubate and is for the exclusive use and benefit of Incubate. Following the
termination of this Agreement, Xxxxxxx agrees to return to Incubate all
Proprietary Information then in Xxxxxxx'x possession or control, without
retaining any copies, notes or excerpts thereof. Further, during the term of
this Agreement, Xxxxxxx agrees, upon request by Incubate from time to time,
promptly to return any Proprietary Information then in the possession or control
of Xxxxxxx without retaining any copies, notes or excerpts thereof.
5. Xxxxxxx represents and warrants on the date of this Agreement and while
this Agreement remains in effect that:
(a) If required under any applicable law, Xxxxxxx is fully licensed to
perform its duties stated in this Agreement and shall fulfill and
comply with all federal, state and local statutes, laws, rules,
regulations and codes which are applicable to the activities
contemplated herein.
(b) The execution, delivery and performance of this Agreement has been
duly authorized and this Agreement represents the valid, binding and
enforceable obligations of Xxxxxxx, in accordance with its terms.
(3) There is no litigation, arbitration, proceeding or investigation
pending or, to the knowledge of Xxxxxxx, threatened, which, if
determined adversely, might have a material adverse effect on the
business or assets of Xxxxxxx or interfere in the performance and
fulfillment of this Agreement by Xxxxxxx.
6. The term of this Agreement shall commence on the date first written
above and may be terminated at any time, without cause, by either party, by
giving at least sixty (60) days prior written notice to the non-terminating
party of its intent to so terminate. Upon the occurrence of an Event of Default,
as set forth below, this Agreement may be terminated immediately, by Incubate,
subject to the applicable grace periods, if any.
7. Xxxxxxx shall not assign, transfer or convey any or all of its rights,
privileges, duties or obligations hereunder without the prior written consent of
Incubate. Any attempt assignment, transference or conveyance without the written
consent of Incubate shall be considered null and void.
8. There shall be considered an Event of Default hereunder if any of the
following events occur:
The failure of Xxxxxxx to perform its duties, obligations or
agreements hereunder, or a breach by Xxxxxxx of any representation or
warranty made by Xxxxxxx herein, provided that any such failure or
breach has not been cured within five (5) days after notice thereof
from Incubate.
The failure of Xxxxxxx to meet or satisfy all or any requirements and
standards set forth by Incubate, provided that any such failure has
not been cured within thirty (30) days after notice thereof from
Incubate.
Xxxxxxx attempts to assign this Agreement without the prior written
consent of Incubate.
9. Xxxxxxx hereby agrees to indemnify and hold Incubate harmless from and
against all claims, suits, judgments, costs, losses, expenses, legal fees,
attorneys' fees, liabilities and damages in connection with, arising from or
relating to:
The performance of Xxxxxxx'x duties, obligations and agreements
hereunder; or
The negligence, misconduct or the intentional acts or inaction of
Xxxxxxx'x employees, agents or principals in connection with the
performance and satisfaction of this Agreement.
10. This agreement shall be governed by and any questions arising hereunder
shall be construed and interpreted according to the laws of Florida, United
States of America.
11. Nothing contained in this Agreement shall be construed to constitute
Xxxxxxx as a partner, joint venturer, agent or employee of Incubate, nor shall
either party have any authority to bind the other in any respect, it being
intended that each shall remain an independent contractor responsible only for
its own actions.
12. All notices referred to herein shall be deemed to be sufficiently given
if in writing and sent by United States registered or certified mail, return
receipt requested, to Incubate or to Xxxxxxx, as the case may be, at their
respective business addresses first hereinabove given or at such other address
or addresses as either party shall hereafter designate by written notice.
13. Except as otherwise provided herein, this Agreement may be amended only
by an instrument in writing executed by Xxxxxxx and Incubate.
14. This Agreement embodies the entire understanding of the parties and
there are no other agreements or understandings, written or oral, in effect
between the parties relating to the subject matter hereof. This Agreement
supersedes and terminates all prior discussions, negotiations, understandings,
arrangements and agreements among the parties relating to the subject matter
hereof.
15. No waiver by any party of any breach or default by any other party of
any such other party's obligations under this Agreement shall be deemed to be a
waiver of any other breach or default of the same or any other nature. No
failure by any party on any one or more occasions to exercise any rights or
remedy provided in this Agreement shall preclude the exercise of such right or
remedy on any other occasion.
16. This Agreement may be executed in one or more counterpart copies, each
of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
17. This Agreement shall be binding on the parties hereto, their successors
and assigns;
provided, however, that Xxxxxxx may not assign this Agreement without prior
written consent of Incubate.
IN WITNESS WHEREOF, the parties have hereunto set their hands the days
and year first above written.
WITNESS: INCUBATE THIS! INC.
By: By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
WITNESS:
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
