EXHIBIT 10.6
INCUBATE THIS! INC.
DIRECTOR AND OFFICER AGREEMENT
DIRECTORS AGREEMENT made as of this 1st day of May, 2000 by and between
INCUBATE THIS! INC., a Colorado corporation, having an office at 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as
"Incubate") and XXXX XXXXXXXXX, an individual residing at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxxxxxx X0 (hereinafter referred to as "XXXXXXXXX").
W I T N E S S E T H:
WHEREAS, Incubate desires to retain XXXXXXXXX as a Director and Officer for
Incubate; and
WHEREAS, XXXXXXXXX is willing to act as a Director and Officer of Incubate
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows:
1. Retain XXXXXXXXX as Director. Incubate hereby retains XXXXXXXXX as a
Non-Executive Director of Incubate until removed by the board or until the next
annual meeting of shareholders of Incubate whereby such shareholders vote to
elect directors of Incubate.
2. Retain XXXXXXXXX as Secretary. Incubate hereby retains XXXXXXXXX as
Secretary of Incubate until removed or replaced by the Board.
3. Duties. XXXXXXXXX shall perform those functions generally performed by
persons of such title and position, shall attend meetings of the Board providing
sufficient notice of the board meetings are given to him and shall perform any
and all related duties and shall have any and all powers as may be prescribed by
resolution of the Board, and shall be available to confer and consult with and
advise the officers and directors of Incubate at such times that may be required
by Incubate.
4. Compensation.
(i) XXXXXXXXX shall receive non refundable compensation of 150,000 shares
of the restricted common stock of the Company upon completion of three (3)
months of duties as a director or secretary.
5. Expenses. XXXXXXXXX shall submit to Incubate reasonably detailed
receipts with respect thereto which substantiate XXXXXXXXX'x expenses, including
expenses to attend all board meetings and Incubate shall reimburse XXXXXXXXX for
all reasonable documented expenses.
6. Secrecy. At no time shall XXXXXXXXX disclose to anyone any confidential
or secret information (not already constituting information available to the
public) concerning (a)
internal affairs or proprietary business operations of Incubate or its
affiliates or (b) any trade secrets, new product developments, patents, programs
or programming, especially unique processes or methods.
7. Termination.
a. Termination by Incubate
(i) Incubate may terminate this Agreement immediately for Cause. For
purposes hereof, "Cause" shall mean (A) the conviction of XXXXXXXXX for the
commission of a felony against the Incubate; and/or (B) the habitual abuse of
alcohol or controlled substances. In no event shall alleged incompetence of
XXXXXXXXX in the performance of XXXXXXXXX'x duties be deemed grounds for
termination for Cause.
(ii) This agreement automatically shall terminate upon the death of
XXXXXXXXX, except that XXXXXXXXX'x estate shall be entitled to receive any
amount accrued under Section 3 for the period prior to XXXXXXXXX'x death and any
other amount to which XXXXXXXXX was entitled of the time at his death.
8. Arbitration. Any controversies between Incubate and XXXXXXXXX involving
the construction or application of any of the terms, provisions or conditions of
this Agreement shall on the written request of either party served on the other
be submitted to arbitration. Such arbitration shall comply with and be governed
by the rules of the American Arbitration Association. An arbitration demand must
be made within one (1) year of the date on which the party demanding arbitration
first had notice of the existence of the claim to be arbitrated, or the right to
arbitration along with such claim shall be considered to have been waived. An
arbitrator shall be selected according to the procedures of the American
Arbitration Association. The cost of arbitration shall be borne by the losing
party unless the arbitrator shall determine otherwise. The arbitrator shall have
no authority to add to, subtract from or otherwise modify the provisions of this
Agreement, or to award punitive damages to either party.
9. Attorneys' Fees and Costs. If any action at law or in equity is necessar
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which he may be entitled.
10. Entire Agreement; Survival. This Agreement contains the entire
agreement between the parties with respect to the transactions contemplated
herein and supersedes, effective as of the date hereof any prior agreement or
understanding between Incubate and XXXXXXXXX with respect to XXXXXXXXX'x
employment by Incubate. The unenforceability of any provision of this Agreement
shall not effect the enforceability of any other provision. This Agreement may
not be amended except by an agreement in writing signed by the XXXXXXXXX and the
Incubate, or any waiver, change, discharge or modification as sought. Waiver of
or failure to exercise any rights provided by this Agreement and in any respect
shall not be deemed a waiver of any further or future rights. The provisions of
this Agreement shall survive the termination of this Agreement.
11. Assignment. This Agreement shall not be assigned to other parties.
12. Governing Law. This Agreement and all the amendments hereof, and
waivers and consents with respect thereto shall be governed by the internal laws
of the State of Florida, without regard to the conflicts of laws principles
thereof.
13. Notices. All notices, responses, demands or other communications under
this Agreement shall be in writing and shall be deemed to have been given when
a. delivered by hand;
b. sent be telex or telefax, (with receipt confirmed), provided tha a
copy is mailed by registered or certified mail, return receipt requested; or
c. received by the addressee as sent by express delivery service
(receipt requested) in each case to the appropriate addresses, telex numbers and
telefax numbers as the party may designate to itself by notice to the other
parties:
(i) if to Incubate: INCUBATE THIS! INC. Copy to: Xxxxxx X. Xxxxxxxx,Esq.
Attn: Xxxxxxx Xxxxxxxxx Mintmire & Associates
000 Xxxxxxx Xxxxxx, Xxxxx 000 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000 Xxxx Xxxxx, XX 00000
Telefax: (000) 000-0000 Telefax: (000) 000-0000
Telephone:(000) 000-0000 Telephone: (000) 000-0000
(ii)if to XXXXXXXXX:Xxxx Xxxxxxxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X0
Telephone:
14. Severability of Agreement. Should any part of this Agreement for any
reason be declared invalid by a court of competent jurisdiction, such decision
shall not affect the validity of any remaining portion, which remaining
provisions shall remain in full force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties that they would have executed the remaining
portions of this Agreement without including any such part, parts or portions
which may, for any reason, be hereafter declared invalid.
15. Prior Agreements. Any prior Agreements between the parties with respect
to this subject matter is null and void nunc pro tunc.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the
day and year first above written.
ATTEST: INCUBATE THIS! INC.
By: By: /s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
President
WITNESS:
By: By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
