EXHIBIT 10.7
INCUBATE THIS! INC.
ADVISORY BOARD AGREEMENT
ADVISORY BOARD AGREEMENT made as of this 21st day of June, 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 Xxxxxxx X. Xxxxxx, Esq. an individual, with an address at 0000
Xxxxx 0 Xxxxx, 0xx Xxxxx, Xxxxxxxx, XX 00000 (hereinafter referred to as
"XXXXXX").
W I T N E S S E T H:
WHEREAS, Incubate desires to retain XXXXXX for its advisory board; and
WHEREAS, XXXXXX is willing to serve on the advisory board 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 XXXXXX as Advisory Board Member. Incubate hereby retains XXXXXX
to serve on its advisory board until removed by the Board or until XXXXXX
resigns.
2. Duties. XXXXXX shall perform those functions generally performed by
persons of such title and position, shall attend all meetings of the Advisory
Board and shall perform any and all related duties and shall have any and all
powers as may be prescribed by resolution of the Advisory 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.
3. Compensation. XXXXXX shall immediately receive nonrefundable
compensation of 25,000 shares of the Restricted Common Stock of the Company.
XXXXXX shall be required to complete 6 months of duty hereunder.
4. Expenses. XXXXXX shall submit to Incubate reasonably detailed receipts
with respect thereto which substantiate XXXXXX'x expenses, including expenses to
attend all advisory board meetings and Incubate shall reimburse XXXXXX for all
reasonable documented expenses.
5. Secrecy. At no time shall XXXXXX 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.
6. Termination.
a. Termination by Incubate
(i) Incubate may terminate this Agreement immediately for Cause For
purposes hereof, "Cause" shall mean (A) the conviction of XXXXXX 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
XXXXXX in the performance of XXXXXX'x duties be deemed grounds for termination
for Cause.
(ii) This agreement automatically shall terminate upon the death of XXXXXX,
except that XXXXXX'x estate shall be entitled to receive any amount accrued
under Section 3 for the period prior to XXXXXX'x death and any other amount to
which XXXXXX was entitled of the time at his death.
7. Arbitration. Any controversies between Incubate and XXXXXX 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.
8. Attorneys' Fees and Costs. If any action at law or in equity is
necessary 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.
9. 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 XXXXXX with respect to XXXXXX'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 XXXXXX 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.
10. Assignment. This Agreement shall not be assigned to other parties.
11. Governing Law. This Agreement and all the amendments hereof, an 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.
12. Notices. All notices, responses, demands or other communication 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 that 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 XXXXXX: Xxxxxxx X. Xxxxxx, Esq.
0000 Xxxxx 0 Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Telefax: (000) 000-0000
Telephone: (000) 000-0000
13. 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.
14. Prior Agreements. Any prior Agreements between the parties with respect
to this same 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/Xxxxxxx X. Xxxxxx
-------------------------- -------------------------
Xxxxxxx X. Xxxxxx, Esq.
