EXHIBIT 10.5
INCUBATE THIS! INC.
ADVISORY BOARD AGREEMENT
ADVISORY BOARD AGREEMENT made as of this 12th day of May, 2000
by and between INCUBATE THIS! INC., a Colorado corporation, having an office at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred
to as "Incubate") and DR. ▇▇▇ ▇▇▇▇▇, an individual, with an address at ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇/▇, ▇▇▇▇▇▇ (hereinafter referred to as "DAISY").
W I T N E S S E T H:
WHEREAS, Incubate desires to retain DAISY for its advisory board; and
WHEREAS, DAISY 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 DAISY as Advisory Board Member. Incubate hereby retains DAISY
to serve on its advisory board until removed by the Board or until DAISY
resigns.
2. Duties. DAISY 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. Daisy shall receive nonrefundable compensation of
25,000 shares of the Restricted Common Stock of the Company upon completion of
six (six) months of duty hereunder.
4. Expenses. DAISY shall submit to Incubate reasonably detailed
receipts with respect thereto which substantiate DAISY's expenses, including
expenses to attend all advisory board meetings and Incubate shall reimburse
DAISY for all reasonable documented expenses.
5. Secrecy. At no time shall DAISY 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 DAISY 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
DAISY in the performance of DAISY's duties be deemed grounds for termination for
Cause.
(ii) This agreement automatically shall terminate upon the death
of DAISY, except that DAISY's estate shall be entitled to receive any amount
accrued under Section 3 for the period prior to DAISY's death and any other
amount to which DAISY was entitled of the time at his death.
7. Arbitration. Any controversies between Incubate and DAISY 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 DAISY with respect to DAISY's 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 DAISY 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, 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.
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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,Esq.
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Mintmire & Associates
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telefax: (▇▇▇) ▇▇▇-▇▇▇▇ Telefax: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to DAISY: Dr. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Katziz 1/5, Israel
Telefax:
Telephone:
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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
President
WITNESS:
By: By: /s/ Dr. ▇▇▇ Daisy
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Dr. ▇▇▇ ▇▇▇▇▇