EXHIBIT 10.10
INCUBATE THIS! INC.
RETAINER AGREEMENT
RETAINER AGREEMENT made as of this 3rd day of May, 2000 by and between
INCUBATE THIS! INC., a Colorado corporation, having an office at 265 Sunrise
Avenue, Suite 204, Palm Beach, Florida 33480 (hereinafter referred to as
"INCUBATE") and DONALD F. MINTMIRE, ESQ. an individual, with an address at 265
Sunrise Avenue, Suite 204, Palm Beach, FL 33480 (hereinafter referred to as
"MINTMIRE").
W I T N E S S E T H:
WHEREAS, Incubate desires to retain MINTMIRE as its legal advisor; and
WHEREAS, MINTMIRE is willing to serve as legal advisor 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 MINTMIRE as Legal Advisor. Incubate hereby retains MINTMIRE to
serve as its legal advisor until removed by the Board or until MINTMIRE resigns.
2. Duties. MINTMIRE shall perform those functions generally performed by
persons of such title and position.
3. Compensation. MINTMIRE shall receive annual nonrefundable compensation
of 25,000 shares of the Restricted Common Stock of the Company in addition to
payment for firm legal services under separate agreement.
4. Secrecy. At no time shall MINTMIRE 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.
5. Termination.
a. Termination by Incubate
(i) Incubate may terminate this Agreement immediately for Cause.
For purposes hereof, "Cause" shall mean (A) the conviction of MINTMIRE 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
MINTMIRE in the performance of MINTMIRE's duties be deemed grounds for
termination for Cause.
(ii) This agreement automatically shall terminate upon the death
of MINTMIRE, except that MINTMIRE's estate shall be entitled to receive any
amount accrued under Section 3 for the period prior to MINTMIRE's death and any
other amount to which MINTMIRE was entitled of the time at his death.
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6. Arbitration. Any controversies between Incubate and MINTMIRE 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.
7. 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.
8. 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 MINTMIRE with respect to MINTMIRE'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 MINTMIRE 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.
9. Assignment. This Agreement shall not be assigned to other parties.
10. 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.
11. 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:
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<S> <C> <C> <C>
(i) if to Incubate: INCUBATE THIS! INC. Copy to: Donald F. Mintmire,Esq.
Attn: Sharone Perlstein Mintmire & Associates
265 Sunrise Avenue, Suite 204 265 Sunrise Avenue, Suite 204
Palm Beach, Florida 33480 Palm Beach, FL 33480
Telefax: (561) 659-5371 Telefax: (561) 659-5371
Telephone:(561) 832-5696 Telephone: (561) 832-5696
(ii)if to MINTMIRE: Donald F. Mintmire, Esq.
265 Sunrise Avenue, Suite 204
Palm Beach, FL 33480
Telefax: (561) 659-5371
Telephone: (561) 832-5696
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12. 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.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the
day and year first above written.
WITNESS: INCUBATE THIS! INC.
By: By: /s/ Sharone Perlstein
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Sharone Perlstein
WITNESS:
By: /s/ Donald F. Mintmire
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Donald F. Mintmire, Esq.
