Exhibit 10.6
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT entered into this 27th day of July, 2003
(hereinafter "Effective Date") by and between STONE STREET ADVISORS, LLC, a
Nevada Limited Liability Company ("Stone Street") with its principal office at
000 Xxxxxx Xxxxxx - Xxxxx 0000, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and IVOICE INC.,
a Delaware corporation 000 Xxxxxxx 00 000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx, Xxx
Xxxxxx 00000 (the "Company").
Stone Street desires to perform as an independent contractor to provide
certain consulting and advisory services to the Company as designated below, and
Stone Street desires to accept such engagement by the Company , pursuant to the
terms and conditions of this Consulting Agreement.
In consideration of the representations, warranties, mutual covenants and
agreements set forth herein, the parties agree as follows:
1. SCOPE OF SERVICES.
a. Duties and Performance. From time to time during the term of this
Agreement, Stone Street shall provide such advisory services to the Company with
regard various types of financial arrangements, including, equity line of credit
financing, debt financing, other forms of direct investment in the Company and
general corporate matters (the "Services").
b. Independent Contractor Status. The parties agree that Stone Street is an
independent contractor performing Services hereunder and not an employee of the
Company. Stone Street may use contractors or other third parties of Stone
Street's choice to assist Stone Street in rendering such Services. Unless
otherwise agreed by Stone Street in writing, the Company shall be responsible
for payment of all compensation or expenses payable or reimbursable to Stone
Street and/or such third parties. Nothing herein or in the performance hereof
shall imply either a joint venture or principal and agent relationship between
the parties, nor shall either such relationship be deemed to have arisen under
this Agreement.
2. COMPENSATION AND EXPENSES.
a. Fee. In respect to Stone Street performing any Services hereunder the
Company shall pay to Stone Street, a fee as earned by Stone Street in an amount
as agreed upon, at such time, by the Company and Stone Street (the "Fee").
3. INDEMNIFICATION. Exhibit A attached hereto and made a part hereof sets forth
the understanding of the parties with respect to the indemnification and
exculpation of Stone Street. The provisions of Exhibit A shall survive, and
remain in full force and effect after, the termination of this Agreement until
fully performed.
4. TERM AND TERMINATION. The initial term of this Agreement shall be for a
period commencing on the Effective Date hereof and ending on the one anniversary
of the date of this Agreement; thereafter, unless previously terminated, and
neither party has given notice of termination, this Agreement shall be
automatically renewed for successive year periods of one year each. Either party
may terminate this Agreement without cause or without the necessity of
specifying cause by giving written notice of termination to the other party.
This Agreement shall terminate upon its expiration or upon receipt of this
notice of termination by the non-terminating party. Notwithstanding the
termination of this Agreement, Sections 3 and 5 shall continue in force and
effect and shall survive such termination.
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5. MISCELLANEOUS.
a. Notice. All notices and other communications hereunder shall be in
writing and delivered by Federal Express or any other generally recognized
overnight delivery service, or by hand, to the appropriate party at the address
stated in the initial paragraph of this Agreement for such party or to such
other address as a party indicates in a notice to the other party delivered in
accordance with this Section.
b. Severability. Should one or more provisions of this Agreement be held
unenforceable, for whatever cause, the validity of the remainder of this
Agreement shall remain unaffected. The parties shall, in such event, attempt in
good faith to agree on new provisions which best correspond to the object of
this Agreement.
c. Entire Agreement. The parties have entered into the present Agreement
after negotiations and discussions, an examination of its text, and an
opportunity to consult counsel. This Agreement constitutes the entire
understanding between the parties regarding to specific subject matter covered
herein. This Agreement supersedes any and all prior written or oral contracts or
understandings between the parties hereto and neither party shall be bound by
any statements or representations made by either party not embodied in this
Agreement. No provisions herein contained shall be waived, modified or altered,
except by an instrument in writing, duly executed by the parties hereto.
d. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New Jersey, without giving effect to
any choice of law of conflict of law provision or rule whether such provision or
rule is that of New Jersey or any other jurisdiction. Each party irrevocably
consents to the exclusive personal jurisdiction of the Superior Courts of Xxxxxx
County New Jersey sitting in Jersey City New Jersey or the United States
District Court for the District of New Jersey, sitting in Newark New Jersey, in
connection with any action, suit or proceeding relating to or arising out of
this Agreement or any of the transactions or relationships contemplated hereby.
Each party, to the maximum extent permitted by law, hereby waives any objection
that such party may now have or hereafter have to the jurisdiction of such
courts on the basis of inconvenient forum or otherwise. Each party waives trial
by jury in any proceeding that may arise with respect to this Agreement.
e. No Implied Waivers. No delay or omission by either party to exercise its
rights and remedies in connection with the breach or default of the other shall
operate as or be construed as a waiver of such rights or remedies as to any
subsequent breach.
f. Counterparts. This Agreement may be executed in any number of
counterparts, but all counterparts hereof shall together constitute but one
agreement. In proving this Agreement, it shall not be necessary to produce or
account for more than one counterpart signed by both of the parties.
g. Binding Nature. This Agreement shall be binding upon and shall inure to
the benefit of the successors and assigns of the respective parties to this
Agreement.
h. Assignment. Except as set forth in this Agreement, neither party will
have the right to assign, pledge or transfer all or any part of this Agreement
without the prior written consent of the other, and any such purported
assignment, pledge or transfer by a party without such prior written consent
shall be void.
i. Capacity. Stone Street represents to the Company and the Company
represents to Stone Street, that each person signing this Agreement on their
behalf has the full right and authority to do so, and to perform its obligations
under this Agreement.
j. Captions. The captions appearing in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope and intent of this Agreement or any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the Effective Date.
STONE STREET ADVISORS, LLC IVOICE INC.
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------- ---------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxx X. Xxxxxxx
Title: President Title: President and Chief Executive Officer
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EXHIBIT A
The Company will indemnify and hold harmless Stone Street and its affiliates and
their respective directors, members, officers, agents and employees and each
other person controlling Stone Street or any of its affiliates (collectively,
"losses") (i) related to or arising out of (A) oral or written information
provided by the Company, the Company's employees or other agents, which
information either the Company or Stone Street provides to any actual or
potential buyers, sellers, investors, offerees, or third party entity introduced
to the Company, directly or indirectly, by Stone Street (B) any other action or
failure to act by Stone Street, its members, officers, agents or employees or by
the Company or any other indemnified party at the Company's request or with the
Company's consent, or otherwise related to or arising out of the consulting
services provided or to be provided by Stone Street under this Agreement (the
"Engagement") or any transaction or conduct in connection therewith, except that
this clause (ii) shall not apply with respect to any losses that are finally
judicially determined to have resulted primarily from the gross negligence or
willful misconduct of such indemnified party.
If the foregoing indemnity is unavailable to any indemnified party for any
reason, the Company will contribute to any losses related to or arising out of
the engagement or any transaction or conduct in connection therewith as follows.
With respect to such losses referred to in clause (i) of the preceding
paragraph, each Stone Street and the Company shall contribute in such proportion
as is appropriate to reflect the relative benefits received (or anticipated to
be received) by the Company on the one hand, and by Stone Street, on the other
hand, from the actual or proposed transaction arising in connection with the
Engagement. With respect to any other losses, and for losses referred to in
clause (i) of the preceding paragraph if the allocation provided by the
immediately preceding sentence is unavailable for any reason, each Stone Street
and the Company shall contribute in such proportion as is appropriate to reflect
not only the relative benefits as set forth above, but also the relative fault
of each Stone Street and the Company in connection with the actions, omissions
or other conduct that resulted in such losses, as well as any other relevant
equitable considerations. Benefits received (or anticipated to be received) by
the Company and/or Stone Street shall be deemed to be equal to the aggregate
cash consideration and value of securities or any other property payable,
issuable, exchangeable or transferable in such transaction or proposed
transaction, and benefits received by the Company and/or Stone Street shall be
deemed to be equal to the compensation paid by the Company to Stone Street in
connection with the Engagement. Relative fault shall be determined by reference
to, among other things, whether any alleged untrue statement of omission or any
other alleged conduct relates to information provided the Company or other
conduct by the Company (or the Company's employees or other agents), on the one
hand, or by Stone Street, on the other hand. The parties agree that it would not
be just and equitable if contribution were determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable
considerations referred to above.
The Company agrees that it will not, without prior written consent of the
Stone Street, settle any pending or threatened claim or proceeding related to or
arising out of the Engagement or any actual or proposed transactions or other
conduct in connection therewith (whether or not the Stone Street or any
indemnified party is a party to such claim or proceeding) unless such settlement
includes a provision unconditionally releasing the Stone Street and each other
indemnified party from, and holding all such persons harmless against, all
liability in respect of claims by any releasing party related to or arising out
of the engagement or any transactions or conduct in connection therewith. The
Company will also promptly reimburse each indemnified party for all expenses
(including counsel fees and expenses) as they are incurred by such indemnified
party in connection with investigating, preparing for, defending, or providing
evidence in, any pending or threatened claim or proceeding related to or arising
out of the engagement or any actual or proposed transaction or other conduct in
connection therewith or otherwise in respect of which
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indemnification or contribution may be sought hereunder (whether or not the
Stone Street or any other indemnified party is a party to such claim or
proceeding) or in enforcing this agreement.
The Company further agrees that no indemnified party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company in connection with the engagement or any actual or proposed transactions
or other conduct in connection therewith except for losses incurred by the
Company that are finally judicially determined to have resulted primarily from
the gross negligence or willful misconduct of such indemnified party.
The provisions set forth above shall remain in full force and effect and
shall survive the completion or termination of the Engagement.
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