Exhibit 10.21
CONSULTING SERVICES AGREEMENT
THIS CONSULTING SERVICES AGREEMENT entered into this 10th day of January, 2005
(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 XxXXXXXX BAY
INTERNATIONAL, LTD., a Delaware corporation, with its principal office located
at 000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxx 00000 (the "Company").
The Company desires to engage Stone Street 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.
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 XxXXXXXX BAY INTERNATIONAL, LTD.
By: /s/ Xxxxxxx Xxxxxxx By:/s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx
Title: President Title: CFO
