CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT
("Agreement") is dated as of the 1st
day of
January, 2006, by and between Xxxxxxx
X. Xxxx
("Xxxx")
and AABB, Inc., a Nevada corporation ("Company").
RECITAL:
The
Company desires to retain Lane and Lane desires to provide services upon the
terms and conditions of this Agreement.
AGREEMENT:
1. Engagement.
1.1. Consulting
Services.
Under
the terms of this Agreement, the Company hereby engages Lane and Lane accepts
such engagement, on a "best efforts" basis, to assist the Company in identifying
potential merger and acquisition candidates; arranging and participating in
meetings with such parties; developing business and marketing plans, financial
models and strategies; providing strategic and financial planning to formulate
and achieve business plan objectives; developing and organizing due diligence
materials; and providing other similar consulting services.
1.2. Limitation
of Services.
The
Company acknowledges and agrees that all compensation to be paid to Lane
hereunder shall be in consideration for only bona fide consulting
services.
1.2.1. No
Broker-Dealer Services.
Neither
Lane nor any agent or employee of Lane is a registered broker/dealer and Lane
is
not being retained to offer or sell any securities of the Company. Lane's
participation in the actual offer, placement or sale of any securities of the
Company shall be limited to that of an advisor to the Company. The Company
acknowledges and agrees that the solicitation and consummation of any offer,
placement or sale of the Company's securities shall be handled by the Company
or
by one or more NASD member firms engaged by the Company for such purpose. Lane
is not vested with authority, and shall not be required, to participate in
any
negotiations relating to the placement or sale of securities. No fees or other
remuneration paid pursuant hereto shall relate to commissions for the placement
or sale of securities, and the fees due hereunder are not contingent on the
placement or sale of securities.
2. Compensation
to Lane.
The
Company shall pay to Lane a “Consulting Fee” of 570,000 shares of the Company’s
common stock. The Consulting Fee shall be deemed earned and payable upon the
execution of this Agreement.
3. No
Obligation to Consummate Transactions.
The
Company shall not be obligated to enter into any transaction which may be
presented to it by Lane and Lane shall have no authority to make any
representations on behalf of the Company or to otherwise bind the Company in
any
manner whatsoever. If the Company elects to consummate a transaction presented
to it by or as a result of the efforts of Lane, the final terms of the
transaction shall be subject to negotiation by the Company and its legal
counsel.
4. Cooperation
of Parties.
Each
party shall cooperate with the other (and their respective employees, attorneys
and agents) with respect to any due diligence required by the Company, the
preparation of any business and marketing plans, financial models and
strategies, and in the preparation of any related documentation as may be
required as a result of Lane's services hereunder. The Company further agrees
to
furnish Lane such information with respect to the Company and access to such
Company personnel and representatives, including the Company's auditors and
legal counsel, as Lane may request in order to permit Lane to provide his
services hereunder.
5. Representations
and Warranties of the Company. The
Company represents and warrants to Lane that (a) to the best of the Company's
officers' knowledge and belief, any information furnished or to be furnished
to
Lane for use in any business or marketing plans, financial models or strategies,
or otherwise in providing his consulting services hereunder will contain no
untrue statement of any material fact nor omit to state any material fact
necessary to make the information furnished not misleading, except to the extent
subsequently corrected prior to the date of use of such information with third
parties, (b) that if the circumstances or facts relating to information or
documents furnished to Lane change at any time subsequent to the furnishing
of
such document or information to Lane and prior to the date of the consummation
of any transaction, the Company will inform Lane promptly of such changes and
forthwith deliver to Lane documents or information necessary to ensure the
continued accuracy and completeness of all information and documents previously
furnished, and (c) that this Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company.
6. Representations
and Warranties of Lane.
Lane
represents to the Company that during the term of this Agreement that (a)
neither he nor his employees or agents, to the best of Lane's knowledge and
belief, will make any untrue statement of material fact in connection with
any
consulting services, and (b) to the best of Lane's knowledge and belief, all
actions taken by him and his employees and agents on behalf of the Company,
in
connection with any consulting services, will be conducted in compliance with
all applicable state and federal laws.
7. Indemnification
of Lane.
The
Company will indemnify Lane against any losses, claims, damages, liabilities,
costs and expenses (including, without limitation, any legal or other expenses
incurred in connection with investigating, preparing to defend or defending
against any action, claim, suit or proceeding, whether commenced or threatened
and whether or not Lane is a party thereto, or in appearing or preparing for
appearance as a witness), based upon, relating to or arising out of or in
connection with advice or services rendered or to be rendered pursuant to this
Agreement, the transaction contemplated thereby or Lane's actions or inactions
in connection with any such advice, services or transaction (including, but
not
limited to, any liability arising out of (i) any misstatement or alleged
misstatement of a material fact in any materials provided by the Company to
Lane
or a third party introduced by Lane and (ii) any omission or alleged omission
from any materials provided by the Company to Lane or a third party introduced
by Lane, including, without limitation of a material fact necessary to make
the
statements therein, in light of the circumstances under which they were made,
not misleading), except to the extent that any such loss, claim, damage,
liability, cost or expense results solely from the gross negligence or bad
faith
of Lane in performing the services which are the subject of this Agreement.
If
for
any reason the foregoing indemnification is unavailable to Lane or insufficient
to hold him harmless, then the Company shall contribute to the amount paid
or
payable by Lane as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect the relative benefits received by the
Company and its stockholders on the one hand and Lane on the other hand, or,
if
such allocation is not permitted by applicable law, not only such relative
benefits but also the relative fault of the Company and Lane, as well as any
relevant equitable considerations; provided, however, that, to the extent
permitted by applicable law, Lane shall not be responsible for amounts which
in
the aggregate are in excess of the amount of all fees actually received from
the
Company in connection with the engagement. No person guilty of fraudulent
misrepresentation (as such term has been interpreted under Section 11(f) of
the
Securities Act of 1933) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. Relative benefits to Lane,
on the one hand, and the Company and its stockholders, on the other hand, with
respect to the engagement shall be deemed to be in the same proportion as (i)
the total value paid or proposed to be paid or received or proposed to be
received by the Company or its stockholders, as the case may be, pursuant to
the
Business Combination, whether or not consummated, contemplated by the engagement
bears to (ii) all fees paid to Lane by the Company in connection with the
engagement. Lane shall not have any liability to the Company in connection
with
the engagement, except to the extent of his gross negligence or willful
misconduct.
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The
Company also agrees to promptly upon demand reimburse Lane for his legal and
other expenses reasonably incurred by him in connection with investigating,
preparing to defend, or defending any lawsuits, investigations, claims or other
proceedings in connection with any matter referred to in or otherwise
contemplated by this Agreement; provided, however, that in the event a final
judicial determination is made to the effect that Lane is not entitled to
indemnification hereunder, Lane will remit to the Company any amounts that
have
been so reimbursed.
The
Company shall not be liable for any settlement of any action, claim, suit or
proceeding (or for any related losses, damages, liabilities, costs or expenses)
if such settlement is effectuated without its written consent, which shall
not
be unreasonably withheld. The Company further agrees that it will not settle
or
compromise or consent to the entry of any judgment in any pending or threatened
action, claim, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not Lane is a party therein)
unless the Company has obtained an unconditional release of Lane from all
liability arising therefrom. The reimbursement, indemnity and contribution
obligations of the Company set forth in this Agreement shall be in addition
to
any liability which the Company may otherwise have to Lane, and shall be in
addition to any other rights which Lane may have at common law or otherwise.
The
provisions of this Section 7 shall survive any termination of this
Agreement.
8. Term
and Termination of Agreement.
This
Agreement shall remain in full force and effect for a term of twelve (12) months
from the date hereof.
9. Relationship
of the Parties.
The
parties agree the relationship between them contemplated by this Agreement
is
that Lane is an independent contractor of the Company. Lane shall not be
responsible for the preparation or accuracy of any financial and business
information provided by the Company to or for the use of any third party. Lane
and his affiliates shall have no liability with respect to actions taken by
or
decisions made by the Company in reliance on introductions made by Lane
hereunder. The Company shall keep Lane apprised of all communications and
correspondence with any third party introduced by Lane. The Company acknowledges
that Lane and his affiliates are in the business of providing financial services
and consulting advice to others. Nothing herein contained shall be construed
to
limit or restrict Lane in conducting such business with respect to others,
or in
rendering such advice to others, including to others engaged in business
activities similar to the Company, except as such advice may relate to matters
relating to the Company's business and that might compromise confidential
information delivered by the Company to Lane. Lane shall be obligated to devote
only such of his time and attention to the services provided hereunder as he
deems necessary or appropriate in his sole discretion.
10. Obligations
Limited.
Lane
shall have no obligation to make any independent verification of the accuracy
or
completeness of any information provided to him in the course of his engagement
hereunder and shall have no liability in regard thereto.
11. Confidentiality
of Advice; Publicity.
Except
as
otherwise provided in this paragraph, any written or other advice rendered
by
Lane pursuant to his engagement hereunder is solely for the use and benefit
of
the Company and shall not be publicly disclosed in whole or in part, in any
manner or summarized, excerpted from or otherwise publicly referred to or made
available to third parties, other than representatives and agents of the Company
who also shall not disclose such information, in each case, without Lane's
prior
approval, unless in the opinion of counsel and after consultation with Lane,
such disclosure is required by law. In addition, Lane may not be otherwise
publicly referred to without his prior written consent.
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12. Miscellaneous.
Nothing
in this Agreement shall be interpreted as creating a partnership or joint
venture. Neither party to this Agreement shall be entitled to transfer or assign
any of its rights or obligations hereunder without the prior written consent
of
the other party. Subject to the foregoing, this Agreement shall be binding
upon
and inure to the benefit of the parties and their respective successors and
assigns. The parties each acknowledge they have had the opportunity to consider
the terms of this Agreement with their respective legal counsel and have either
obtained the advice of legal counsel in connection with their execution hereof
or do hereby expressly waive their right to seek such legal counsel in
connection with this transaction. THIS
AGREEMENT SHALL BE INTERPRETED IN ACCORDANCE WITH ITS TERMS AND OTHERWISE IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA. THE ABILITY TO ENFORCE ANY
PROVISION OF THIS AGREEMENT OR OBTAIN ANY REMEDY WITH RESPECT HERETO MAY BE
BROUGHT IN THE SUPERIOR COURT FOR MARICOPA COUNTY, ARIZONA.
This
Agreement represents the entire agreement between the parties with respect
to
the subject matter hereof, and supersedes all prior agreements, understandings,
representations and statements, if any, whether oral or written, with respect
to
the subject matter hereof. No modifications of this Agreement shall be valid
or
binding upon the parties unless made in writing and signed on behalf of each
party hereto by its authorized representative. The headings used in this
Agreement have been inserted for convenience only and are not to be considered
in interpreting the meaning of this Agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF,
the
parties have signed this Agreement.
| "LANE" | ||
| |
|
|
| /s/ Xxxxxxx X. Xxxx | ||
|
Xxxxxxx X. Xxxx |
||
| "COMPANY" | ||
| AABB, Inc., a Nevada corporation | ||
| By: /s/ Xxxxx Xxxxxx | ||
|
Its: President
|
||
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