CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT
("Agreement") is dated as of the 1st
day of
January, 2006, by and between Xxxxx
X. Xxxxxxx
("Xxxxxxx") and AABB, Inc., a Nevada corporation ("Company").
RECITAL:
The
Company desires to retain Xxxxxxx and Xxxxxxx 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 Xxxxxxx and Xxxxxxx
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 Xxxxxxx
hereunder shall be in consideration for only bona fide consulting
services.
1.2.1. No
Broker-Dealer Services.
Neither
Xxxxxxx nor any agent or employee of Xxxxxxx is a registered broker/dealer
and
Xxxxxxx is not being retained to offer or sell any securities of the Company.
Xxxxxxx'x 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. Xxxxxxx 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 Xxxxxxx.
The
Company shall pay to Xxxxxxx a “Consulting Fee” of 130,000 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 Xxxxxxx and Xxxxxxx 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 Xxxxxxx, 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 Xxxxxxx'x services hereunder. The Company further agrees
to furnish Xxxxxxx such information with respect to the Company and access
to
such Company personnel and representatives, including the Company's auditors
and
legal counsel, as Xxxxxxx may request in order to permit Xxxxxxx to provide
her
services hereunder.
5. Representations
and Warranties of the Company. The
Company represents and warrants to Xxxxxxx that (a) to the best of the Company's
officers' knowledge and belief, any information furnished or to be furnished
to
Xxxxxxx for use in any business or marketing plans, financial models or
strategies, or otherwise in providing her 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 Xxxxxxx change at any time subsequent
to
the furnishing of such document or information to Xxxxxxx and prior to the
date
of the consummation of any transaction, the Company will inform Xxxxxxx promptly
of such changes and forthwith deliver to Xxxxxxx 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 Xxxxxxx.
Xxxxxxx
represents to the Company that during the term of this Agreement that (a)
neither she nor her employees or agents, to the best of Xxxxxxx'x knowledge
and
belief, will make any untrue statement of material fact in connection with
any
consulting services, and (b) to the best of Xxxxxxx'x knowledge and belief,
all
actions taken by her and her 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 Xxxxxxx.
The
Company will indemnify Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx'x 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 Xxxxxxx or a third party introduced by Xxxxxxx and
(ii) any omission or alleged omission from any materials provided by the Company
to Xxxxxxx or a third party introduced by Xxxxxxx, 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 Xxxxxxx in performing the services
which are the subject of this Agreement.
If
for
any reason the foregoing indemnification is unavailable to Xxxxxxx or
insufficient to hold her harmless, then the Company shall contribute to the
amount paid or payable by Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx,
as well as any relevant equitable considerations; provided, however, that,
to
the extent permitted by applicable law, Xxxxxxx 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 Xxxxxxx, 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 Xxxxxxx by the Company in
connection with the engagement. Xxxxxxx shall not have any liability to the
Company in connection with the engagement, except to the extent of her gross
negligence or willful misconduct.
2
The
Company also agrees to promptly upon demand reimburse Xxxxxxx for her legal
and
other expenses reasonably incurred by her 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 Xxxxxxx is not entitled to
indemnification hereunder, Xxxxxxx 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 Xxxxxxx is a party therein)
unless the Company has obtained an unconditional release of Xxxxxxx 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 Xxxxxxx, and shall be
in
addition to any other rights which Xxxxxxx 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 Xxxxxxx is an independent contractor of the Company. Xxxxxxx 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.
Xxxxxxx and her affiliates shall have no liability with respect to actions
taken
by or decisions made by the Company in reliance on introductions made by Xxxxxxx
hereunder. The Company shall keep Xxxxxxx apprised of all communications and
correspondence with any third party introduced by Xxxxxxx. The Company
acknowledges that Xxxxxxx and her affiliates are in the business of providing
financial services and consulting advice to others. Nothing herein contained
shall be construed to limit or restrict Xxxxxxx 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 Xxxxxxx. Xxxxxxx shall
be
obligated to devote only such of her time and attention to the services provided
hereunder as she deems necessary or appropriate in her sole discretion.
10. Obligations
Limited.
Xxxxxxx
shall have no obligation to make any independent verification of the accuracy
or
completeness of any information provided to her in the course of her 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
Xxxxxxx pursuant to her 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 Xxxxxxx'x
prior approval, unless in the opinion of counsel and after consultation with
Xxxxxxx, such disclosure is required by law. In addition, Xxxxxxx may not be
otherwise publicly referred to without her prior written consent.
3
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]
4
IN
WITNESS WHEREOF,
the
parties have signed this Agreement.
| "XXXXXXX" | ||
| |
|
|
| /s/ Xxxxx X. Xxxxxxx | ||
|
Xxxxx X. Xxxxxxx |
||
| "COMPANY" | ||
| AABB, Inc., a Nevada corporation | ||
| By: /s/ Xxxxx Xxxxxx | ||
|
Its:
President
|
||
5
