CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT
("Agreement") is dated as of the 1st
day of
January, 2006, by and between Heritage
West Capital,
an
Arizona corporation ("Heritage"), and AABB, Inc., a Nevada corporation
("Company").
RECITAL:
The
Company desires to retain Heritage and Heritage 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 Heritage and Heritage
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 Heritage
hereunder shall be in consideration for only bona fide consulting
services.
1.2.1. No
Broker-Dealer Services.
Neither
Heritage nor any agent or employee of Heritage is a registered broker/dealer
and
Heritage is not being retained to offer or sell any securities of the Company.
Heritage'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. Heritage 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 Heritage.
The
Company shall pay to Heritage a “Consulting Fee” of 50,000 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 Heritage and Heritage 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 Heritage, 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 Heritage's services hereunder. The Company further
agrees to furnish Heritage such information with respect to the Company and
access to such Company personnel and representatives, including the Company's
auditors and legal counsel, as Heritage may request in order to permit Heritage
to provide its services hereunder.
5. Representations
and Warranties of the Company. The
Company represents and warrants to Heritage that (a) to the best of the
Company's officers' knowledge and belief, any information furnished or to be
furnished to Heritage for use in any business or marketing plans, financial
models or strategies, or otherwise in providing its 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 Heritage change at
any
time subsequent to the furnishing of such document or information to Heritage
and prior to the date of the consummation of any transaction, the Company will
inform Heritage promptly of such changes and forthwith deliver to Heritage
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 Heritage.
Heritage
represents to the Company that during the term of this Agreement that (a)
neither it nor its employees or agents, to the best of Heritage's officers'
knowledge and belief, will make any untrue statement of material fact in
connection with any consulting services, and (b) to the best of Heritage's
officers' knowledge and belief, all actions taken by it and its 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 Heritage.
For
purposes of this Section 7, unless the context otherwise requires, "Heritage"
shall include Heritage, any affiliated entity, and each of their respective
managers, officers, directors, employees, partners and controlling persons
within the meaning of the federal securities laws and the successors, assigns,
heirs and personal representatives of the foregoing persons (collectively,
the
“Indemnified Persons”). The Company will indemnify Heritage 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 Heritage 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
Heritage'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 Heritage or a third party introduced by Heritage
and
(ii) any omission or alleged omission from any materials provided by the Company
to Heritage or a third party introduced by Heritage, 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 Heritage in performing the
services which are the subject of this Agreement.
If
for
any reason the foregoing indemnification is unavailable to Heritage or
insufficient to hold it harmless, then the Company shall contribute to the
amount paid or payable by Heritage 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 Heritage 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 Heritage,
as well as any relevant equitable considerations; provided, however, that,
to
the extent permitted by applicable law, Heritage 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 Heritage, 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 Heritage by the Company in
connection with the engagement. Heritage shall not have any liability to the
Company in connection with the engagement, except to the extent of its gross
negligence or willful misconduct.
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The
Company also agrees to promptly upon demand reimburse Heritage for its legal
and
other expenses reasonably incurred by it 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 Heritage is not entitled
to
indemnification hereunder, Heritage 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 Heritage is a party
therein) unless the Company has obtained an unconditional release of Heritage
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 Heritage,
and
shall be in addition to any other rights which Heritage may have at common
law
or otherwise. Any Indemnified Persons that are not signatories to this Agreement
shall be deemed to be third party beneficiaries of the provisions of this
Section 7. 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 Heritage is an independent contractor of the Company. Heritage 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.
Heritage and its affiliates shall have no liability with respect to actions
taken by or decisions made by the Company in reliance on introductions made
by
Heritage hereunder. The Company shall keep Heritage apprised of all
communications and correspondence with any third party introduced by Heritage.
The Company acknowledges that Heritage and its affiliates are in the business
of
providing financial services and consulting advice to others. Nothing herein
contained shall be construed to limit or restrict Heritage 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
Heritage. Heritage shall be obligated to devote only such of its time and
attention to the services provided hereunder as it deems necessary or
appropriate in its sole discretion.
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10. Obligations
Limited.
Heritage
shall have no obligation to make any independent verification of the accuracy
or
completeness of any information provided to it in the course of its 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
Heritage pursuant to its 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 Heritage's
prior approval, unless in the opinion of counsel and after consultation with
Heritage, such disclosure is required by law. In addition, Heritage may not
be
otherwise publicly referred to without its prior written consent.
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.
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"HERITAGE"
Heritage
West Capital, an Arizona corporation
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| |
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| By: /s/ Xxxxx X. Xxxxxxxxx | ||
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Its:
Secretary/Treasurer
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| "COMPANY" | ||
| AABB, Inc., a Nevada corporation | ||
| By: /s/ Xxxxx Xxxxxx | ||
|
Its:
President
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