CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT
("Agreement") is dated as of the 1st
day of
January, 2006, by and between XX
Xxxxxxxxxxx
("Xxxxxxxxxxx") and AABB, Inc., a Nevada corporation ("Company").
RECITAL:
The
Company desires to retain Xxxxxxxxxxx and Xxxxxxxxxxx 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 Xxxxxxxxxxx and
Xxxxxxxxxxx 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 Xxxxxxxxxxx
hereunder shall be in consideration for only bona fide consulting
services.
1.2.1. No
Broker-Dealer Services.
Neither
Xxxxxxxxxxx nor any agent or employee of Xxxxxxxxxxx is a registered
broker/dealer and Xxxxxxxxxxx is not being retained to offer or sell any
securities of the Company. Xxxxxxxxxxx'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. Xxxxxxxxxxx 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 Xxxxxxxxxxx.
The
Company shall pay to Xxxxxxxxxxx a “Consulting Fee” of 1,050,000 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 Xxxxxxxxxxx and Xxxxxxxxxxx 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 Xxxxxxxxxxx, 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 Xxxxxxxxxxx'x services hereunder. The Company further
agrees to furnish Xxxxxxxxxxx such information with respect to the Company
and
access to such Company personnel and representatives, including the Company's
auditors and legal counsel, as Xxxxxxxxxxx may request in order to permit
Xxxxxxxxxxx to provide his services hereunder.
5. Representations
and Warranties of the Company. The
Company represents and warrants to Xxxxxxxxxxx that (a) to the best of the
Company's officers' knowledge and belief, any information furnished or to be
furnished to Xxxxxxxxxxx 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 Xxxxxxxxxxx change
at
any time subsequent to the furnishing of such document or information to
Xxxxxxxxxxx and prior to the date of the consummation of any transaction, the
Company will inform Xxxxxxxxxxx promptly of such changes and forthwith deliver
to Xxxxxxxxxxx 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 Xxxxxxxxxxx.
Xxxxxxxxxxx
represents to the Company that during the term of this Agreement that (a)
neither he nor his employees or agents, to the best of Xxxxxxxxxxx'x knowledge
and belief, will make any untrue statement of material fact in connection with
any consulting services, and (b) to the best of Xxxxxxxxxxx'x 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 Xxxxxxxxxxx.
The
Company will indemnify Xxxxxxxxxxx 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 Xxxxxxxxxxx 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 Xxxxxxxxxxx'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 Xxxxxxxxxxx or a third party introduced by
Xxxxxxxxxxx and (ii) any omission or alleged omission from any materials
provided by the Company to Xxxxxxxxxxx or a third party introduced by
Xxxxxxxxxxx, 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 Xxxxxxxxxxx in performing the services which are the subject of this
Agreement.
If
for
any reason the foregoing indemnification is unavailable to Xxxxxxxxxxx or
insufficient to hold him harmless, then the Company shall contribute to the
amount paid or payable by Xxxxxxxxxxx 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 Xxxxxxxxxxx
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
Xxxxxxxxxxx, as well as any relevant equitable considerations; provided,
however, that, to the extent permitted by applicable law, Xxxxxxxxxxx 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 Xxxxxxxxxxx, 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 Xxxxxxxxxxx by the Company in connection with the engagement. Xxxxxxxxxxx
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 Xxxxxxxxxxx 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 Xxxxxxxxxxx is not entitled
to
indemnification hereunder, Xxxxxxxxxxx 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 Xxxxxxxxxxx is a party
therein) unless the Company has obtained an unconditional release of Xxxxxxxxxxx
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 Xxxxxxxxxxx,
and shall be in addition to any other rights which Xxxxxxxxxxx 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 Xxxxxxxxxxx is an independent contractor of the Company. Xxxxxxxxxxx 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.
Xxxxxxxxxxx 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
Xxxxxxxxxxx hereunder. The Company shall keep Xxxxxxxxxxx apprised of all
communications and correspondence with any third party introduced by
Xxxxxxxxxxx. The Company acknowledges that Xxxxxxxxxxx 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 Xxxxxxxxxxx
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 Xxxxxxxxxxx. Xxxxxxxxxxx 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.
Xxxxxxxxxxx
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
Xxxxxxxxxxx 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
Xxxxxxxxxxx'x prior approval, unless in the opinion of counsel and after
consultation with Xxxxxxxxxxx, such disclosure is required by law. In addition,
Xxxxxxxxxxx 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.
| "XXXXXXXXXXX" | ||
| |
|
|
| By: /s/ XX Xxxxxxxxxxx | ||
|
XX Xxxxxxxxxxx
|
||
| "COMPANY" | ||
| AABB, Inc., a Nevada corporation | ||
| By: /s/ Xxxxx Xxxxxx | ||
|
Its:
President
|
||
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