CONSULTING AGREEMENT
AGREEMENT
made and entered into as of this 24th
day of
January, 2007 (the "Agreement"), by and between Alpha Nutra, Inc., a Nevada
corporation (the “Company”) and Maxim Financial Corporation (the
“Consultant”).
WHEREAS,
the Company desires to engage the Consultant to provide office-related and
financial advisory services and to waive past (i.e. of China Broadband, Ltd.)
and future rent for a lease for office space to the Company through December
of
2007; and
WHEREAS,
the Consultant has agreed to perform such services for the Company on terms
and
conditions set forth herein;
NOW,
THEREFORE, the Company and the Consultant agree as follows:
1.
Engagement.
The
Company agrees to engage the Consultant and the Consultant agrees to provide
consulting services to the Company in accordance with the terms
hereof.
2.
Term.
The term
of this Agreement shall commence as of January 24, 2007 and shall continue
until
December 31, 2007.
3.
Services.
The
Consultant shall render office-related services and storage, and financial
advisory services to the Company and continue the lease with the Company rent
for which shall be waived as set forth herein (the “Services”). In connection
with the Services to be rendered by the Consultant, the Consultant shall report
to the President of the Company and shall consult with those individuals on
behalf of the Company as is necessary in connection with his obligations set
forth above.
4.
Compensation.
In
consideration for the services to be provided by the Consultant hereunder,
the
Company shall grant the Consultant warrants to purchase up to 3,974,800 shares
of the Company's common stock at an exercise price equal to $0.60 per share
and
expiring two years from the date of issuance, substantially in the form annexed
hereto as Exhibit “A”. The Consultant hereby acknowledges and agrees that, all
or part of the compensation granted hereunder may be forfeited upon the date
that the Consultant shall cease to be a consultant to the Company if the Company
determines that the Consultant no longer acts as a consultant to the Company
as
a result of the Consultant's fraud,
gross negligence, or willful misfeasance in connection with the rendition and
performance of consulting or other services. The Company shall have the power
to
determine, in its sole discretion exercised in good faith, what constitutes
fraud, gross negligence, and willful misfeasance,
whether
the Consultant has committed such fraud, gross negligence, or willful
misfeasance in connection with the rendition and performance of consulting
services, and the date as of which any such forfeiture occurs.
5.
Costs
and Expenses.
Subject
to prior Company approval, all third party and out-of-pocket expenses that
the
Consultant shall incur on behalf of the Company in performing services under
this Agreement will be the responsibility of Company.
6.
Non-Exclusive
Services.
The
Company understands that the Consultant is currently providing certain
consulting services to other individuals and entities and agrees that the
Consultant is not prevented or barred from rendering services of the same nature
or a similar nature to any other individual or entity. In addition, the
Consultant understands and agrees that the Company shall not be prevented or
barred from retaining other persons or entities to provide services of the
same
or similar nature as those provided by the Consultant.
7.
Information
Regarding Company.
The
Consultant represents that he has received any and all information from the
Company necessary for him to make an informed decision regarding the acceptance
of the Company's securities as compensation under this Agreement and has
reviewed all such information with his legal, financial and investment advisors
to the extent he deemed such review necessary or appropriate. Because of the
Company's financial condition and other factors, the receipt of capital stock
of
the Company as compensation under this Agreement involves a high degree of
risk,
including the risks that the Consultant may lose his entire compensation. The
Consultant expressly acknowledges and accepts this risk. The Consultant further
represents that he has been afforded the opportunity to discuss the Company
with
its management. As a result, the Consultant is cognizant of the financial
condition and operations of the Company, has available full information
concerning its affairs and has been able to evaluate the merits and risks of
being compensated in common stock of the Company.
8.
Consultant
Not Agent or Employee.
Consultant’s obligations under this Agreement consist solely of the services
described herein. In no event shall the Consultant be considered to be acting
as
an agent or employee of the Company or otherwise representing or binding the
Company. For the purposes of this Agreement, the Consultant is an independent
contractor. All final decisions with respect to acts of the Company or its
affiliates, whether or not made pursuant to or in reliance on information or
advice furnished by the Consultant hereunder, shall be those of the Company
or
such affiliates and the Consultant shall, under no circumstances, be liable
for
any expenses incurred or losses suffered by the Company as a consequence of
such
actions. The Consultant agrees that all of his work product relating to the
services to be rendered pursuant to this Agreement constitutes a "work-for-hire"
and shall become the exclusive property of the Company.
9.
Power
and Authority of Consultant.
By
virtue of the execution hereof, and in order to induce the Company to enter
into
this Agreement, the Consultant hereby represents and warrants to the Company
that the Consultant has full power and authority to enter into this Agreement,
to enter into a consulting relationship with the Company and to perform this
Agreement in the time and manner contemplated;
10.
Indemnification.
(a)
The
Company agrees to indemnify and hold harmless the Consultant from and against
any and all losses, claims, damages, liabilities and expenses (including,
without limitation attorneys' fees and costs incurred in the investigation,
defense and settlement of the matter) suffered or incurred by the Consultant
which arise out of this Agreement or the performance by the Consultant of his
obligations hereunder, unless, such losses, claims, damages, liabilities or
expenses are found by a final determination of a court of competent jurisdiction
to have arisen out of negligence, misrepresentation or malfeasance by the
Consultant in performing his services hereunder. If for any reason the foregoing
indemnification is unavailable to the Consultant, or insufficient to hold the
Consultant harmless, then the Company shall contribute to the amount paid or
payable by the Consultant as a result of such loss, claim, damage or liability
in such proportion as is appropriate to reflect the relative fault of the
Company and the Consultant, as well as any other relevant equitable
considerations. The reimbursement, indemnity and contribution obligations of
the
Company under this paragraph shall be in addition to any liability which the
Company may otherwise have and shall be binding and inure to the benefit of
any
respective successors, assigns, heirs and personal representatives of the
Company and the Consultant.
(b)
The
Consultant agrees to give the Company an opportunity to participate in the
defense or preparation of the defense of any action brought against the
Consultant to enforce any such claim or liability and the Company shall have
the
right so to participate. The Company's liability under the foregoing indemnity
is expressly conditioned upon notice of any such action having been sent by
the
Consultant to the Company by letter or telegram addressed as set forth above,
promptly after the receipt by the Consultant of written notice of such action
against the Consultant, such notice either being accompanied by copies of papers
served or filed in connection with such action or by a statement of the nature
of the action to the extent known to the Consultant.
(c)
The
Consultant agrees to indemnify, defend and hold harmless the Company against
any
and all losses, claims, damages, expenses and liabilities (including, without
limitation attorneys' fees and costs incurred in the investigation, defense
and
settlement of the matter) suffered or incurred by the Company, which arise
out
of this Agreement or otherwise out of the performance by the Consultant of
his
obligations hereunder, unless, such losses, claims, damages, liabilities or
expenses are found by a final determination of a court of competent jurisdiction
to have arisen out of negligence or malfeasance of the Company. If for any
reason the foregoing indemnification is unavailable to the Company, or
insufficient to hold the Company harmless, then the Consultant shall contribute
to the amount paid or payable by the Company as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect the relative
fault of the Company and the Consultant, as well as any other relevant equitable
considerations. The reimbursement, indemnity and contribution obligations of
the
Consultant under this paragraph shall be in addition to any liability which
the
Consultant may otherwise have and shall be binding and inure to the benefit
of
any respective successors, assigns, heirs and personal representatives of the
Company and the Consultant.
(d)
The
Company agrees to give the Consultant an opportunity to participate in the
defense or preparation of the defense of any action brought against the Company
to enforce any such claim or liability and the Consultant shall have the right
so to participate. The Consultant’s liability under the foregoing indemnity is
expressly conditioned upon notice of any such action having been sent by the
Company to the Consultant by letter or telegram addressed as set forth above,
promptly after the receipt by the Company of written notice of such action
against the Company, such notice either being accompanied by copies of papers
served or filed in connection with such action or by a statement of the nature
of the action to the extent known to the Company.
The
provisions of this Section 10 shall survive the termination and expiration
of
this Agreement.
11.
Discharge
of Debt.
The
Consultant hereby agrees that it will discharge and forgive all outstanding
indebtedness which the Company owes to the Consultant under that certain office
lease from July 2006 through the date hereof. All other expenses shall be paid
unless waived by the parties.
12.
Notices.
Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally or sent by certified, registered,
or
express mail, postage prepaid, return receipt requested, or by a reputable
overnight delivery service. Any such notice shall be deemed given when received
by the intended recipient.
13.
Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon the Company, its
successors, and assigns. Consultant agrees that he will not assign or transfer
this Agreement or his right, title or interest herein, or any compensation
due
hereunder without the prior written consent of the Company, this Agreement
being
intended to secure the personal services of the Consultant.
14.
Applicable
Law.
This
Agreement shall be governed by the laws of the State of New York without giving
effect to the principals of conflicts of law. The Consultant hereby consents
to
the jurisdiction of the federal and state courts located in the State of New
York.
15.
Other
Agreements.
This
Agreement supersedes all prior understandings and agreements between the
parties. It may not be amended orally, but only by a writing signed by the
parties hereto.
16.
Non-Waiver.
No delay
or failure by either party in exercising any right under this Agreement, and
no
partial or single exercise of that right shall constitutes a waiver of that
or
any other right.
17.
Headings.
Headings
in this Agreement are for convenience only and shall not be used to interpret
or
construe its provisions.
18.
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
ALPHA
NUTRA, INC.
By:
______________________________
CONSULTANT:
MAXIM
FINANCIAL CORPORATION
By:
______________________________
