CONFIDENTIAL- WITHOUT PREJUDICE-NOT TO BE USED IN LITIGATION** RELEASE AGREEMENT
**CONFIDENTIAL-
WITHOUT PREJUDICE-NOT TO BE USED IN LITIGATION**
This
Release Agreement (the “Agreement”)
is
provided to _______________________________ (sometimes referred to herein
as the
“Investor” or “you” or “your”), as record owner of shares of common stock, par
value $.001 per share (the “Common
Stock”)
of
China Broadband, Inc., f/k/a Alpha Nutra, Inc., a Nevada corporation (the
“Company”).
BACKGROUND
As
a
result of a series of negotiations on behalf of the Company, its principals
and
advisors, a series of events have occurred which are more fully described
in a
Confidential Investor Update (the “Investor
Letter”),
dated
as of January 31, 2008 and in various Current Reports on Form 8-K filed with
the
Securities and Exchange Commission. As a result of the foregoing, and in
order
for, among other things, the Company to be eligible to receive certain share
consideration described in the Investor letter, the Company is requesting
release by you of any claims relating to the Company, its management and
certain
affiliates and consultants. You should not complete or execute this Agreement
without first carefully reviewing this Agreement and all of the reports of
the
Company filed via XXXXX with the Securities and Exchange Commission to date
(the
“Reports”)
the
provisions of which (including, without limitation, risks and disclosure
relating to forward looking statements) are incorporated herein.
1. Shares.
The
Investor hereby acknowledges its or his ownership of shares of Common Stock,
in
addition to Investor’s entitlement to an additional _______________ shares of
Common Stock pursuant to a Registration Rights Agreement by and among Investor,
certain other shareholders of the Company and the Company dated as of September
22, 2006. In exchange for the releases provided hereby, and other valid
consideration the receipt and sufficiency of which is acknowledged, the Investor
and Company agree to the following.
2.
Releases
of Investor
2.1
Investor
Releases.
The
Investor, for itself, its owners, and past and present affiliates and assigns
(collectively, “Investor
Parties”)
hereby
forever RELEASES AND DISCHARGES the Company, WestPark Capital, Inc., Wellfleet
Partners, Inc., Chardan Capital Markets, LLC, Xxxxxxx X. Xxxxxxx, Maxim
Financial Corporation, BCGU, LLC, Jaguar Acquisition Corporation, China Cablecom
Holdings, Ltd., China Cablecom, Ltd., and each of their respective past and
present officers, directors, employees, shareholders, managers, members,
partners, consultants, attorneys, accountants, auditors, successors and assigns
in any capacity (collectively, “Released
Parties”)
of and
from all actions, causes of action, suits, debts, sums of money, claims for
breaches of contract fiduciary duties or conflicts of interest, claims for
violations of securities laws or regulations, compensation, covenants,
controversies, agreements, trespasses, damages (compensatory, consequential,
liquidated, special, punitive or otherwise), judgments, executions, and demands
(including attorneys’ fees and costs) of any nature whatsoever, in law,
admiralty or equity, against the Released Parties that the Investor Parties
ever
had, now have or hereafter can, shall or may have, whether known or unknown,
for, upon, or by reason of any matter.
2.2 The
Investor Parties further agree not to institute, instigate, urge, support,
encourage, voluntarily participate in or profit from any lawsuit, complaint
or
other action or proceeding of any kind relating to any matter to which this
General Release pertains.
2.3 With
respect to any and all released claims, the Investor stipulates and agrees
that
it/he/they expressly waive the provisions, rights and benefits of California
Civil Code §1542, which provides:
A
general release does not extend to claims which the creditor does not know
or
suspect to exist in his or her favor at the time of executing the release,
which
if known by him or her must have materially affected his or her settlement
with
the debtor.
The
Investor Parties expressly waive any and all provisions, rights and benefits
conferred by any law of any state or territory of the United States, or
principle of common law, which is similar, comparable or equivalent to
California Civil Code §1542. The Investor Parties may hereafter discover facts
in addition to or different from those which he, she or it now knows or believes
to be true with respect to the subject matter of the released claims, but
the
Investor Parties have fully, finally, and forever settled and released any
and
all released claims, known or unknown, suspected or unsuspected, contingent
or
non-contingent, whether or not concealed or hidden, which now exist, or
heretofore have existed, upon any theory of law or equity now existing or
coming
into existence in the future, including, but not limited to, conduct which
is
negligent, intentional, with or without malice, or a breach of any duty,
law or
rule, without regard to the subsequent discovery or existence of such different
or additional facts. The Investor Parties acknowledge that the foregoing
waiver
was separately bargained for and a key element of the contract of which this
release is a part.
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2.4 Reliance
on Professional Advice.
Investor represents and warrants that it/he/she: (a) has carefully read this
Agreement, knows the contents thereof and has had an opportunity to review
the
same along with all other information relating to the Company with its legal
counsel and professional tax advisors prior to execution of this Agreement,
and
is executing the same freely and voluntarily; (b) fully understands the legal
an
tax ramifications of the terms and provisions of this Agreement; (c) has
not
relied upon any representation or statement not contained in this Agreement
or
in the Reports or that it has otherwise received in writing from the Company;
and (d) is aware that it or his respective attorneys may hereafter discover
facts different from or in addition to the facts that they now know or believe
to be true but that its intention is to fully and finally release the Released
Parties.
3.
Miscellaneous
3.1
All
notices or other communications given or made hereunder shall be in writing
and
shall be delivered by hand or mailed by registered or certified mail, return
receipt requested, postage prepaid, to the undersigned, at the address set
forth
on the signature page hereto, and to the Company at the address of the Company
on the cover page of the most recent Report at the time of giving
notice.
3.2 This
Agreement shall be governed by and construed in accordance with the laws
of the
state of New York applicable to contracts made and wholly performed in that
state. Any
subsequent action to enforce the terms of this Agreement may be brought in
any
State or Federal court located in Manhattan, New York, and, if any such action
is brought in a State or Federal Court located in Manhattan, New York, no
Party
shall dispute that such court is the proper venue for the action or that
the
Party is subject to personal jurisdiction in such court for purposes of the
action.
3.3.
This
Agreement constitutes the entire agreement among the parties hereto with
respect
to the subject matter hereof and
supersedes all prior agreements and understandings among the parties with
respect to such subject matter. This Agreement may not be changed, modified
or
amended except by a written instrument signed by the Party to be charged
with
such change, modification or amendment.
3.4 This
Agreement is not transferable or assignable by the Investor.
3.5 All
references in this Agreement to the "Investor" shall include all parties
(other
than the Company) who execute this Agreement. If the Investor is a corporation,
partnership, trust or two or more individuals purchasing jointly, note the
specific instructions for the Certificate of Signatory at the end hereof.
Please
date and sign the certificate.
3.6 Each
party hereto, at the reasonable request of another party hereto, shall execute
and deliver such other instruments and do and perform such other acts and
things
as may be reasonably necessary for effecting completely the consummation
of this
Agreement and the transactions contemplated hereby.
3.7 This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This agreement may executed and deemed binding when executed
and
delivered by facsimile or electronic copy of the actual executed Agreement
(such
as Adobe, efax or similar copying and transmitting software).
3.8 This
Agreement shall be binding on the Parties hereto and their respective
predecessors, successors, assigns, parents, subsidiaries, affiliates, divisions,
groups and present and former officers, directors, securityholders, and
employees.
[Signature
Pages Follow]
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SIGNATURE
PAGE TO RELEASE AGREEMENT
IN
WITNESS WHEREOF, the parties have executed this Release Agreement as of the
date
set forth on the Purchase Signature Page hereto.
INVESTOR
|
|
(By
Counterpart Form - See Investor Signature
|
|
Pages
That Follow)
|
|
COMPANY
|
|
CHINA
BROADBAND, INC.
|
|
(By
Execution of Acceptance Page following
|
|
Certificate
of
Signatory)
|
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INVESTOR
SIGNATURE PAGE TO RELEASE AGREEMENT
(For
Individuals)
This
Release Agreement (including the Questionnaire) is hereby executed and entered
into by the below Investor.
|
|
Witness
(signature)
|
Signature
(Individual)
|
Witness
(print name)
|
Name
(Print)
|
Street
address
|
|
Witness
(signature)
|
|
City,
State and Zip Code
|
|
Witness
(print name)
|
( )
|
Telephone
Number
|
|
Date
|
|
Number
of Warrants Held:
|
|
Warrant
Number: A-
|
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INVESTOR
SIGNATURE PAGE TO RELEASE AGREEMENT
(for
Corporation, Partnership, Trust or Other Entities)
This
Release Agreement is hereby executed and entered into by the below
Investor:
Witness
(signature)
|
Name
of Entity*
|
Witness
(print name)
|
Type
of Entity (i.e., corporation, partnership, etc.)
|
State
of Formation of Entity
|
|
Witness
(signature)
|
|
Name
of Signatory Typed or Printed
|
|
|
|
Witness
(print name)
|
Its: |
Title
|
|
Date
|
|
Address
to Which Correspondence Should Be Directed
|
|
x/x
Xxxx
|
|
Xxxxxx
Xxxxxxx
|
|
( )
|
|
Telephone
Number
|
|
Number
of Shares Held:
|
|
Number
of Additional Shares:
|
*If
this Agreement is being entered into by an entity, the Certificate of Signatory
that follows must also be completed.
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CERTIFICATE
OF SIGNATORY
To
be
completed if Agreement is being executed by an entity
I,__________________________________,
am the ___________________________ of (the
“Entity”).
I
certify
that I am empowered and duly authorized by the Entity to execute and carry
out
the terms of the Release Agreement (the “Agreement”)
relating to the releases granted by the Entity relating to China Broadband,
Inc.
The Agreement has been duly and validly executed on behalf of the Entity
and
constitutes a legal and binding obligation of the Entity.
IN
WITNESS WHEREOF, I have hereto set my hand this ______ day of March,
2008.
Signature
|
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COMPANY
SIGNATURE PAGE TO SUBSCRIPTION AND RELEASE AGREEMENT
of
CHINA
BROADBAND, INC.
The
foregoing Release Agreement of ______________________________ with respect
to
releases granted by such Investor, is hereby AGREED AND ACCEPTED:
CHINA
BROADBAND, INC.
f/k/a
Alpha Nutra, Inc.
By:
Name:
Title:
Date:
_____________________, 2008
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