EMPLOYMENT AGREEMENT
EMPLOYMENT
AGREEMENT (this "Agreement")
dated
as of February 24, 2007 (the "Effective
Date"),
between China Broadband, Ltd., a Cayman Islands company (the "Company"),
and
Xxxxx Xx (the "Executive"),
a
residing at x/x
Xxxxx
Broadband Ltd., 0000 Xxxxx Xxxxxx, 0xx
Xxxxx,
Xxxxxxx, Xxxxxxxx 00000.
WHEREAS,
the Company wishes to employ the Executive to render services for the Company
or
its subsidiary and related entities on the terms and conditions set forth in
this Agreement, and the Executive wishes to be retained and employed by the
Company on such terms and conditions;
WHEREAS,
the Company is the wholly owned subsidiary of Alpha Nutra, Incl, d/b/a China
Broadband, a Nevada corporation (the “Parent”);
NOW,
THEREFORE, in consideration of the premises, the mutual agreements set forth
below and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1.
Employment.
The
Company hereby employs the Executive, and the Executive accepts such employment
and agrees to perform services for the Company, for the period and upon the
other terms and conditions set forth in this Agreement.
2.
Term.
The
term of the Executive's employment hereunder shall commence on the Effective
date, and unless terminated at an earlier date in accordance with Section 8
hereof, shall extend through July 7, 2009 (the "Term"),
unless extended by the parties in writing. Notwithstanding the foregoing, all
Base Salary compensation only shall accrue and be paid until the closing of
a
financing with gross proceeds of $5,000,000 in one or more closings (a
“Qualified
Offering”).
All
other compensation and rights shall accrue from the date hereof and onward.
3.
Position
and Duties.
(a)
Service
with Company.
During
the term of the Executive's employment, the Executive shall serve in the
position of President and Chairman of the Company, and Executive shall have
the
authority, duties and responsibilities generally associated with such position
and as may be determined by the Board of Directors (the “Board”)
of the
Company or its Parent from time to time, including, without limitation and
subject to the control and direction of the Board and the Chairman, planning
and
directing all aspects of the Company’s operational policies, objectives and
initiatives, as well as attaining the Company’s short- and long-term financial
and operational goals. The Executive will report to the Chairman.
(b)
Performance
of Duties.
(i)
Subject
to the provisions hereof, the Executive agrees to serve the Company faithfully
and to the best of his ability and to devote his full time, attention and
efforts to the business and affairs of the Company during Executive’s employment
by the Company.
(ii) Executive
represents and acknowledges that he is not subject to any obligations to any
other company which would preclude the Executive from entering into this
Agreement (including without limitation, any agreements (oral or written) with
any former employer) nor are there any such obligations which would impact
or
restrict the Executive’s ability to fully carry out his responsibilities under
this Agreement.
(iii)
Executive agrees that he will not bring with him or use on behalf, or for the
benefit, of the Company or disclose to the Company any confidential information
of or concerning his former employer or any third party that is not generally
available to the public or that has not been lawfully transferred to the
Company.
4.
Compensation.
(a)
Base
Salary.
The
Company shall pay to the Executive an annual base salary (the "Base
Salary")
of Two
Hundred Fifty Thousand Dollars ($250,000) per year inclusive of taxes (which
will be paid by the Executive directly), which Base Salary shall be paid in
accordance with the Company's normal payroll procedures for its senior
management. The compensation payable to Executive during each fiscal year
beginning after the Effective Date shall be established by the Board or the
Compensation Committee thereof following an annual performance review, but
in no
event shall the annual Base Salary for any subsequent year of the Term be less
than the Base Salary in effect during the prior year of the Term.
Notwithstanding the foregoing, the Base Salary shall accrue and not be paid
in
cash until the closing of any Qualified Offering and thereafter, shall be paid
as set forth herein.
(b)
Annual
Bonus.
Commencing with the fiscal year ending December 31,2007, Executive shall be
entitled to participate in the Company's bonus plan for management and any
successor bonus plan covering management (the "Bonus
Plan").
Under
the Bonus Plan, the Executive shall be eligible to receive a performance-based
cash bonus for each year of employment in an amount, and based on individual
and/or corporate objectives, targets and factors (and evaluation as to the
extent of achievement thereof), to be established and determined by the Board
in
its sole discretion following consultation between the Board and Executive
prior
to, or within sixty (60) days after the commencement of, each fiscal year (the
"Performance
Criteria").
(c)
Participation
in Benefit Plans; Indemnification.
While he
is employed by the Company, Executive shall also be eligible to participate
in
any incentive and employee benefit plans or programs which may be offered by
the
Company to the extent that Executive meets the requirements for each individual
plan and in all other plans in which Company executives participate. The Company
provides no assurance as to the adoption or continuance of any particular
employee benefit plan or program, and Executive's participation in any such
plan
or program shall be subject to the provisions, rules and regulations applicable
thereto. The Company will offer medical insurance to its employees following
consummation of the Merger and Financing, which will be available to the
Executive on the same terms as is offered to other senior executives of the
Company. In addition, the Company will provide officer liability insurance,
subject to availability, on the same terms as is offered to other officers
and
directors of the Company. The Company shall indemnify Executive and hold him
harmless from and against any claim, liability and expense (including, without
limitation, reasonable attorney fees) made against or incurred by him in
connection with his employment by the Company or his membership on the Board,
in
a manner and to an extent that is not less favorable to the Executive as the
indemnification protection that is afforded by the Company to any other senior
officer or director and that is consistent with industry custom and standards.
(d)
Expenses.
The
Company will pay or reimburse Executive for all reasonable and necessary
out-of-pocket expenses incurred by him in the performance of Executive’s duties
under this Agreement, subject to the Company's normal policies for expense
verification. Notwithstanding the foregoing provisions and in recognition of
the
fact that Executive will live and travel away from his family for significant
periods of time, Executive shall be authorized to expense up to $10,000 in
personal travel expenses to the Company for which Executive will be responsible
to pay the taxes, if any.
(e)
Vacation.
Executive shall be entitled to vacations in accordance with the policy of the
Company with respect to its senior management, in effect from time to time,
but
will not be less than 24 vacation days per year.
5.
Confidentiality
and Xxxxxxx Xxxxxxx.
(a)
(i)
Executive acknowledges that, by reason of his employment by the Company, he
will
have access to confidential information of the Company and its parent,
including, but not limited to, information and knowledge pertaining to
inventions, discoveries, improvements, innovations, designs, ideas, trade
secrets, proprietary information, advertising, marketing, distribution and
sales
methods, sales and profit figures, customer and vendor lists and relationships
between the Company and sales representatives, wholesalers, customers,
suppliers, dealers, distributors and others who have business dealings with
them
("Confidential Information"). The Executive acknowledges that such Confidential
Information is a valuable and unique asset of the Company and covenants that,
both during and after the Term, Executive will not disclose any Confidential
Information to any person or entity, nor use the Confidential Information for
any purpose, except as his duties as an employee of the Company may require,
without the prior written authorization of the Board. The obligation of
confidentiality imposed by this Section 5(b) shall not apply to Confidential
Information that otherwise becomes generally known to the public through no
act
of the Employee in breach of this Agreement or any other party in violation
of
an existing confidentiality agreement with the Company or which is required
to
be disclosed by court order or applicable law.
(ii)
All
records, business plans, financial statements and other Property delivered
to or
compiled by Executive for or on behalf of the Company or its vendors or
customers that pertain to the business of the Company shall be and remain the
property of the Company, and be subject at all times to its discretion and
control. Likewise, all correspondence, reports, records and other similar data
pertaining to the business, activities or future plans of the Company (and
all
copies thereof) that are collected by Executive shall be delivered promptly
to
the Company without request by it upon termination of Executive's
employment.
(ii)
Executive is aware that he will, as a result of his executive position with
the
company, come into contact with confidential information that, if disclosed
would have an effect on the trading market for the Company’s parent’s
securities. Executive agrees to only purchase or sell securities during times
or
“windows” wherein all material information is publicly available.
(b)
Nonsolicitation
of Employees.
During
his employment or for 6 months thereafter, Executive shall not, directly or
indirectly, personally or through others, encourage to leave employment with
the
Company, solicit for employment, or advise or recommend to any other person,
firm, business, or entity that they employ or solicit for employment, any
employee of the Company or of any parent, subsidiary, or affiliate of the
Company.
6.
Ventures.
If,
during the term of his employment, the Executive is engaged in or associated
with the planning or implementing of any project, program, venture or
relationship involving the Company and a third party or parties, all rights
in
such project shall belong to the Company. Except as approved by the Board,
the
Executive shall not be entitled to any interest in such project or to any
commission, finder's fee or other compensation in connection therewith other
than the compensation to be paid to the Executive as provided in this Agreement.
7.
Acknowledgment.
Executive agrees that the covenants and agreements contained in Section 5 hereof
are material to this Agreement; that each of such covenants is reasonable and
necessary to protect and preserve the Company's interests, properties and
business; that irreparable loss and damage will be suffered by the Company
should Executive breach any of such provisions; that each of such provisions
is
separate, distinct and severable not only from the other of such provisions
but
also from the other and remaining provisions of this Agreement; that the
unenforceability or breach of any such provisions shall not affect the validity
or enforceability of any other such provisions or any other provision of this
Agreement; and that, in addition to other remedies available to it, the Company
shall be entitled to both temporary and permanent injunctions and any other
rights or remedies it may have, at law or in equity, to end or prevent a breach
or contemplated breach by Executive of any such covenants or agreements.
8.
Termination
of Employment.
(a)
Grounds
for Termination.
Executive's employment pursuant to this Agreement shall terminate prior to
the
expiration of the Term in the event that at any time:
(i)
Executive dies,
(ii)
Executive becomes disabled (as defined below), so that he cannot perform the
essential functions of his position with or without reasonable
accommodation,
(iii)
The
Board elects to terminate Executive's employment for "Cause" and notifies
Executive in writing of such election, or
(iv)
The
Board elects to terminate Executive's employment without "Cause" and notifies
Executive in writing of such election.
If
Executive's employment is terminated pursuant to clause (i), (ii) or (iii)
of
this Section 8(a), such termination shall be effective immediately. If
Executive's employment is terminated pursuant to subsection (iv) of this Section
8(a), such termination shall be effective 30 days after delivery of the notice
of termination.
(b)
"Cause"
Defined.
"Cause"
shall mean (i) the willful engaging by Executive in illegal conduct or gross
misconduct, (ii) Executive's material failure to continuously perform his
obligations to the Company hereunder (other than any such failure resulting
from
illness or incapacity), or (iii) Executive's material breach of his obligations
under this Agreement. For purposes of this Section 8(b), no act or failure
to
act on Executive's part shall be deemed "willful" unless done, or omitted to
be
done, by Executive not in good faith and without reasonable belief that
Executive's action of omission was in the best interest of the Company.
(c)
"Disabled"
Defined.
As used
in this Agreement, the term "disabled" means any mental or physical condition
that renders Executive unable to perform the essential functions of his
position, with or without reasonable accommodation, for a period in excess
of
180 days.
(d)
Surrender
of Records and Property.
Upon
termination of his employment with the Company, Executive shall deliver promptly
to the Company all documents or other materials, in any form, that relate in
any
way to the business, products, practices or techniques of the Company, and
all
other property, trade secrets and confidential information of the Company,
including, but not limited to, all documents that in whole or in part contain
any trade secrets or confidential information of the Company, which are in
his
possession or under his control.
9.
Effect of Termination.
(a)
Termination
Without Cause.
In the
event the Company terminates Executive's employment as the Company's Chairman
and President without Cause pursuant to Section 8(a)(iv) hereof, Executive
shall
receive (1) a lump sum cash payment equal to the sum of (1) any Base Salary
payable (including any accrued but unpaid Base Salary) through the date of
termination and any Earned Bonus which remains unpaid as of the date of
termination; and (2) an amount equal to 75% of the Executive's Base Salary
in
effect at the time of his termination for six months payable over such six
month
period.
(b)
Termination
For Cause.
In the
event the Company terminates Executive's employment as the Company's Chairman
and President for Cause pursuant to Section 8(a)(iii) hereof, Executive shall
be
entitled to receive payment of any Base Salary (including any accrued but unpaid
Base Salary) payable through the date of termination and any Earned Bonus which
remains unpaid as of the date of termination.
(c)
Voluntary
Resignation.
In the
event Executive voluntarily terminates his employment as the Company's Chairman
and President, Executive shall be entitled to receive payment of any Base Salary
payable through the date of termination (including any accrued and unpaid Base
Salary) and any Earned Bonus which remains unpaid as of the date of termination.
(d)
Termination
upon Executive’s Death or Disability.
Upon
Termination of Executive’s employment due to Executive’s death pursuant to
8(a)(i) hereof or Disability pursuant or 8(a)(ii) hereof, Executive shall
receive a lump sum cash payment equal to the sum of (1) any Base Salary payable
through the date of termination (including any accrued and unpaid Base Salary)
and any Earned Bonus which remains unpaid as of the date of termination; and
(2)
an amount equal to 75% of the Executive's Base Salary in effect at the time
of
his termination.
(e)
Termination
Prior to Qualified Offering.
In the
event that Executive is terminated for any reason prior to the closing of a
Qualified Offering, then all unpaid and accrued Base Salary payable upon such
termination shall only be paid if, as and when the closing of a Qualified
Offering occurs.
10.
Miscellaneous.
(a)
Entire
Agreement.
This
Agreement (including any exhibits, schedules and other documents referred to
herein) contains the entire understanding between the parties hereto with
respect to the subject matter hereof and supersedes any prior understandings,
agreements or representations, written or oral, relating to the subject matter
hereof.
(b)
Counterparts.
This
Agreement may be executed in separate counterparts, each of which will be an
original and all of which taken together shall constitute one and the same
agreement, and any party hereto may execute this Agreement by signing any such
counterpart.
(c)
Severability.
Whenever
possible, each provision of this Agreement shall be interpreted in such a manner
as to be effective and valid under applicable law but if any provision of this
Agreement is held to be invalid, illegal or unenforceable under any applicable
law or rule, the validity, legality and enforceability of the other provision
of
this Agreement will not be affected or impaired thereby.
(d)
Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives and, to the extent
permitted by subsection (e), successors and assigns. The Company will require
its successors to expressly assume its obligations under this
Agreement.
(e)
Assignability.
Except
as provided in Section 3(a) hereof, neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall
be
assignable (including by operation of law) by either party without the prior
written consent of the other party to this Agreement, except that the Company
may, without the consent of the Executive, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with
or
into which the Company may merge or consolidate, or to which the Company may
sell or transfer all or substantially all of its assets, or of which 50% or
more
of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. After any such
assignment by the Company, and provided that such assignment arises by operation
of law or involves an express written assumption by the assignee, the Company
shall be immediately released and discharged from all further liability
hereunder and such assignee shall thereafter be deemed to be the Company for
the
purposes of all provisions of this Agreement.
(f)
Modification,
Amendment, Waiver or Termination.
No
provision of this Agreement may be modified, amended, waived or terminated
except by an instrument in writing signed by the parties to this Agreement.
No
course of dealing between the parties will modify, amend, waive or terminate
any
provision of this Agreement or any rights or obligations of any party under
or
by reason of this Agreement. No delay on the part of the Company in exercising
any right hereunder shall operate as a waiver of such right. No waiver, express
or implied, by the Company of any right or any breach by Executive shall
constitute a waiver of any other right or breach by Executive.
(g)
Notices.
All
notices, consents, requests, instructions, approvals or other communications
provided for herein shall be in writing and delivered by personal delivery,
overnight courier, mail, electronic facsimile or e-mail addressed to the
receiving party at the address set forth herein. All such communications shall
be effective when received.
Address
for the Executive:
|
Xxxxx
Xx
|
| c/o China Broadband, Ltd. |
| 0000 Xxxxx Xxxxxx, 0xx Xxxxx |
| Xxxxxxx, XX 00000 |
| Attention: Xxxxx Xx or President |
Address
for the Company:
| x/x Xxxxx Broadband, Ltd. |
| 0000 Xxxxx Xxxxxx, 0xx Xxxxx |
| Xxxxxxx, XX 00000 |
| Attention: Xxxxx Xx or President |
| With a copy to: |
| Xxxxxxx Xxxx, LLP |
| 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx |
| Xxx Xxxx 00000 |
| (000) 000-0000 |
| Attention: Xxxxxxx X. Xxxx, Esq. |
Any
party
may change the address set forth above by notice to each other party given
as
provided herein.
(h)
Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not in any way affect the meaning or interpretation of this
Agreement.
(i)
Governing
Law - WAIVER of Jury Trial. ALL
MATTERS RELATING TO THE INTERPRETATION, CONSTRUCTION, VALIDITY AND ENFORCEMENT
OF THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW
YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF. THE PARTIES
HERETO EXPLICITLY WAIVE A JURY TRIAL OF ANY KIND AND SUBMIT TO ARBITRATION
AS
SET FORTH BELOW.
(j)
Resolution
of Certain Claims - Injunctive Relief.
The
Executive acknowledges that any breach by him of the provisions of this
Agreement would cause irreparable injury to the Company and that money damages
would not be a sufficient remedy for any such breach. Consequently, the Company
shall be entitled to such equitable relief as may be determined by a court
as a
remedy for any such breach. Such remedy shall be in addition to all other
remedies available at law or equity to the Company.
|
Page
8
|
(k)
Arbitration.
Except
as otherwise specifically provided for hereunder, any claim or controversy
arising out of or relating to this Agreement or the breach hereof shall be
settled by arbitration in accordance with the laws of the State of New York.
Such arbitration shall be conducted in the State and City of New York in
accordance with the rules then existing of the American Arbitration Association
which pertain to employment disputes. Judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. In the
event of any dispute arising under this Agreement, the respective parties shall
be responsible for the payment of their own legal fees and
disbursements.
(l)
Board
Approval.
On or
prior to the Effective Date, the Company shall provide Executive with a copy
of
the duly adopted resolutions of the Managers of 8 Holdings approving the terms
of this Agreement, electing the Executive to the position of acting President
of
Metaphor effective as of the Effective Date.
(m)
Third-Party
Benefit.
Nothing
in this Agreement, express or implied, is intended to confer upon any other
person any rights, remedies, obligations or liabilities of any nature
whatsoever.
(n)
Withholding
Taxes.
The
Company may withhold from any benefits payable under this Agreement all federal,
state, city or other taxes (including any taxes required to be withheld under
the rules of any foreign government whose tax provisions apply, as shall be
required pursuant to any law or governmental regulation or ruling.
IN
WITNESS WHEREOF, the parties hereto have executed this Employment Agreement
as
of the Effective Date.
China
Broadband Ltd.
| By: | |||
|
Name:
|
|||
| Title: |
EXECUTIVE
|
Xxxxx Xx |
