AMENDMENT TO EMPLOYMENT AGREEMENT
Confidential
- Without Prejudice
For
Settlement
Purposes
Only
AMENDMENT
TO
This
Amendment (this “Amendment”)
to the
Employment Agreement (the “Agreement”),
dated
as of February 24, 2007, between China Broadband, Ltd., a Cayman Islands company
(the “Company”),
a
subsidiary of China Broadband, Inc. (“Broadband”),
and
Xxxxx Xx (the “Executive”)
is made
on January 11, 2008.
WHEREAS, the
Company and the Executive entered into the Agreement to provide for the
rendering of certain services to the Company by the Executive; and
WHEREAS,
the
Company and the Executive wish to amend the Agreement in accordance with Section
10(f) of the Agreement.
NOW,
THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which hereby
are acknowledged, the parties hereby agree as follows:
| 1. |
All
capitalized terms used herein and not otherwise defined shall
have the
meanings ascribed thereto in the
Agreement.
|
| 2. |
Section
3(b)(i) of the Agreement is amended and restated in its entirety
to read
as follows:
|
Subject
to the provisions hereof, the Executive agrees to serve the Company faithfully
and to the best of his ability and to devote so much of his time to the affairs
of the Company as, in the reasonable judgment of the Executive, the conduct
of
the Business (as defined below) of the Company shall reasonably require. In
particular, the Executive will assist the Chief Executive Officer, the Board
and
management of the Company in identifying, negotiating with and entering into
agreements for the acquisition of possible acquisition candidates in the
People’s Republic of China that are engaged in such Business, and assist in an
offering of securities of China Broadband, Inc. Subject to the provisions of
Section 6 of this Agreement, the Executive shall also be the Chairman and
Director of the Company, to serve at the pleasure of the Board, while employed
hereunder. The Executive shall not be obligated to do or perform any act or
thing in connection with the Business of the Company not expressly set forth
herein.
|
3.
|
Section
6 of the Agreement is hereby amended and restated in its entirety
to read
as follows:
|
Nothing
herein contained shall be deemed to preclude the Executive from engaging,
directly or indirectly, in any Permitted Activities. For purposes hereof, (a)
“Permitted
Activities”
include:
(i) serving as an officer, director, and/or board committee member or being
a securityholder of China Cablecom, Ltd. and Cablecom Holdings/Jaguar (as
defined below) (and any successor), and the respective affiliates thereof,
pursuant to an employment agreement or otherwise and all activities undertaken
in connection with the Cablecom Business (as defined below);
(ii) management of his personal and family investments; (iii) engaging
in “Other Permitted Investments” (as defined below); (iv) serving as a
director, board or other committee member or trustee or in any other advisory
capacity to any companies or other entities if such activities do not materially
interfere with his services to the Company; (v) serving on industry boards
or committees and trade associations in a non-employee capacity; (vi) making
speeches, writing articles or participating in public debate and discussions
in
and by the means of any medium of communication; (vii) performing civic,
community, public service, charitable, religious or philanthropic functions;
(viii) serving as a senior advisor to Warner Music Group Corp.; and (ix)
performing services relating to the formation and operation of an advertising
business for television stations to the extent such services do not materially
interfere with his services to the Company; (b) “Other
Permitted Investments”
shall
include: (x) investments in securities of publicly traded entities; and (y)
passive investments in businesses not competitive with the Business of the
Company described below, it being acknowledged that a “passive
investment”
shall
be deemed to mean an investment in a business that does not require or result
in
the participation of the Executive in the management or operations of such
business, except during times other than regular business hours and which do
not
materially interfere with his services to the Company; and (c) “Cablecom
Holdings/Jaguar”
shall
mean China Cablecom Holdings, Ltd. and Jaguar Acquisition Corporation (such
entities are described in the Registration Statement on Form S-4, as the same
may from time to time be amended, of China Cablecom Holdings, Ltd. filed with
the Securities and Exchange Commission), the business of which shall include
acting as a joint venture provider of integrated cable television services
in
the People’s Republic of China and related activities, but which does not
include the provision of Stand-Alone Broadband Services (as defined
below)(collectively, the “Cablecom
Business”).
It
is
contemplated that the Executive shall, until such time as the Company or the
Parent has hired its first full-time Chief Executive Officer subsequent to
the
date hereof, (A) remain an executive of the Company and (B) take
commercially reasonable efforts to further assure that such other activities
with China Cablecom, Ltd., Cablecom Holdings/Jaguar (and any successor) will
not
materially interfere with his above-referenced obligations to the Company and
that he will not divulge any confidential information or opportunities of the
Company. At such time as the Company has hired a full-time CEO (and presuming
that Yue Pu remains employed by the Company), the Executive’s work requirements
shall be appropriately reduced further, including that he shall no longer remain
an executive of the Company or of the Parent, except it is contemplated that
he
shall remain the non-executive Chairman and a director of the Company and of
the
Parent during the term of his employment with the Company, subject only (in
the
case of the Parent) to shareholder re-election.
The
“Business”
of the
Company, for purposes of the scope or nature of activities to be performed
by
the Executive under this Agreement, shall relate to stand-alone, independent
broadband services, including electronic program/television program-type
publications (collectively, “Stand-Alone
Broadband Services”).
2
|
4.
|
A
new Section 8(d) shall be added to the Agreement as
follows:
|
For
the
avoidance of doubt, in the event that an acquisition or other investment,
project or other transaction opportunity arises that relates to the business
of
China Cablecom Ltd. and/or Cablecom Holdings/Jaguar, or a successor thereto
or
affiliate thereof, then Executive (i) may recuse himself from all Company and
Parent board of directors consideration of such matter and (ii) may resign
from
any position, office or directorship with the Company or Parent and voluntarily
terminate this Agreement, which termination will have the effect described
in
Section 9(c) hereof.
|
5.
|
Section
8(d) of the Agreement shall become Section
8(e).
|
|
6.
|
A
new Section 10 shall be added to the Agreement as
follows:
|
Any
controversy or claim arising out of, in conjunction with or relating to this
Agreement (other than an action for injunctive relief) shall be resolved by
arbitration, to be held in the County of New York, State of New York, in
accordance with the Commercial Rules of the American Arbitration Association
then in effect; judgment upon the award rendered by the arbitrator shall be
final and binding upon the parties and judgment on the award may be entered
and
enforced in any federal or state court of competent jurisdiction located in
the
County of New York, State of New York. The parties to this Agreement hereby
irrevocably consent to personal jurisdiction in the federal and state courts
located in the County of New York, State of New York for that purpose. The
arbitration award shall include attorneys’ fees and costs to the prevailing
party.
3
|
7.
|
Section
10 of the Agreement shall become Section
11.
|
|
8.
|
The
Executive hereby relinquishes and waives any claim to any Base
Salary from
the Company for periods prior to the date of this
Amendment.
|
|
9.
|
Except
as modified by this Amendment, the Agreement shall continue unmodified
and
in full force and effect and each party hereto ratifies, approves
and
confirms the Agreement, as modified by this Amendment, in all
respects.
|
|
10.
|
This
Amendment 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 Amendment
by signing
any such counterpart.
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* * *
4
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
set forth above.
|
CHINA
BROADBAND, LTD
By:
/s/ Yue Pu
Name:
Yue Pu
Title:
Vice Chairman
/s/
Xxxxx
Xx
Xxxxx
Xx
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