EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
("Agreement"),
is
dated as of March ___, 2008, by and between China Broadband, Inc., a Nevada
corporation, with an address at 00
Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, XX 00000
(the
"Company"),
and
Xxxx Xxxxxx, with an address at ______________, ___________________, New York
___________(the "Executive").
W
I T N E S S E T H
WHEREAS,
the
Company desires to employ the Executive, and the Executive desires to accept
such employment, on the terms and conditions set forth herein.
NOW,
THEREFORE,
in
consideration of the mutual promises, representations and warranties set forth
herein, and for other good and valuable consideration, it is hereby agreed
as
follows:
1. Employment.
The
Company hereby agrees to employ the Executive, and the Executive hereby accepts
such employment, upon the terms and conditions set forth herein.
2. Term.
This
Agreement shall commence on the date hereof (the “Commencement
Date”)
and
terminate on the fourth (4th)
anniversary thereof, unless sooner terminated as provided in Section 8 of this
Agreement (the “Employment
Period”).
At
the expiration of the Employment Period, or any prior extensions thereof, the
Employment Period shall automatically be extended, without any action on the
part of the Company or the Executive under the then current terms, for
additional periods of one (1) year, unless the Company or the Executive shall
have submitted a written notice to the other party, not less than sixty (60)
days prior to the expiration of the then scheduled Employment Period, stating
that the Employment Period will not be further extended.
3. Position
and Duties.
(a) During
the Employment Period, the Executive shall serve as the President of the Company
and of China Broadband, Ltd., its wholly owned subsidiary and may hold similar
positions of other direct or indirect subsidiary entities of the Company, and
shall have such duties and responsibilities as are consistent with such offices,
including, but not limited to, responsibilities relating to the assisting of
preparation of financial statements and records of the Company. The Executive
shall report directly to the Board of Directors of the Company (the
“Board”).
(b) During
the Employment Period, the Executive shall perform and discharge his duties
and
responsibilities well and faithfully and in accordance with the terms and
conditions of this Agreement, and shall devote his best talents, efforts and
abilities to the performance of his duties hereunder.
(c) During
the Employment Period, and unless modified as provided in Section
3(d)
below,
the Executive shall be a full time employee and shall devote his attention
and
energy to performing his duties and responsibilities hereunder and shall
have no
other employment and no other material outside business activities
whatsoever other than his activities for Profile Lamps Inc., and Tri-State
Trading LLC, which activities exist on the date hereof which activities may
be
continued provided that they do not materially interfere with Executive’s
obligations to the Company; provided,
however,
that
the Executive shall not be precluded from making passive investments or from
serving in a consulting capacity consistent with his current consulting
practice, each of which do not require the devotion of any significant time
or
effort that would interfere with his responsibilities to the Company and
its
subsidiaries. It is also understood and agreed that Executive has other business
interests and activities which he may continue and that Executive shall not
have
an obligation to present all business opportunities, ideas, resources or
developments to the Company, i.e.,
such
opportunities do not directly compete with the Company’s business. The Executive
warrants, represents and covenants that such other activities will not
materially interfere or conflict with his obligations herein and that the
entry
into this Agreement will not conflict with, result in a breach of or violate
any
other employment or consulting arrangement that he is a party to or that
he will
become a party to during the term, or violate fiduciary obligations or
responsibilities to any other entity.
(d) In
the
event that Executive wishes to reduce his hours and time commitments with the
Company he may do with no less than 30 calendar days’ notice to the Company
providing the date of reduction in the time commitment, at which date Executive
shall remain an employee but his Base Salary and Bonus Salary (each as
hereinafter defined) shall be reduced to half of the then existing Base Salary
in effect for Executive. Notwithstanding the foregoing, Executive may not during
the Employment Period of employ enter into agreements or contracts or business
arrangements that conflict with his duties for the Company. At such time,
Executive’s title may also be revised as the discretion of the Board.
4. Compensation.
(a) Base
Salary.
In
consideration for the Executive's services hereunder, the Company shall pay
the
Executive a minimum annual salary (as the same shall be increased from time
to
time at the discretion of the Board, the "Base
Salary")
of One
Hundred Twenty Thousand ($120,000.00) Dollars, payable in accordance with the
customary payroll practices of the Company, but not less frequently than
monthly. At each annual anniversary of the Commencement Date during the
Employment Period or any additional period of employment beyond the Employment
Period, Employee and Employer shall meet and review Employee’s performance and
shall in good faith discuss an increase in Base Salary taking into
consideration, among other factors, performance, revenues and profitability
of
the Company and comparable market compensation for executives in similar
positions with comparable companies.
(b) Bonus.
In
addition to the Base Salary, the Executive shall be entitled to receive
discretionary bonuses determined by the Board (or Compensation Committee) at
times and upon meeting certain performance objectives to be agreed and accepted
by the Board (or Compensation Committee) in its sole discretion.
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(c) Stock
Option Grants.
In
partial consideration for the Executive’s execution of this Agreement, and the
services to be provided by the Executive to the Company hereunder, the Company
shall approve the grant to the Executive, effective as of the Execution of
this Agreement (“Issue
Date”)
and to
be delivered as soon thereafter as possible, pursuant to a stock option plan
of
the Company, incentive stock options to purchase 100,000 shares of common
stock
of the Company, which shall become exercisable in equal installments of 25%,
on
the date of issuance and on each of the three anniversaries following the
Commencement Date during the Employment Period, subject to continued employment,
of a duration and at an exercise prices at the fair market value at the time
of
issuance (the "Options").
However, in the event that there is a change of control of the Company as
defined below (and presuming that the Employment Period has not terminated),
the
stock options set forth above shall accelerate and all options shall be
exercisable immediately.
(d) Withholding.
All
payments required to be made by the Company to the Executive under this
Agreement shall be subject to withholding taxes, social security and other
payroll deductions in accordance with applicable law and the Company's policies
applicable to executives of the Company.
5. Benefits.
During
the Employment Period, the Company shall provide the Executive with the
following benefits:
(a) Medical,
Health and Dental Insurance Benefits.
In the
event that Employee is covered under his spouse’s employment benefit plan, the
Company shall reimburse employee on a monthly basis for all payments made to
spouse’s employer to continue coverage on her plan. However, in the event
Employee is not covered or is taken off of spouse’s plan, the Company shall at
its own expense provide the Executive and his eligible dependents with the
medical, health and, to the extent offered, dental insurance coverage provided
by the Company generally to its Executives. Nothing herein shall prevent the
Company from amending and/or terminating the coverages and/or plans described
in
this Section 5(a); provided,
however,
that
such amendment and/or termination is applicable generally to the Executives
of
the Company.
(b) 401(k)
Plan.
The
Executive shall have the ability to participate in any Company 401(k) Plan,
defined benefit or contribution plan or other retirement plan made available
by
the Company to its employees, in accordance with the terms and conditions of
such plan with equal or greater profit sharing and contributions by the Company
as offered by the Company to employees and executives generally.
(c) Liability
Insurance.
The
Executive shall be included as a covered person under the liability insurance
coverage generally provided to officers and managers of the Company and shall
be
a covered person during the term of his Employment. Notwithstanding the
foregoing, the Company agrees to indemnify the Executive against all costs,
damages and expenses, including attorneys' fees, incurred by the Executive
as a
result of claims by third parties arising out of or from the Executive's lawful
acts as an Executive of the Company, provided such acts are not grossly
negligent and are performed in good faith and in a manner reasonably believed
by
the Executive to be in the Company's best interests; and provided,
further,
that
such acts do not relate to any claims relating to or other business activities
or positions held by the Executive, or conflicts of interest or the Executive
relating to the same. Any counsel employed to defend the Executive in any such
action shall be reasonably acceptable to the Executive and the Company. Any
counsel appointed by any insurance carrier for the Company shall be deemed
acceptable. It is the intent of the parties that the obligation imposed by
this
paragraph will survive the termination of this Agreement.
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(d) [Omitted.]
(e) Automobile
Allowance. During
the Employment Period, the Company shall reimburse Executive the amount of
$600
per month as an allowance for the use of Executive’s automobile, insurance and
fuel costs.
(f) Other
Benefits.
The
Company shall make available to the Executive any and all other Executive or
fringe benefits (in accordance with their terms and conditions) which the
Company may make available to its other Executives.
6. Reimbursement
of Expenses.
During
the Employment Period, the Company shall pay or reimburse the Executive for
all
reasonable travel (at business class level for international flights),
entertainment and other business expenses actually incurred or paid by the
Executive in the performance of his duties hereunder upon presentation of
expense statements and/or such other supporting information as the Company
may
reasonably require of the Executive.
7. Vacation.
The
Executive shall be entitled to no less than two (2) weeks of paid vacation
during each full calendar year of the Employment Period (and a pro rata portion
thereof for any portion of the Employment Period that is less than a full
calendar year); provided,
however,
that no
single vacation may exceed two consecutive weeks in duration and such vacation
shall be scheduled in a manner that does not conflict with, and will permit
Executive to devote time for, the preparation and filing of periodic financial
reports and non-periodic reports or registration statements of the Company
that
are required to be filed with the Securities and Exchange Commission. Unused
vacation may not be carried over to successive years.
8. Termination.
The
employment of the Executive hereunder may be terminated prior to the expiration
of the Employment Period in the manner described in this Section 8.
(a) Termination
upon Death.
The
employment of the Executive hereunder shall terminate immediately upon his
death.
(b) Termination
upon Disability.
The
Company shall have the right to terminate this Agreement during the continuance
of any Disability of the Executive, as hereafter defined, upon fifteen (15)
days’ prior notice to the Executive during the continuance of the
Disability.
(c) Termination
by the Company Without Good Cause.
The
Company shall have the right to terminate the Executive's employment hereunder
without Good Cause (as such term is defined herein) by written notice to the
Executive.
(d) Termination
by the Company for Good Cause.
The
Company shall have the right to terminate the employment of the Executive for
Good Cause by written notice to the Executive
specifying the particulars of the circumstances forming the basis for such
Good
Cause.
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(e) Voluntary
Resignation by the Executive.
The
Executive shall have the right to voluntarily resign his employment hereunder
for other than Good Reason (as such term is defined herein) by written notice
to
the Company.
Additionally, the Executive shall have the right, upon providing the notice
set
forth in Section
3(d)
above,
to reduce his time commitments to the Company.
(f) Resignation
by the Executive for Good Reason.
The
Executive shall have the right to terminate his employment for Good Reason
by
written notice to the Company specifying the particulars of the circumstances
forming the basis for such Good Reason.
(g) Termination
Date.
The
"Termination
Date"
is the
date as of which the Executive's employment with the Company terminates. Any
notice of termination given pursuant to the provisions of this Agreement shall
specify the Termination Date.
(h) Certain
Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
(i) "Disability"
shall
mean an inability by the Executive to perform a substantial portion of the
Executive’s duties hereunder by reason of physical or mental incapacity or
disability for a total of ninety (90) days or more in any consecutive period
of
three hundred and sixty five (365) days, as determined by the Board in its
good
faith judgment.
(ii) "Good
Cause"
as used
herein, shall mean (A) the commission of a felony, or a crime involving moral
turpitude, or the commission of any other act or omission involving dishonesty,
disloyalty, or fraud with respect to the Company; (B) conduct tending to bring
the Company or any of its affiliates into substantial public disgrace or
disrepute; (C) substantial and repeated failure to perform duties as reasonably
directed by the Board; (D) negligence or willful misconduct with respect to
the
Company or any of its affiliates; or (E) any material misrepresentation by
the
Executive under this Agreement; provided,
however,
that
such Good Cause shall not exist unless the Company shall first have provided
the
Executive with written notice specifying in reasonable detail the factors
constituting such Good Cause, as applicable, and such factors shall not have
been cured by the Executive within thirty (30) days after such notice or such
longer period as may reasonably be necessary to accomplish the
cure.
(iii) "Good
Reason"
means
the occurrence of any of the following events:
(A) the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive's then position (including status, offices, titles and
reporting relationships), authority, duties or responsibilities, or any other
action or actions by the Company which when taken as a whole results in a
significant diminution in the Executive's position, authority, duties or
responsibilities, excluding for this purpose any isolated, immaterial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the
Executive;
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(B) a
material breach by the Company of one or more provisions of this Agreement,
provided that such Good Reason shall not exist unless the Executive shall first
have provided the Company with written notice specifying in reasonable detail
the factors constituting such material breach and such material breach shall
not
have been cured by the Company within thirty (30) days after such notice or
such
longer period as may reasonably be necessary to accomplish the
cure;
(C) any
purported termination by the Company of the Executive's employment otherwise
than as expressly permitted by this Agreement.
9. Obligations
of Company on Termination.
Notwithstanding anything in this Agreement to the contrary, the Company's
obligations on termination of the Executive's employment shall be as described
in this Section 9.
(a) Obligations
of the Company in the Case of Termination Without Good Cause or Resignation
by
the Executive for Good Reason.
In the
event that prior to the expiration of the Employment Period, the Company
terminates the Executive's employment, pursuant to Section 8(c), without Good
Cause, or the Executive resigns, pursuant to Section 8(f), for Good Reason,
the
Company shall provide the Executive with the following:
(i) Severance
Payments.
The
Company shall pay the Executive at
the rate(s) which would otherwise have been in effect pursuant to Section 4
above:
A) the
Base
Salary otherwise payable to the Executive for a period of two (2)
months;
(B) any
Base
Salary, bonuses, vacation and unreimbursed expenses accrued but unpaid as of
the
Termination Date; and
(C) all
stock
options granted by the Company to the Executive pursuant to this agreement,
shall become vested, accelerate and become immediately exercisable, at the
stated exercise price, with the number of shares and exercise price adjusted
for
any stock splits and capital reorganizations that occur subsequent to the
Commencement Date.
(ii) Medical
and Health Insurance.
The
Company shall, at its sole expense, provide the Executive (and his dependents)
with coverage under (and in accordance with the terms and conditions of) the
Company's medical, health, disability and dental insurance plans, as in effect
from time to time, for the period of three (3) months; provided,
however,
that to
the extent such coverage may be unavailable under such medical, health,
disability and dental insurance plans due to restrictions imposed by the
insurer(s) under such plans, the Company shall take such action as may be
required to provide equivalent benefits from other sources.
(b) Obligations
of the Company in case of Termination for Death, Disability, Voluntary
Resignation or Good Cause.
Upon
termination of the Executive's employment upon his death (pursuant to Section
8(a)), as a result of his Disability (pursuant to Section 8(b), for Good
Cause (pursuant to Section 8(d)), or as a result of the voluntary resignation
of
the Executive (pursuant to Section 8(e)), the Company shall have no payment
or
other obligations hereunder to the Executive, except for the payment of any
Base
Salary, bonuses, benefits or unreimbursed expenses accrued but unpaid as of
the
date of such termination.
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10. Covenants
of the Executive.
(a) Confidentiality.
(i) The
Executive recognizes that the Executive’s position with the Company is one of
trust and confidence. The Executive acknowledges that, the Company has devoted
substantial time and effort and resources to developing the Company's business
and clients, and that during the course of the Executive’s employment with the
Company, the Executive will necessarily become acquainted with confidential
information relating to the clients or potential clients (including names,
addresses and telephone numbers) of the Company, and the Company's investments
or potential investments in and/or financings and/or potential financings to
be
provided to these clients or potential clients, and trade secrets, processes,
methods of operation and other information, which the Company regards as
confidential and in the nature of trade secrets (collectively, "Confidential
Information").
The
Executive acknowledges and agrees that the Confidential Information is of
incalculable value to the Company and that the Company would suffer damage
if
any of the Confidential Information was improperly disclosed.
(ii) The
Executive recognizes that because of the opportunities and support so provided
to the Executive and because of Executive's access to the Company's Confidential
Information, Executive would be in a unique position to divert business from
the
Company and to commit irreparable damage to the Company were Executive to be
allowed to divulge any of the Confidential Information.
(iii) The
Executive covenants and agrees that the Executive will not, at any time during
or after the termination of the Executive’s relationship with the Company,
regardless of whether termination is initiated by either Executive or the
Company, reveal, divulge, or make known to any person, firm or corporation,
any
Confidential Information made known to the Executive or of which the Executive
has become aware, regardless of whether developed, prepared, devised or
otherwise created in whole or in part by the efforts of the Executive, except
and to the extent that such disclosure is necessary to carry out the Executive’s
duties for the Company. The Executive further covenants and agrees that the
Executive shall retain all Confidential Information in trust for the sole
benefit of the Company, and will not divulge or deliver or show any Confidential
Information to any unauthorized person including, without limitation, any other
employer of the Executive, and the Executive will not make use thereof in an
independent business related to the business of the Company; provided,
however,
that
the Executive has no obligation, express or implied, to refrain from using
or
disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Executive; and provided,
further,
that
the Executive may continue his involvement with other business or ventures
that
do not interfere with or conflict with his duties for the
Company.
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(iv) The
Executive agrees that, upon termination of the Executive’s employment with the
Company, for any reason whatsoever, or for no reason, and at any time, the
Executive shall return to the Company all papers, documents and other property
of the Company placed in the Executive’s custody or obtained by the Executive
during the course of the Executive’s employment which relate to Confidential
Information, and the Executive will not retain copies of any such papers,
documents or other property for any purpose whatsoever.
(b) Non-Competition.
The
Company is a China based broadband cable internet company (the
"Business").
Executive acknowledges that during his employment with the Company he will
become familiar with trade secrets and other information relating to the Company
and its Business, and that his services have been and will be of special, unique
and extraordinary value to the Company. Therefore, Executive agrees that, during
the Employment Period, and for four (4) months thereafter (collectively, the
"Non-Compete
Period"),
he
will not directly or indirectly own, manage, control, participate in, consult
with, render services for, or in any other manner engage in any business, or
as
an investor in or lender to any business (in each case including, without
limitation, on his own behalf or on behalf of another entity, except for banks
or other financial institutions not owned by Executive) which competes either
directly or indirectly with the Company in the Business, in any market in which
the Company is operating, or is reasonably likely to be operating at any given
point in time during the Employment Period, or as of the end of the Employment
Period if the Employment Period has ended. Nothing in this Section 10(b) will
be
deemed to prohibit the Executive from being a passive owner of less than 5%
of
the outstanding stock of a corporation engaged in a competing business as
described above of any class which is publicly traded, so long as Executive
has
no direct or indirect participation in the business of such
corporation.
(c) Non-Solicitation
of Business.
Executive will not, during the Employment Period, or at any time within the
six
(6) month period immediately following his termination from employment,
regardless of whether termination is initiated by Executive or by the Company,
for any reason, solicit or assist any other person to solicit, whether directly
or indirectly, any business (other than for the Company) from any entity: (i)
into which the Company has invested; (ii) for which the Company has provided
financing; (iii) for which the Company has been engaged to provide any kind
of
services, including but not limited to, advisory services and providing
financial analyses; (iv) that has either invested in, or participated in a
financing for, a client of the Company; or (v) that has either been solicited
by
the Company to invest in, or participate in a financing for, a client of the
Company.
(d) Non-Solicitation
of Employees and Independent Contractors.
Executive will not, during the Employment Period, or at any time following
his
termination from employment, regardless of whether termination is initiated
by
Executive or by the Company, for any reason, directly or indirectly (i) induce
or attempt to induce any employee or full-time independent contractor of the
Company to leave the employ or contractual relationship with the Company, or
in
any way interfere with the relationship between the Company and any employee
or
full-time independent contractor thereof, (ii) solicit for employment or as
an
independent contractor any person who was an employee or full-time independent
contractor of the Company at any time during the Employment Period, or (iii)
induce or attempt to induce any customer, supplier or other business relation
of
the Company to cease doing business with the Company or in any way interfere
with the relationship between any such customer, supplier or other business
relation and the Company.
-8-
(e) Work
Product.
The
Executive agrees that all innovations, inventions, improvements, developments,
methods, designs, analyses, drawings, reports, and all similar or related
information which relate to the Company’s Business, or any business which the
Company has taken significant action to pursue, and which are conceived,
developed or made by the Executive during the Employment Period (any of the
foregoing, hereinafter "Work
Product"),
belong to the Company. The Executive will promptly disclose all such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after the Employment Period) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments). The Company specifically disclaims any
ownership or rights to businesses or opportunities relating to businesses set
forth in Section
3(d),
or
other similar or dissimilar businesses that are disclosed to the Board and
which
do not compete with the Company’s Business.
(f) No
Conflict.
The
Executive represents and warrants to the Company that the Executive is not,
and
covenants that during the term will not be, a party to or bound by any
employment agreement, noncompete agreement, shareholder or similar agreement
or
confidentiality agreement with any other person or entity or any other agreement
which would prevent or limit his ability to enter into this Agreement or perform
his obligations hereunder, or result in a breach of his fiduciary duties to
the
Company or such other entity.
(g) Enforcement.
(i) The
Executive acknowledges that the Company will suffer substantial and irreparable
damages not readily ascertainable or compensable in terms of money in the event
of the breach of any of the Executive’s obligations under Sections 10(a) through
(e) hereof. The Executive therefore agrees that the provisions of Sections
10(a)
through (e) shall be construed as an agreement independent of the other
provisions of this Agreement and any other agreement and that the Company,
in
addition to any other remedies (including damages) provided by law, shall have
the right and remedy to have such provisions specifically enforced by any court
having equity jurisdiction thereof. Accordingly, in addition to all of the
Company's rights and remedies under this Agreement, including but not limited
to, the right to the recovery of monetary damages from the Executive, the
Company shall be entitled, and the Executive hereby consents, to the issuance
by
any court of competent jurisdiction of temporary, preliminary and permanent
injunctions, without bond, enjoining any such breach or threatened breach by
the
Executive. The Executive's sole remedy in the event of any injunction or order
shall be dissolution thereof, if warranted, upon duly held hearing in a court
of
competent jurisdiction. The Executive hereby waives all claims for damages
for
wrongful issuance of any such injunction.
The
rights and remedies set forth in this Section 10(f) shall be in addition to,
and
not in lieu of, any other rights and remedies available to the Company under
law
or equity.
-9-
(ii) If
at any
time any of the provisions of this Section 10 shall be determined to be invalid
or unenforceable, by reason of being vague or unreasonable as to area, duration
or scope of activity, this Section 10 shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court
or
other body having jurisdiction over the matter, and the Executive agrees that
this Section 10, as so amended, shall be valid and binding as though any invalid
or unenforceable provision had not been included herein.
(iii) The
Executive agrees to cooperate with the Company, during the Employment Period
and
thereafter (including following the Executive’s termination of employment for
any reason), by making himself reasonably available to testify on behalf of
the
Company or any of its affiliates in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, and to assist the Company,
or
any affiliate, in any such action, suit, or proceeding, by providing information
and meeting and consulting with the Company’s Board or its representatives or
counsel, or representatives or counsel to the Company, or any affiliate as
reasonably requested; provided,
however,
that
the same does not materially interfere with his then current professional
activities and is not contrary to the best interests of the Executive. The
Company agrees to reimburse the Executive, on an after-tax basis, for all
expenses and loss of income actually incurred in connection with his provision
of testimony or assistance.
11. Indemnification.
The
Company hereby agrees to indemnify and hold harmless the executive to the full
extent permitted by the Nevada Revised Statutes and other relevant statutes
conditioned on Executive’s faithful fulfillment of its duties herein. The
Company agrees to advance to the Executive, as and when incurred by the
Executive, all costs and expenses arising from any claim as to which the Company
is providing indemnification hereunder.
12. Insurance.
The
Company may, for its own benefit, in it sole discretion, maintain “key-man” life
and disability insurance policies covering the Executive. The Executive shall
cooperate with the Company and provide such information or other assistance
as
the Company may reasonably request in connection with the Company’s obtaining
and maintaining such policies.
13. Severability.
Should
any provision of this Agreement be held, by a court of competent jurisdiction,
to be invalid or unenforceable, such invalidity or unenforceability shall not
render the entire Agreement invalid or unenforceable, and this Agreement and
each other provision hereof shall be enforceable and valid to the fullest extent
permitted by law.
14. Successors
and Assigns.
(a) This
Agreement and all rights under this Agreement are personal to the Executive
and
shall not be assignable other than by will or the laws of descent. All of the
Executive's rights under the Agreement shall inure to the benefit of his heirs,
personal representatives, designees or other legal representatives, as the
case
may be.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns. Any entity succeeding to the business of the Company
by
merger, purchase, consolidation or otherwise shall assume by contract or
operation of law the obligations of the Company under this
Agreement.
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15. Governing
Law.
This
Agreement shall be construed in accordance with and governed by the laws of
the
State of New York, without regard to the conflicts of laws rules thereof.
16. Arbitration.
Any
controversy or claim arising out of or relating to this Agreement or the breach
hereof shall be settled by Arbitration in New York County, New York, by and
in
accordance with the Commercial Rules of the American Arbitration Association
then in effect in accordance with the laws of the State of New York, and the
judgment upon any award rendered by the arbitrator or arbitrators may be entered
in any court having competent jurisdiction thereof. The award of the Arbitrator
shall be final, non-appealable and binding upon the parties hereto and their
respective successors and permitted assigns. The prevailing party shall be
entitled to reimbursement of reasonable attorney fees and costs.
17. Notices.
All
notices, requests and demands given to or made upon the respective parties
hereto shall be deemed to have been given or made three business days after
the
date of mailing when mailed by registered or certified mail, postage prepaid,
or
on the date of delivery if delivered by hand, or one business day after the
date
of delivery by Federal Express, certified mail, or other reputable overnight
delivery service, addressed to the parties at their addresses first set forth
above, or to such other addresses furnished by notice given in accordance with
this Section 17, with a copy to:
If
on
behalf of the Company:
Xxxxxxx
Xxxx LLP
0000
Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Fax:
000-000-0000
Attn:
Xxxxxxx Xxxx, Esq.
If
on
behalf of the Executive:
Xxxxxx
X.
Xxxxxx, Esq.
1040
Avenue of the Americas, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx
00000
Fax:
000-000-0000
18. Complete
Understanding.
Except
as expressly provided below, this Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between the
Executive and the Company and constitutes the complete understanding between
the
parties with respect to the subject matter hereof. No statement, representation,
warranty or covenant has been made by either party with respect to the subject
matter hereof except as expressly set forth herein.
-11-
19. Modification;
Waiver.
(a) This
Agreement may be amended or waived if, and only if, such amendment or waiver
is
in writing and signed, in the case of an amendment, by the Company and the
Executive or in the case of a waiver, by the party against whom the waiver
is to
be effective. Any such waiver shall be effective only to the extent specifically
set forth in such writing.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
20. Headings
and Word Meanings.
Headings
and titles in this Agreement are for convenience of reference only and shall
not
control the construction or interpretation of any provisions hereof. The words
“herein,” “hereof,” “hereunder” and words of similar import, when used anywhere
in this Agreement, refer to this Agreement as a whole and not merely to a
subdivision in which such words appear, unless the context otherwise requires.
The singular shall include the plural unless the context otherwise requires.
21. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by the other party
hereto.
22. No
Strict Construction.
The
parties hereto have participated jointly in the negotiation and drafting of
this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions
of
this Agreement.
[THE
REMAINDER OF THIS PAGE IS LEFT BLANK INTENTIONALLY]
-12-
IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be duly executed in its corporate name
by
one of its officers duly authorized to enter into and execute this Agreement,
and the Executive has manually signed his
name hereto, all as of the day and year first
above written.
| CHINA BROADBAND, INC. | |||
| By: | |||
|
Witness |
Name:
Its:
|
||
| EXECUTIVE: | |||
|
Witness |
Xxxx Xxxxxx |
||
-13-
