EMPLOYMENT AGREEMENT
Exhibit
10.9
EMPLOYMENT AGREEMENT, dated [*], 2010
(this “Employment
Agreement”), between CHINA BROADBAND, INC., a Nevada corporation (the
“Company”), and XXXXX
XXXXXXX, an individual having an address as specified on the signature page
hereto (the “Executive”).
BACKGROUND
The Company has entered into a
Securities Purchase Agreement, dated as of May 20, 2010 (the “Purchase Agreement”), with the
Executive, pursuant to which the Company has agreed to sell $3,500,000 of Units
(as defined in the Purchase Agreement) to the Executive and the Executive has
agreed to purchase those Units. The execution and delivery of this
Employment Agreement by the Executive and the Company is a condition precedent
to the consummation of the transactions contemplated by the Purchase
Agreement.
The Company wishes to secure the
services of the Executive as Chief Executive Officer of the Company upon the
terms and conditions hereinafter set forth, and the Executive wishes to render
such services to the Company upon the terms and conditions hereinafter set
forth.
AGREEMENT
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants herein contained and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment by the
Company. The Company agrees to employ the Executive in the
position of Chief Executive Officer of the Company and the Executive accepts
such employment and agrees to perform such duties. The Executive
agrees to devote a majority of his business time and energies to the business of
the Company and/or its Subsidiaries and/or Affiliates and to faithfully and
diligently perform his duties hereunder.
2. Term of
Employment. The term of this Employment Agreement (the “Term”) shall be for the
initial period commencing on the Closing Date (as defined in the Purchase
Agreement) and ending on the first anniversary of the Closing Date, at which
point it shall be automatically renewed for additional one year periods unless
(a) either party hereto provides written notice to the other party that it
elects not to renew the Term or (b) the Executive is earlier terminated as
provided in Section 4 hereof (provided that the provisions of Section 6 hereof
shall survive any such termination).
3. Compensation. As
full compensation for all services to be rendered by the Executive to the
Company and/or its Subsidiaries and/or Affiliates in all capacities during the
Term, the Executive shall receive the following compensation and
benefits:
3.1 Salary. An
annual base salary of $250,000 (the “Base Salary”) payable not less
frequently than monthly or at more frequent intervals in accordance with the
then customary payroll practices of the Company.
3.2 Bonus. An
annual bonus if, as and when determine by the Board in its sole
discretion.
3.3 Participation in Employee
Benefit Plans; Other Benefits. The Executive shall be
permitted during the Term to participate in all employee benefit plans, policies
and practices now or hereafter maintained by or on behalf of the Company
commensurate with the Executive's position with the Company. Nothing
in this Employment Agreement shall preclude the Company from terminating or
amending any such plans or coverage so as to eliminate, reduce or otherwise
change any benefit payable thereunder, so long as such change similarly affects
all Company employees. During the Term, the Company will maintain a
group health program for its employees.
3.4 Expenses. The
Company shall pay or reimburse the Executive for all reasonable and necessary
expenses actually incurred or paid by the Executive during the Term in the
performance of the Executive's duties under this Employment Agreement, upon
submission and approval of expense statements, vouchers or other supporting
information in accordance with the then customary practices of the
Company.
3.5 Withholding of
Taxes. The Company may withhold from any benefits payable
under this Employment Agreement all federal, state, city and other taxes as
shall be required pursuant to any law or governmental regulation or
ruling.
4. Termination.
4.1 Termination upon
Death. If the Executive dies during the Term, this Employment
Agreement shall terminate as of the date of his death.
4.2 Termination upon
Disability. If during the Term the Executive becomes
physically or mentally disabled, whether totally or partially, so that the
Executive is unable to perform his essential job functions hereunder for a
period aggregating 180 days during any twelve-month period, and it is determined
by a physician acceptable to both the Company and the Executive that, by reason
of such physical or mental disability, the Executive shall be unable to perform
the essential job functions required of him hereunder for such period or
periods, the Company may, by written notice to the Executive, terminate this
Employment Agreement, in which event the Term shall terminate 10 days after the
date upon which the Company shall have given notice to the Executive of its
intention to terminate this Employment Agreement because of the
disability.
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4.3 Termination for
Cause. The Company may at any time by written notice to the
Executive terminate this Employment Agreement immediately and, except as
provided in Section 5.2 hereof, the Executive shall have no right to receive any
compensation or benefit hereunder on and after the date of such notice, in the
event that an event of “Cause” occurs. For purposes of this
Employment Agreement “Cause” shall mean:
4.3.1 the
Executive breaches any material term of this Employment Agreement and fails to
cure such breach (where capable of cure) within 14 days after the receipt of
notice from the Board of such breach, which notice shall state in reasonable
detail the facts and circumstances claimed to be a breach and of the intent of
the Company to terminate the Executive's employment upon the failure of the
Executive to cure such breach; or
4.3.2 a
good faith determination by the Board that the Executive has committed a
felonious act of fraud, misappropriation, embezzlement, or theft or a breach of
fiduciary duty involving personal profit; or
4.3.3 the
Executive is indicted for any criminal offense constituting a felony or a crime
involving moral turpitude.
4.4 Termination without
Cause. The Company may terminate this Employment Agreement at
any time, without cause, upon 30 days' written notice by the Company to the
Executive and, except as provided in Section 5.1 hereof, the Executive shall
have no right to receive any compensation or benefit hereunder after such
termination.
5. Severance
Payments.
5.1 Certain Severance
Payments. If during the Term the Company terminates this
Employment Agreement pursuant to Section 4.4 hereof (Termination without Cause),
all compensation payable to the Executive under Section 3 hereof shall cease as
of the date of termination specified in the Company's notice (the “Termination Date”), and the
Company shall pay to the Executive, subject to Section 6 hereof, the following
sums: (i) the Base Salary on the Termination Date for the shorter of
(x) six months and (y) the remainder of the Term (the applicable period being
referred to as the “Severance
Period”), payable in monthly installments; (ii) benefits under group
health and life insurance plans in which the Executive participated prior to
termination through the Severance Period; (iii) all unpaid expenses described in
Section 3.4 and (iv) all previously earned, accrued, and unpaid benefits from
the Company and its employee benefit plans, including any such benefits under
the Company's pension, disability, and life insurance plans, policies, and
programs, if any. If, prior to the date on which the Company's
obligations under clause (i) of this Section 5.1 cease, the Executive violates
Section 6 hereof, then the Company shall have no obligation to make any of the
payments that remain payable by the Company under clauses (i) and (ii) of this
Section 5.1 on or after the date of such violation. Notwithstanding
the foregoing, payments of the amounts described in clauses (i) and (ii) of this
Section 5.1 shall be conditioned on the delivery by the executive of a release
of any and all claims that the Executive may have against the Company through
the date of termination, which release shall be in form and substance
satisfactory to the Company.
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5.2 Severance Payments upon
Termination for Cause, Death or Disability. If this Employment
Agreement is terminated by the Company pursuant to Sections 4.1 (Termination
upon Death), 4.2 (Termination upon Disability) or 4.3 (Termination for Cause)
hereof, the Executive shall receive only the amounts specified in clause (iii)
of Section 5.1 hereof.
6. Certain Covenants of the
Executive.
6.1 Covenants Against
Competition. The Executive acknowledges that: (i) he is one of
the limited number of persons who will develop the pay-per-view business of the
Company (the “Company's Current
Lines of Business”); (ii) the Company conducts such business in the
People’s Republic of China; (iii) his work for the Company and its Subsidiaries
and Affiliates, will bring him into close contact with many confidential affairs
not readily available to the public; and (iv) the covenants contained in this
Section 6 will not involve a substantial hardship upon his future
livelihood. In order to induce the Company to enter into this
Employment Agreement, the Executive covenants and agrees that:
6.1.1 Non-Compete. During
the Term and for a period of six months following the termination of the
Executive's employment with the Company (or, if longer, for the Severance Period
(the “Restricted
Period”), the Executive shall not, in the People’s Republic of China
(including all Special Administrative Regions thereof), (i) in any manner
whatsoever engage in any capacity with any business competitive with the
Company's Current Lines of Business for the Executive's own benefit or for the
benefit of any person or entity other than the Company or any Subsidiary or
Affiliate of the Company; or (ii) have any interest as owner, sole proprietor,
shareholder, partner, lender, director, officer, manager, employee, consultant,
agent or otherwise in any business competitive with the Company's Current Lines
of Business; provided, however, that the
Executive may hold, directly or indirectly, solely as an investment, not more
than two percent (2%) of the outstanding securities of any person or entity
which are listed on any national securities exchange or regularly traded in the
over-the-counter market notwithstanding the fact that such person or entity is
engaged in a business competitive with the Company's Current Lines of
Business. In addition, during the Restricted Period, the Executive
shall not develop any property for use in the Company's Current Lines of
Business on behalf of any person or entity other than the Company, its
Subsidiaries and Affiliates.
6.1.2 Confidential
Information. During, and for a period of one year after, the
Restricted Period, the Executive shall not, directly or indirectly, disclose to
any person or entity who is not authorized by the Company or any Subsidiary or
Affiliate of the Company to receive such information, or use or appropriate for
his own benefit or for the benefit of any person or entity other than the
Company or any Subsidiary or Affiliate of the Company, any documents or other
papers relating to the Company's Current Lines of Business or the customers of
the Company or any Subsidiary or Affiliate of the Company, including, without
limitation, files, business relationships and accounts, pricing policies,
customer lists, computer software and hardware, or any other materials relating
to the Company's Current Lines of Business or the customers of the Company or
any Subsidiary or Affiliate of the Company or any trade secrets or confidential
information, including, without limitation, any business or operational methods,
drawings, sketches, designs or product concepts, know-how, marketing plans or
strategies, product development techniques or plans, business acquisition plans,
financial or other performance data, personnel and other policies of the Company
or any Subsidiary or Affiliate of the Company, whether generated by the
Executive or by any other person, except as required in the course of performing
his duties hereunder or with the express written consent of the Company; provided, however, that the
confidential information shall not include any information readily ascertainable
from public or published information, or trade sources (other than as a direct
or indirect result of unauthorized disclosure by the
Executive).
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6.1.3 Employees of and Consultants
to the Company. During the Restricted Period, the Executive
shall not, directly or indirectly (other than in furtherance of the business of
the Company), initiate communications with, solicit, persuade, entice, induce or
encourage any individual who is then or who has been within the preceding
12-month period, an employee of or consultant to the Company or any of its
Subsidiaries or Affiliates to terminate employment with, or a consulting
relationship with, the Company or such Subsidiary or Affiliate, as the case may
be, or to become employed by or enter into a contract or other agreement with
any other person, and the Executive shall not approach any such employee or
consultant for any such purpose or authorize or knowingly approve the taking of
any such actions by any other person.
6.1.4 Solicitation of
Customers. During the Restricted Period, the Executive shall
not, directly or indirectly, initiate communications with, solicit, persuade,
entice, induce, encourage (or assist in connection with any of the foregoing)
any person who is then or has been within the preceding 12-month period a
customer or account of the Company or its Subsidiaries or Affiliates, or any
actual customer leads whose identity the Executive learned during the course of
his employment with the Company, to terminate or to adversely alter its
contractual or other relationship with the Company or its Subsidiaries or
Affiliates.
6.1.5 Business
Opportunities. During the Term or the Severance Period,
whichever is applicable, the Executive shall promptly disclose to the Company
any business idea or opportunity which falls within the meaning of the Company's
Current Lines of Business, which business idea or opportunity shall become the
sole property of the Company.
6.2 Rights and Remedies Upon
Breach. If the Executive breaches, or threatens to commit a
breach of, any of the provisions of Section 6.1 hereof (collectively, the “Restrictive Covenants”), the
Company and its Subsidiaries and Affiliates shall, in addition to the rights set
forth in Section 5.1 hereof, have the right and remedy to seek from any court of
competent jurisdiction specific performance of the Restrictive Covenants or
injunctive relief against any act which would violate any of the Restrictive
Covenants, it being acknowledged and agreed that any such breach or threatened
breach will cause irreparable injury to the Company and its Subsidiaries and
Affiliates and that money damages will not provide an adequate remedy to the
Company and its Subsidiaries and Affiliates.
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6.3 Severability of
Covenants. If any of the Restrictive Covenants, or any part
thereof, is held by a court of competent jurisdiction or any foreign, federal,
state, county or local government or other governmental, regulatory or
administrative agency or authority to be invalid, void, unenforceable or against
public policy for any reason, the remainder of the Restrictive Covenants shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated, and such court, government, agency or authority shall be empowered
to substitute, to the extent enforceable, provisions similar thereto or other
provisions so as to provide to the Company and its Subsidiaries and Affiliates,
to the fullest extent permitted by applicable law, the benefits intended by such
provisions.
7. Other
Provisions.
7.1 Notices. Any
notice or other communication required or which may be given hereunder shall be
in writing and shall be delivered personally, telecopied, telegraphed or
telexed, or sent by certified, registered or express mail, postage prepaid, to
the parties at the addresses of the respective parties as specified in the
Purchase Agreement, or at such other addresses as shall be specified by the
parties by like notice, and shall be deemed given when so delivered personally,
telecopied, telegraphed or telexed, or if mailed, two days after the date of
mailing, as follows.
7.2 Entire
Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior contracts and other agreements, written or oral, with respect
thereto.
7.3 Waivers and
Amendments. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party of
any right, power or privilege hereunder, nor any single or partial exercise of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege
hereunder.
7.4 Governing Law, Consent to
Jurisdiction, etc. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law thereof (except
Section 5-1401 of New York’s General Obligations Law). Each party
agrees that all legal proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, employees or agents) shall be commenced exclusively in the state
and federal courts sitting in the City of New York. Each party hereto
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the City of New York, New York for the adjudication of
any dispute hereunder, and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is
improper. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action
or proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.
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7.5 Binding Effect;
Benefit. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and any successors and assigns permitted or
required by Section 7.6 hereof. Nothing in this Agreement, expressed
or implied, is intended to confer on any person other than the parties hereto or
such successors and assigns, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
7.6 Assignment. This
Agreement, and the Executive's rights and obligations hereunder, may not be
assigned by the Executive. The Company may assign this Agreement and
its rights, together with its obligations, hereunder in connection with any
sale, transfer or other disposition of all or substantially all of its assets or
business, whether by merger, consolidation or otherwise.
7.7
Definitions. For
purposes of this Agreement:
7.7.1 “Affiliate” means a person
that, directly or indirectly, controls or is controlled by, or is under common
control with the Company;
7.7.2 “control” (including, with
correlative meaning, the terms “controlled by” and “under common control with”)
as used with respect to any person or entity, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such person or entity, whether through ownership of voting
securities or by contract or other agreement or otherwise; and
7.7.3 “Subsidiary” means any person
or entity as to which the Company, directly or indirectly, owns or has the power
to vote, or to exercise a controlling influence with respect to, fifty percent
(50%) or more of the securities of any class of such person, the holders of
which class are entitled to vote for the election of directors (or persons
performing similar functions) of such person and shall specifically include any
variable interest entity of the Company whose financial results are consolidated
with those of the Company under U.S. generally accepted accounting
principles.
7.8 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.
7.9 Headings. The
headings in this Agreement are for reference purposes only and shall not in any
way affect the meaning or interpretation of this Agreement.
[Signature
page follows]
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first above written.
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COMPANY:
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CHINA
BROADBAND, INC.
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By:
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Name:
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Title:
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Address:
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EXECUTIVE:
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XXXXX
XXXXXXX
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Address:
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