EMPLOYMENT AGREEMENT
Exhibit 10.10
EMPLOYMENT AGREEMENT, dated
___________, 2010 (this “Employment Agreement”),
between CHINA BROADBAND, INC., a Nevada corporation (the “Company”), and XXXXXXXX XXX,
an individual having an address as specified on the signature page hereto (the
“Executive”).
BACKGROUND
The Company wishes to secure the
services of the Executive as a senior executive 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 a
senior executive position in the Company and its Affiliates (which definition
shall include any variable interest entities) as directed by the Company’s Board
of Directors from time to time and the Executive accepts such employment and
agrees to perform the duties commonly associated with his
position. Except as set forth in the attached Disclosure to this
Employment Agreement, the Executive agrees to devote all 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. The Executive acknowledges and agrees that such services
shall be performed primarily in the Peoples Republic of China (“PRC”) and
Executive warrants that he has all necessary governmental authorizations in PRC
to perform such services in accordance herewith. The Executive hereby
consents to his secondment to Beijing Sino Top Scope Technology Co., Ltd. and
any other Affiliate as the Company deems necessary or desirable, and any such
secondment shall be in a form of the substantially similar to Exhibit A
hereto.
2. Term of
Employment. The term of this Employment Agreement (the “Term”) shall be for the
initial period commencing on the date of signing this Employment Agreement (the
“Employment Date”) and
ending on the first anniversary of the Employment 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 by giving not less than thirty (30) days prior notice 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 RMB 1,693,750 (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 determined 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. The
Company shall pay the Executive past owed consulting fees, equal to $6,000 per
month, since September 2009 and the expenses incurred since then on developing
the business which do not exceed $________.
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. Board Seat. The
executive shall take one seat on a 5-seat board of directors.
5. Termination.
5.1 Termination upon
Death. If the Executive dies during the Term, this Employment
Agreement shall terminate as of the date of his death.
5.2 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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5.3 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:
5.3.1 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
5.3.2 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
5.3.3 the
Executive is indicted for any criminal offense constituting a felony or a crime
involving moral turpitude.
5.4 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 6.1 hereof, the Executive shall
have no right to receive any compensation or benefit hereunder after such
termination.
5.5 Termination By Executive for
Good Reason. The Executive may, upon 30 days’ written notice
by the Executive to the Company for “Good Reason”, or immediately upon a “Change
of Control,” terminate this Employment Agreement and, except as provided in
Section 5.6 hereof, the Executive shall have no right to receive any
compensation or benefit hereunder following such termination.
5.6 Certain Severance
Payments. If during the Term the Company terminates this
Employment Agreement pursuant to Section 5.4 hereof (Termination without Cause),
or the Executive terminates this Employment pursuant to Section 5.5 hereof
(Termination By Executive for Good Reason), 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
Base Salary on the Termination Date for six months, payable in monthly
installments; (ii) benefits under group health and life insurance plans in which
the Executive participated prior to termination for twelve months; (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. In addition,
if during the Term the Company terminates this Employment Agreement pursuant to
Section 5.4 hereof, or the Executive terminates this Employment pursuant to
Section 5.5 hereof, all Warrants and Options issued to the Executive shall vest
in full and become immediately convertible or exercisable in accordance with
their respective terms.
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5.7 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 and its Affiliates (the “Company's Current Lines of
Business”); (ii) the Company conducts such business in the People’s
Republic of China (including Hong Kong and all Special Administrative Region
thereof); (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 Hong Kong and 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, except as stated in the attached Disclosure to
this Employment Agreement, 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.
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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).
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 and its Subsidiaries and Affiliates), 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.
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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.
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. Indemnification and
Insurance. The Company shall agree to indemnify the
Executive and hold him harmless for all acts or decisions made by him in good
faith while performing services for the Company and Company Subsidiaries and
affiliates in a separate agreement in the form provided to other directors. The
Company shall also use its best efforts to obtain coverage for him under any
insurance policy now in force or hereinafter obtained during the term of this
Agreement covering the other officers and directors of the Company and Company
Subsidiaries and affiliates against lawsuits. The agreement will provide that
the Company shall pay all expenses including attorney's fees, actually and
necessarily incurred by the Executive in connection with the defense of such
act, suit or proceeding, and in connection with any related appeal, including
the cost of court settlements.
8. Other
Provisions.
8.1 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 that
certain Ordinary Share Purchase Agreement, dated of equal date herewith, among
the Company, China Broadband, Ltd. and the Executive (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.
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8.2 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. Notwithstanding the foregoing, the parties acknowledge that
the provisions and ongoing obligations under the Purchase Agreement shall remain
in full force and effect.
8.3 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.
8.4 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.
8.5 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.
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8.6 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.
8.7
Definitions. For
purposes of this Agreement:
8.7.1 “Affiliate” means a person
that, directly or indirectly, controls or is controlled by, or is under common
control with the Company;
8.7.2 “Change of Control” means:
(i) the sale of substantially all of the assets of the Company; (ii) a
merger or consolidation in which the Company is not the surviving corporation
(other than a merger or consolidation in which shareholders immediately before
the merger or consolidation have, immediately after the merger or consolidation,
greater stock voting power); (iii) a reverse merger in which the Company is
the surviving corporation but the shares of the Company’s common stock
outstanding immediately preceding the merger are converted by virtue of the
merger into other property, whether in the form of securities, cash or otherwise
(other than a reverse merger in which shareholders immediately before the merger
have, immediately after the merger, greater stock voting power); or
(iv) any transaction or series of related transactions in which in excess
of 50% of the Company’s voting power is transferred, other than the sale by the
Company of stock in transactions the primary purpose of which is to raise
capital for the Company’s operations and activities.
8.7.3 “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
8.7.4 “Good Reason” means any of the
following actions taken by the Company without Executive’s consent: (i) a
substantial reduction in Executive’s Base Salary or benefits (except such
reductions that are part of and proportional to a Company-wide reduction in
compensation or benefits); (ii) a material reduction in Executive’s duties,
provided, however, that a change in job position (including a change in title)
shall not be deemed a “material reduction” unless Executive’s new duties are
substantially reduced from the prior duties; or (iii) relocation of
Executive’s principal place of employment to a place greater than 50 miles from
the then-current principal place of employment
8.7.5 “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,
and Subsidiaries of the Company shall include without limitation Beijing Sino
Top Scope Technology Co., Ltd. (北京中海通成科技有限责任公司) and
Zhonghaishixun Information Technology Co., Ltd. (中海视讯信息技术有限公司).
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8.8 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.
8.9 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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______________________________ | |
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Name:
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Title:
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Address:__________________________
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EXECUTIVE:
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XXXXXXXX
XXX
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Address:__________________________
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Disclosure
to the Employment Agreement
I am the
sole shareholder of Codent Networks (Shanghai) Co. Ltd. (“科顿网络通讯技术（上海）有限公司”),
a wholly foreign owned enterprise incorporated in Shanghai, China with a
registered capital of USD$710,000. The company’s main business is to develop and
market mobile software solutions and services. It is engaging with Xinhua Mobile
TV Co. on mobile streaming video service and with China Telecom on mobile
payment and other mobile phone based services to mobile consumers and enterprise
customers.
Codent’s
business exists prior to my Employment Agreement with CBBD. Some of Codent’s
business, for example, the mobile streaming video and mobile payment, may be
considered similar in nature with CBBD’s video-on-demand and pay-per-view
services in the mobile space.
I am not
involved in Codent’s operation or management, and less than 10% of my time is
spent serving as the sole shareholder, legal representative and chairperson of
the company.
Exceptions to Section
6.1.1:
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