Consulting Agreement - China Broadband Corp. and Ping Chang Yung
CONSULTING AGREEMENT
THIS AGREEMENT made effective October 1, 2000 (the "Effective Date").
BETWEEN:
CHINA BROADBAND CORP., a body corporate, incorporated pursuant to the
laws of the State of Nevada, United States of America
(hereinafter referred to as the "Corporation")
OF THE FIRST PART
- and -
PING CHANG YUNG, a resident of the city of Flushing in the State of New
York, United States of America
(hereinafter referred to as the "Consultant")
OF THE SECOND PART
WHEREAS the Corporation wishes to engage the services and expertise of
the Consultant on the terms and conditions hereinafter set forth, and the
Consultant wishes to accept such an engagement;
NOW THEREFORE in consideration of the covenants of each of the parties
given to the other and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. SERVICES
1.1 Effective as of the Effective Date, the Corporation engages the
Consultant and the Consultant accepts an engagement with the
Corporation to render the consulting services for the Corporation as
set out in Schedule A. During the term of this Agreement, the
Consultant shall provide the services of Ping Chang Yung who shall
devote such of his time, attention and abilities to the business of the
Corporation as may be necessary for the proper exercise of the
Consultant's duties hereunder. Nothing in this Agreement shall be
interpreted or construed as creating or establishing a relationship of
employer and/or employee between the Corporation and Ping Chang Yung.
2. DUTIES
2.1 The Consultant shall devote reasonable time and effort to the
performance of this Agreement. The Corporation acknowledges that the
Consultant and Ping Chang Yung shall also be entitled to render
services to others during the term hereof.
2.2 The Consultant's duties shall be to provide the services more
particularly set forth on Schedule "A" hereto.
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3. REMUNERATION
The Corporation agrees to pay the Consultant as set out in Schedule "B"
attached hereto.
4. CONFIDENTIALITY
4.1 This Consultant acknowledges the Corporation will have reporting and
disclosure obligations under all applicable securities legislation. The
Consultant covenants and agrees that it shall not any time, during or
after the termination of the Consultant's engagement by the
Corporation, reveal, divulge, or make known to any person (other than
the Corporation or its affiliates) or use for its own account any
customer's lists, trade secrets, or secret or confidential information
used by the Corporation or its Affiliates during the Consultant's
engagement by any of them and made known (whether or not with the
knowledge and permission of the Corporation, whether or not developed,
devised or otherwise created in whole or in part by the efforts of the
Consultant, and whether or not a matter of public knowledge unless as a
result of authorized disclosure) to the Consultant by reason of its
engagement by the Corporation of any of its Affiliates. The Consultant
further covenants and agrees that all knowledge and information, which
is acquired or developed for the Corporation or any of its Affiliates
by the Consultant, is the property of the Corporation. The Consultant
further covenants and agrees that it shall retain all such knowledge
and information which it shall acquire and develop during such
engagement respecting such customer lists, trade secrets and secret or
confidential information in trust for the sole benefit of the
Corporation, its affiliates, and their successors and assigns.
4.2 The Consultant shall promptly communicate and disclose to the
Corporation all observations made and data obtained by it in the course
of its engagement by the Corporation. All written materials, records
and documents created by the Consultant or coming into its possession
concerning the business or affairs of the Corporation or any of its
Affiliates shall, upon the termination of this Agreement, promptly be
returned to the Corporation. Upon the request of the Corporation until
termination of its engagement by the Corporation, the Consultant shall
render to the Corporation or to any Affiliate designated by it such
reports of the activities undertaken by the Consultant or conducted
under the Consultant's direction for the Corporation and its Affiliates
as the Corporation may request.
4.3 The Consultant warrants and represents that it is duly qualified to
perform its duties hereunder, and further covenants that in performing
its duties hereunder, it will not engage in activity that is in
violation of applicable securities laws or subject the Corporation to
liability thereunder.
4.4 The Consultant agrees that for a period of one (1) year after the
termination of work with the Corporation, it will not do any business
whatsoever with clients of the Corporation for substantially similar
work.
5. TERM
5.1 This Agreement shall be for a term commencing October 1, 2000 and
terminating April 1, 2001.
5.2 This Agreement may, by the mutual agreement of the parties, be renewed
for a further term of five (5) years, or for such other term as may be
agreed.
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5.3 In the event the Corporation terminates this Agreement, the Corporation
shall pay to the Consultant a mutually agreed to settlement. If at the
time of any such termination, the Consultant is in fundamental breach
of this Agreement, the Corporation shall not be required to pay any
damages.
6. CHANGE OF CONTROL AND SALE OF CORPORATION
6.1 The Corporation acknowledges the valuable services that the Consultant
has provided and will continue to provide to the Corporation in
providing the services of Ping Chang Yung in his capacity as an officer
thereof and an authorized representative thereof.
6.2 The Corporation acknowledges that in the event of a change of control
of the Corporation or a sale of all or substantially all of the assets
of the Corporation, there is a possibility that the service of the
Consultant would no longer be required and that this contract might be
terminated.
7. NOTICES
Any notices delivered or received between either party shall be deemed
to have been received:
(a) if it was delivered in person, on the date it was delivered;
(b) if it was sent by electronic facsimile transmission, on the
date it was delivered;
(c) it was sent by mail, on the day it was received to the
following address:
CHINA BROADBAND CORP.
2080, 440 - 2nd Avenue SW
Calgary AB T2P 5E9
Attention: Chairman and CEO
By Facsimile: (403) 265-8808
PING CHANG YUNG
Apartment 3C, 136-35 Maple Avenue
Flushing, New York
11355 USA
8. MODIFICATION OF AGREEMENT
8.1 Any modification of this Agreement must be made in writing signed by
the Consultant and an officer of the Corporation or it shall have no
effect and shall be void.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta, Canada and the parties agree to
attorn to the jurisdiction of the courts of the Province of Alberta.
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10. HEADINGS
The headings utilized in this Agreement are for convenience only and
are not to be construed in any way as additions or limitations of the
covenants and agreements contained in this Agreement.
11. ENTIRE AGREEMENT
The covenants in this Agreement shall be construed as an agreement
independent of any other provision in this Agreement. The parties
acknowledge that it is their intention that the provisions of this
Agreement be binding only to the extent that they may be lawful under
the existing applicable laws and in the event that any provision of
this Agreement is determined by a court of law to be overly broad or
unenforceable, the remaining valid provisions shall remain in full
force and effect. This Agreement constitutes the sole agreement between
the parties hereto for services to be performed as herein described and
the mutual covenants contained herein constitute due and adequate
consideration for the full performance by each party of its obligations
under this Agreement and any and all previous agreements, written or
oral, expressed or implied, between the parties or on their releases
and forever discharges the other of and from all manner of action,
causes of action, claims or demands whatsoever under or in respect of
any agreement.
12. GENERAL MATTERS
12.1 The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach of the same or of any other provisions of this
Agreement.
12.2 This Agreement shall be binding upon the parties hereto and shall enure
to the benefit of and be enforceable by each of the parties hereto and
their respective successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the 21st day of October, 2000
CHINA BROADBAND CORP. PING CHANG YUNG
per:/s/ MATTHEW HEYSEL per:/s/ PING CHANG YUNG
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Matthew Heysel Ping Chang Yung
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SCHEDULE "A"
SERVICES:
o Report to the Chief Technology Officer, Chairman, and President,
providing the services of Vice President, Systems Engineering of the
Corporation and, in this regard, to have responsibility for the
direction, and operation of the Corporation in all Systems Engineering
aspects, and to do all acts and things as are reasonably necessary for
the efficient and proper technical operation and development of the
Corporation.
o As the Company is a cable broadband Internet provider in China, it is
expected that, as a direct result of services provided by the Vice
President, Systems Engineering, the Company should achieve a level of
on-line Internet subscribers in excess of 7,000 during the term of this
contract.
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SCHEDULE "B"
REMUNERATION
o The Corporation agrees to grant to Ping Chang Yung stock options to
purchase 200,000 Common shares of the Corporation at $7.50 (US) per
common share, or a lower price, if at the time of signing, market
conditions permit. These options shall be vested immediately, to expire
5 years after the grant thereof and shall be exercisable at the
discretion of Ping Chang Yung (Option Agreement to follow).
o The Consultant will be entitled to participate (at the discretion of
the Corporation) in any bonus program of the Corporation resulting from
achieving milestones in the business of the Corporation (such as
commercial stage of development in 10 or more cities, 1 million or more
subscribers, revenue in excess of U.S. $100 million per year, or
strategic alliances and partnerships with other companies to
significantly enhance the products and services of the Corporation).
o The Corporation will, if it determines it to be necessary in its total
discretion, ensure that appropriate liability insurance coverage is
provided to Ping Chang Yung at no cost to the Consultant or to Ping
Chang Yung, which coverage should be the same in all material respects
as insurance coverage provided to Directors and Officers of the
Corporation.
o In any dispute arising from the enforcement of this Agreement, the
Corporation shall pay all reasonable legal fees and expenses incurred
by the Consultant in contesting or disputing the position of the
Consultant or seeking to obtain enforcement of or retaining any right
of payment or benefit provided for in this Agreement.