Consulting Agreement - China Broadband Cor. and Barry L. Mackie
THIS AGREEMENT made effective July 1, 2001 (the "Effective Date").
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 -
BARRY L. MACKIE, a resident of the city of Surrey, in the Province of
British Columbia, Canada
(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
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 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
2.1 The Consultant shall devote reasonable time and effort to the
performance of this Agreement. The Corporation acknowledges that the
Consultant 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.
The Corporation agrees to pay the Consultant as set out in Schedule "B"
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
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
5.1 This Agreement shall be for a term commencing July 1, 2001 and
terminating December 31, 2001.
5.2 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
6. CHANGE OF CONTROL AND SALE OF CORPORATION
6.1 A change of control in the Corporation shall be defined as the sale
of all or substantially all of the assets of the Corporation.
6.2 The date on which Item 6.1 is deemed effected shall also be deemed the
effective date of a change of control for all calculations under this
6.3 In the event that a change of control in the Corporation should occur
within six months of the Effective Date of this agreement, the
Corporation will pay to the Consultant an amount equal to two years of
the Consultants base consulting fee in effect as at the effective date
of the change of control.
6.4 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 services of the
Consultant would no longer be required and that this contract might be
terminated. The Corporation further acknowledges that the Corporations
obligations outlined in item 6.3 shall remain in effect should the
Consultants services not be terminated upon a change of control.
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
(c) it was sent by mail, on the day it was received to the following
CHINA BROADBAND CORP.
2080, 440 - 2nd Avenue SW
Calgary AB T2P 5E9
Attention: Chairman and CEO
By Facsimile: (403) 265-8808
BARRY L. MACKIE
By Facsimile: (604) 576-6580
8. MODIFICATION OF AGREEMENT
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.
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
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
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 1st day of July, 2001.
CHINA BROADBAND CORP. BARRY L. MACKIE
per:/s/THOMAS G. MILNE per:/s/BARRY L. MACKIE
1. Reporting to the Chairman, Chief Executive Officer and President, providing
the services and having the responsibility for the direction and operation
of the Corporation in all Technology aspects, and to do all acts and things
as are reasonably necessary for the efficient and proper technical
operation and development of the Corporation.
1. As the Company is a cable broadband Internet enabler in China and the
Company believes that it will enter into three additional joint ventures
during the term of this Agreement, therefore, it is expected that the Chief
Technical Officer, will be responsible for:
a. Coordination of the specifications for each new joint venture,
obtaining the required hardware and software, installation of
equipment and activation of technical services of each new joint
venture for the earliest possible "in-service" date to customers.
b. Leading the technical team in China in their efforts to ensure that
the technical systems of each joint venture maintains a 99%
c. Assisting the VP-Systems Engineering and VP-Network Engineering in
meeting their required targets, goals, and deliverables.
d. Working with the President and Chief Executive Officer in order to
set expectations for short and long-term objectives of the
1. As full consideration for performance of the services by the Consultant,
the Corporation shall pay the Consultant at the rate of US$10,000 for each
month for which services are provided. The said rate shall be inclusive of
all claims by the Consultant for its services, but shall be exclusive of
travel and accommodation expenses incurred by the Consultant and properly
claimable in accordance with the provisions hereof.
2. The Consultant will be provided with a mobile telephone, laptop computer,
all of which will be paid by the Company.
3. The Consultant will be entitled to 4 (four) weeks paid personal time off,
4. The Consultant will work on a rotating basis of 6 (six) weeks in China, and
2 (two) weeks in North America. Accordingly, the Company will pay for 2
(two) Business Class tickets to cover these travel arrangements, per
5. The Consultant shall submit invoices to the Corporation for each month or
portion thereof for which services are provided during the period covered
by the invoice and also including any proper claim for business related
expenses. Each invoice shall indicate the period covered, the month or
portion of a month worked, the rate and the total charge for consultancy
6. The Company will supply the Consultant with a credit card to pay for
reasonable business related expenses which will include, but not be limited
to, airfare, single-occupancy accommodation, business dinners, ground
transportation and local filing fees. Receipts for all reasonable business
related expenses incurred should be submitted to the Corporation by the
Consultant on a monthly basis.
7. The Consultant will be responsible for the payment of his income taxes, as
well as any and all other taxes and contributions imposed by law. In the
event the Consultant should fail to make any such payments, the Consultant
indemnifies the Corporation for any claims, causes or action, or
liabilities which may be made, advanced or incurred against the Corporation
as a result of such non-payment, and agrees to be responsible for the
Corporation's solicitor-client costs in defending or protecting itself.
8. The Corporation will pay all proper invoices received from the Consultant
promptly following receipt of the applicable invoice and any necessary
9. 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.
10. 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 US $100 million per year, or strategic alliances and
partnerships with other companies to significantly enhance the products and
services of the Corporation).
11. The Corporation shall not be required to provide any health benefits to the
Consultant including, without limitation, dental, medical, disability, or
life insurance or retirement benefits.
12. The Corporation will, if it determines it to be necessary in its total
discretion, ensure that appropriate liability insurance coverage is
provided to the Consultant at no cost to the Consultant, which coverage
should be the same in all material respects as insurance coverage provided
to Directors and Officers of the Corporation.
13. 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.