SEPARATION AGREEMENT AND RELEASE
EXHIBIT
10.1
SEPARATION
AGREEMENT AND RELEASE
This
Separation Agreement and Release (the “Agreement”), dated as of May 21, 2008
(“Effective Date”), is entered into by and between Asian Financial, Inc.
(“Company”) and Xxxxxxx Xxxxxx Xxxxxxxx (“Executive”).
RECITALS
WHEREAS,
Company
and Executive entered into an employment agreement, entitled Chief Financial
Officer Employment Agreement, dated as of March 1, 2008 under which Executive
served as Chief Financial Officer of Company (the “Employment
Agreement”);
WHEREAS,
Company
and Executive entered into a Confidentiality and Invention Assignment Agreement
dated as of March 1, 2008 for the protection of Company confidential information
as defined therein (the “Confidentiality Agreement”);
WHEREAS,
Company
and Executive mutually desire to enter into an agreement to (a) acknowledge
Executive’s resignation from his position with Company and (b) evidence certain
understandings and covenants to be undertaken by each party in connection with
Executive’s resignation; and
WHEREAS,
the
parties have agreed to set forth in writing their mutual decision to enter
into
this Agreement.
AGREEMENT
NOW,
THEREFORE,
in
consideration for the promises, compensation, waiver and release, and agreements
hereinafter set forth, Company and Executive agree as follows:
1. Resignation:
Executive hereby acknowledges and confirms that Executive has tendered his
resignation as an officer and employee of Company, effective as of the Effective
Date, and subject to the terms and conditions of this Agreement, Company hereby
acknowledges and accepts such resignation, it being understood that following
the Effective Date, subject to Section 2 hereof, Executive shall no longer
hold
any office or position with Company.
(a) Payment
of Final Wages:
Company
shall pay Executive an amount equal to all unpaid base salary to which Executive
is entitled pursuant to Section 2.1 of the Employment Agreement, together with
any accrued but unused vacation days (the “Final Wage Payment”).
(b) SEC
Form 8-K: Executive
acknowledges and agrees that Company may issue a Form 8-K announcing Executive’s
resignation substantially in the form delivered to the Executive on the
Effective Date.
(c) Bonus:
Company
shall pay Executive a bonus equal to one month base salary of $14,000 (after
taxes, deductions or other charges required to be withheld by law which shall
be
paid by Company on Executive’s behalf) on the Effective Date in recognition of
the contributions made by Executive to Company during his term of employment
with Company.
2. Consulting
Services:
Company
hereby engages Executive as an external consultant for the eight-month period
commencing on the Effective Date and ending on January 21,
2009
(the “Term”). During the Term, Executive shall provide certain advisory services
to Company as and when requested by Company (the “Services”).
(a) Compensation:
In
consideration for the Services, Company
shall pay Executive $3,500 (after taxes, deductions or other charges required
to
be withheld by law which shall be paid by Company on Executive’s behalf) on each
monthly anniversary of the Effective Date, beginning in June 2008 until January
2009 (the “Consulting Fees”). Payment of the Consulting Fees shall be effected
by wire transfer to an account designated in writing by Executive or, if no
such
designation is provided, to the same account designated by Executive in respect
of the Final Wage Payment. Executive acknowledges and agrees that the payments
and rights referred to in this Section 2 do not constitute compensation for
Executive’s time worked and services rendered prior to the Effective Date, but
rather constitute consideration for the promises contained in this Agreement,
and that such consideration is above and beyond any wages or salary or other
sums to which Executive is entitled from Company under the terms of his
employment with Company or under any other contract or law.
(b) Independent
contractor status: Executive
shall be an independent contractor within the meaning and requirement of
applicable laws or customs during the Term. Under no circumstances shall
Executive look to Company as his or her employer, or as a partner, agent or
principal. Executive shall not be entitled to any benefits accorded to Company’s
employees, including but not limited to worker’s compensation, disability
insurance, vacation or paid time off. Executive shall be responsible for
providing, at Executive’s sole expense, and in Executive’s name, all insurance
required by law, including but not limited to disability, worker’s compensation
or general liability insurance, as well as all licenses or permits usual or
necessary for the performance of Executive’s services under this Agreement.
Nothing
in this Agreement shall authorize Executive to bind or contract on behalf of
Company, to act as a person or agent upon which service of process may be made
on behalf of Company, to accept service of process on behalf of Company, to
create or establish a partnership, joint venture, or any agency relationship
between Company and Executive, or to act as an employee or servant of Company.
Company shall not be responsible in any way for any obligation or liability
incurred or assumed by Executive. Executive shall at no time represent himself
as an employee, partner or agent of Company.
3. Fringe
Benefits; Paid Leave:
Executive’s participation in Company’s benefits plans shall cease as of the
Effective Date, and Executive thereafter shall not be eligible to participate
in
any of Company’s benefit plans, including, but not limited to, any dental or
medical insurance, long term care plans, retirement or 401(k) plans, vacation
leave, sick leave, long term disability insurance, life insurance, or personal
accident insurance. Nothing in this Section shall prevent Executive from
participating in a COBRA continuation coverage program or any similar state
medical and dental insurance continuation coverage program.
4. Return
of Company Property: Executive
agrees that, on or before the Effective Date, Executive shall return all
property of Company, its direct and indirect parents, their respective
subsidiaries, affiliates and any divisions thereof which is in his possession,
including, but not limited to, documents, contracts, agreements, plans,
photographs, books, notes, electronically stored data, and all copies of the
foregoing as well as any automobile or other materials or equipment supplied
by
Company or its affiliates to Executive.
5. Waiver
and Release
(a) Except
for any rights granted under this Agreement, Executive, for himself and for
his
heirs, assigns, executors and administrators, hereby releases, remises and
forever discharges Company, its parents, subsidiaries, affiliates, divisions,
predecessors, successors, assigns, directors, officers, partners, attorneys,
shareholders, administrators, employees, agents, representatives, employment
benefit plans, plan administrators, fiduciaries, trustees, insurers and
re-insurers, and all of their predecessors, successors and assigns,
(collectively, the “Releasees”), of and from all claims, causes of action,
covenants,
contracts, agreements, promises, damages, disputes, demands, and all other
manner
of
actions
whatsoever, in law or in equity, that Executive ever had, may have had, now
has
or that his heirs, assigns, executors or administrators hereinafter can, shall
or may have, whether known or unknown, asserted or unasserted, suspected or
unsuspected, as a result of Executive’s employment, the termination of that
employment, or any act or
omission which
has
occurred at any time up to and including the date of the execution of this
Agreement
(the
“Released Claims”).
The
Released Claims include,
without
being
limited to,
any and
all claims, demands and causes of action under
the
following laws, all as amended—the
Civil Rights Acts of 1866 and 1964,
42
U.S.C. Sections 1981 and 2000(e) et
seq.;
the
Civil Rights Act of 1991; the Americans with Disabilities Act of 1990,
42
U.S.C.
Sections 12,101 et
seq.;
the
Rehabilitation Act of 1973, 29
U.S.C.
Section 701 et
seq.;
the
Employee Retirement Income Security Act, 29 U.S.C. Section 1001 et
seq.;
the Age
Discrimination in Employment Act, 29 U.S.C. Section 621 et
seq.;
and
any
other
federal, state or local
statute,
regulation,
common
law
or
decision
concerning discrimination, pay, benefits, or any other aspect of employment
or
any other matter.
The
Released Claims do not include any rights that cannot by law be released by
private agreement.
Executive
acknowledges that different or additional facts may be discovered in addition
to
what he now knows or believes to be true with respect to the matters herein
released, and Executive agrees that this Agreement shall be and remain in effect
in all respects as a complete and final release of the matters released,
notwithstanding any such different or additional facts. Executive represents
and
warrants that he has not previously filed or joined in any claims
that are released herein
and that
he has not given or sold any portion of any claims released herein to anyone
else.
(b) Executive
agrees that from and after the date of the receipt of this Agreement, he will
not, directly or indirectly, provide to any person or entity any information
that concerns or relates to the negotiation of or circumstances leading to
the
execution of this Agreement or to the terms and conditions hereof, except:
(i)
to the extent that such disclosure is specifically required by law or legal
process or as authorized in writing by Company; (ii) to his tax advisors as
may
be necessary for the preparation of tax returns or other reports required by
law; (iii) to his attorneys as may be necessary to secure advice concerning
this
Agreement; or (iv) to members of his immediate family. Executive agrees that
prior to disclosing such information under parts (ii), (iii) or (iv) of this
Section 5(b), he will inform the recipients that they are bound by the
limitations of this Section. Executive further agrees that subsequent disclosure
of such information by any such recipients shall be deemed to be a disclosure
by
Executive in breach of this Agreement.
6. Release
of ADEA Claims
Executive
agrees and understands that he is specifically releasing all claims under the
Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sections
621
et
seq. Executive
affirms that he has read the Agreement in its entirety and has had a full and
fair opportunity to consider and understand its terms and to be advised by
his
counsel. Executive further acknowledges that he understands the Agreement and
has, of his own free will, without coercion, agreed to the terms of the
Agreement. Executive further understands that he has been advised herein in
writing that: (i) he should consult with an attorney before signing the
Agreement; (ii) that he has at least twenty-one (21) days to consider the
Agreement; (iii) that if he signs this Agreement, he may revoke it within
seven (7) days after he signs it; and (iv) that this Agreement shall not be
enforceable until the seven (7) day revocation period has expired without the
Agreement having been revoked as provided herein. Revocation shall be made
by
delivering a written notice of revocation to:
Xxxxx
Xxxx
Asian
Financial, Inc.
0/X,
Xx.
0 Xxxxxxx Xxxx
Xxxxxx
Xxxxxxxx Industrial Development Zone
Beijing,
People’s Republic of China
Post
Code: 102600
For
such
revocation to be effective, notice must be received by the Company
representative designated above no later than 8:00 a.m. on the eighth
(8th)
calendar day after the day on which Executive signs this Agreement. The parties
expressly agree that, in the event that Executive revokes this Agreement, the
Agreement shall be null and void and have no legal or binding effect whatsoever.
The parties to this Agreement recognize that Executive may elect to sign this
Agreement before the expiration of the twenty-one (21) day consideration period
specified herein, and Executive agrees that if he elects to do so, he shall
manifest such election by signing Attachment A to this Agreement.
If
Executive does not execute this Agreement within the twenty-one (21) day
consideration period, the Agreement shall be deemed revoked and shall have
no
legal or binding force or effect.
7. Legal
Expenses: Company
agrees to pay for all reasonable legal fees actually and directly incurred
by
Executive on behalf of Executive if, by reason of Executive’s Corporate Status,
Executive is made a party to or participant in any legal proceeding against
Company, provided that (a) Executive consents to the appointment and direction
of legal counsel by Company for and on behalf of Executive in any such legal
proceeding and (b) Executive shall reimburse Company for any such fees paid
by
Company on his behalf in any such legal proceedings resulting in liability
to
Executive as a direct result of Executive’s negligence or active or passive
wrongdoing. For purposes hereof, the term “Corporate Status” means the status of
Executive as Chief Financial Officer of Company.
8. Entire
Agreement, Amendment:
Each of
Company and Executive acknowledges that no promise, inducement or other
agreement not expressly contained in this Agreement has been made conferring
any
benefit upon the other; that this Agreement contains the entire agreement
between Executive and Company with respect to Executive’s employment and ending
of employment with Company; and that, with the exception of the Confidentiality
Agreement, all prior agreements, understandings, oral agreements and writings
between Executive and Company are expressly superseded by this Agreement and
are
of no further force and effect. The Confidentiality Agreement, and Executives
duties and obligations under that agreement, shall remain in full force and
effect. This Agreement may not be altered, modified or amended except by written
agreement signed by both parties hereto.
9. Non-disparagement: Executive
agrees that he will not make to any person or entity any false, disparaging,
or
derogatory comments about Company, its business affairs, its employees, clients,
contractors, affiliates, agents, or any of the other Releasees
as defined in Section 5.
If
Executive is asked about Executive’s termination and/or resignation, Executive
may only state that Executive voluntarily resigned from Company due to health
reasons.
10. Requests
for References
and Year-end Tax Information
(a) References: Executive
agrees that he shall direct all requests for references or other inquiries
concerning Executive’s employment with Company to the attention of Xxxxx
Xxxx, Assistant to the Chairman of Company, who
shall
respond to the request by providing only the starting and ending dates of
Executive’s employment with Company, and the last position held by Executive.
This Section 10(a) shall not apply to Company’s response to agency
inquiries,
governmental investigations,
or
court processes.
(b) Year-end
Tax Information: For
the
sole purpose of Executive’s preparation of his 2008 and 2009 income tax returns
to be filed with the United States Internal Revenue Service, at the reasonably
request of Executive, Company shall, promptly after the 2008 and 2009 calendar
year-ends, provide Executive with a wage and tax statement setting forth the
aggregate income received by Executive from Company, including any taxes,
deductions or other charges paid by Company on Executive’s behalf, pursuant to
the Employment Agreement and this Agreement.
11. Remedies:
Executive
acknowledges and agrees that if Executive breaches any obligation under this
Agreement, Company will suffer immediate and irreparable harm and damage for
which money alone cannot fully compensate Company. Executive therefore agrees
that upon such breach or threatened breach of any obligation under this
Agreement, Company shall be entitled to a temporary restraining order,
preliminary injunction, permanent injunction or other injunctive relief
compelling Executive to comply with any or all such provisions. This Section
shall not be construed as an election of any remedy, or as a waiver of any
right
available to Company under this Agreement or the law, including the right to
seek damages from Executive for a breach of any provision of this Agreement,
nor
shall this Section be construed to limit the rights or remedies available under
applicable law for any violation of any provision of this
Agreement.
12. General:
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Wyoming. The language of all parts of this Agreement shall in
all
cases be construed as a whole, according to the language’s fair meaning, and not
strictly for or against any of the parties. This Agreement shall be binding
upon
and inure to the benefit of the parties and their respective representatives,
successors and permitted assigns.
Neither
the waiver by either party of a breach of or default under any of the provisions
of the Agreement, nor the failure of such party, on one or more occasions,
to
enforce any of the provisions of the Agreement or to exercise any right or
privilege hereunder shall thereafter be construed as a waiver of any subsequent
breach or default of a similar nature, or as a waiver of any provisions, rights
or privileges hereunder.
The
parties agree to take or cause to be taken such further actions as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms, and conditions of this Agreement. This Agreement and the rights
and obligations of the parties hereunder may not be assigned by either party
without the prior written consent of the other party.
In the
event that any one or more of the provisions of this Agreement, or any part
thereof, shall be held to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remainder of this Agreement shall not in
any
way be affected or impaired thereby. This Agreement may be signed in one or
more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one instrument.
13. Voluntarily
Entering Agreement: Executive
acknowledges that Executive (a) have had a sufficient period to consider and
review this Agreement before signing it; (b) have carefully read this Agreement;
and (c) fully understand this Agreement and are entering into them
voluntarily.
14. Non-Admission
of Liability: Company
has entered into this Agreement and this General Release with Executive to
effect a mutually acceptable resolution of each claim that is released in
Section 5. Company does not believe or admit that it or any other Releasee
has
done anything wrong. Executive agrees that this Agreement is not admissible
in
any court or other forum for any purpose other than the enforcement of its
terms.
15. Advice
of Counsel:
Executive acknowledges that, in executing this Agreement, Executive has had
the
opportunity to seek the advice of independent legal counsel, and Executive
has
read and understands all of the terms and provisions of this Agreement. This
Agreement shall not be construed against any party by reason of the drafting
or
preparation thereof.
[Signature
page follows]
The
parties have executive this Agreement on the respective dates set forth
below:
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May
21, 2008
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/s/ Xxxxxxx Xxxxxx Xxxxxxxx
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Xxxxxxx
Xxxxxx Xxxxxxxx
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|||
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May
21, 2008
|
Asian
Financial, Inc.
|
||
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/s/ Xxxxxx Xxx
|
|||
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By:
|
Xxxxxx
Xxx
|
||
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Title:
|
Chief
Executive Officer
|
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ATTACHMENT
A
ELECTION
TO EXECUTE SEPARATION AGREEMENT AND RELEASE OF ALL
CLAIMS
PRIOR TO EXPIRATION OF 21-DAY CONSIDERATION PERIOD
I,
Xxxxxxx Xxxxxx Xxxxxxxx, understand that I have twenty-one (21) days within
which to consider and execute the attached Separation Agreement and Release
of
All Claims. However, after having an opportunity to consult counsel, I have
freely and voluntarily elected to execute the Separation Agreement and Release
of All Claims before such twenty-one (21) day period has expired.
|
/s/
Xxxxxxx Xxxxxx Xxxxxxxx
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||
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Date
|
Xxxxxxx
Xxxxxx Xxxxxxxx
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