SEPARATION AGREEMENT AND RELEASE OF ALL CLAIMS
EXHIBIT
99.1
This
Separation Agreement and Release of All Claims (the “Agreement”), dated as of
December 20,
2007,
is entered into between Asian Financial, Inc. (“Company”), and Gene Xxxxxxx
Xxxxxxx (the “Executive”).
RECITALS
WHEREAS,
Company and Executive entered into an employment agreement, entitled Chief
Financial Officer Employment Agreement, on or about July 1, 2007 under which
Executive served as Chief Financial Officer for Company (the “Employment
Agreement”);
WHEREAS,
Company and Executive entered into a Confidential Information and Invention
Assignment Agreement on or about July 1, 2007 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 provide
for
Executive’s termination of employment with Company, as well as Executive’s
agreement to serve as a consultant for Company for the six-month period
following Executive’s termination, upon the terms provided for in this
Agreement; and
WHEREAS,
the parties have agreed to set forth in writing their mutual decision to
enter
into this agreement and release of all claims;
AGREEMENT
NOW,
THEREFORE, in consideration for the promises, compensation, waiver and release,
and agreements hereinafter set forth, Company and Executive agree as
follows:
1. Termination
of Employment:
Executive’s last day of employment with Company shall be December 20, 2007
(“Termination Date”), on which date Executive shall voluntarily resign as an
officer and employee of Company.
(a) Payment
of Final Wages:
Executive shall be paid all outstanding, accrued salary, together with any
accrued but unused vacation, on the Termination Date.
(b) SEC
Form 8-K: Executive
acknowledges and agrees that Company may issue a Form 8-K announcing Executive’s
resignation in substantially the form attached hereto as Attachment
C.
(c) Letter
of Resignation: Concurrently
with the execution of this Agreement, Executive shall execute a letter of
resignation in the form attached hereto as Attachment A.
2. Outside
Consultant:
If
Executive executes this Agreement in a timely manner and does not revoke
it,
Company shall retain Executive as an outside consultant for the six-month
period
beginning on the Termination Date and ending on June 20, 2008 (the “Term”).
(a) Compensation:
During
the Term, Executive shall be paid $5,000.00 per month for each month in which
Executive performs consulting services for Company. 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 Termination 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.
(c) Duties:
Executive
will make himself available to the extent reasonably requested by Company
for
the purpose of consulting with Company regarding his past work and transitioning
his duties and responsibilities. Such consultation and cooperation shall
include, but is not limited to, Executive's making himself or herself available
by telephone to answer questions regarding any matter or project in which
he or
she was involved while employed at Company.
If
requested by Company, Executive shall attend meetings or conferences. Company
shall reimburse Executive for Executive’s reasonable travel expenses incurred
under this Section pursuant to Company’s reimbursement policies in place at the
time Executive incurs such expenses.
3. Fringe
Benefits; Paid Leave:
Executive’s participation in Company’s benefits plans shall cease as of the
Termination 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 Termination 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”).
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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.;
the California Fair Employment and Housing Act, California
Government Code Section 12900 et
seq.;
the California Labor Code; the California Equal Pay Law, California Labor
Code
Section 1197.5; the Xxxxx Civil Rights Act, California Civil Code Section
51
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.
Waiver
of Rights Under California Civil Code Section 1542.
Executive acknowledges that he has read Section 1542 of the Civil Code of
the
State of California, which provides as follows:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH
IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH
THE DEBTOR.
Executive
understands that Section 1542 gives him the right not to release existing
claims
of which he is not now aware, unless he voluntarily chooses to waive this
right.
Even
though Executive is aware of this right, Executive nevertheless hereby
voluntarily waives the right described in Section 1542 with respect to the
Released Claims, and elects to assume all risks for claims that now exist
in his
favor,
known or unknown,
arising from the subject matter of the Release.
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.
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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 Xxxxxxxxxx Development Xxxx
Xxxxxxx
000000, Xxxxx
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 eight 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 B 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. 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.
8. 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 resigned to pursue a PhD degree in Hong
Kong.
9. Requests
for 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 the 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 shall not apply to Company’s response to agency
inquiries,
governmental investigations,
or
court processes.
10. 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.
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11. General:
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of California. 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.
12. 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.
13. 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.
14. 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.
The
parties have executive this Agreement on the respective dates set forth
below:
| December 20, 2007 | /s/ Gene Xxxxxxx Xxxxxxx |
|
Xxxx
Xxxxxxx Xxxxxxx
|
| December 20, 2007 | Asian Financial, Inc. |
|
|
|
/s/
Xxxxxx Xxx
|
|
|
By:
Title:
|
Xxxxxx
Xxx
Chief
Executive Officer
|
5
ATTACHMENT
A
6
RESIGNATION
I,
Gene
Xxxxxxx Xxxxxxx, hereby resign my position as Chief Financial Officer of
Asian
Financial, Inc.
| 12/20/2007 | /s/Gene Xxxxxxx Xxxxxxx |
| Date |
Gene
Xxxxxxx Xxxxxxx
|
7
ATTACHMENT
B
8
ELECTION
TO EXECUTE SEPARATION AGREEMENT AND RELEASE OF ALL
CLAIMS
PRIOR
TO EXPIRATION OF 21-DAY CONSIDERATION PERIOD
I,
Gene
Xxxxxxx Xxxxxxx, understand that I have twenty-one 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 day period has expired.
| 12/20/07 | /s/ Gene Xxxxxxx Xxxxxxx |
| Date |
Xxxx
Xxxxxxx Xxxxxxx
|
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