Exhibit 10.1
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (this “
Agreement ”) is entered into and dated as of September
30, 2008 by and between William D. Suh, residing at [address on
file with the Company] (“ Executive ”), and
Asian Financial, Inc., a Wyoming corporation (the “
Company ”), and shall be effective as of October 1,
2008.
NOW, THEREFORE, IN CONSIDERATION of the
foregoing facts, the mutual covenants and agreements contained
herein and other good and valuable consideration, the parties
hereby agree as follows:
1. Duties and Scope of Employment
.
1.1 The Company hereby agrees to the employment of
Executive in the capacity of Chief Financial Officer of the Company
and its subsidiaries, and Executive hereby accepts such continued
employment on the terms and conditions contained in this Agreement,
for the initial period beginning on October 1, 2008 and continuing
until October 2, 2013 (the “
Initial Term ”) unless earlier terminated in
accordance with Section 3 of this Agreement. Following the Initial
Term, the employment relationship continued pursuant to this
Agreement may, by express agreement, be renewed annually and, if so
renewed, will be terminable by either party in accordance with
Section 3 of this Agreement. Following expiration of the Initial
Term and all subsequent renewal periods, if any, Executive’s
employment with the Company will be “at-will” and
either Executive or the Company may terminate Executive’s
employment with the Company in writing to the other party for any
reason or for no reason, at any time.
1.2 Executive shall be employed on a full time
basis, shall report to the Chief Executive Officer, shall devote
his full business efforts and time to the Company and its
subsidiaries, and shall have such reasonable, usual and customary
duties of such office and title as may be delegated to Executive
from time to time by the Company’s Board of Directors.
Executive shall have those responsibilities normally discharged by
persons in his position in a U.S. public company, including but not
limited to the general supervision and oversight of the financial
recordkeeping and reporting of the Company as well as the
responsibilities listed in Exhibit A which is attached
hereto.
1.3 Executive agrees to the best of his ability and
experience that he will at all times fully and faithfully perform
all of the duties and obligations required of and from Executive,
consistent and commensurate with Executive’s position,
pursuant to the terms hereof. During the term of Executive’s
employment relationship with the Company, Executive will not
directly or indirectly engage or participate in any business that
is competitive in any manner with the business of the Company or
its subsidiaries. Nothing in this Agreement will prevent Executive
from (i) making personal investments in, and sitting on the board
of directors or board of advisors of, businesses that are not
competitive with the business of the Company or its subsidiaries,
(ii) accepting speaking or presentation engagements in exchange for
honoraria or from serving on boards of charitable organizations, or
(iii) from owning no more than 1% of the outstanding equity
securities of a corporation whose stock is listed on a national
stock exchange or the Nasdaq Stock Market; provided ,
that , such activities listed in (i) through (iii) do not
materially interfere with Executive’s obligations to the
Company and its subsidiaries as described above. Executive will
comply with and be bound by the Company’s operating policies,
procedures and practices as provided in writing to Executive from
time to time and in effect during the term of Executive’s
employment.
1.4 Executive represents and warrants to the
Company that he is under no obligations or commitments, whether
contractual or otherwise, that are inconsistent with his
obligations under this Agreement. Executive represents and warrants
that he will not use or disclose, in connection with his employment
by the Company, any trade secrets or other proprietary information
or intellectual property in which Executive or any other person has
any right, title or interest and that his employment by the Company
as contemplated by this Agreement will not infringe or violate the
rights of any other person or entity. Executive represents and
warrants to the Company that he has returned all property and
confidential information belonging to any prior
employers.
1.5 Executive acknowledges that the nature of his
responsibilities may require domestic and international travel from
time to time.
2. Compensation and Benefits
.
2.1 As of the Effective Date, Executive shall
receive a monthly base salary of the RMB equivalent of US$16,000,
which is equivalent to the RMB equivalent of US$192,000 on an
annualized basis, less payroll deductions and all required
withholdings. Executive’s monthly base salary will be payable
pursuant to the Company’s normal payroll practices, will be
reviewed on an annual basis by the Compensation Committee of the
Company’s Board of Directors (the “ Compensation
Committee ”) and may be increased during the Initial Term
on each anniversary of the effective date of this Agreement, at the
discretion of the Compensation Committee. Notwithstanding the
foregoing, Executive’s monthly salary may be allocated among
and payable by the Company or its subsidiaries in such amounts as
are determined by the Company’s Board of
Directors.
2.2 The Company shall pay to Executive such bonuses
as may be determined from time to time in the sole discretion of
the Compensation Committee. The amount of annual bonus payable to
Executive shall vary in the discretion of the Compensation
Committee. In determining the annual bonus to be paid to Executive,
the Compensation Committee may consider all factors deemed relevant
and appropriate.
2.3 During his employment, Executive shall be
entitled to such insurance and other benefits including, among
others, medical and disability coverage and life insurance as are
afforded to other senior executives of the Company, subject to
applicable waiting periods and other conditions and to applicable
law.
2.4 During his employment, Executive will be
eligible for four weeks vacation each year, which vacation shall
accrue ratably over each calendar year and pro-rata during any
partial year of employment, subject to a maximum accrual at any
time of eight weeks of vacation.
2.5 During his employment, Executive shall be
eligible to participate in any employee benefit plans maintained by
the Company for other executive officers, subject in each case to
the generally applicable terms and conditions of the plan in
question, the determinations of any person or committee
administering such plan, and any applicable law.
2.6 During his employment, Executive shall be
authorized to incur necessary and reasonable travel, entertainment
and other business expenses in connection with his duties
hereunder. The Company shall reimburse Executive for such expenses
upon presentation of an itemized account and appropriate supporting
documentation, all in accordance with the Company’s generally
applicable policies.
2.7 The Company shall issue to Executive on the
effective date of the Company’s public offering and listing
(the “ Public Offering ”) of its shares of
common stock on the Nasdaq Stock Market’s Global Market or
Global Select Market, the New York Stock Exchange or another
comparable national stock exchange or marketplace approved by the
Board of Directors of the Company, an option (the “
Option ”) to purchase 100,000 shares of the Company's
common stock at the Public Offering price pursuant to the terms of
the Company’s standard form of stock option agreement (the
“ Stock Option Agreement ”). The Option will
vest and become exercisable in installments as provided below,
which shall be cumulative. To the extent that the Option has become
vested with respect to a percentage of the Option, it may
thereafter be exercised by Executive, in whole or in part, at any
time or from time to time prior to the expiration of the Option as
provided herein. A quarter (25%) of the Option shall vest and
become exercisable on October 1, 2010, and the remainder shall vest
in thirty-six (36) equal monthly installments beginning November 1,
2010 and on each 1 st of the month thereafter, with the
last monthly installment vesting and becoming exercisable on
October 1, 2013; provided , however , that the option
shall cease to vest if Executive is terminated as an employee of
the Company for any reason. In the event of any conflict between
the terms of this Section 2.7 and the terms of the Stock Option
Agreement, the provisions of the Stock Option Agreement shall
control.
3. Termination of Employment
.
3.1 If Executive’s employment terminates for
any reason, Executive shall not be entitled to any severance
payments, benefits, damages award or compensation other than as
specified in this Agreement.
3.2 During the Initial Term and any annual renewal
period, the employment relationship may be terminated as follows:
(i) by Executive for any reason or for Good Reason (as defined in
Section 3.6 below), upon at least thirty (30) days’ written
notice to the Company, effective as of the date set forth in such
notice or such earlier date determined by the Company following
such notice, and subject to Section 3.3 below; (ii) by the Company
without Cause (as defined in Section 3.5 below), upon at least
thirty (30) days’ written notice to Executive, effective as
of the date set forth in such notice or such earlier date
determined by Executive following such notice, and subject to
Section 3.3 and Section 3.4 below; (iii) by the Company for Cause
with immediate effect, and subject to Section 3.3 below; and (iv)
upon Executive’s death or Disability (as defined in Section
3.7 below) with immediate effect, and subject to Section 3.3
below.
3.3 If Executive’s employment terminates for
any reason at any time, including but not limited to
Executive’s voluntary election to terminate his employment
with or without Good Reason, termination by the Company with or
without Cause, or upon Executive’s death or Disability,
Executive (or Executive’s estate in the case of death) will
receive payment(s) for all salary and unpaid vacation accrued as of
the date of Executive’s termination of employment, and shall
be entitled to all accrued benefits and to any additional benefits
pursuant to Company plans or policies in effect at the time of
termination or as required by law, less all required withholdings.
Such payments shall be paid within ten (10) business days of the
effective date of termination. Executive shall be entitled to the
Severance Benefit (as defined in Section 3.4) in the event of
termination of his employment only as provided in Section 3.4
below.
3.4 In the event that the Company terminates
Executive’s employment without Cause during the Initial Term
or any annual renewal term, the Company shall, in addition to the
payments and benefits provided for in Section 3.3, provide to
Executive an amount equal to the base salary that Executive would
otherwise receive from the Company during the period of six (6)
months preceding the termination of employment (the “
Severance Benefit ”). In the Company’s sole
discretion, the Severance Benefit may be paid by the Company in a
lump sum payment within ten (10) business days of the termination
of employment, or may be paid in six (6) monthly installments
beginning on the last day of the month following the termination of
employment. Such Severance Benefit shall constitute liquidated
damages for early termination of this Agreement and will be in lieu
of any compensation, damages or remedy that Executive would
otherwise be entitled to receive. Such Severance Benefit is,
further, conditioned on Executive’s full and faithful
compliance with the covenants contained in Section 4 of this
Agreement and the Confidentiality Agreement as therein defined. If
Executive fails to comply in any way with such covenants, Executive
will immediately forfeit any rights to, and the Company shall
immediately be relieved of any obligation to provide, any further
payments of the Severance Benefit and shall, at the sole discretion
of the Company, reimburse the Company for any Severance Benefits
previously paid, within ten (10) days after delivery to Executive
of a demand therefor. The forfeiture of benefits set forth in this
Section 3.4 shall be in addition to any of remedies at law or
equity that the Company would otherwise have.
3.5 For purposes of this Agreement, “
Cause ” for Executive’s termination will exist
at any time after the happening of one or more of the following
events:
(a) Executive’s continued failure to
substantially perform Executive’s duties, including
Executive’s refusal to comply in any material respect with
the legal directives of the Board of Directors so long as such
directives are not inconsistent with Executive’s position and
duties, and such refusal to comply is not remedied within ten (10)
working days after written notice from the Board of Directors,
which written notice shall state that failure to remedy such
conduct may result in termination for Cause;
(b) Executive’s dishonest or fraudulent
conduct, or deliberate attempt to do an injury to the Company or
any of its subsidiaries, or conduct that materially discredits the
Company or any of its subsidiaries or is materially detrimental to
the reputation of the Company or any of its subsidiaries, including
conviction of a felony; or
(c) Executive’s breach of any element of the
Confidentiality Agreement (as defined in Section 4 below),
including without limitation, Executive’s theft or other
misappropriation of proprietary information of the Company or any
of its subsidiaries.
3.6 For purposes of this Agreement, “ Good
Reason ” for Executive to terminate his employment shall
exist if Executive voluntarily resigns within after having provided
the Company with written notice of any of the following
circumstances within thirty (30) days of the initial existence of
any of the following circumstances:
(a) a material reduction in Executive’s job
position or responsibilities to a position or to responsibilities
substantially lower than the position and responsibilities assigned
to Executive upon commencement of the employment relationship
pursuant to this Agreement which has not been cured by the Company
within thirty (30) calendar days after notice of such occurrence is
given by Executive to the Company; or
(b) a failure by the Company to comply with any
provision of Section 2 of this Agreement which has not been cured
within thirty (30) calendar days after notice of such noncompliance
has been given by Executive to the Company or if such failure is
not capable of being cured in such time, a cure shall not have been
diligently initiated by the Company within such thirty (30)
calendar day period.
3.7 “ Disability ” as used
herein means Executive’s inability to discharge a material
portion of his responsibilities as set forth in Section 1 on
account of a physical or mental disability for either four (4)
consecutive months or six (6) non-consecutive months during a
12-month period. A termination of Executive’s employment due
to Disability will exist upon Executive’s Disability and the
Company’s election to terminate Executive’s
employment.
4. Protection of Confidential Information;
Non-Competition .
4.1 Executive shall sign a Confidential Information
and Invention Assignment Agreement (the “ Confidentiality
Agreement ”) attached hereto as Exhibit B .
Executive hereby represents and warrants to the Company that he has
complied with all obligations under the Confidentiality Agreement
and agrees to continue to abide by the terms of the Confidentiality
Agreement, which are incorporated by reference herein. Executive
further agrees that the provisions of the Confidentiality Agreement
shall survive any termination of this Agreement or of
Executive’s employment relationship with the
Company.
4.2 Executive hereby agrees that he shall not,
during his employment with the Company and for a period of twelve
(12) months following the termination of his employment with the
Company for any reason, whether with or without cause, do any of
the following, either directly or indirectly, without the prior
written consent of the Board of Directors:
(a) carry on any business or activity (whether
directly or indirectly, as a partner, shareholder, principal,
agent, director, affiliate, employee or consultant) in any parts of
the People’s Republic of China where the Company or any of
its subsidiaries conduct their business, which is directly
competitive with the business conducted by the Company or any of
its subsidiaries (as conducted now or as those businesses come to
be conducted during the term of Executive’s employment),
where Executive’s performance of such business or activity
has caused, or would or might cause, Executive to disclose, base
judgments on or use any Confidential Information (as defined in the
Confidentiality Agreement) acquired during or in the course of
Executive’s employment with the Company or impair customer,
vendor or business partner relations or the Company’s
goodwill, or otherwise cause special harm to the
Company;
(b) attempt to negatively influence any of the
Company’s and its subsidiaries’ clients or customers
from purchasing Company products or services or to solicit or
influence or attempt to influence any client, customer or other
person either directly or indirectly, to direct his or its purchase
of products and/or services to any person, firm, corporation,
institution or other entity in competition with the business of the
Company and its subsidiaries;
(c) solicit, induce, recruit, encourage, take away
or influence or attempt to influence any person employed by or a
consultant to the Company or any of its subsidiaries to terminate
or otherwise cease his employment or consulting relationship with
the Company or any of its subsidiaries or become an employee of any
competitor of the Company or its subsidiaries; and
(d) engage in any other activities that conflict
with those obligations of Executive to the Company and its
subsidiaries that survive the termination of this Agreement or
Executive’s employment with the Company.
Executive agrees that breach of this Section 4.2
will cause substantial injury to the Company for which money
damages will not provide an adequate remedy, and Executive agrees
that the Company shall have the right to obtain injunctive relief,
including the right to have this Section 4.2 specifically enforced
by any court having equity jurisdiction, in addition to, and not in
limitation of, any other remedies available to the Company under
applicable law.
The restrictions in Section 4.2(a) to (d) are
regarded by the Company and Executive as fair and reasonable, and
the Company and Executive hereby expressly confirm, declare and
represent to each other that they are so regarded by them. However,
it is hereby declared that each of the restrictions in this Section
4.2 is intended to be separate and severable. If any restriction is
held to be unreasonably wide but would be valid if part of the
wording were to be deleted or the range of activities or businesses
were to be reduced in scope, such restriction will apply with so
much of the wording deleted or modified as may be necessary to make
it valid.
5. Successors .
5.1 This Agreement shall be binding upon any
successor (whether direct of indirect and whether by purchase,
lease, merger, consolidation, liquidation or otherwise) to all or
substantially all of the Company’s business and/or assets.
For all purposes under this Agreement, the term
“Company” shall include any successor to the
Company’s business and/or assets, which becomes bound by this
Agreement.
5.2 This Agreement and all rights of Executive
hereunder shall inure to the benefit of, and be enforceable by,
Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees.
6. Indemnification . The Company will
indemnify and defend Executive to the maximum extent permitted by
law, provided Executive enters into the Company’s standard
form of Indemnification Agreement giving him such protection.
Pursuant to the Indemnification Agreement, the Company will agree
to advance any expenses for which indemnification is available to
the extent allowed by applicable law.
7. Miscellaneous Provisions .
7.1 All notices provided for in this Agreement
shall be in writing, and shall be deemed to have been duly given
when delivered personally to the party to receive the same, when
transmitted by electronic means, or when mailed first class postage
prepared, by certified mail, return receipt requested, addressed to
the party to receive the same at his or its address set forth
below, or such other address as the party to receive the same shall
have specified by written notice given in the manner provided for
in this Section 7.1. All notices shall be deemed to have been given
as of the date of personal delivery, transmittal or mailing
thereof.
[address and
phone numbers on file with the Company]
Daxing
Industrial Development Zone
People’s
Republic of China