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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: ASIAN FINANCIAL INC You are currently viewing:
This Employee Retention Agreement involves

ASIAN FINANCIAL INC

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Title: EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 10/1/2008

EMPLOYMENT AGREEMENT, Parties: asian financial inc
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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.

 

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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.

 

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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.

 

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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.

 

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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;

 

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(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.

 

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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.

 

If to Executive:       

 

William D. Suh

[address and phone numbers on file with the Company]

 

 

If to the Company: 

 

Asian Financial, Inc.

No. 3 Jinyuan Road

Daxing Industrial Development Zone

Beijing 102600

People’s Republic of China

Attention:   Wenhua Guo

 Chief Executive Officer

Tel: 6021-


 
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