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 William
Edward Milewski (“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, c ovenants,
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
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