Unassociated Document


    SEPARATION
AGREEMENT AND RELEASE

     

    This
Separation Agreement and Release (this Agreement”), is made and entered as of
the 8th day of April, 2010 (the “Effective Date”), by and between Gerova
Financial Group, LTD. (formerly Asia Special Situation Acquisition Corp.), a
Cayman Islands corporation (the “Corporation”) on the one hand,
and Marshall Manley (the “Executive”), on the other
hand.

     

    WHEREAS, the Executive was an
employee of the Corporation holding the position of Chief Executive Officer, and
was Vice Chairman of the Board of Directors of the Corporation and subject to
the terms and conditions enumerated in an Employment Agreement dated December 1,
2009;

     

    WHEREAS, the Corporation and
the Executive severed their employment relationship on April 8, 2010 (the
“Separation Date”), thus terminating the above-referenced Employment
Agreement;

     

    NOW, THEREFORE, in
consideration of the promises herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Corporation and the Executive, intending to be legally bound hereby, agree as
follows:

     

    1.           The
Executive acknowledges that he is entitled to no damages, payments, benefits,
compensation, remuneration, back pay, front pay, costs, expenses or fees of any
kind as a result of his employment with the Corporation and/or the termination
of that employment.

     

    2.           In
consideration for the Executive’s promises contained herein, the Corporation
shall provide to the Executive:

     

    
      	
               
      

            	
              a.

            	
              $4,000,000
      payable in equal installments over the course of forty (40) months (the
      “Payout Period”), subject to all applicable federal, state and local
      withholding, beginning seven (7) months from the date of execution of this
      Agreement; and

            


    

     

    
      	
               
      

            	
              b.

            	
              any
      earned but unpaid base salary and unused vacation days accrued through the
      Separation Date, which amount is to be calculated according to the records
      of the Corporation and any expenses for which proper documentation has
      been submitted to the Corporation;
and

            


    

     

    
      	
               
      

            	
              c.

            	
              for
      a period of forty-seven (47) months following the execution of this
      Agreement, continued coverage under the health and medical benefit plan as
      is generally made available to the other Executives of the Corporation,
      but under no circumstances be materially different from what the Executive
      received while employed, pursuant to such plans, as from time to time are
      maintained by the Corporation; provided however that such health insurance
      plans shall provide coverage for the Executive, his spouse, and his
      family.  The cost of any such insurance premium payments shall
      be borne solely by the Corporation and the Corporation shall reimburse the
      Executive for any co-payments or out of pocket expenses not otherwise
      covered by insurance within 30 days of incurring such expenses;
      and

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
               
      

            	
              d.

            	
              during
      the Payout Period, a monthly car allowance equal to One Thousand dollars
      and no cents ($1,000.00).

            


    

     

    3.           All
payments referenced herein are intended to be in full compliance with Internal
Revenue Code Section 409A (“Section 409A”).  The Executive further
acknowledges that the Corporation will not be responsible for the payment of any
applicable taxes that are imposed pursuant to Section 409A.

     

    4.           The
Corporation’s obligations under this Agreement shall be limited to those
described in paragraph 2 above and paragraphs 5(g)-(i) below and the
Corporation’s performance of those obligations shall not be construed or
interpreted as an admission of any wrongdoing, fault, or liability by the
Corporation.

     

    5.           The
parties’ obligations under this Agreement are expressly conditioned upon the
following:

     

    
      	
               
      

            	
              a.

            	
              The
      Executive’s delivery to the Corporation of one copy of this Agreement,
      properly executed by the Executive and containing his original signature,
      along with further execution and/or delivery by the Executive of any and
      all other documents necessary to effectuate the provisions of this
      Agreement;

            


    

     

    
      	
               
      

            	
              b.

            	
              The
      Executive’s representation that he has not instituted, and will not
      institute in the future, any actions, suits, claims, appeals, grievances,
      arbitration, complaints or charges with any court, tribunal or federal,
      state or city agency or other remedial body against the Corporation, its
      principals and/or affiliates relating to matters arising out of or
      involving the Executive’s employment with the Corporation, or the
      termination of that employment; except that nothing in this Agreement
      precludes the Executive from instituting a claim, charge, suit, action or
      appeal for the purpose of enforcing his contractual rights under this
      Agreement;

            


    

     

    
      	
               
      

            	
              c.

            	
              The
      Executive’s agreement not to solicit or contact any person concerning the
      maintenance of any claims or actions whatsoever against the Corporation,
      its principals and/or affiliates; except that nothing in this Agreement
      precludes the Executive from responding to legal
  process;

            


    

     

    
      	
               
      

            	
              d.

            	
              The
      Executive’s representation and warranty that he has not actually or
      purportedly, in whole or in part, assigned or transferred to any person or
      entity any claim which the Executive may have had or has against the
      Corporation and accordingly hereby agrees to indemnify, defend and hold
      harmless the Corporation for any claim based upon or arising out of such
      assignment or transfer;

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    
      	
               
      

            	
              e.

            	
              The
      Executive’s agreement that he will immediately, and in any event not later
      than ten (10) days following the execution of this Agreement, return all
      of the Company’s Confidential Information, as defined below, that he
      obtained during the course of his employment with the
      Company.  In addition, the Executive agrees that he will not use
      for any purpose or disclose to anyone any information contained within the
      Confidential Information at any point in the
  future.

            


    

     

    (i)  Confidential
Information means any and all information pertaining to the Corporation and its
business, whether such information is in written form or communicated orally,
visually, or otherwise, that is proprietary, non-public, or relates to any trade
secret, including, but not limited to, (i) information, observations, and data
obtained by the Executive while employed by the Corporation concerning the
Corporation’s business, (ii) products or services, (iii) fees, costs, and
pricing structures, (iv) designs, (v) analyses, (vi) drawings, photographs, and
reports, (vii) computer software, including operating systems, applications, and
program listings, (viii) flow charts, manuals, and documentation, (ix)
databases, (x) accounting and business methods, (xi) inventions, devices, new
developments, methods, and processes, whether patentable or unpatentable and
whether or not reduced to practice, (xii) customers, suppliers, clients, and
customers, supplier and client lists, (xiii) other copyrightable works, (xiv)
marketing plans and trade secrets, and (xv) all similar and related information
in whatever form.

     

    (ii)  Notwithstanding
the foregoing, Confidential Information shall not include information that is or
becomes generally available to, or known by, the public through no fault of the
Executive.

     

    
      	
               
      

            	
              f.

            	
              The
      Executive’s agreement that he will immediately, and in any event not later
      than ten (10) days following execution of this Agreement, return all
      correspondence, reports, charts, products, records, designs, patents,
      plans, manuals, sales and marketing material, memorandum, advertising
      materials, customer lists, distributor lists, vendor lists, telephones,
      beepers, portable computers, and any other such data, information, or
      property collected by or delivered to the Executive by or on behalf of the
      Corporation, its representatives, customers, suppliers, or others and all
      other materials compiled by the Executive which pertain to the business of
      the Corporation.

            


    

     

    
      	
               
      

            	
              g.

            	
              The
      parties’ agreement that (1) the Executive’s employment with the
      Corporation is not being terminated for “Cause,” (2) the Executive is not
      being removed as a Director of the Corporation for “Cause” and (3) the
      Executive is not resigning for “Good Reason” as a director and officer of
      the Corporation but instead to pursue other interests and not as the
      result of any disagreement;

            


    

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


     

    
      	
               
      

            	
              h.

            	
              The
      Corporation agrees that it may employ the Executive from time to time in a
      consulting capacity for which the Corporation shall pay the Executive a
      reasonable consulting fees and expenses for such
  services;

            


    

     

    
      	
               
      

            	
              i.

            	
              The
      parties’ agreement that they will not say, write or cause to be said or
      written, directly or indirectly, any statement that may be considered
      defamatory, negative, critical, malicious, belittling, unfavorable,
      pejorative, deprecatory, derogatory or disparaging with respect to the
      Executive or the Corporation, its principals and/or affiliates to any
      third party;

            


    

     

    
      	
               
      

            	
              j.

            	
              The
      Corporation’s agreement that it will indemnify the Executive to the
      fullest extent permitted by law from and against all claims, actions,
      suits, proceedings, liabilities, damages, fines, costs and expenses,
      including reasonably attorneys’ fees and expenses which may be incurred by
      the Executive in connection with the performance of his duties for the
      Corporation during the period of his employment with the Corporation (the
      “Executive Liability”); provided, however, the Corporation shall not
      indemnify the Executive from or against any Executive Liability where the
      Executive Liability arose out of the Executive’s willful misconduct or
      gross negligence or any liability arising out of any violation of the
      Sarbanes-Oxley Act of 2002;

            


    

     

    
      	
               
      

            	
              k.

            	
              The
      Corporation’s agreement that in response to any inquiries from prospective
      employers of the Executive, the Corporation shall state only the dates of
      the Executive’s employment with the Corporation and that the Executive
      served as the Corporation’s Chief Executive Officer, and as a member of
      the Board of Directors of the
Corporation;

            


    

     

    
      	
               
      

            	
              l.

            	
              The
      Corporation’s agreement that it will provide directors and officers
      liability insurance coverage for the Executive Liability for a period of
      forty-seven (47) months.

            


    

     

    6.           In
consideration for the above, and except with respect to the performance of
obligations contained in this Agreement, the Executive, on behalf of himself and
all heirs, personal representatives, and assigns, by execution of this
Agreement, does hereby fully, completely and unconditionally forever release and
discharge the Corporation and its successors, assigns, current and former
employees, directors, officers, trustees, shareholders, members, agents,
parents, affiliates, subsidiaries, representatives, insurers, attorneys,
independent contractors and all other related or affiliated persons and entities
of and from any and all liability, claims, causes, demands, obligations,
actions, contracts, promises, agreements, damages, attorneys’ fees, costs,
liabilities, rights and allegations of whatever kind and nature, known or
unknown, including, but not limited to, such matters based on, arising out of,
or related to the Executive’s employment with the Corporation or the termination
of that employment.  This release includes, but shall not be limited
to, any and all claims for breach of contract, implied or express; impairment of
economic or business opportunity; intentional or negligent infliction of
emotional distress; false arrest; assault; battery; false imprisonment; prima
facie tort; defamation; libel; slander; negligent termination; malicious
prosecution; or any other tort, whether intentional or negligent; or any claim
or cause of action known or unknown under Title VII of The Civil Rights Act of
1964; the Equal Pay Act; the Fair Labor Standards Act; the Employment Retirement
Income Security Act of 1974 (except as to claims pertaining to vested benefits
under an employee benefit plan); the Rehabilitation Act of 1973; the Civil
Rights Acts of 1866 and 1871; the Civil Rights Act of 1991 (Public Law 102-106,
105 Stat. 1071-1100); the Americans With Disabilities Act of 1990; the Family
and Medical Leave Act of 1993; the False Claims Act; the Labor Management
Relations Act; the Age Discrimination in Employment Act of 1967; the Older
Workers Benefit Protection Act of 1990; the United States Constitution or any
other federal, state, county or municipal statute or ordinance relating to
employment or any claims growing out of any restrictions on the Corporation’s
right to terminate its employees, including, but not limited to, claims relating
to wages, bonuses, contract or wrongful discharge.  This Agreement
covers claims of which the Executive currently may or may not have
knowledge.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    7.           In
consideration for the above, and except with respect to the performance of
obligations contained in this Agreement, the Corporation and its successors,
assigns, current and former employees, directors, officers, trustees,
shareholders, members, agents, parents, affiliates, subsidiaries,
representatives, insurers, attorneys, independent contractors and all other
related or affiliated persons and entities hereby release the Executive of and
from any an all liability, claims, causes, demands, obligations, actions,
contracts, promises, agreements, damages, attorneys’ fees, costs, liabilities,
rights and allegations of whatever kind and nature, known or unknown, for
Executive’s conduct arising out of, or related to the Executive’s employment
with the Corporation; provided, however, that the Corporation expressly does not
release the Executive for any willful misconduct or illegal
conduct.

     

    8.           The
Executive acknowledges and agrees that any breach of Paragraph 5 of this
Agreement by the Executive shall be considered a material breach.  The
Executive acknowledges and agrees that, in the event of such a breach or
threatened breach, the Corporation shall be entitled to appropriate injunctive
relief, including an immediate temporary restraining order and/or permanent
injunction without the necessity of the Corporation posting a
bond.  The Corporation shall further be entitled to recover reasonable
attorneys’ fees incurred in seeking relief for any such breach if the
Corporation is the prevailing party.

     

    9.           The
Executive acknowledges that he understands that this Agreement is a legally
binding agreement and that the Corporation advised him to review it with legal
counsel of his choice before executing this Agreement.

     

    10.             The
Executive represents and acknowledges that in executing this Agreement, he does
not rely, and has not relied, upon any representation not set forth herein, made
by the Corporation or any of its employees, agents, or attorneys with regard to
the subject matter, basis or fact of this Agreement or otherwise.

     

    11.           The
Executive acknowledges that this Agreement is intended to address and cover any
rights he may have
under the governing law.  The Executive’s signature below will confirm
that he is entering into this Agreement freely and with a full understanding of
its terms and effect, including that he is giving up his right to bring any
claim against the Corporation in accordance with Paragraph 6 above.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    12.           The
construction of this Agreement shall be in accordance with, and governed by, the
laws of the State of Florida, without regard to Florida’s conflict of law
rules.

     

    13.           The
parties consent to the exclusive jurisdiction of the Federal or State courts of
the State of Florida to resolve any and all disputes arising out of or relating
to this Agreement.

     

    14.           This
Agreement sets forth the entire agreement between the parties hereto and
supersedes any and all prior agreements or understandings between them
pertaining to the subject matter hereof.  This Agreement may be
modified only by a subsequent and written instrument, executed by all
parties.  This Agreement shall become effective, subject to its terms
including, without limitation, the terms of Paragraphs 5(a) when this Agreement
has been signed by each of the parties.

     

    15.           This
Agreement may be executed in counterparts and as so executed shall constitute
one agreement, binding on all parties.

     

    16.           If
any provision of this Agreement or the application thereof becomes or is
declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force and
effect; except that if the releases contained herein are declared illegal, void
or unenforceable by a court of competent jurisdiction, the entire Agreement
shall become a nullity and any amounts paid in consideration hereunder shall be
returned to the Corporation.  The parties further agree to replace any
other illegal, void or unenforceable provision of this Agreement with a legal,
valid, and enforceable provision that will achieve, to the extent possible, the
economic, business, and other purposes of such illegal, void or unenforceable
provision.

     

    


     

    [Remainder
of this page intentionally left blank]

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    IN WITNESS THEREOF, the
undersigned have executed this Agreement on the dates noted below.

     

    


     

    
      	
              /s/ Marshall
      Manley                                                                

              Marshall
      Manley

               

              Date:  April 8,
      2010                                                                

            	 
      
	
               

              ON
      BEHALF OF GEROVA FINANCIAL GROUP, LTD.

               

            	 
      
	
              By:
      Gary T.
      Hirst                                                                

              Gary
      T. Hirst

              President,
      Gerova Financial Group, LTD.

               

               

              Date:  April 8,
      2010