Exhibit 10.2
SEPARATION AGREEMENT AND RELEASE
OF CLAIMS
Except to the extent AWBC (defined
below) is required to disclose the terms of this Release of Claims
under federal securities or banking law, this is a
CONFIDENTIAL agreement between you, Robert M. Daugherty, and
us, AmericanWest Bancorporation and AmericanWest Bank.
This Separation Agreement and
Release of Claims (“ Release of Claims ”) is
dated for reference purposes July 26, 2008, which is the date
we delivered this Release of Claims to you for your consideration.
For purposes of this Release of Claims, AmericanWest Bancorporation
together with each of its subsidiaries or affiliates is referred to
as “ AWBC .”
1. Termination of Employment
Agreement Term. Your
employment terminated on July 24, 2008 (the “
Expiration Date ”).
2. Payments.
In exchange for your agreeing to the
release of claims and other terms in this Release of Claims, we
will pay you (A) $75,000.00 on August 15, 2008, together
with (B) (i) the Severance Benefit specified in
Section 12(c)(1)(i) of the Employment Agreement between you
and AWBC dated as of September 20, 2004, as amended by that
certain Amendment No. 1 to Employment Agreement dated
December 31, 2006 (as amended, the “ Employment
Agreement ”) and (ii) reimbursement of expenses
specified in Section 12(c)(1)(iii) and Section 7(e) of
the Employment Agreement on the dates provided in
Section 12(c)(2) of the Employment Agreement. Such provisions
of the Employment Agreement are incorporated herein by reference.
You acknowledge that we are not obligated to make these payments to
you unless you comply with the provisions of Sections 13, 14 and 15
of the Employment Agreement, which are incorporated herein by
reference and otherwise comply with the material terms of the
Employment Agreement and of this Release of Claims. All payments
are subject to all applicable tax withholding by AWBC.
3. COBRA Continuation
Coverage. Your normal
employee participation in AWBC’s group health coverage
terminates on July 31, 2008. Continuation of group health
coverage thereafter will be made available to you and your
dependents (to the extent you previously elected dependent
coverage) pursuant to federal law (COBRA) with the first three
months paid by AWBC pursuant to Section 12(d) of the
Employment Agreement. Continuation of group health coverage after
October 31, 2008 is entirely at your expense, as provided
under COBRA.
4. Termination of
Benefits. Except as
provided in Section 3 above, your participation in all
employee benefit plans and programs ended on the Expiration Date.
Your rights under any pension benefit or other plans in which you
may have participated will be determined in accordance with the
written plan documents governing those plans.
5. Full Payment
. You acknowledge having received
full payment of all compensation of any kind (including wages,
salary, vacation, sick leave, commissions, bonuses and incentive
compensation) that you earned as a result of your employment by us,
except the Severance Benefit, which is payable following the
Expiration Date.
6. No Further
Compensation. Any and all
agreements to pay you bonuses or other incentive compensation are
terminated, except the Severance Benefit, which is payable
following the Expiration Date. You understand and agree that you
have no right to receive any further payments for bonuses or other
incentive compensation except the Severance Benefit. We owe no
further compensation or benefits of any kind, except as described
in Section 2 above.
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7. Release of Claims.
(a) You hereby release (i) AWBC
and its subsidiaries, affiliates, and benefit plans, (ii) each
of AWBC’s past and present shareholders, officers, directors,
agents, employees, representatives, administrators, fiduciaries and
attorneys, and (iii) the predecessors, successors, transferees
and assigns of each of the persons and entities described in this
sentence, from any and all claims of any kind, known or unknown,
that arose on or before the date you signed this Release of
Claims.
(b) The claims you are releasing
include, without limitation, claims of wrongful termination, claims
of constructive discharge, claims arising out of employment
agreements, representations or policies related to your employment,
claims arising under federal, state or local laws or ordinances
prohibiting discrimination or harassment or requiring accommodation
on the basis of age, race, color, national origin, religion, sex,
disability, marital status, sexual orientation or any other status,
claims of failure to accommodate a disability or religious
practice, claims for violation of public policy, claims of
retaliation, claims of failure to assist you in applying for future
position openings, claims of failure to hire you for future
position openings, claims for wages or compensation of any kind
(including overtime claims), claims of tortious interference with
contract or expectancy, claims of fraud or negligent
misrepresentation, claims of breach of privacy, defamation claims,
claims of intentional or negligent infliction of emotional
distress, claims of unfair labor practices, claims arising out of
any claimed right to stock or stock options, claims for
attorneys’ fees or costs, and any other claims that are based
on any legal obligations that arise out of or are related to your
employment relationship with us.
(c) You specifically waive any
rights or claims that you may have under the Spokane Municipal
Code, the Washington civil rights laws, the Washington wage and
hour laws, the Civil Rights Act of 1964 (including Title VII of
that Act), the Equal Pay Act of 1963, the Age Discrimination in
Employment Act of 1967 (ADEA), the Americans with Disabilities Act
of 1990 (ADA), the Fair Labor Standards Act of 1938 (FLSA), the
Family and Medical Leave Act of 1993 (FMLA), the Worker Adjustment
and Retraining Notification Act (WARN), the Employee Retirement
Income Security Act of 1974 (ERISA), the National Labor Relations
Act (NLRA), and all similar federal, state (including without
limitation Utah) and local laws.
(d) Y
