Exhibit 10.1
SEPARATION
AGREEMENT
THIS SEPARATION AGREEMENT is entered
into on April 28, 2009 by and between Solera National Bank, a
national banking association and Solera National Bancorp Inc., the
bank holding company (collectively, “Bank”) and James
C. Foster (“Employee”) (collectively, “the
Parties”) for good and valuable consideration, the
sufficiency of which is hereby acknowledged.
1.
Employee and Bank agree that
Employee’s employment with Bank, pursuant to the Executive
Employment Agreement, dated September 10, 2007, by and between
Bank and Employee (“Employment Agreement”), will end on
April 28, 2009 (the “Separation Date”). By
signing this Separation Agreement, Employee hereby submits his
resignation from employment with the Bank. In addition,
Employee hereby submits his resignation, effective immediately,
from all other positions with regard to the Bank, including,
without limitation, as an officer, director, committee member
and/or any other positions with Solera National Bank and/or Solera
National Bancorp Inc., the bank holding company. Bank hereby
accepts his resignation. Employee will be paid his regular
compensation and will receive benefits pursuant to the Bank’s
policies and practices until the Separation Date. Effective
immediately, however, he is relieved of all duties and
responsibilities with Bank and is no longer authorized to transact
business or incur any expenses, obligations, or liabilities on
behalf of Bank; he will not perform any services for the Bank, at
the Bank’s offices or otherwise, effective
immediately.
2.
Employee understands that,
regardless of whether he signs this Separation Agreement, Bank will
pay him all compensation and unused Paid Time Off, if any, that he
has earned through the Separation Date, that Bank will reimburse
Employee for reasonable business expenses incurred through the
Separation Date upon submission by Employee of expense reports in
accordance with company policy.
3.
In exchange for Employee’s
agreement to this Separation Agreement, Bank agrees to provide
Employee with the following additional severance
benefits:
(A)
Bank will pay Employee fifty-three
thousand three hundred thirty-three dollars and 33 cents
($53,333.33), less withholdings required by applicable
law.
(B)
Notwithstanding paragraphs
5(E) and 11 below ,
Bank will agree to release Employee from the non-competition
provisions of paragraph 20 of the Employment Agreement.
(C)
Bank will agree to the mutual
non-disparagement provision below.
(D)
Bank will agree to the mutual
release below.
(E)
Bank will agree to the mutual
confidentiality provision below.
(F)
Bank agrees not to contest any claim
for unemployment compensation benefits filed by Employee, provided,
however, that Bank may submit
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accurate information regarding any
payments or benefits paid to Employee.
(G)
From the Separation Date through and
including December 31, 2009, the Bank will pay
Executive’s life insurance premiums through the Bank’s
life insurance policy.
(H)
Bank will provide Executive with a
letter of reference in the form of the letter attached hereto as
Attachment A. Bank agrees that it will provide no response to
any request for a reference other than as set forth in Attachment
A. Executive agrees that he will not direct reference
requests to the Bank.
Bank agrees to pay Employee the lump sum
severance payment described in paragraph 3(A) above within ten
(10) days of the Effective Date of this Separation Agreement
pursuant to paragraph 12 below. The payment shall be made by
check made out to James C. Foster, which shall be delivered to his
home address on file at the Bank. Bank agrees to begin
providing the severance benefits set forth in paragraphs
3(B) through 3(H) as of the Effective Date of this
Separation Agreement as described in paragraph 12 below.
Employee confirms that he has returned all company property to Bank
including all keys, access cards, computers, cell phones, and key
cards and has returned all Proprietary Information as defined in
paragraph 8 herein and in paragraph 16 of the Employment
Agreement. In the event of any breach by Employee of his
obligations under this Agreement, Bank may terminate any remaining
severance benefits. Employee agrees that he will not seek
employment with Bank in the future, that Bank has no obligation to
consider him for employment in the future, and that he is not
entitled to any other compensation or benefits except as expressly
provided herein.
4.
The Parties hereby release each
other, including their officers, directors, shareholders,
employees, agents, representatives, parents, subsidiaries,
affiliates, sister companies, and benefit plans (collectively
“Released Persons”) of and from any and all past,
present, and/or future actions, causes of actions, claims, demands,
damages, expenses, charges, complaints, obligations and liability
of any nature or kind whatsoever on account of, or in any way
growing out of, Employee’s employment with or separation from
employment with Bank, whether such liability or damages are accrued
or unaccrued, known or unknown at this time. This release
includes, without limitation, any and all rights or claims under
any common law theory such as defamation, intentional infliction of
emotional distress, outrageous conduct, breach of contract,
invasion of privacy, wrongful discharge, breach of implied
covenant, and any claim of discrimination on the basis of sex,
race, creed, religion, age, disability, sexual orientation, or
national origin under any municipal ordinance or under any statute
of the United States or Colorado or any other state, including
without limitation, any claim under Title VII of the 1964 Civil
Rights Act, The Civil Rights Acts of 1866 and 1871, the Americans
with Disabilities Act, the Colorado Civil Rights Act (C.R.S.
Sections 24-34-301 et seq. and 24-34-401 et seq. ),
and the Age Discrimination in Employment Act of 1967 as amended,
which is codified beginning at 29 U.S.C.
Section 621.
5.
The release in paragraph 4 does
not include a release or waiver of the following:
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(A)
any rights of Employee which are
already vested as of the Separation Date to benefits under
Bank’s Stock Option Agreement;
(B)
any claims which Employee may have
under Colorado statutes for workers compensation benefits and/or
unemployment compensation benefits;
(C)
any rights or claims arising under
the Age Discrimination in Employment Act after the date that
Executive signs this Separation Agreement; and
(D)
Subject to paragraph 7 hereof, the
Bank’s rights to enforce any of the provisions of the
Employment Agreement which survive termination of the Employment
Agreement (see Employment Agreement, paragraph 30).
6.
The Parties agree not to file any
claims, complaints, or lawsuits against any Released Person for any
of the claims or other matters that are released or waived herein.
In the event that any Party breaches this paragraph, all Released
Persons shall be entitled to recover from the breaching Party all
reasonable attorney fees and costs incurred as a result of such
breach, provided , however, that the breaching Party’s
obligation to pay attorney fees and costs shall apply to claims
asserted under the Age Discrimination in Employment Act or the
Older Workers Benefit Protection Act only as specifically
authorized by federal law.
7.
Notwithstanding paragraphs
5(E) above and 11 below , Bank releases Empl
