Exhibit 10.1


 


Execution Copy


 


CHANGE-IN-CONTROL AGREEMENT


 


This
CHANGE-IN-CONTROL AGREEMENT (“Agreement”) is dated as of July 24, 2006,
and is entered into by and among Sherri Heronema (“Employee”),
Centennial Bank Holdings, Inc., a Delaware corporation (“CBHI” or,
together with its subsidiaries, the “Company”).


 


WHEREAS, Employee was hired as of the date
hereof by the Company;


 


NOW,
THEREFORE, as an inducement to render services and superior performance,
Employee and the Company agree as follows:


 


1.             Termination
Without Cause or For Good Reason Following a Change-in-Control.


 


(a)           If within two (2) years
following a Change-in-Control the Company terminates Employee’s employment
other than for Cause or Employee terminates her employment for Good Reason,
then the Company shall:


 


(i)            pay to the Employee in
one lump sum within five (5) days of such termination, an amount in cash equal
to two (2) times the Employee’s Compensation;


 


(ii)           for 24 months following
the date of such termination, continue to provide medical and dental benefits
to the Employee, her spouse and her eligible dependants on the same basis as
such benefits are then currently provided to such Employee (the “Medical
Benefits”); provided that such benefits shall be secondary to any other
coverage obtained by the Employee; provided, however, that if the Company’s
welfare plans do not permit such coverage, the Company will provide Employee
the Medical Benefits with the same tax effect; and


 


(iii)          pay or provide for all
Accrued Compensation and Other Benefits.


 


(b)           Limits. The
Company’s obligation to make any payments to Employee as described in this
Agreement (other than Accrued Compensation) is contingent upon Employee’s
execution of a Waiver and Release of Claims, a form of which is attached to
this Agreement as Annex A. On any termination in accordance with this
Agreement, the Company shall have no further obligation to make payments under
this Agreement other than as specifically provided for in this Section 1 and
Employee shall not be eligible to receive any other severance benefits under
any severance or termination plan, program, policy or arrangement maintained by
the Company or its affiliates.


 

















 


2.             Excess Payments.
Notwithstanding any provision of this Agreement to the contrary, in the event any
payments or non-cash benefits that Employee is entitled to receive (whether
pursuant to the terms of this Agreement or otherwise (the “Payments”))
would be subject to the excise tax (the “Excise Tax”) under Section 4999 of the Internal Revenue
Code of 1986, as amended (the “Code”),
then the amounts payable to Employee under this Agreement shall be reduced, but
not below zero, to the maximum amount as will result in no portion of the
Payments being subject to such excise tax (the “Safe Harbor Cap”). For purposes of reducing the Payments to
the Safe Harbor Cap, only amounts payable to Employee under this Agreement (and
no other Payments) shall be reduced, unless consented to by Employee.


 


3.             Non-Solicitation and Confidential
Information.


 


(a)           Non-Solicitation. By Employee’s
acceptance of the payments under this Agreement, Employee shall not, for a
period of two (2) years following Employee’s termination of employment with the
Company, in any manner, directly or indirectly (without the prior written
consent of the Company): 
(i) Solicit any Client to transact business with a Competitive
Enterprise in a Restricted Territory or to reduce or refrain from doing any
business with the Company, (ii) transact business with any Client that
would cause Employee to be a Competitive Enterprise in a Restricted Territory,
(iii) interfere with or damage any relationship between the Company and a
Client or (iv) Solicit anyone who is then an employee of the Company (or
who was an employee of the Company within the prior 12 months) to resign from
the Company or to apply for or accept employment with any other business or
enterprise.


 


(b)           Confidential
Information. Employee hereby acknowledges that, as an employee of the
Company, she will be making use of, acquiring and adding to confidential
information of a special and unique nature and value relating to the Company
and its strategic plans, operations, financial condition and performance and
such confidential information constitutes trade secrets of the Company. Employee
further recognizes and acknowledges that all confidential information is the
exclusive property of the Company, is material and confidential, and is
critical to the successful conduct of the business of the Company. Accordingly,
Employee hereby covenants and agrees that she will use confidential information
for the benefit of the Company only and shall not at any time, directly or
indirectly, while employed with the Company and thereafter, divulge, reveal or
communicate any confidential information to any person, firm, corporation or
entity whatsoever, or use any confidential information for her own benefit or
for the benefit of others. Notwithstanding the foregoing, Employee shall be
authorized to disclose confidential information (i) as may be required by law
or legal process after providing the Company with prior written notice and an
opportunity to respond to such disclosure (unless such notice is prohibited by
law), (ii) in any criminal proceeding against her after providing the Company
with prior written notice and an opportunity to seek protection for such
confidential information and (iii) with the prior written consent of the
Company.


 


(c)           Validity. The terms and
provisions of this Section 4 are intended to be separate and divisible
provisions and if, for any reason, any one or more of them is


 


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held to be invalid or
unenforceable, neither the validity nor the enforceability of any other
provision of this Agreement shall thereby be affected. The parties hereto
acknowledge that the potential restrictions on Employee’s future employment
imposed by this Section 4 are reasonable in both duration and geographic
scope and in all other respects. If for any reason any court of competent
jurisdiction shall find any provisions of this Section 4 unreasonable in
duration or geographic scope or otherwise, Employee and Employer agree that the
restrictions and prohibitions contained herein shall be effective to the
fullest extent allowed under applicable law in such jurisdiction.


 


(d)           Specific Enforcement; Cessation of Payments.
The Company is entitled to an action or proceeding, in addition to its rights
under Section 9 and whether or not an arbitration proceeding has been or is
ever initiated, to temporarily, preliminarily or permanently enforce any part
of Section 3(a) or (b). Employee agrees that (i) Employee violating any
part of Section 3(a) or (b) would cause damage to the Company that cannot be
measured or repaired, (ii) the Company therefore is entitled to an injunction,
restraining order or other equitable relief restraining any actual or
threatened violation of such Sections, (iii) no bond will need to be posted for
the Company to receive such an injunction, order or other relief and (iv) no
proof will be required that monetary damages for violations of Section 3(a) or
(b) would be difficult to calculate and that remedies at law would be
inadequate.


 


(e)           Survival. Any termination of
Employee’s employment or of this Agreement (or breach of this Agreement by
Employee or the Company) shall have no effect on the continuing operation of
this Section 3.


 


4.             Definitions.


 


(a)           Accrued Compensation.
“Accrued Compensation” means, as of Employee’s termination of employment, (i)
unpaid salary, (ii) salary for any accrued vacation not taken and (iii) unpaid
expense reimbursements. Accrued Compensation will be paid in one lump sum
within five (5) days of such termination.


 


(b)           Board.
“Board” means the Board of Directors of CBHI.


 


(c)           Cause. Termination
of employment for “Cause” means that, prior to any termination of Employee’s
employment, Employee shall have committed:


 


(i)            an intentional act of
fraud, embezzlement or theft;


 


(ii)           intentional damage to
property of the Company;


 


(iii)          intentional disclosure
of confidential information or trade secrets of the Company or information
relating to customers of the Company or its parent, a subsidiary or affiliate;


 


(iv)          willful violation of any
law, rule or regulation (other than traffic violations or similar offenses) or
final cease and desist order;


 


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(v)           an act constituting a
felony or a misdemeanor involving moral turpitude for which the Employee is
convicted by any federal, state or local authority, or to which the Employee
enters a plea of guilty or nolo contendere;


 


(vi)          an act or omission that
causes Employee to be disqualified or barred by any governmental or
self-regulatory authority from serving in the capacity contemplated by this
Agreement or losing any governmental or self-regulatory license that is
reasonably necessary for Employee to perform her responsibilities to the
Company under this Agreement; or


 


(vii)         intentional breach of
corporate fiduciary duty involving personal profit.


 


For the purposes of this Agreement, no act, or failure to act, on the
part of Employee shall be deemed “intentional” unless done, or omitted to be
done, by Employee not in good faith and without reasonable belief that her
action or omission was in the best interest of the Company. Notwithstanding the
foregoing, Employee shall not be deemed to have been terminated for Cause
hereunder unless and until there shall have been delivered to Employee a copy
of a resolution duly adopted by the affirmative vote of not less than
three-quarters of the members of the Board then in office at a meeting of the
Board called and held for such purpose (after reasonable notice to Employee and
an opportunity for Employee, together with her counsel to be heard before the
Board), finding that, in the good faith opinion of the Board, Employee had
committed an act set forth above in clauses (i) through (vii) and specifying
the particulars thereof in detail. Nothing herein shall limit the right of
Employee or her beneficiaries to contest the validity or propriety of any such
determination.


 


(d)           Change-in-Control.
“Change in Control” means:


 


(i)            stockholder approval
of a plan of dissolution or liquidation of CBHI;


 


(ii)           the individuals who, as of the date of this
Agreement, constitute the Board (“Incumbent Board”), cease for any reason
to constitute at least two-thirds of the members of the Board; provided,
however, that if the election, or nomination for election by CBHI’s
stockholders, of any new director was approved by a vote of at least two-thirds
of the Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member of the
Incumbent Board; provided, further, however, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened “election contest” or other actual or threatened solicitation of
proxies or consents by or on behalf of an individual, entity or group (within the meaning of Section 13(d) or
14(d) of the Exchange Act) (a “Person”) other than the Board (a “Proxy
Contest”) including by reason of any agreement intended to avoid or settle
any election contest or Proxy Contest;


 


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(iii)          the consummation of a
plan of reorganization, merger or consolidation involving CBHI, except for a
reorganization, merger or consolidation where (A) the stockholders of CBHI
immediately prior to such reorganization, merger or consolidation own directly
or indirectly at least 70% of the combined voting power of the outstanding
voting securities of CBHI resulting from such reorganization, merger or
consolidation (the “Surviving Company”) in substantially the same
proportion as their ownership of voting securities of CBHI immediately prior to
such reorganization, merger or consolidation, and (B) the individuals who
were members of the Incumbent Board immediately prior to the execution of the
agreement providing for such reorganization, merger or consolidation constitute
at least two-thirds of the members of the board of directors of the Surviving
Company, or of a company beneficially owning, directly or indirectly, a
majority of the voting securities of the Surviving Company;


 


(iv)          the sale of all or substantially all the assets of the Company to another Person; or


 


(v)           the acquisition by another Person of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of stock representing more than fifty percent (50%) of the voting
power of CBHI then outstanding by another Person.


 


(e)           Client. “Client” means any client or
prospective client of the Company to whom Employee provided services, or for
whom Employee transacted business, or whose identity became known to Employee
in connection with his relationship with or employment by Employer.


 


(f)            Compensation. “Compensation”
means Employee’s highest annual compensation for any calendar year in the three
calendar years ending with the calendar year which includes the date of
Employee’s termination of employment with the Company, with Employee’s compensation
for any such calendar year in which Employee does not complete twelve (12)
months of service being annualized on the basis of a twelve (12) month year. For
purposes of determining Employee’s “Compensation”, Employee’s annual
compensation for any calendar year or portion thereof shall be limited to
Employee’s base salary, automobile and other expense allowances, and bonus
attributable to such calendar year regardless of when paid, before reductions
for any amounts excludable from Employee’s gross income for federal income tax
purposes pursuant to Section 125 or Section 401(k) of the Code or under any
nonqualified deferred compensation plan. Notwithstanding anything herein to the
contrary, “Compensation” shall not include Employee’s income from the
grant or vesting of restricted stock, or from the grant, vesting, or exercise
of stock options.


 


(g)           Competitive Enterprise. “Competitive Enterprise” means any business enterprise that
either (A) engages in any activity closely associated with commercial banking
or the operation of an institution, the deposits of which are insured by the
Federal Deposit Insurance Corporation, in a Restricted Territory, or
(B) holds a


 


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25% or greater equity, voting
or profit participation interest in any enterprise that engages in such a
competitive activity.


 


(h)           Disability. “Disability”
shall occur if Employee is incapacitated and absent from her duties hereunder
on a full-time basis for four (4) consecutive months or for at least one
hundred eighty (180) days (which need not be consecutive) during any twelve
(12) month period.


 


(i)            Good
Reason. “Good Reason” means:


 


(i)            without
her express written consent, the assignment to Employee of any duties
inconsistent with her title, position, duties, responsibilities and status with
the Company as in effect immediately before the Change-in-Control, or any other
action by the Company that results in a diminution of Employee’s title, duties,
position or reporting relationships, or any removal of Employee from, or any
failures to re-elect Employee to, any of such positions, except in connection
with the termination of her employment for Cause or as a result of her
Disability or death, or termination by Employee other than for Good Reason; provided,
however, that insubstantial or inadvertent actions not taken in bad
faith which are remedied by the Company promptly after receipt of notice
thereof given by Employee shall not constitute Good Reason;


 


(ii)           any
reduction in Employee’s base salary, or a significant reduction in the
aggregate employee benefits provided to Employee without her prior written
consent, unless such reduction applies equally to other similarly situated
employees of the Company, in each case, which is not remedied within ten (10)
calendar days after receipt by the Company of written notice from the Employee
of such change or reduction, as the case may be;


 


(iii)          a
determination by Employee made in good faith that she has been rendered
substantially unable to carry out, or has been substantially hindered in the
performance of, any of the authorities, powers, functions, responsibilities or
duties attached to her position, which situation is not remedied within thirty
(30) calendar days after receipt by the Company of written notice from Employee
of such determination;


 


(iv)          the
Company relocating its principal executive offices or requiring Employee to
relocate her principal location of work to a location which is in excess of
fifty (50) miles from the current location thereof, or requiring Employee to
travel away from her office in the course of discharging her responsibilities
or duties hereunder more than thirty (30) consecutive calendar days or an
aggregate of more than one hundred twenty (120) calendar days in any consecutive
three hundred sixty-five (365) calendar-day period, without in either case her
prior consent;


 


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(v)           failure
by the Company to require any successor (whether direct or indirect, by
purchase, merger consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company, by agreement in form and substance
satisfactory to Employee, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place; or


 


(vi)          any
material breach of this Agreement by the Company.


 


(j)            Other Benefits.
“Other Benefits” means, as of Employee’s termination of Employment, accrued
amounts or benefits required to be paid or provided to Employee under any other
plan, program, policy or arrangement of the Company. Other Benefits shall be
paid or provided for in accordance with the terms of such other plan, program,
policy or arrangement except as otherwise specifically provided in this
Agreement.


 


(k)           Restricted Territory.
“Restricted Territory” means the geographic area of the State of Colorado
extending from the continental divide to the eastern State boundary.


 


(l)            Solicit. “Solicit” means any direct or indirect
communication of any kind, regardless of who initiates it, that in any way
invites, advises, encourages or requests any person to take or refrain from
taking any action.


 


5.             Compliance with
Section 409A of the Code. To the extent required to comply with Section
409A of the Code (and the regulations thereunder), any compensation to be paid
or benefits to be provided in connection with Employee’s termination of
employment will be delayed until the earliest day on which such payments could
be made or benefits provided in compliance (at which point all payments
so-delayed shall be provided in one lump sum).


 


6.             Employment Status.
This Agreement does not constitute a contract of employment or impose on
Employee any obligation to remain in the employ of the Company, nor does it
impose on the Company any obligation to retain Employee in her present or any
other position, nor does it change the status of Employee’s employment as an
employee at will. Nothing in this Agreement shall in any way affect the right
of the Company in its absolute discretion to change or reduce Employee’s
compensation at any time, or to change at any time one or more benefit plans,
dental plans, health care plans, savings plans, bonus plans, vacation pay
plans, disability plans, and the like.


 


7.             Governing Law.
This Agreement is made and entered into in the State of Colorado, without
regard to conflict of laws rules, and the laws of Colorado shall govern its
validity and interpretation in the performance by the parties of their
respective duties and obligations.


 


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8.             Entire Agreement.
This Agreement constitutes the entire agreement between the parties concerning
the matters herein and supercedes any prior written agreements, and there are
no representations, warranties or commitments, other than those in writing
executed by all of the parties.


 


9.             Arbitration. Except
as otherwise expressly provided herein, any dispute, controversy, or claim
arising out of or relating to this Agreement or breach thereof, or arising out
of or relating in any way to the employment of the Employee or the termination
thereof, shall be submitted to arbitration in accordance with the Voluntary
Labor Arbitration Rules of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator may be entered in any court of competent
jurisdiction. In reaching his or her decision, the arbitrator shall have no
authority to ignore, change, modify, add to or delete from any provision of
this Agreement, but instead is limited to interpreting this Agreement. In the
case of any arbitration or subsequent judicial proceeding arising after
Employee’s discharge or termination, Employee shall be awarded her costs,
including attorneys’ fees, provided Employee substantially prevails on at least
one claim.


 


10.           Notices. Any
notice or communication required or permitted to be given to the parties shall
be delivered personally or sent by United States registered or certified mail,
postage prepaid and return receipt requested, and addressed or delivered as
follows, or to such other address as the party addressed may have substituted
by notice pursuant to this Section.


 


	
  (a)

  	
   

  	
  If to the Company:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Centennial Bank Holdings, Inc.

  
	
   

  	
   

  	
  1331 Seventeenth Street, Suite 300

  
	
   

  	
   

  	
  Denver, Colorado 80202

  
	
   

  	
   

  	
  Attn: General Counsel

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  If to Employee:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sherri Heronema

  



 


11.           Binding Agreement.
This Agreement shall inure to the benefit of and be enforceable by Employee and
her personal or legal representatives, executors, administrators, successors,
heirs, distributees, devises and legatees. If Employee should die while any
amounts would still be payable to her hereunder if she had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to her devisee, legatee, or other designee,
or, if there be no such designee, to her estate. This Agreement shall inure to
the benefit of and be enforceable by the Company and any of its successors and
assigns.


 


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12.           No Mitigation of
Amounts Payable Hereunder. Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment provided for in
this Agreement be reduced by any compensation earned by Employee as the result
of employment by another company after the date of termination, or otherwise.


 


13.           Captions. The
captions of this Agreement are inserted for convenience and are not part of the
Agreement.


 


14.           Severability. In
case anyone or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any other respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement. This Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been a part of the
Agreement and there shall be deemed substituted therefore such other provision
as will most nearly accomplish the intent of the parties to the extent
permitted by the applicable law.


 


15.           Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which shall together constitute
one in the same Agreement.


 


	
   

  	
  EMPLOYEE:

  
	
   

  
	
   

  	
  /s/ Sherri Heronema

  
	
   

  	
  Sherri Heronema

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTENNIAL BANK HOLDINGS, INC.:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel M. Quinn

  
	
   

  	
  Name:

  	
  Daniel M. Quinn

  
	
   

  	
  Title:

  	
  Chief Executive Officer

  
				



 


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Annex A


 


WAIVER AND RELEASE OF CLAIMS


 


In consideration of the payments and arrangements set forth in the
change in control agreement between you and Centennial Bank Holdings, Inc., a
Delaware corporation (the “Company”), dated July 24, 2006 (the “Agreement”)
and incorporated herein by reference, you agree knowingly and voluntarily as
follows:


 


1.     You
knowingly and voluntarily waive and release forever whatever claims you ever
had, now have or hereafter may have against the Company and any subsidiary or
affiliate of the Company, and any of its present and former employees,
directors, officers and agents (collectively referred to as “Releasees”),
based upon any offer, agreement, matter, occurrence or event existing or
occurring prior to the execution of this waiver and release of claims,
including anything relating to your employment by the Company or to the
termination of such employment or to your status as a shareholder or creditor
of the Company.


 


This release and waiver includes but is not limited to any rights or
claims under United States federal, state or local law and the national or
local law of any foreign country (statutory or decisional), for wrongful or
abusive discharge, for breach of any contract, for misrepresentation, for
breach of any securities laws, or for discrimination based upon race, color,
ethnicity, sex, age, national origin, religion, disability, sexual orientation,
or any other unlawful criterion or circumstance, including rights or claims
under the Age Discrimination in Employment Act of 1967 (“ADEA”) (except
that you do not waive ADEA rights or claims that may arise after the date of
this agreement).


 


2.     The
payments received by you pursuant to the Agreement shall be in lieu of any and
all other amounts to which you might be, are now or may become entitled from
the Company and, without limiting the generality of the foregoing, you hereby
expressly waive any right or claim that you may have or assert to payment for
salary, bonuses, medical, dental or hospitalization benefits, life insurance
benefits or attorneys’ fees; provided, however, that
notwithstanding any other provision of this agreement, you do not waive any of
your rights and the Company shall comply with its obligations with respect to
(i) the payments and arrangements set forth in the Agreement and (ii)
continuation coverage requirements under Section 4980B of the Internal Revenue
Code of 1986, as amended (commonly referred to as “COBRA”).


 


3.     You
agree that you will not knowingly orally or in writing criticize, disparage or
undermine the reputation of any Releasee.


 


You also
hereby expressly agree not to discuss the business affairs of the Company and
any of its subsidiaries and affiliates with any member of the press (or to
otherwise make such information publicly available) at any time without the
express


 


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written
consent of the Company. Your signature below will also constitute your
agreement that you will not disclose, directly or indirectly, to anyone other
than your spouse, counsel, accountants or financial advisors, the terms of this
release and waiver of claims or the Agreement, except as may be required by law
or in response to regulatory inquiry, judicial process or order.


 


Notwithstanding anything herein to the contrary, you hereby expressly
agree that the severance payment and arrangements set forth in the Agreement
may be offset by any amounts you owe to the Company or any of its subsidiaries
or affiliates.


 


Your signature below will also constitute confirmation that you have
(i) made such waivers, releases, agreements and confirmation in consideration
for the severance payment and other arrangements set forth in the Agreement,
(ii) been given at least 21 days within which to consider this Agreement and
its consequences, and (iii) been advised prior to signing this release and
waiver of claims to consult, and have consulted, with an attorney of your
choice. For a period of seven days following the execution of this release of
claims, you may revoke this release, and forfeit any right you have to the
severance payments and other arrangements described under the Agreement.


 


This release and waiver of claims shall be governed by the laws of the
State of Colorado, without regard to principles of conflict of laws.


 


	
   

  	
  AGREED AND CONFIRMED:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date:            ,
  200  

  



 


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