Exhibit 10.1


 


EXECUTIVE EMPLOYMENT AGREEMENT


 


This
EXECUTIVE EMPLOYMENT AGREEMENT (“Agreement”)
is made and entered into as of this 10th day of
September, 2010, by and between Solera National Bank, a national banking
association (“Bank”), Solera National Bancorp, Inc., the Bank Holding
Company, (“Company or Bank”) and Robert J. Fenton, an individual resident of
the State of Colorado (“Executive”).


 


WHEREAS, the Executive has considerable experience,
expertise and training in management related to banking and services offered by
the Bank;


 


WHEREAS, the Bank desires for the Executive to be employed
as the Chief Financial Officer and Chief Operating Officer of the Bank, and the
Chief Financial Officer of Solera National Bancorp, Inc. and Executive
desires to accept employment, subject to and on the terms and conditions set
forth in this Agreement; and


 


WHEREAS, both the Bank and the Executive have read and
understood the terms and provisions set forth in this Agreement and have been
afforded a reasonable opportunity to review this Agreement with their
respective legal counsel.


 


NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth in this Agreement, the Executive and the Bank agree as
follows:


 


A.  DURATION


 


1.             This
Agreement shall become effective as of September 10, 2010 (the “Effective
Date”), and subject to Paragraph 2 below, will expire and terminate by its own
terms one year after the Effective Date, unless earlier terminated as provided
herein.


 


2.             Both
the Bank and the Executive acknowledge and agree that the parties may agree to
continue the employment relationship on the same terms and conditions as set
forth herein.  Following the initial one (1) year
term, unless either party gives written notice ninety (90) days prior to the end
of such initial one (1) year term, this Agreement shall automatically
renew annually for an additional one (1) year term unless otherwise
terminated as set forth herein.


 


B.  COMPENSATION


 


3.             All
payments of salary and other compensation to the Executive shall be payable in
accordance with the Bank’s ordinary payroll and other policies and procedures.


 


a.             The Bank agrees to pay the Executive a base salary of
$175,000 annually, from September 10, 2010 through September 30,
2010.  Effective October 1, 2010 and
during the term of this Agreement, the Bank agrees to pay the Executive a base
salary of $165,000 annually, appropriately prorated for partial months at the
commencement and end of the term of this Agreement.  Additionally, the Bank may pay the Executive
a bonus based upon asset growth, profitability or other performance
measurements deemed appropriate by the President and Chief Executive Officer or
a delegated committee thereof of the Company or the Bank.


 


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b.             The Bank shall have the right to deduct from any payment
of compensation to the Executive hereunder any federal, state or local taxes
required by law to be withheld with respect to such payments and any other
amounts specifically authorized to be withheld or deducted by the Executive.


 


4.             The
Bank shall reimburse the Executive for all reasonable expenses, including, but
not limited to, travel expenses, lodging expenses, and meals and entertainment
expenses, that the Executive may incur in the performance of his duties and
obligations under this Agreement; provided, however, that the Executive shall
be required to submit receipts or
other acceptable documentation to a person designated by the President and
Chief Executive Officer to verify such expenses prior to any reimbursements in
accordance with the Bank’s expense policy.


 


5.             If,
during the term of this Agreement, the Bank adopts a plan providing life
insurance benefits to other Bank employees, the Executive shall be entitled to
participate in the Bank’s life insurance benefit plan to the full extent that
it is available to other Bank employees.


 


6.             The
President and Chief Executive Officer, in consultation with the Board of
Directors or a designated committee thereof of the Company or the Bank, shall
review the amount of the Executive’s compensation, including his base salary,
not less than annually and shall consider increases to such base salary as a
result of such review.  Increases, if
any, would be designed to provide reasonable base salary adjustments, all in
the discretion of the President and Chief Executive Officer, in consultation
with the Board of Directors or a designated committee thereof of the Company or
the Bank, consistent with safe and sound banking practices; provided however that
the Executive’s base salary and bonuses shall not be less than the amounts set
forth in Paragraph 3 at any time during the term of this Agreement;
provided, however, in the event that the Bank’s performance (i.e. as
demonstrated by asset growth, profitability or other measure of performance as
set forth above) does not support the continued payments of the amounts set
forth in Paragraph 3 then the President and Chief Executive Officer, in
consultation with the Board of Directors or a designated committee thereof of
the Company or the Bank, shall have the discretion to reduce those amounts in
order to strengthen such performance.


 


7.             Executive
shall be entitled to receive employee and dependent health insurance, dental
insurance, paid sick leave and four (4) weeks of paid vacation per year,
and any additional benefits provided to all Bank employees.  The Bank also shall provide the Executive
with term life insurance coverage at the Bank’s expense in an initial amount of
2.00 times the Executive’s annual base salary, and having a term not less than
one year, which life insurance benefit will be provided only for so long as the
Executive is employed by the Bank.  If,
during the term of this Agreement, the Bank adopts a plan providing life
insurance benefits to other Bank employees and the maximum coverage under such
plan exceeds the maximum permissible coverage provided by this Paragraph, then
notwithstanding the provisions of this Paragraph, the Executive shall be
entitled to participate in the Bank’s life insurance benefit plan to the full
extent that it is available to other Bank employees.  All employee benefits provided to the
Executive by the Bank incident to the Executive’s employment shall be governed
by the applicable plan documents, summary plan descriptions or employment
policies, and may be modified, suspended or revoked at any time, in accordance
with the terms and provisions of the applicable documents.


 


8.             The
parties hereto acknowledge that the compensation set forth herein and the other
covenants and agreements of the Bank contained herein are fair and adequate
compensation for the Executive’s services and for the covenants of the
Executive as set forth herein.


 


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B.  RESPONSIBILITIES


 


9.             The
Executive shall be employed as the Chief Financial Officer and Chief Operating
Officer of the Bank and the Chief Financial Officer of the Company and shall
faithfully devote best efforts and primary focus to the position(s) with
the Bank and the Company.


 


10.           The
Executive acknowledges and agrees that the duties and responsibilities of the
Executive required by the position are wholly within the discretion of the
President and Chief Executive Officer, and may be modified, or new duties and
responsibilities imposed by the President and Chief Executive Officer, at any
time, without the approval or consent of the Executive.  However, these new duties and
responsibilities may not constitute immoral or unlawful acts.  In addition, the new duties and
responsibilities must be consistent with the Executive’s position in a
financial institution.


 


11.           The
Executive acknowledges and agrees that, during the term of this Agreement, he
has a fiduciary duty of loyalty to each of the Bank and the Company, and that
he will not engage in any activity during the term of this Agreement, which
will or could, in any significant way, harm the business, business interests,
or reputation of the Bank, its Board of Directors or the President and Chief
Executive Officer.


 


C.  NONINTERFERENCE, CONFIDENTIALITY AND
NON-COMPETITION


 


12.           The
Executive acknowledges that, as part of his employment with the Bank, he will
become familiar with the salary, pay scale, capabilities, experience and, skill
of the Bank’s employees.  The Executive
agrees to maintain the confidentiality of such information.  The Executive further covenants and agrees
that, for a period of one year subsequent to the termination of this Agreement,
whether such termination occurs at the insistence of the Bank or the Executive,
the Executive shall not recruit, hire, or attempt to recruit or hire, directly
or by assisting others, any employees of the Bank, nor shall the Executive
contact or communicate with any employees of the Bank for the purpose of
inducing such employees of the Bank to terminate their employment with the
Bank.  For purposes of this covenant, “employees
of the Bank” shall refer to employees who are still actively employed by or
were employed by the Bank within the prior year at the time of the attempted
recruiting or hiring.


 


13.           In
his position of employment, the Executive will be exposed to confidential
information and trade secrets (hereafter “Proprietary Information”) pertaining
to, or arising from, the business of the Bank and its affiliates (if any).  The Executive hereby agrees and acknowledges
that such Proprietary Information is unique and valuable to the Bank’s business
and that the Bank would suffer irreparable injury if this information were
publicly disclosed.  Therefore, the
Executive agrees to keep in strict secrecy and confidence, both during and
after the period of his employment, any and all Proprietary Information which
the Executive acquires, or to which the Executive has access, during employment
by the Bank, that has not been publicly disclosed by the Bank, until such time
as such Proprietary Information becomes generally known to the public other
than pursuant to a breach of this Paragraph 16 by the Executive.  The Proprietary Information covered by this
Agreement shall include, but shall not be limited to: (i) the identities
of the Bank’s existing and prospective customers or clients, including names,
addresses, credit status, and pricing levels; (ii) the buying and selling
habits and customs of the Bank’s existing and prospective customers or clients;
(iii) financial information about the Bank; (iv) product and systems
specifications, concepts for new or improved products and other product or
systems data; (v) the identities of, and special skills possessed by, the
Bank’s employees; (vi) the identities of and pricing information about the
Bank’s suppliers and vendors; (vii) training programs developed by the
Bank; (viii) pricing studies, information and analyses; (ix) current
and prospective products and inventories; (x) financial models, business
projections and market studies; (xi) the Bank’s financial results and
business conditions; (xii) business plans and strategies;
(xiii) special processes, procedures, and services 


 


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of
the Bank and its suppliers and vendors; and (xiv) computer programs and
software developed by the Bank or its consultants.  The provisions and agreements entered into
herein shall survive the term of the Executive’s employment to the extent
reasonably necessary to accomplish their purpose in protecting the interests of
the Bank in any Proprietary Information disclosed to, or learned by, the
Executive while employed.


 


14.           The
Executive shall not directly or indirectly engage in competition with the Bank
at any time during the existence of the employment relationship between the
Bank and the Executive, and the Executive will not on his own behalf, or as
another’s agent or employee, engage in any of the same or similar duties and/or
Bank-related responsibilities required by the Executive’s position with the
Bank, other than as an employee of the Bank pursuant to this Agreement or as
specifically approved by the President and Chief Executive Officer.  In addition, without the prior written
consent of the President and Chief Executive Officer, Executive shall not usurp
for himself any corporate opportunity available to the Bank.


 


15.           The
Executive expressly represents that he has no agreements with, or obligations
to, any party which conflict, or may conflict, with the interests of the Bank
or with the Executive’s duties as an employee of the Bank.


 


16.           The
Executive acknowledges that the special relationship of trust and confidence
between him, the Bank, and its clients and customers creates a high risk and
opportunity for the Executive to misappropriate the relationship and goodwill
existing between the Bank and its clients and customers.  The Executive further acknowledges and agrees
that it is fair and reasonable for the Bank to take steps to protect itself
from the risk of such misappropriation. 
The Executive further acknowledges that, at the outset of his employment
with the Bank and throughout his employment with the Bank, the Executive will
be provided with access to and informed of Proprietary Information, which will
enable him to benefit from the Bank’s goodwill and know-how.


 


17.           The
Executive acknowledges that it would be inevitable in the performance of his
duties as a director, officer, employee, investor, agent or consultant of any
person, association, entity, or company which competes with the Bank, or which
intends to or may compete with the Bank, to disclose and/or use Proprietary
Information, as well as to misappropriate the Bank’s goodwill and know-how, to
or for the benefit of such other person, association, entity, or company.  The Executive also acknowledges that, in
exchange for the Covenants set forth in this Agreement, he has received
substantial, valuable consideration, including: 
(i) confidential trade secret and proprietary information relating
to the identity and special needs of the Bank’s current and prospective
customers, the Bank’s current and prospective services, the Bank’s business
projections and market studies, the Bank’s business plans and strategies, the
Bank’s studies and information concerning special services unique to the Bank;
(ii) employment; and (iii) compensation and benefits as described in
this Agreement.  The Executive further
acknowledges and agrees that this consideration constitutes fair and adequate
consideration for the execution of the non-solicitation restriction set forth
herein.


 


18.           Executive
understands and agrees that during the continuation of this Agreement and for a
period of 120 days following the termination of this Agreement by either party,
for any reason (other than for termination of the Executive for circumstances
described in Paragraph 22(c) or (d), below), the Executive will not be or
become engaged in any way (directly or indirectly), as an individual
proprietor, beneficiary, trustee, owner, partner, stockholder, officer,
director, executive, investor, lender, sales representative, or in any other
capacity, whatsoever, in any activity or endeavor which competes or conflicts
with the business of the Bank or any of its subsidiaries, as such business has
been conducted during the Executive’s employment with the Bank, within 100
miles of any geographic area in which 


 


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Employer
conducts business upon the termination of Executive’s employment with the
Bank.  It is the parties’ desire that
these restrictions be enforced to the fullest extent allowed by law.


 


19.           The
Executive agrees that the restrictions set forth in Paragraph 18 above are
ancillary to an otherwise enforceable agreement, are supported by independent
valuable consideration, and that the limitations as to time, geographical area,
and scope of activity to be restrained by Paragraph 18 are reasonable and
acceptable, and do not impose any greater restraint than is reasonably
necessary to protect the goodwill and other business interests of the
Bank.  The Executive further agrees that
such restrictions do not create undue hardship for him or for the public.  The provisions in this Section C are not
intended to be construed as a general restraint from engaging in a lawful profession
or a general covenant against competition. 
Nothing herein will prohibit the Executive’s (i) beneficial
ownership of less than 5% of the publicly traded capital stock of a corporation
listed on a national securities exchange so long as this is not a controlling
interest, or (ii) ownership of mutual fund investments.  The Executive may not avoid the purpose and
intent of this paragraph by engaging in conduct within the geographically
limited area from a remote location through means such as telecommunications,
written correspondence, computer generated or assisted communications, or other
similar methods.  The Executive agrees
that if, at some later date, a court of competent jurisdiction determines that
the non-solicitation agreement set forth in this Section C does not meet
the criteria set forth by applicable law, then such agreement may be reformed
by the court and enforced to the maximum extent permitted under applicable
law.  The Executive understands that his
obligations under this Section C shall not be assignable by him.


 


20.           The
Executive acknowledges that the covenants set forth in this Section C are
a material inducement for the Bank to execute and deliver this Agreement and to
provide Executive the compensation and benefits and other consideration
provided hereunder.  The parties agree
that the existence of any claim or cause of action of Executive against the
Bank, whether predicated on this Agreement or otherwise, will not constitute a
defense to the enforcement by the Bank of such covenants. The covenants
contained in this Section C will not be affected by any breach of any
other provision hereof by any party hereto. 
In addition, Executive’s obligations under these provisions shall
survive the termination of this Agreement and Executive’s employment with the
Bank.  Executive’s obligations in this Section C
are in addition to, and not in limitation or preemption of, all other
obligations of confidentiality which he may have to Bank under general legal or
equitable principles, or other the Bank policies.


 


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D.  REMEDIES


 


21.           In
the event that the Executive violates any of the provisions set forth in this
Agreement relating to Section C, Executive acknowledges that the Bank
would suffer immediate and irreparable harm and would not have an adequate
remedy at law for money damages. 
Accordingly, Executive agrees that, without the necessity of proving
actual damages or posting bond or other security, the Bank shall be entitled to
temporary or permanent injunction or injunctions to prevent breaches of such
performance and to specific enforcement of such covenants in addition to any
other remedy to which the Bank may be entitled, at law or in equity.  In such a situation, the parties agree that
the Bank may pursue any remedy available, including declaratory relief,
concurrently or consecutively in any order as to any breach, violation, or
threatened breach or violation of any of the provisions set forth in this
Agreement relating to Section C, and the pursuit of any particular remedy
or remedies shall not be deemed an election of remedies or waiver of the right
to pursue any other remedy.  To the
extent that the provisions of this Paragraph 21 could be read to increase the
geographic, temporal or other scope of the restrictions set forth in this
Agreement relating to Section C, such reading is not intended by the
parties.


 


E.  TERMINATION


 


22.           This
Agreement shall be terminated by the Bank or the Executive as follows:


 


a.             Termination for Cause.  The Bank may terminate this Agreement at any
time for cause.  “Cause” as used in this
Agreement shall be defined as the occurrence of one of the following events:


 


(i)            The determination by the President and Chief Executive
Officer, in consultation with the Board of Directors or a designated committee
thereof of the Company or the Bank, in his reasonable discretion, that
Executive has violated any provision of this Agreement or is grossly negligent
in the performance of his duties hereunder, and has failed to cure such
violation or the effects of such gross negligence within thirty (30) business
days after written notice to the Executive by the Bank specifying in reasonable
detail the alleged violation;


 


(ii)           The determination by the President
and Chief Executive Officer, in consultation with the Board of Directors or a
designated committee thereof of the Company or the Bank, in his reasonable
discretion, that (a) Executive has failed to follow the policies adopted
by the Board of Directors, and has failed to cure such failure within thirty
(30) days after written notice to the Executive by the Bank specifying in
reasonable detail the alleged failure; or (b) Executive has engaged in
such actions or omissions that would constitute unsafe or unsound banking
practices;


 


(iii)          The Executive is convicted of a
misdemeanor involving moral turpitude or any felony;


 


(iv)          The determination by the President and
Chief Executive Officer, in consultation with the Board of Directors or a
designated committee thereof of the Company or the Bank, in his reasonable
discretion, that the Executive has engaged in gross misconduct in the course
and scope of his employment with the Bank including indecency, immorality,
insubordination, dishonesty, unlawful harassment, use of illegal drugs, or
fighting;


 


(v)           The determination by the President and Chief Executive
Officer, in consultation with the Board of Directors or a designated committee
thereof of the Company or the Bank, in his reasonable discretion, that the
Executive’s job performance is substantially


 


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unsatisfactory and that
Executive has failed to cure such performance within thirty (30) business days
after written notice to the Executive by the Bank specifying in reasonable
detail the nature of the unsatisfactory performance; or


 


(vi)          The Executive is prohibited from
engaging in the business of banking or from being an officer or director of a
public company by any governmental regulatory agency having jurisdiction over
the Bank.


 


In
the event of termination of this Agreement for Cause, the Bank shall have no
liability to the Executive for any additional payments of salary or any
benefits beyond the termination date, as except as otherwise required by law.  Any and all unvested stock or options to
acquire stock shall be terminated and cancelled as of the termination
date.  All vested options must be
exercised by the Executive within ninety (90) days of the termination date and
shall expire and be cancelled thereafter.


 


b.             Termination in the Best Interest of
the Bank.  The Bank may terminate this
Agreement at any time if, in the reasonable discretion of the President and
Chief Executive Officer, in consultation with the Board of Directors or a
designated committee thereof of the Company or the Bank, it is determined that
this Agreement or the Employment of the Executive may prevent or otherwise
encumber the Bank’s ability to enter into any agreement or transaction that is
in the best interest of the Bank.  In the
event of termination of this Agreement in the best interest of the Bank,
subject to Executive first executing the Separation Agreement that is attached
hereto as Exhibit A and that Separation Agreement becoming fully effective
pursuant to its terms, then Executive shall be entitled to receive a severance
payment in an amount equal to one hundred twenty (120) days of the Executive’s
then current base salary.


 


c.             Termination for No Reason.  The Bank may terminate this Agreement at any
time for any or no reason.  In the event
that this Agreement is terminated for “no reason” at any time, subject to
Executive first executing the Separation Agreement that is attached hereto as Exhibit A
and that Separation Agreement becoming fully effective pursuant to its terms,
then Executive shall be entitled to receive a severance payment in an amount
equal to the payment of the Executive’s then current base salary for the lesser
of the remaining term of this Agreement or six (6) months.  All options which have not vested as of the
termination date shall expire and the Executive shall have ninety (90) days to
exercise all vested options as of the termination date and all unexercised
vested options shall expire and be cancelled thereafter.


 


d.             Termination for Change of Control.
The Bank or the Executive may terminate this Agreement at any time for a Change
of Control. If, during the term of this Agreement, there is a “Change of
Control” (as herein after defined) and this Agreement is terminated by the Bank
within one (1) year thereafter, subject to Executive first executing the
Separation Agreement that is attached hereto as Exhibit A and that
Separation Agreement becoming fully effective pursuant to its terms, then
Executive shall be entitled to receive a severance payment in an amount equal
to 1.50 times the Executive’s then current annual base salary. All options
which have not vested as of the termination date shall automatically vest as of
the termination date. If, during the term of this Agreement, there is a “Change
of Control” (as herein after defined) and this agreement is terminated by the
Executive within one (1) year thereafter and the Executive can demonstrate
“Good Reason”, subject to Executive first executing the Separation Agreement
that is attached hereto as Exhibit A and that Separation Agreement
becoming fully effective pursuant to its terms, then Executive shall be
entitled to receive a severance payment in an amount equal to the payment of
1.50 times the Executive’s then current base salary. All options which have not
vested as of the termination date shall automatically vest as of the
termination date.   Executive shall have
ninety (90) days to exercise all vested options as of the termination date and
all unexercised vested options shall expire and be cancelled thereafter. A “Change
of Control” shall mean (i) a sale of substantially all of the assets of
the Bank to a third party, or (ii) a sale, or acquisition, by 


 


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merger
or otherwise, of a controlling interest of the equity securities of the Bank or
the Company. “Good Reason” shall mean (i) the post Change of Control
management reduces the then current salary and benefits of the Executive and
other management personnel do not incur a similar reduction, (ii) the
duties of the Executive are substantially changed as set forth herein, or (iii) a
new employee is retained by management to perform substantially the same duties
as performed by the Executive.   In the
event that the Executive terminates this Agreement after a Change of Control
and does not show Good Reason, no severance will be paid and all options which
have not vested as of the termination date shall be cancelled.   Executive shall have ninety (90) days to
exercise all vested options as of the termination date and all unexercised vested
options shall expire and be cancelled thereafter.


 


e.
In the event the Company elects not to renew this Employment Agreement pursuant
to Section A.2 above, subject to Executive first executing the Separation
Agreement that is attached hereto as Exhibit A and that Separation
Agreement becoming fully effective pursuant to its terms, then Executive shall
be entitled to receive a severance payment in an amount equal to one hundred
twenty (120) days of the Executive’s then current base salary.


 


23.           If
Executive dies during the term of this Agreement and while in the employ of the
Bank, this Agreement will terminate automatically, without notice, on the date
of the Executive’s death and the Bank shall not have any further obligation to
Executive or his estate under this Agreement (other than death benefits payable
under any benefit plans to which Executive is a party), except that the Bank
shall pay Executive’s estate that portion of Executive’s base salary accrued
through the date on which Executive’s death occurred.  To the maximum extent, and for the term,
permitted by the health benefit provisions of the Consolidated Omnibus Budget
Reconciliation Act (COBRA) of 1986, if Executive dies during the term of this
Agreement and while in the employ of the Bank, the Bank shall provide, or
maintain, and pay for any required health insurance benefits, for Executive’s
spouse for six months.


 


24.           This
Agreement will terminate immediately, without notice, in the event the
Executive is prevented from performing his duties hereunder by reason of
becoming physically or mentally disabled. 
For purposes of this Agreement, the term “disabled” shall have the
meaning set forth in the Bank’s long-term disability plan or, if the Bank has
no long-term disability plan in effect at the time of the Executive’s
disability, then “disabled” shall mean that Executive has become physically or
mentally incapable (excluding infrequent and temporary absences due to ordinary
illness) of performing the essential functions of his duties under this
Agreement for a continuous period of three (3) months, as determined by
the President and Chief Executive Officer, in consultation with the Board of
Directors or a designated committee thereof of the Company or the Bank, upon
the advice of a qualified physician. During any period prior to termination
during which the Executive fails to perform his duties as a result of
incapacity due to physical or mental illness, the Executive shall continue to
receive his full salary at the rate then in effect for such period until his
employment terminates pursuant to this Paragraph 24, provided that payments so
made to the Executive during such period shall be reduced by the sum of the
amounts, if any, payable to the Executive under any disability benefit plans of
the Bank that were not previously applied to reduce such payment.


 


Executive
acknowledges that all memoranda, notes, records, reports, manuals, books,
papers, letters, client and customer lists, contracts, software programs,
information and records, drafts of instructions, guides and manuals, and other
documentation (whether in draft or final form), and other sales or financial
information and aids relating to the Bank’s business, and any and all other
documents containing Propriety Information furnished to the Executive by any
representative of the Bank or otherwise acquired or developed by the Executive
in connection with his duties under this Agreement (collectively, the “Recipient
Materials”) shall at all times be the property of the Bank.  Within three calendar days of the termination
of this Agreement, the Executive shall return to the Bank, all Recipient
Materials (including all Proprietary Information) that is in his possession,
custody or control.


 


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25.           The provisions of Paragraphs 12-24, 27, 34 and
36 shall survive the termination of this Agreement.


 


F.  SEVERABILITY


 


26.           If any term or other provision of this
Agreement is held to be illegal, invalid or unenforceable by any rule of
law or public policy:  (A) such term
or provision shall be fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision were not a part
hereof; (B) the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this Agreement; and (C) there
shall be added automatically as a part of this Agreement a provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible
and still be legal, valid and enforceable. 
If any provision of this Agreement is so broad as to be unenforceable,
the provision shall be interpreted to be only as broad as is enforceable.


 


G.  WAIVER


 


27.           The parties acknowledge and agree that the
failure of either party to enforce any provision of this Agreement shall not
constitute a waiver of that particular provision, or of any other provisions of
this Agreement.


 


H.  SUCCESSORS AND ASSIGNS


 


28.           The Executive acknowledges and agrees that
this Agreement may be assigned by the Bank to any successor-in-interest and
shall inure to the benefit of, and be fully enforceable by, any successor
and/or assignee; and this Agreement will be fully binding upon, and may be
enforced by the Executive against, any successor and/or assignee of the Bank.


 


29.           The Executive acknowledges and agrees that his
obligations, duties and responsibilities under this Agreement are personal and
shall not be assignable, and that this Agreement shall be enforceable by the
Executive only.  In the event of the
Executive’s death, this Agreement shall be enforceable by the Executive’s
estate, executors and/or legal representatives, only to the extent provided
herein.


 


I.  CHOICE OF LAW


 


30.           THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED
IN ACCORDANCE WITH, AND ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION
AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY, THE LAWS OF THE STATE
OF COLORADO, WITHOUT GIVING EFFECT TO PROVISION THEREOF REGARDING CONFLICT OF
LAWS.  IT IS STIPULATED THAT COLORADO HAS
A COMPELLING STATE INTEREST IN THE SUBJECT MATTER OF THIS AGREEMENT, AND THAT
THE EXECUTIVE HAS OR WILL HAVE REGULAR CONTACT WITH THE STATE OF COLORADO IN
THE PERFORMANCE OF THIS AGREEMENT.


 


J.  MODIFICATION


 


31.           The parties acknowledge and agree that this
Agreement and the other agreements and plans referenced herein constitute the
complete and entire agreement between the parties; that each executed this
Agreement based upon the express terms and provisions set forth herein; that,
in accepting employment with the Bank, the Executive has not relied on any
representations, oral or written, which are 


 


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not
set forth in this Agreement; that no previous agreement, either oral or
written, shall have any effect on the terms or provisions of this Agreement;
and that all previous agreements, either oral or written, are expressly
superseded and revoked by this Agreement. 
No waiver shall be deemed a continuing waiver or a waiver of any
subsequent breach or default, either of a similar or different nature, unless
expressly so stated in writing.


 


32.           Except as otherwise expressly provided in this
Agreement, no conditions, usage of trade, course of dealing or performance,
understanding or agreement purporting to modify, vary, explain or supplement
the terms or conditions of this Agreement unless hereafter made (i) in
writing, (ii) referencing an express provision in this Agreement, (iii) signed
by the party to be bound, and (iv) in the case of the Bank, approved by
the President and Chief Executive Officer.


 


K.  INDEMNIFICATION


 


33.           During the term of this Agreement, so long as
the Executive has demonstrated good judgment and diligence in performing his
duties, the Bank shall indemnify the Executive against all judgments,
penalties, fines, amounts paid in settlement and reasonable expenses
(including, but not limited to, attorneys’ fees) relating to his employment by
the Bank to the fullest extent permissible under the law, including, without
limitation, federal and/or state banking laws and regulations, the Colorado
Banking Code, as amended, the Colorado Corporations and Associations Act, as
amended, and the Bank’s Articles of Incorporation.  To the extent permitted by law, the Bank
shall purchase such indemnification insurance as the President and Chief
Executive Officer or Board of Directors may from time to time determine.


 


L.  ARBITRATION


 


34.           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 Executive or the termination
thereof, shall be submitted to arbitration before a private arbitrator in
Denver, Colorado, pursuant to the Colorado Uniform Arbitration Act, C.R.S.
§13-22-101, et seq.  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.  Notwithstanding the
arbitration provisions set forth in this Agreement, the Executive and the Bank
acknowledge and agree that nothing in this Agreement shall be construed to
require the arbitration of any claim or controversy arising under the
NONINTERFERENCE, CONFIDENTIALITY AND NON-COMPETITION provisions of this
Agreement.  These provisions shall be
enforceable by any court of competent jurisdiction and shall not be subject to
this Paragraph of the Agreement.  The
Executive and the Bank further acknowledge and agree that nothing in this
Agreement shall be construed to prohibit Bank from applying to a Court of
competent jurisdiction for injunctive or equitable relief to protect
Proprietary Information, to preserve the status quo or to enforce the
NONINTERFERENCE, CONFIDENTIALITY AND NON-COMPETITION provisions of this
Agreement pending conclusion of the arbitration.  The Executive and the Bank further
acknowledge and agree that nothing in this Agreement shall be construed to
require arbitration of any claim for workers’ compensation or unemployment
compensation.


 


M.  LEGAL CONSULTATION


 


35.           Each party acknowledges that it has carefully read
this Agreement, that he, she or it has had an opportunity to consult with his,
her or its attorney concerning the meaning, import and legal significance of
this Agreement, that it understands the terms of the Agreement, that all
understandings and agreements between Executive and the Bank relating to the
subjects covered in this Agreement are 


 


10

















 


contained
in it, and that it has entered into the Agreement voluntarily and not in
reliance on any promises or representations by the other than those contained
in this Agreement.


 


N.  MISCELLANEOUS


 


36.           The Executive shall be available, upon the
request of the Bank, to testify or otherwise assist in litigation, arbitration,
or other disputes involving the Bank, or any of the directors, officers,
employees, subsidiaries, or parent corporations of the Bank, during the term of
this Agreement and at any time following the termination of this Agreement,
with any fees and expenses related to the foregoing to be promptly paid by the
Bank.


 


37.           In the event either party institutes
arbitration or litigation to enforce or protect its rights under this
Agreement, the substantially prevailing party in such arbitration or litigation
shall be entitled, in addition to all other relief, to reasonable attorneys
fees, out-of-pocket costs, disbursements, and arbitrator’s fees relating to
such arbitration or litigation.


 


38.           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 and the same Agreement.


 


39.           The Bank shall have no obligation to set
aside, earmark or entrust any fund or money with which to pay its obligations
under this Agreement.  The Executive or
any successor-in-interest to the Executive shall be and remain simply a general
creditor of the Bank in the same manner as any other creditor having a general
unsecured claim.  For purposes of the
Code, the Bank intends this Agreement to be an unfunded, unsecured promise to
pay on the part of the Bank.  For
purposes of Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
the Bank intends that this Agreement not be subject to ERISA.  If it is deemed subject to ERISA, it is
intended to be an unfunded arrangement for the benefit of a select member of
management, who is a highly compensated employee of the Bank for the purpose of
qualifying this Agreement for the “top hat” plan exception under sections
201(2), 301(a)(3) and 401(a)(1) of ERISA.  At no time shall the Executive have or be
deemed to have any lien nor right, title or interest in or to any specific
investment or to any assets of the Bank. 
If the Bank elects to invest in a life insurance, disability or annuity
policy upon the life of the Executive, then the Executive shall assist the Bank
by freely submitting to a physical examination and supplying such additional
information necessary to obtain such insurance or annuities.


 


40.           When a reference is made in this Agreement to
a Paragraph or a Section, such references shall be to a Paragraph or a Section of
this Agreement unless otherwise indicated. 
The headings contained in this Agreement are for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.  Whenever the words “include,”
“includes” or “including” are used in this Agreement, they shall be deemed to
be followed by the words “without limitation.” 
The words “hereof,” “herein” and “hereunder” and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision in this Agreement. 
Each use herein of the masculine, neuter or feminine gender shall be
deemed to include the other genders. 
Each use herein of the plural shall include the singular and vice versa,
in each case as the context requires or as is otherwise appropriate.  The word “or” is used in the inclusive
sense.  Any agreement or instrument
defined or referred to herein or in any agreement or instrument that is
referred to herein means such agreement or instrument as from time to time
amended, modified or supplemented, including by waiver or consent.  References to a person are also to its
permitted successors or assigns.


 


41.           Executive represents that his or her service as
an employee of the Bank will not violate any agreement that:  (i) prohibits Executive from disclosing
any information acquired prior to becoming employed by the Bank; or (ii) prohibits
Executive from accepting employment with the Bank or that will 


 


11

















 


interfere
with compliance with the terms of this Agreement.  Executive further represents that Executive
has not previously, and will not in the future, disclose to Bank any
proprietary information or trade secrets belonging to any previous
employer.  Executive acknowledges that
the Bank has instructed Executive not to disclose to it any proprietary
information or trade secrets belonging to any previous employer.


 


O.  NOTICES


 


42.           All notices and other communications required
or permitted to be given or delivered hereunder or by reason of the provisions
of this Agreement shall be in writing and shall be deemed to have been given
properly if (a) delivered personally, (b) delivered by a recognized
overnight courier service, (c) sent by United States mail, postage
prepaid, or (d) sent by facsimile transmission followed by a confirmation
copy delivered by recognized overnight courier service the next day.  Such notices, requests, consents and other
communications shall be sent to the respective parties as follows (or at such
other address for a party as shall be specified by like notice to the other
party):


 


If
to the Bank:


 


Solera
National Bank


319
S. Sheridan Blvd


Lakewood,
CO 80226


 


Attention:
President & CEO


 


If
to Executive:


 


Robert
J. Fenton


876
Wolverine Ct.


Castle
Rock, CO 80108


 


43.           Any notice or other communication given
pursuant to this Agreement shall be effective (i) in the case of personal
delivery, telex or facsimile transmission, when received; (ii) in the case
of mail, upon the earlier of actual receipt or five (5) business days
after deposit with the United States Postal Service, first class certified or
registered mail, postage prepaid, return receipt requested; and (iii) in
the case of a recognized overnight courier service, one (1) business day
after delivery to the courier service together with all appropriate fees or
charges and instructions for overnight delivery.


 


[signature page follows]


 


12

















 


[signature page to Employment Agreement]


 


EXECUTED
AS OF THE DATE FIRST WRITTEN ABOVE IN DENVER, COLORADO.


 


	
   

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Ruby Ebell

  	
   

  	
  /s/
  Robert J. Fenton

  
	
  WITNESS

  	
   

  	
   

  
	
   

  	
   

  	
  Print
  Name:  Robert J. Fenton

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Solera National Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Ruby Ebell

  	
   

  	
  By:
  

  	
  /s/
  Douglas Crichfield

  
	
  WITNESS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Douglas
  Crichfield

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
  President &
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Solera
  National Bancorp, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/
  Douglas Crichfield

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
  Douglas
  Crichfield

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
  President &
  CEO

  



 


13

















 


EXHIBIT A


(SEPARATION AGREEMENT)


 


14

















 


SEPARATION
AGREEMENT


[form to be
completed at time of separation]


 


THIS
SEPARATION AGREEMENT is entered into by and between Solera
National Bancorp, Inc. and Solera National Bank (collectively,
the “Employer”) and                                             (“Employee”)
for good and valuable consideration, the sufficiency of which is hereby
acknowledged.


 


1.             Employee and Employer agree
that Employee’s termination of employment with Employer is effective as of [insert date] (the “Separation Date”).  Employer agrees to consult with Employee
regarding the wording of appropriate press releases and/or inter-company
announcements to be issued by Employer.


 


2.             Regardless of whether he
signs this Separation Agreement, Employee will be paid all compensation he has
earned through the Separation Date, Employer will reimburse Employee for
reasonable business expenses incurred through the Separation Date upon
submission by Employee of expense reports in accordance with company policy,
and Employee will have the right to elect to continue his health insurance
coverage pursuant to the federal law regarding continuation of insurance coverage,
known as COBRA.


 


3.             In exchange for Employee’s
agreement to this Separation Agreement, Employer agrees to provide Employee
with the following additional severance benefits:


 


(A)          severance pay in the
aggregate gross amount of $ [insert appropriate
amount per Employment Agreement], less applicable withholding taxes,
payable as follows: [insert appropriate
payment schedule]; and


 


(B)           provided Employee elects
continuation coverage of health insurance in accordance with COBRA, Employer
will pay the premiums for such coverage for six months from when Employee’s
coverage would otherwise end, or until such earlier date as Employee’s
eligibility for such coverage ends.


 


Employee
acknowledges that he would not be entitled to receive the severance benefits
described above if he did not agree to all of the terms of this Separation
Agreement.  Payment of the severance
benefits described above shall commence as soon as practicable after the
Effective Date of this Agreement, as described in paragraph 10 hereof.  Employee agrees to return to Employer on or
before the Effective Date any and all property and documents of Employer.  Employee agrees to cooperate with the Company
to resolve all other issues relating to Employee’s separation from employment.
Employee agrees that he is not entitled to any other compensation or benefits
except as expressly provided herein.


 


4.             Employee hereby releases
Employer and its parent, subsidiary, and sister companies, and their respective
officers, directors, agents, shareholders, employees, and benefit plans
(collectively “Released Persons”) of and from any and all past, present, 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, his employment with or separation
from employment with Employer, 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, including


 


15

















 


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:


 


(A)          any rights of Employee which
are already vested as of the Separation Date to benefits under Employer’s 401(k) Plan;


 


(B)           any rights: (i) to
elect continuation coverage under Employer’s group health plan in accordance
with the terms of COBRA, or (ii) to otherwise maintain coverage under
Employer’s group health plan if the plan so provides at the time of Employee’s
separation from employment; and


 


(C)           any claims which Employee
may have under Colorado statutes for workers compensation benefits and/or
unemployment compensation benefits; and


 


(D)          any rights or claims arising
under the Age Discrimination in Employment Act after the date that Employee
signs this Separation Agreement.


 


6.             Employee agrees that he will
not file, cause to be filed, or prosecute any civil suit in any court for any
claims which are released in Paragraph 4. 
In the event that Employee breaches this paragraph, all Released Persons
shall be entitled to recover from Employee all reasonable attorney fees and
costs incurred as a result of such breach, provided, however, that Employee’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.             Employee agrees and
covenants that at no time will he use, disclose, communicate, or transmit to
other persons any Confidential Information of Employer.  For purposes of this Agreement, “Confidential
Information” shall mean any information or material of a confidential nature or
proprietary to Employer which is not generally available to the public, to
which Employee obtained knowledge or access as a result of Employee’s
employment with Employer.  Confidential
Information includes all information designated as such by Employer, but the
absence of such a designation shall not prevent information from being
Confidential Information if it is not generally available to the public.
Employee agrees that the terms, amount, and fact of this Agreement are also
confidential information.  Employee
represents that he has not disclosed such confidential information to any other
person or entity, except to his attorneys, tax advisors, and spouse.  Employee agrees that hereafter he will not
disclose any such confidential information to any other person or entity,
except to his attorneys, tax advisors, spouse, or as required by law or court
order.   Any disclosure of such
confidential information by Employee’s attorneys, tax advisors, or spouse will
be deemed to be a disclosure by Employee.


 


8.             During any time period that
Employee is receiving severance payments from Employer as described in
paragraph 3 above: (i) he shall provide transitional assistance or
information as may be requested from time to time by Employer, provided that
Employee shall not be required to spend more than 20 hours per month providing
such assistance; and (ii) he shall not perform any services in any
capacity, directly or indirectly, as an officer, director, employee,
consultant, or otherwise on behalf of any person or entity engaged in
competition with Employer within 100 miles of any geographic area in which
Employer conducts business.


 


9.             This Separation Agreement
constitutes the entire agreement between Employee and Employer concerning his
employment with Employer and his separation from employment with


 


16

















 


Employer
and supersedes all prior agreements relating thereto, and there are no other
promises, understandings, or agreements relating thereto except as may be
provided herein.   Both parties agree and
acknowledge that they have not relied upon any representation, whether written
or oral, of the other party in connection with entering into this Separation
Agreement.  Nothing in this Agreement
shall be construed as an admission of liability or wrongdoing by either
party.  The purpose of this Agreement is
solely to amicably resolve all issues relating to Employee’s employment and
separation from employment with Employer and to provide transitional assistance
to Employee.  No rules of
construction based upon which party drafted any portion of this Agreement shall
be applicable in the event of any dispute over its meaning or
interpretation.  This Agreement shall be
construed and enforced in accordance with the law of the State of Colorado.  If any provision of this Agreement is found
to be invalid or unenforceable by a court of competent jurisdiction, the
remaining terms of this Agreement will remain in full force and effect, and any
Court having jurisdiction shall modify any such invalid or unenforceable
provision to the extent necessary for it to be valid and enforceable.


 


10.          Employee
understands that this is an important legal document.  Employee is advised to consult with an
attorney before signing this Separation Agreement.  Employee has 21 days after receiving this
Separation Agreement to consider it, and if Employee chooses to agree to the
terms of this Separation Agreement, Employee understands that he must sign and
return this Separation Agreement to Employer within that 21-day period.  If Employee signs this Separation Agreement,
he will then have the right to revoke this Separation Agreement by delivering
written notice of revocation, but such notice must be received by Employer
within seven days after the date that Employee signed this Separation
Agreement.  If this Separation Agreement
is not signed and delivered within 21 days, or if it is revoked within the
seven day period, neither Employee nor Employer will have any rights or
obligations under this Separation Agreement. 
The Effective Date of this Separation Agreement is the eighth day after
Employee signs it, unless Employee revokes it as described above.


 


17

















 


11.           It is expressly understood
that Employee has read and reviewed this Separation Agreement and every word of
it, that Employee has had an opportunity to discuss this Separation Agreement
with an attorney if he chose to do so, and that Employee understands this
Separation Agreement.  By signing below,
Employee represents that this Separation Agreement has been entered into
voluntarily and knowingly and is binding upon him, his heirs, and personal
representatives, and shall inure to the benefit of Employer, its successors and
assigns.


 


[signatures on following page]


 


18

















 


Signature page to Separation Agreement


 


The
duly authorized parties have caused this Separation Agreement to be executed as
of the date first set forth above.


 


	
   

  	
   

  	
  Solera National Bancorp, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  [executive]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Solera National Bank

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
  STATE
  OF COLORADO

  	
   

  	
  )

  
	
   

  	
   

  	
  ) ss.

  
	
  COUNTY
  OF DENVER

  	
   

  	
  )

  



 


 


The
foregoing Separation Agreement was acknowledged before me this
           day of
                  ,
20    , by
                           .


 


WITNESS
my hand and official seal.


My
commission expires:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary
  Public

  
	
   

  	
   

  
	
  STATE
  OF COLORADO

  	
  )

  
	
   

  	
  ) ss.

  
	
  COUNTY
  OF DENVER

  	
  )

  



 


 


The
foregoing Separation Agreement was acknowledged before me this
           day of
                          ,
20    , by
                            
as                                   
of Solera National Bancorp, Inc., on behalf of said corporation.


 


WITNESS
my hand and official seal.


My
commission expires:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary
  Public

  
	
  STATE
  OF COLORADO

  	
  )

  
	
   

  	
  ) ss.

  
	
  COUNTY
  OF DENVER

  	
  )

  



 


The
foregoing Separation Agreement was acknowledged before me this
           day of
                          ,
20    , by
                            
as                                   
of Solera National Bank, on behalf of said corporation.


 


WITNESS
my hand and official seal.


My
commission expires:


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary
  Public

  



 


19