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 Employee from the non-competition provisions of paragraph 20 of the
Employment Agreement.  However, Bank’s
release of such non-competition provisions shall not diminish or affect any of Employee’s
duties hereunder or any other duties under the Employment Agreement, including
Employee’s duty to keep Proprietary Information confidential.


 


8.             Employee agrees and covenants that at no time will he
use, disclose, communicate, or transmit to other persons any confidential
information or trade secrets (hereafter “Proprietary Information”) pertaining
to, or arising from, the business of the Bank and its affiliates (if any).  Employee’s statement of compliance is
attached hereto as Attachment B.  Employee
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, Employee agrees to keep in strict
secrecy and confidence any and all Proprietary Information which Employee has
acquired, or to which Employee has had 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 by Employee of this Paragraph, the Employment Agreement,
or any duty imposed by law.  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


 


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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 of the Bank and its
suppliers and vendors; (xiv) computer programs and software developed by
Bank or its consultants; (xv) all copies of shareholder contact lists.  Employee acknowledges that, if he breaches
the covenants contained in this paragraph, Bank would suffer immediate and
irreparable harm and would not have an adequate remedy at law for money
damages.  Accordingly, Employee agrees
that, without the necessity of proving actual damages or posting bond or other
security, 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 Bank may be
entitled, at law or in equity.  In such a
situation, the Parties agree that 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 Separation Agreement.


 


9.             The Parties agree that the terms, amount, and fact of
this Agreement are confidential information. 
The Parties agree that hereafter they will not disclose any such
confidential information to any other person or entity, except to their
attorneys, tax advisors, spouses, or as required by law or court order.   Any disclosure of such confidential
information by a Party’s attorneys, tax advisors, or spouse will be deemed to
be a disclosure by the Party.


 


10.           The Parties agree not to make any oral or written statement
or take any other action which disparages or criticizes the other Party,
including, in the case of the Bank, the Bank’s management or practices; damages
the Party’s good reputation; or impairs the Bank’s operations; except to their
attorneys, tax advisors, spouses, or as required by law or court order.


 


11.           Except for the provisions of the Employment Agreement which
survive termination of the Employment Agreement (see Employment Agreement,
paragraph 30), which the Parties specifically incorporate herein, this
Separation Agreement constitutes the entire agreement between Executive and Bank
concerning his employment with Bank and his separation from employment with Bank,
and there are no other promises, understandings, or agreements relating thereto
except as may be provided herein.   Except
as stated in paragraph 15 below, the 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 Bank 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.


 


12.           The Effective Date of this Separation Agreement shall
be the day it is signed by both parties.


 


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13.          This is an important legal document. 
Employee is advised to consult with an attorney before signing this
Separation Agreement.


 


14.          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 Bank, its successors and assigns.


 


15.           Employee understands that the Bank is relying on the
statements in his Statement of Compliance, which is attached as Attachment B
hereto, in entering into this Separation Agreement and that if any of the
statements in the Statement of Compliance are false, the Bank may, at its
option, void the release of paragraph 4 above and proceed as permitted
hereunder and/or by applicable law.


 


16.           In the event either party institutes arbitration or
litigation to enforce or protect its rights under this Agreement, the
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.


 


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  Solera National Bank

  
	
   

  	
   

  	
   

  
	
  /s/ James C. Foster

  	
   

  	
  By:

  	
  /s/ Douglas Crichfield

  
	
  James C. Foster

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President &
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Solera National Bancorp Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Douglas Crichfield

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
  President &
  CEO

  



 


	
  STATE OF COLORADO

  	
  )

  
	
   

  	
  ) ss.

  
	
  COUNTY OF

  	
  Jefferson

  	
   

  	
  )

  
				



 


The foregoing Separation
Agreement was acknowledged before me this 28th day of April, 2009, by James C. Foster.


 


	
  WITNESS my hand and
  official seal.

  	
   

  	
   

  
	
  My commission expires: 

  	
  4/24/2012

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/Denise M. Welham

  
	
   

  	
   

  	
  Notary Public

  



 


	
  STATE OF COLORADO

  	
  )

  
	
   

  	
  ) ss.

  
	
  COUNTY OF DENVER

  	
  )

  	
   

  
			



 


The foregoing Separation
Agreement was acknowledged before me this 28th day of April, 2009, by Douglas Crichfield as
President & CEO of Solera National Bank, on behalf of said
corporation.


 


	
  WITNESS my hand and
  official seal.

  	
   

  	
   

  
	
  My commission expires:

  	
  4/24/2012

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Denise M. Welham

  
	
   

  	
   

  	
  Notary Public

  



 


	
  STATE OF COLORADO

  	
  )

  
	
   

  	
  ) ss.

  
	
  COUNTY OF DENVER

  	
  )

  	
   

  
			



 


The foregoing Separation
Agreement was acknowledged before me this 28th day of April, 2009, by Douglas Crichfield as
President & CEO of Solera National Bancorp, Inc., on behalf of
said corporation.


 


	
  WITNESS my hand and
  official seal.

  	
   

  	
   

  
	
  My commission expires:

  	
  4/24/2012

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Denise M. Welham

  
	
   

  	
   

  	
  Notary Public

  



 


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Attachment A


 





 


April 28, 2009


 


To Whom It May Concern:


 


James Perez Foster was
employed by Solera National Bank (“Bank”) from September 10, 2007 when the
bank opened for business, through April 28, 2009.  Mr. Foster, Founder of Solera National
Bancorp, Inc. (“Company”), the parent company of the Bank, served as
Chairman of the Board and Director of Hispanic Initiatives through November 20,
2007 and from November 21, 2007 through April 28, 2009, he served as
Chairman Emeritus and Director of Hispanic Initiatives.


 


Mr. Foster was
instrumental in assembling an Organizing group, assisting in the development
and approval of the bank’s regulatory application, and helping the Company
complete its Initial Public Offering which culminated in a successful capital
raise of approximately $25.5 million dollars and a shareholder base of
approximately 750 shareholders.


 


We appreciate his service
and wish him well in his future endeavors.


 


	
  Very truly yours,

  	
   

  
	
   

  	
   

  
	
  /s/ Douglas Crichfield

  	
   

  
	
   

  	
   

  
	
  Douglas Crichfield

  	
   

  
	
  President &
  CEO, Solera National Bancorp, Inc.

  	
   

  



 


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Attachment
B


 


Statement of Compliance
with Obligations Regarding Proprietary Information


 


I hereby certify that
since my resignation from Solera National Bank and Solera National Bancorp, Inc.,
the Bank Holding Company, (collectively “Bank”), effective April 28, 2009,
I have complied with my obligations regarding use and disclosure of Proprietary
Information as defined in Paragraph 8 of the Separation Agreement and Paragraph
16 of my Executive Employment Agreement dated September 10, 2007 (“Agreement”).  Specifically, I have returned all Proprietary
Information to the Bank and have not transmitted Proprietary Information,
verbally or in writing, to any third party.


 


I also certify that I
have and will comply with my obligations under the Agreement in the future.


 


	
  /s/ James C. Foster

  	
   

  
	
   

  	
   

  
	
  James C. Foster

  	
   

  
	
   

  	
   

  
	
  Date: April 28,
  2009

  	
   

  



 


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