**Exhibit 10.1**

 

**SEPARATIONAGREEMENT**

 

THIS SEPARATION AGREEMENTis entered into on April 28, 2009 by and between Solera National Bank, anational banking association and Solera National Bancorp Inc., the bank holdingcompany (collectively, “Bank”) and James C. Foster (“Employee”) (collectively, “theParties”) for good and valuable consideration, the sufficiency of which ishereby acknowledged.

 

1.             Employee and Bank agree that Employee’s employmentwith 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 signingthis Separation Agreement, Employee hereby submits his resignation from employmentwith the Bank.  In addition, Employee herebysubmits his resignation, effective immediately, from all other positions withregard to the Bank, including, without limitation, as an officer, director,committee member and/or any other positions with Solera National Bank and/orSolera National Bancorp Inc., the bank holding company.  Bank hereby accepts his resignation.  Employee will be paid his regular compensationand will receive benefits pursuant to the Bank’s policies and practices until theSeparation Date.  Effective immediately,however, he is relieved of all duties and responsibilities with Bank and is nolonger authorized to transact business or incur any expenses, obligations, orliabilities 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 hesigns this Separation Agreement, Bank will pay him all compensation and unusedPaid Time Off, if any, that he has earned through the Separation Date, that Bankwill reimburse Employee for reasonable business expenses incurred through theSeparation Date upon submission by Employee of expense reports in accordancewith company policy.

 

3.             In exchange for Employee’s agreement to thisSeparation Agreement, Bank agrees to provide Employee with the followingadditional severance benefits:

 

(A)          Bank will pay Employee fifty-three thousand threehundred thirty-three dollars and 33 cents ($53,333.33), less withholdingsrequired by applicable law.

 

(B)           *Notwithstanding paragraphs 5(E) and 11 below*, Bank will agree to release Employeefrom the non-competition provisions of paragraph 20 of the EmploymentAgreement.

 

(C)           Bank will agree to the mutual non-disparagementprovision below.

 

(D)          Bank will agree to the mutual release below.

 

(E)           Bank will agree to the mutual confidentiality provisionbelow.

 

(F)           Bank agrees not to contest any claim for unemploymentcompensation benefits filed by Employee, provided, however, that Bank maysubmit

 

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accurateinformation 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’slife insurance policy.

 

(H)          Bank will provide Executive with a letter of referencein the form of the letter attached hereto as Attachment A.  Bank agrees that it will provide no responseto any request for a reference other than as set forth in Attachment A.  Executive agrees that he will not directreference requests to the Bank.

 

Bank agrees to pay Employeethe lump sum severance payment described in paragraph 3(A) above within ten(10) days of the Effective Date of this Separation Agreement pursuant toparagraph 12 below.  The payment shall bemade by check made out to James C. Foster, which shall be delivered to his homeaddress on file at the Bank.  Bank agreesto begin providing the severance benefits set forth in paragraphs 3(B) through3(H) as of the Effective Date of this Separation Agreement as described inparagraph 12 below.  Employee confirmsthat he has returned all company property to Bank including all keys, accesscards, computers, cell phones, and key cards and has returned all ProprietaryInformation as defined in paragraph 8 herein and in paragraph 16 of theEmployment Agreement.  In the event ofany breach by Employee of his obligations under this Agreement, Bank mayterminate any remaining severance benefits. Employee agrees that he will notseek employment with Bank in the future, that Bank has no obligation toconsider him for employment in the future, and that he is not entitled to anyother compensation or benefits except as expressly provided herein.

 

4.             The Parties hereby release each other, including theirofficers, directors, shareholders, employees, agents, representatives, parents,subsidiaries, affiliates, sister companies, and benefit plans (collectively “ReleasedPersons”) of and from any and all past, present, and/or future actions, causesof actions, claims, demands, damages, expenses, charges, complaints,obligations and liability of any nature or kind whatsoever on account of, or inany way growing out of, Employee’s employment with or separation fromemployment with Bank, whether such liability or damages are accrued orunaccrued, known or unknown at this time. This release includes, without limitation, any and all rights or claimsunder any common law theory such as defamation, intentional infliction ofemotional distress, outrageous conduct, breach of contract, invasion ofprivacy, wrongful discharge, breach of implied covenant, and any claim ofdiscrimination on the basis of sex, race, creed, religion, age, disability,sexual orientation, or national origin under any municipal ordinance or under anystatute of the United States or Colorado or any other state, including withoutlimitation, any claim under Title VII of the 1964 Civil Rights Act, The CivilRights Acts of 1866 and 1871, the Americans with Disabilities Act,  the Colorado Civil Rights Act (C.R.S.Sections 24-34-301 *et seq.*and24-34-401 *et seq.*), and the Age Discrimination inEmployment 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 ofthe Separation Date to benefits under Bank’s Stock Option Agreement;

 

(B)           any claims which Employee may have under Coloradostatutes for workers compensation benefits and/or unemployment compensationbenefits;

 

(C)           any rights or claims arising under the AgeDiscrimination in Employment Act after the date that Executive signs thisSeparation Agreement; and

 

(D)          Subject to paragraph 7 hereof, the Bank’s rights toenforce any of the provisions of the Employment Agreement which survivetermination of the Employment Agreement (see Employment Agreement, paragraph30).

 

6.             The Parties agree not to file any claims, complaints,or lawsuits against any Released Person for any of the claims or other mattersthat are released or waived herein. In the event that any Party breaches thisparagraph, all Released Persons shall be entitled to recover from the breachingParty all reasonable attorney fees and costs incurred as a result of suchbreach, *provided*, however, that the breachingParty’s obligation to pay attorney fees and costs shall apply to claimsasserted under the Age Discrimination in Employment Act or the Older WorkersBenefit Protection Act only as specifically authorized by federal law.

 

7.             *Notwithstanding paragraphs 5(E) above and 11below*, Bankreleases Employee from the non-competition provisions of paragraph 20 of theEmployment Agreement.  However, Bank’srelease of such non-competition provisions shall not diminish or affect any of Employee’sduties hereunder or any other duties under the Employment Agreement, includingEmployee’s duty to keep Proprietary Information confidential.

 

8.             Employee agrees and covenants that at no time will heuse, disclose, communicate, or transmit to other persons any confidentialinformation or trade secrets (hereafter “Proprietary Information”) pertainingto, or arising from, the business of the Bank and its affiliates (if any).  Employee’s statement of compliance isattached hereto as Attachment B.  Employeehereby agrees and acknowledges that such Proprietary Information is unique andvaluable to the Bank’s business and that the Bank would suffer irreparableinjury if this information were publicly disclosed.  Therefore, Employee agrees to keep in strictsecrecy and confidence any and all Proprietary Information which Employee hasacquired, 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 suchProprietary Information becomes generally known to the public other thanpursuant to a breach by Employee of this Paragraph, the Employment Agreement,or any duty imposed by law.  TheProprietary Information covered by this Agreement shall include, but shall notbe limited to: (i) the identities of the Bank’s existing and prospectivecustomers or clients, including names, addresses, credit status, and pricinglevels; (ii) the buying and selling habits and customs of the Bank’sexisting and prospective customers or clients; (iii) financial informationabout the Bank; (iv) product and systems specifications, concepts for newor improved products and other product or systems data; (v) the identitiesof, and special skills possessed by, the Bank’s employees; (vi) theidentities of and pricing information about the Bank’s suppliers and vendors; (vii) trainingprograms developed by the Bank; (viii) pricing

 

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studies, information andanalyses; (ix) current and prospective products and inventories; (x) financialmodels, business projections and market studies; (xi) the Bank’s financialresults and business conditions; (xii) business plans and strategies;(xiii) special processes, procedures, and services of the Bank and itssuppliers and vendors; (xiv) computer programs and software developed byBank or its consultants; (xv) all copies of shareholder contact lists.  Employee acknowledges that, if he breachesthe covenants contained in this paragraph, Bank would suffer immediate andirreparable harm and would not have an adequate remedy at law for moneydamages.  Accordingly, Employee agreesthat, without the necessity of proving actual damages or posting bond or othersecurity, Bank shall be entitled to temporary or permanent injunction orinjunctions to prevent breaches of such performance and to specific enforcementof such covenants in addition to any other remedy to which Bank may beentitled, at law or in equity.  In such asituation, the Parties agree that Bank may pursue any remedy available,including declaratory relief, concurrently or consecutively in any order as toany breach, violation, or threatened breach or violation of any of theprovisions set forth in this Separation Agreement.

 

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

 

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

 

11.           Except for the provisions of the Employment Agreement whichsurvive termination of the Employment Agreement (see Employment Agreement,paragraph 30), which the Parties specifically incorporate herein, thisSeparation Agreement constitutes the entire agreement between Executive and Bankconcerning his employment with Bank and his separation from employment with Bank,and there are no other promises, understandings, or agreements relating theretoexcept as may be provided herein.   Exceptas stated in paragraph 15 below, the parties agree and acknowledge that theyhave not relied upon any representation, whether written or oral, of the otherparty in connection with entering into this Separation Agreement.  Nothing in this Agreement shall be construedas an admission of liability or wrongdoing by either Party.  The purpose of this Agreement is solely toamicably resolve all issues relating to Employee’s employment and separationfrom employment with Bank and to provide transitional assistance to Employee.  No rules of construction based upon whichParty drafted any portion of this Agreement shall be applicable in the event ofany dispute over its meaning or interpretation. This Agreement shall be construed and enforced in accordance with thelaw of the State of Colorado.  If anyprovision of this Agreement is found to be invalid or unenforceable by a courtof competent jurisdiction, the remaining terms of this Agreement will remain infull force and effect.

 

12.           The Effective Date of this Separation Agreement shallbe 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 thisSeparation Agreement.**

 

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

 

15.           Employee understands that the Bank is relying on thestatements in his Statement of Compliance, which is attached as Attachment Bhereto, in entering into this Separation Agreement and that if any of thestatements in the Statement of Compliance are false, the Bank may, at itsoption, void the release of paragraph 4 above and proceed as permittedhereunder and/or by applicable law.

 

16.           In the event either party institutes arbitration orlitigation to enforce or protect its rights under this Agreement, theprevailing party in such arbitration or litigation shall be entitled, inaddition to all other relief, to reasonable attorneys’ fees, out-of-pocketcosts, disbursements, and arbitrator’s fees relating to such arbitration orlitigation.

 

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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 SeparationAgreement 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 SeparationAgreement was acknowledged before me this 28th day of April, 2009, by Douglas Crichfield asPresident & CEO of Solera National Bank, on behalf of saidcorporation.

 
| 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 SeparationAgreement was acknowledged before me this 28th day of April, 2009, by Douglas Crichfield asPresident & CEO of Solera National Bancorp, Inc., on behalf ofsaid 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 wasemployed by Solera National Bank (“Bank”) from September 10, 2007 when thebank opened for business, through April 28, 2009.  Mr. Foster, Founder of Solera NationalBancorp, Inc. (“Company”), the parent company of the Bank, served asChairman of the Board and Director of Hispanic Initiatives through November 20,2007 and from November 21, 2007 through April 28, 2009, he served asChairman Emeritus and Director of Hispanic Initiatives.

 

Mr. Foster wasinstrumental in assembling an Organizing group, assisting in the developmentand approval of the bank’s regulatory application, and helping the Companycomplete its Initial Public Offering which culminated in a successful capitalraise of approximately $25.5 million dollars and a shareholder base ofapproximately 750 shareholders.

 

We appreciate his serviceand 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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**AttachmentB**

 

Statement of Compliancewith Obligations Regarding Proprietary Information

 

I hereby certify thatsince 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 ProprietaryInformation as defined in Paragraph 8 of the Separation Agreement and Paragraph16 of my Executive Employment Agreement dated September 10, 2007 (“Agreement”).  Specifically, I have returned all ProprietaryInformation to the Bank and have not transmitted Proprietary Information,verbally or in writing, to any third party.

 

I also certify that Ihave 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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