Table of Contents
1
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT
AGREEMENT
(the
"Agreement”)
is
effective
as
of
July
12,
2021
(the
"Effective Date")
,
and Benjamin R. Clouse ("Employee"), with reference to the following facts:
RECITALS:
The parties
have agreed
to execute
this Agreement
in order to
memorialize
the terms
and conditions
on which the Company shall employ Employee from and after the Effective Date of this Agreement.
Certain
rights
described
below
may
inure
to
the
benefit
of
other
companies
affiliated
with
the
Company by virtue of being controlled by the Company (“Affiliated Companies”).
AGREEMENTS:
Now, THEREFORE, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1.
POSITION AND DUTIES.
1.1
POSITION
AND
TITLE.
The
Company
hereby
hires
Employee
to
serve
as
Managing
Partner, Chief Financial
Officer.
duties
in
such
capacity pursuant
to
this
Agreement
in
compliance
with
applicable
law,
consistent with such direction as the
Company
provides
to Employee
from
time
to time,
and
in
accordance
with
Company's
policies
and
procedures
as
published
from
time
to
time.
by
the
Company.
Subject
to
the
directions
of
the
Company,
Employee
shall
have
full
authority and responsibility
for supervising and
managing to the
best of his
ability, the daily
affairs in his scope of work or as assigned including but not limited to: (i) presenting to
the
Company
all business
opportunities
that
come
to
his
attention
that
are
reasonably
in
the
scope of business of the Company; (ii) working with the Company to develop and approve
business
objectives,
policies
and
plans
that
improve
the
Company’s
profitability;
(iii)
communicating business objectives
and plans to
subordinates, (iv) ensuring that plans and
policies are
promulgated to
and implemented
by
subordinate managers,
(v) ensuring
that
each business plan
provides those functions
required for achieving
its business
objectives
and that each
plan is properly
organized, staffed
and directed to
fulfill its responsibilities,
(vi) assisting
the Company
in directing
periodic reviews
of the
Company's strategic
position
and combining
this information
with corollary
analysis of
the Company's
production and
financial resources, (vii)
providing periodic financial information
concerning
the operations
of the projects and growth plans to
the Company,
and (viii)
ensuring that
the operation
of
the projects comply with applicable laws.
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2
1.2
ACCEPTANCE.
Employee
hereby
accepts
employment
by
the
Company
in
the
capacity
set
forth in Section 1.1,
above, and agrees to perform
the duties of such position
from and
after the
Effective Date
of
this
Agreement
in
a
diligent,
efficient,
trustworthy,
and
businesslike
manner. Employee agrees that, to the best of
the Employee's
ability and experience,
Employee at all
times shall
loyally and conscientiously
discharge all of the
duties and responsibilities imposed upon
Employee pursuant to this Agreement.
1.3
BUSINESS TIME. Employee shall
devote his exclusive business
time to the performance
of his duties
to the
Company under
Section 1.1
and elsewhere
in this
Agreement.
Employee
shall not
undertake any
activities that
conflict with
or
significantly detract
from
his
primary
duties
to
the
Company.
1.4
LOCATION.
Employee
shall
perform
his
duties
under
this
Agreement
primarily
in
Leawood,
Kansas
and
potentially other
regions of
the
United States
where the
Company,
or
its
Affiliated
Companies,
are active
in conducting
banking
and other
related
service
activities.
Employee
acknowledges
and
agrees
that
from
time
to
time
he
shall
be
required
to
travel
(at
the
cost
and
expense
of
the
Company)
to
such
other
locations
in
order
to
discharge
his
duties
under
this
Agreement.
1.5
TERM. The term of this Agreement commenced as of the Effective Date and shall be for a
term of
two (2)
years, which term
shall thereafter automatically renew for successive one
(1) year
terms unless: i) Company
or Employee serve a Notice of Termination upon the
other party of intent
to not renew
the term of
this Agreement
within thirty
(30) days prior
to the ensuing
termination
date,
or ii) earlier
terminated
in accordance with Section 3, below.
1.6
STOCKHOLDING
REQUIREMENT.
The Board
of Directors
of the
Company believes
that it
will be
essential for
Employee to
participate in
the Company’s
future growth
as an
equity
stakeholder as well as
an employee.
As a condition to
Employee’s employment with the Company,
Employee will be required
to hold a minimum of
four hundred thousand dollars
($400,000) worth
of Company stock (“Required Stock”).
As a condition of Employee’s
continued employment with
the Company,
Employee shall not sell
or transfer any Required
Stock without the prior
consent of
the Compensation Committee
of the Board
of Directors (the
“Compensation Committee").
In the
event Employee
fails to
hold sufficient
Company stock
with a
value equal
to or
in excess
of the
required minimum value for
more than ninety (90) consecutive
days, and unless such requirement
is waived by the Compensation Committee, Employee
shall be deemed to be in material breach
of
this Agreement.
Employee will have three years from the
date hereof to reach the Required Stock
threshold, with equity compensation awards credited toward fulfillment of this requirement at
their
grant value.
2.
COMPENSATION.
The
Company
shall
compensate Employee
for
his
services
pursuant
to
this
Agreement as follows:
2.1
BASE COMPENSATION.
(a)
BASE SALARY. The Company shall pay
to Employee
an annual salary
in the
amount
of
Four
Hundred
and
Twenty
Thousand
Dollars
("Base
Salary"),
payable
in
periodic installments in accordance with the Company's regular payroll practices as in
effect
from
time
to
time.
Such
annual
salary
shall
be
subject
to
approval
by
the
Compensation Committee.
In addition, such annual salary is subject to periodic increases,
in such
amounts (if any)
as the
Company may determine
to be
appropriate, at the
time of
Employee's annual review pursuant
to Section 2.1(b), below, or at such other times (if any)
as the Company may select.
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3
(b)
PERIODIC REVIEWS. The
Company shall review
Employee's performance
of his
duties
pursuant
to
this
Agreement
at
least
annually
and
from
time
to
time
and
advise
Employee
of
the
results
of
that
review.
In
connection
with
each
such
review,
the
Company
shall
evaluate
whether
any
increase
in
Employee's
compensation
under
Section
2.1(a), above,
is appropriate.
Any annual
salary increase
shall be
effective
as of
such date as the Company, in its discretion,
determines to be appropriate.
(a)
CRITERIA.
Employee
shall
be
eligible
to
receive
periodic
incentive
bonuses
under the Company’s
Incentive Plan (the
"Bonuses") in such
amounts, if any,
and at such
times
as
may
be
determined
by
the
Compensation
Committee,
in
its
sole
discretion.
Employee’s bonus
opportunity shall be
50% of Employee’s
Base Salary.
By no later than
March 15th
of each
year, the Compensation
Committee will
define the
terms and
conditions
of
such
Bonuses
for
Employee
for
the
year
based
upon
reasonable,
measurable
and
obtainable goals for Employee and the Company.
(b)
TIMING
OF
PAYMENT.
The
Bonus,
if
any,
payable
for
each
calendar
year
during
the
term of this Agreement shall
be payable on or before March 15
st
year immediately
following the
end of the calendar year in which such Bonus is earned.
2.3
FRINGE BENEFITS/VACATION.
(a)
VACATION.
Employee is trusted to
take reasonable
vacation time
when needed.
Employee will not
receive compensation upon
termination or credit
in future
calendar years
for any unused vacation time.
(b)
OTHER
FRINGE
BENEFITS.
Employee
shall
be
eligible
to
participate,
on
the
same terms
and conditions
as all
other employees
of the
Company,
in all
reasonable and
customary fringe
benefit plans
made available
to the
employees of
the Company
and its
Affiliated
Companies,
including
but
not
limited
to,
Group
Health
Insurance
(medical,
vision and dental) and Long and Short Term
Disability Insurance.
(c)
MOBILE
COMMUNICATIONS.
The
Company
at
its
expense
shall
provide
Employee
with
iPhones
and
iPads
and
data
plan
for
his
use
in
connection
with
the
Company’s
business with a
provider acceptable to
the Company.
Employee shall use
and
maintain such devises in a reasonable manner.
The Company shall pay for the purchase of
such initial devices
for Employee’s
use and a
replacement when such
devices are eligible
for full replacement under Employee’s data plan.
(d)
AUTOMOBILE
ALLOWANCE.
The
Company
shall
provide
Employee
with
an
automobile allowance
of $600
per month,
prorated for
partial months
worked, which
shall
be in lieu of any
expense reimbursement for automobile or
automobile-related expenditures
(other
than
expenditures
for
car
service
or
other
transportation
costs
associated
with
Employee's
business
travel,
which
shall
be
reimbursed
in
accordance
with
the
terms
of
Section 2.4, below) or use of a Company owned or leased vehicle.
2.4
REIMBURSEMENT
OF
EXPENSES.
The
Company
shall
reimburse
Employee
for
business
expenses
incurred
by
Employee
in
the
performance
of
his
duties,
provided
that
such
expenses
are
authorized
under
the
Company’s
Expense
Reimbursement
policy,
in
reasonable
amounts,
incurred
for
ordinary
and
necessary
Company-related
business
expenses
and
are
supported by itemized accountings and expense receipts
that are timely submitted to the Company
prior to any reimbursement.
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4
2.5
EQUITY INCENTIVE PLAN.
As an active
key employee in
Company and its
affiliates,
Employee
shall
have
the
right
to
participate
in
the
current
CrossFirst
Bankshares,
Inc.
2018
Omnibus Equity Incentive Plan, (the “Equity Incentive Plan”) for certain eligible key employees,
a
copy of which
has been provided
by Employer.
As a part
of Employee’s
compensation under this
Agreement, Employee shall have the right to participate in
the Equity Incentive Plan as determined
by
the
Committee,
subject
to
vesting
and
other
rights
described
in
the
Equity
Incentive
Plan
or
approved
by
the
Compensation
Committee.
Employee’s
rights
in
any
equity
may
change
in
accordance with the
provisions of the
Equity Incentive Plan.
The Committee reserves the
right, in
its
sole
discretion
and
at
any
time,
to
change
the
type
of
equity
incentive
awards
granted
to
Employee, provided that
the Committee shall
only grant to
Employee awards which
may be granted
under the
terms of
the Equity
Incentive Plan.
based restricted stock
units that vest in
one third increments
over the next
three years and
25,000 stock settled
appreciation rights
that will vest
on each
anniversary of the
date of
grant in
installments over a
seven-year
period
in
equal
tranches
at
the
Company’s
July
2021
Compensation
Committee
meeting.
eligible for additional awards under
the Equity Incentive Plan in
2022 with a target opportunity
of
40% of your Base Salary
3.
TERMINATION
.
3.1.
DEFINTIONS. For purposes of this Agreement, the term:
(a)
“DATE
OF
TERMINATION”
or
"TERMINATION
DATE"
shall
mean
the
date
specified in a Notice of Termination (as defined
below).
(b)
"NOTICE
OF
TERMINATION"
shall
mean
a
written
notice,
which
includes
the
effective Date of Termination and (i)
if delivered by
the Company in
connection with the
Company's decision to terminate Employee's employment
with the Company,
sets forth
in
reasonable
detail
the
reason
for
termination
of
Employee's
employment,
or
(ii)
if
delivered by Employee
in connection with
a Constructive Termination
(as such term
is
defined
in
the
Severance
Plan
(as
defined
in
Section
3.1(c)
below)),
specifies
in
reasonable detail the basis for such resignation.
(c)
"SEVERANCE
PLAN"
shall
mean
the
CrossFirst
Bankshares,
Inc.
Senior
Executive
Severance Plan.
3.2.
TERMINATION
BY EMPLOYEE
OR COMPANY
DUE TO DEATH
OR DISABILITY.
If
the
Company
terminates
Employee
during
the
term
of
this
Agreement
due
to
death
or
Disability
or
Employee
terminates
this
Agreement
due
to
Disability
then
following
such
termination the Company shall pay to Employee or Employee’s legal
representative:
(a)
ACCRUED OBLIGATION.
A lump
sum cash
payment equal
to Employee’s
accrued,
earned
but
unpaid
compensation
and
bonuses
for
the
period
ending
on
the
Date
of
Termination,
provided,
that
such
payment
shall
not
include
any
potential
or
unearned
bonuses or any other
potential or unearned or benefits
("Accrued Obligations") shall be
made on the sixtieth (60
th
) day following the Employee’s Date of Termination;
and
(b)
COBRA
PAYMENT.
A
lump
sum
cash
payment
equal
to
twelve
(12)
times
the
Company-paid portion of the
monthly COBRA continuation premium
for Employee and
his eligible dependents, if any, for COBRA continuation
coverage under the Company's
health,
vision
and
dental
plans
in
effect
as
of
Employee's
Date
of
Termination
due
to
Disability or
death. Such
amount will
include the
Company paid
portion of
the cost
of
the premiums for coverage
of Employee's dependents if,
and only to the
extent that, such
dependents were
enrolled in
a health,
vision or
dental plan
sponsored by
the Company
before the Date of Termination.
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5
For purposes of this Agreement, "Disability" shall have the meaning ascribed in the Severance Plan
3.3
OTHER
TERMINATIONS.
In
the
case
of
a
termination
for
any
reason
other
than
Employee's death or
Disability,
Employee shall only
be entitled to
those severance benefits,
if any,
provided for under the Severance Plan ("Severance Payments").
3.4
CONDITIONAL NATURE
OF
SEVERANCE
PAYMENTS.
Notwithstanding
any
other
provision of this Section 3 or any other provision of this Agreement to the contrary:
(a)
NONSOLICITATION.
Employee
understands
and
agrees
that
because
of
his
employment with the Company that he will
acquire or have access to certain information
of
a
confidential
and
secret
nature
derived
from
the
operations
of
the
Company’s
and
its
Affiliated
Companies’
business.
Employee
further
understands
and
agrees
that
all
correspondence,
customer
and
investor
lists
and
information,
loan
pricing
techniques,
underwriting
methods,
systems
and
products
of
the
Company
are
confidential
and
trade
secrets
(“Confidential
Information”)
and
the
disclosure
or
unauthorized
use
of
such
information would
be detrimental
to the
Company.
Employee understands
and agrees
that
the
nature
of
the
Company's
business
is
such
that
if
Employee
were
to
directly
solicit,
interfere with,
or attempt
to interfere
with any
of the
Company’s
customer relationships
or
to
directly
or
indirectly
solicit,
interfere
with,
or
attempt
to
interfere
with
any
of
the
Company’s other employees’ relationships that existed at Employee’s Termination Date and
during
the
one
(1)
year
period
following
the
termination
of
Employee's
employment
with the
Company, then it
would be
injurious
to the
Company.
Therefore
in consideration
of
the
Employee
and
the
Company
complying
with
the
terms
of
his
employment,
and
subject
to
the
condition
precedent
of
the
Company
timely
providing
Employee
the
payments
called
for
hereu
nder,
Employee
agrees:
(i)
that,
without
the
prior
written
consent
of
the
Company,
he
will
not
directly
or
indirectly
solicit
interfere
with
or
attempt
to
interfere
with
any
of
the
Company’s
customer
relationships
or
other
employee
relationships
that
existed
at
Employee’s
Termination
Date
and
during
the
one
(1)
year
period
of
time
thereafter;
(ii)
to
assist
in
the
avoidance
of
the
unauthorized
disclosure
of
the
Company's
Confidential
Information, in addition to
other remedies available to
the
Company
and
its
Affiliated
Companies,
Employee
will
not,
and
understands
and
agrees that his right to receive the severance consideration described in Sections 3.2
and
3.3
above
(to
the
extent
Employee
is
otherwise
entitled
to
such
payments
thereunder)
shall
be
conditioned
upon
Employee
not:
i)
directly
or
indirectly
engaging
in
(whether
as
an
employee,
consultant,
agent,
proprietor,
principal,
partner,
stockholder,
corporate
officer,
director
or
otherwise);
or
ii)
acquiring
any
ownership
interest
in
or
participating
in
the
financing,
operation,
management
or
control
of, any
person,
firm, corporation
or business
that directly
or indirectly
solicits,
interferes
with
or
attempts
to
interfere
with
any
of
the
Company’s
customer
relationships or
other employee
relationships that
existed at
Employee’s Termination
Date in
any Metropolitan
Statistical Area
as defined
from time
to time
by the
U.S.
Office
of
Management
and
Budget,
Bureau
of
Labor
Statistics,
in
which
the
Company
or its successor
owns controlling voting
interest in any
banking or other
financial institution as such
banking or other financial
institutions are controlled by
the Company or
its Affiliated Companies
upon Employee’s
Termination
Date. The
limitation
upon
Employee’s
ownership
of
outstanding
shares
or
other
units
of
ownership shall be
excluded from this Section
3.4, provided such ownership
is less
than five (5) percent in any publicly-traded bank or financial institution;
(iii)
without the prior
written consent of
the Company, Employee will not solicit,
directly
or
indirectly,
actively
or
inactively,
the
employees
or
independent
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6
contractors of the Company to become
employees or independent contractors of any
person,
firm,
corporation,
business,
or
banking
or
other
financial
institution
that
directly
or
indirectly
competes
with
the
Company
or
solicits,
interferes
with,
or
attempts to interfere with the Company’s customers; and,
(iv)
on or
before the
Date of
Termination
,
Employee shall
return to
Company,
all records,
lists, compositions,
documents and
other items
which contain,
disclose
and/or
embody
any
Confidential
Information
(including,
without
limitation,
all
copies,
reproductions,
summaries
and
notes
of
the
contents
thereof,
expressly
including
all electronically
stored
data,
wherever
stored),
regardless
of
the
person
causing the
same to be
in such
form, and
Employee will
certify that
the provisions
of this paragraph have been complied with.
If
Employee
violates
any
restriction
described
in
Section
3.4(a),
then
all
Severance
Payments
and
consideration
to which
Employee
otherwise may be entitled under Section
3.2 and 3.3 above,
as applicable, thereupon shall
cease and Employee shall
promptly return
to
the
Company
all severance
payments
received
and
other
severance
benefits
theretofore
incurred by Company for Employee’s benefit. The
Company agrees that nothing
herein shall
preclude Employee
from retaining
copies of
his calendar,
contact list
or documents
related
to
his
investment
in
Company
or
responsibilities
as
a
director
to
Company,
and
that
Employee
shall
be entitled
to
freely offer
employment
references
to
the
Company’s
other
current or former employees.
(b)
OTHER
EMPLOYMENT.
In
the
event
Employee
becomes
employed
as
an
employee
or
consultant
for
a
company
that
provides
banking
services
similar
to
services
provided
by
the
Company
or
its
Affiliated
Companies
in
a
Metropolitan
Statistical
Area,
described in Section
3.4(a)(ii), above, Employee
shall not be
entitled to receive
any further
amount of the
severance consideration described
in Sections 3.2
and 3.3 above,
subsequent
to the date
of such employment.
Employee acknowledges
that this limitation
is fair to
both
Employee
and
the
Company
and
does
not
in
any
way
restrain
employee
from
exercising
Employees lawful profession, trade or business.
(c)
GENERAL RELEASE.
Employee shall not be entitled to
receive any benefits upon
termination of
employment described
in this
Section 3
(including any
Severance Payments
under the
Severance Plan
or described
in Section
3.2 above)
unless
prior
to
receiving
the
same
Employee
executes
a
release
pursuant
to
Section
9
of
the
Severance
Plan,
as
applicable, or
a general
release of
all known
claims against
the Company
and its
directors,
officers, employees, stockholders, and other agents and their respective insurers, successors,
and assigns, of all claims arising from or in any way
relating to Employee's employment
by
the
Company
or
the
termination
of
that
employment,
provided
that
such
release
shall
not
extend to
(i) any
claims for
benefits under
any qualified
retirement plan
maintained by
the
Company,
(ii) any
claims for
governmental unemployment
benefits, or
(iii) any
claims for
workers
compensation
benefits;
(iv)
Employee’s
rights,
if
any,
under
the
Plan,
(v)
Employee’s rights, if any, as an owner of
any Shares of the
Company, (vi) Employee’s rights
under this
Agreement, or
(vii) Employee's
right to
receive indemnification
from the
Company
under
applicable
provisions
of
the
law
of
the
State
where
Employee
is
employed
or
the
articles of
organization,
articles of
incorporation, By
Laws or
Operating Agreement
of the
Company or its Affiliated Companies, as the case may be.
3.5
EQUITABLE
REMEDIES.
Employee
acknowledges
that
irreparable
harm
will
result
to
the
Company in the event
of a material breach
by Employee of any
of the covenants contained
in Section
3.4.
Employee agrees
that, in the
event of
such a
breach and in
addition to any
other legal
or equitable
remedies
available
to
the
Company,
the
Company
will
be
entitled
to
specific
performance
of
the
covenants in
Section 3.4;
to an
injunction to
restrain the
violation of
such covenants
by Employee
and all other persons acting for or
with Employee; or to both specific
performance and an injunction.
Employee further agrees that, in the
event the Company brings an action for
the enforcement of any
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7
of those
covenants, and
if the
court finds
any part
of the
covenant unreasonable
as to
time, area
or
activity covered,
then the
court shall
make a finding
as to
what is
reasonable and
shall enforce
this
Agreement by judgment or decree to the extent of such findings.
4.
MISCELLANEOUS
4.1
NOTICES.
All
notices
permitted
or
required
by
this
Agreement
shall
be
in
writing,
and
shall
be deemed to have
been delivered and received
(i) when personally delivered,
or (ii) on
the
third
(3
rd
)
business
day
after
the
date
on
which
deposited
in
the
United
States
mail,
postage
prepaid,
certified
or
registered
mail,
return
receipt
requested,
or
(iii)
on
the
date
on
which
transmitted by
other electronic
means generating
a receipt
confirming a
successful transmission
provided that
on that same
date a copy
of such notice is
deposited in the United
States mail, postage
prepaid, certified or
registered mail, return
receipt requested), or (iv) on the next business day after
the
date
on
which
deposited
with
a
regulated
public
carrier
(e.g.,
Federal
Express)
designating
overnight delivery service
with a return
receipt requested or
equivalent thereof
administered
by such
regulated public carrier, freight prepaid, and
addressed in a
sealed envelope to the
party for whom
intended at the address
appearing on the signature
page of this Agreement
(if to the Company to the
attention
of the
Secretary
of the
Company
and if
to the
Employee
to the
attention
of the
Employee),
or
such
other
address
or
facsimile
number,
notice
of
which
is
given
in
a
manner
permitted
by
this
Section 4.1.
4.2
EFFECT ON OTHER
REMEDIES. Nothing in this
Agreement is intended
to preclude, and
no
provision of
this Agreement
shall be
construed to
preclude, the
exercise of
any
other right
or
remedy which the Company or Employee may
have by reason
of the other's
breach of obligations
under this Agreement.
4.3
BINDING ON
SUCCESSORS;
ASSIGNMENT.
This Agreement
shall be
binding upon,
and inure
to the benefit
of, each of
the parties hereto,
as well as
their respective heirs,
successors,
assigns, and personal representatives.
4.4
GOVERNING LAW,
JURISDICTION AND VENUE. This Agreement shall be construed
in
accordance
with
and
shall
be
governed
by
the
laws
of
the
State
of
Kansas,
without
regard
to
conflict of law principles. Each
party consents
to the jurisdiction
of the courts
of the State
of Kansas
as
the
exclusive jurisdiction
for
the
purposes of
construing or
enforcing
this
Agreement
and
the
venue of the District Court of the State of Kansas in Johnson, County,
Kansas and that any dispute
relating to this Agreement shall be brought in
the District Court of the State of Kansas in
Johnson,
County, Kansas.
4.5
SEVERABILITY.
If any of the
provisions of this Agreement
shall otherwise contravene or
be invalid
under the
laws of
any state,
country
or other
jurisdiction
where
this Agreement
is applicable
but for such contravention or invalidity, such
contravention or
invalidity shall not invalidate all of
the provisions of this Agreement but rather it shall be construed, insofar as the laws of that state or
other jurisdiction are concerned, as
not containing
the provision
or provisions
contravening
or invalid
under the laws of that state or
jurisdiction,
and
the
rights
and
obligations
created
hereby
shall
be
construed and enforced accordingly.
4.6
COUNTERPARTS.
This Agreement may be executed in counterparts, each of which shall
be deemed an
original
and all of
which, taken
together, shall
be one and
the same
instrument,
binding
on all
the signatories.
execute, and
deliver, and to
take such additional
steps as may
be necessary
to effectuate
the purposes
of this Agreement.
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8
4.8
REASONABLE VERIFICATION.
Company agrees that
Employee shall have
reasonable
access to
the Company's
books and
records in
order to
verify the
accuracy of
Bonus calculations
that may be necessary following termination.
4.9
ENTIRE
AGREEMENT;
AMENDMENT.
This
Agreement
(a)
represents
the
entire
understanding
of the
parties with
respect to
the
subject matter
hereof,
and supersedes
all
prior and contemporaneous
understandings,
whether
written
or oral,
regarding
the
subject
matter
hereof,
and
(b)
may
not
be modified
or amended,
except
by a
written
instrument,
executed
by the
party against
whom enforcement
of such amendment may be sought.
4.10
TAXES.
(a)
Anything to
the contrary notwithstanding,
all payments made
by the Company
to
Employee or Employee’s estate or beneficiaries
will be subject to
tax withholding pursuant
to any
applicable laws or
regulations.
Employee will
be solely
liable and
responsible for
the
payment
of
taxes
arising
as
a
result
of
any
payment
hereunder
including
without
limitation any unexpected or adverse tax consequence.
(b)
This Agreement
is intended
to comply
with the
requirements of
Code Section
409A
(“Section 409A”).
Accordingly,
all provisions
herein, or
incorporated by
reference, shall
be construed and interpreted to comply with Section 409A
and if necessary, any
provision
shall be held
null and void
to the extent
such provision (or
part thereof) fails
to comply with
Section 409A or regulations thereunder.
(c)
If Employee is
a specified
employee (within
the meaning of
Code Section 409A)
at
the
time
Employee
incurs
a
separation
from
service
(within
the
meaning
of
Section
409A),
then
to
the
extent
necessary
to
comply
with
Code
Section
409A
and
avoid
the
imposition
of
taxes
under
Code
Section
409A,
the
payment
of
certain
benefits
owed
to
Employee
under
this
Agreement
will
be
delayed
and
instead
paid
(without
interest)
to
Employee
upon
the
earlier
of
the
first
business
day
of
the
seventh
month
following
Employee’s separation from service or death.
(d)
The
Company
and
Employee
agree
that,
for
purposes
of
the
limitations
on
nonqualified deferred
compensation under
Section 409A,
each payment
of compensation
under this Agreement shall be treated as a separate payment of
compensation for purposes
of applying Section 409A
deferral election rules and
the exclusion from Section
409A for
certain
short-term
deferral
amounts.
The
Company
and
Employee
also
agree
that
any
amounts
payable
solely
on
account
of
an
involuntary
separation
from
service
of
the
Executive within
the meaning of
Section 409A shall
be excludible from
the requirements
of
Section
409A,
either
as
involuntary
separation
pay
or
as
short-term
deferral
amounts
(e.g., amounts payable under the schedule prior
to March 15 of the calendar
year following
the calendar year of involuntary separation) to the maximum possible extent.
(e)
Notwithstanding
anything to
the
contrary
in
this
Agreement,
all
reimbursements
and
in
kind
benefits
provided
under
this
Agreement
shall
be
made
or
provided
in
accordance
with
the
requirements
of
Section
409A,
including,
where
applicable,
the
requirement that (i)
any reimbursement is
for expenses incurred
during the period
of time
specified in this
Agreement, (ii) the
amount of expenses
eligible for reimbursement,
or in
kind
benefits
provided,
during
a
calendar
year
may
not
affect
the
expenses
eligible
for
reimbursement,
or
in
kind
benefits
to
be
provided,
in
any
other
calendar
year,
(iii)
the
reimbursement of an eligible
expense will be made
no later than the
last day of the
calendar
year following
the year
in which
the expense
is incurred,
and (iv)
the right
to reimbursement
or in kind benefits is not subject to liquidation or exchange for another benefit.
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9
4.11
409A.
To
the
extent
that
any
payment
or
other
consideration
due
from
the
Company
to
Employee hereunder
would
trigger any
tax or
penalty under
Section 409A,
the Company
agrees
that it will accelerate such
payment or other consideration to
the extent allowed by law
in order to
eliminate such
tax or
penalty.
To
the extent
that any
payment or
other consideration
called to
be
made
under
this
Agreement
fails
to
meet
the
requirements
of
Section
409A
and
the
regulations
relating to
that statute,
the Company
shall immediately
pay to
Employee an
additional sum
equal
to any amount required to be included
as income as a result of such noncompliance.
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10
IN WITNESS WHEREOF,
the parties
hereto have
executed
this Agreement,
effective
as of the date set forth
above.
CROSSFIRST BANKSHARES, INC.
/s/ Michael J. Maddox
President & CEO