EX-10.1 7 exhibit101.htm EX-10.1 exhibit101
 
Table of Contents
 
1
AMENDED AND RESTATED
 
EMPLOYMENT AGREEMENT
THIS
 
AMENDED
 
AND
 
RESTATED
 
EMPLOYMENT
 
AGREEMENT
 
(the
 
“Agreement”),
effective as of July 1, 2022
(the “Effective Date”)
,
 
is entered into by and between CrossFirst Bank, a
 
state
bank organized
 
under the
 
laws of
 
the State
 
of Kansas
 
(the “Company”),
 
and W. Randall
 
Rapp (“Employee”),
and
 
amends
 
and
 
restates
 
in
 
full
 
that
 
certain
 
Employment
 
Agreement
 
dated
 
effective
 
April
 
1,
 
2019,
 
as
amended by that certain First Amendment to Employment Agreement dated
 
effective as of May 11, 2021.
RECITALS:
The parties have
 
agreed to execute
 
this Agreement
 
in order to
 
memorialize the
 
terms and conditions
on
 
which
 
the
 
Company
 
shall
 
continue
 
to
 
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
 
or
 
under
 
common
 
control
 
with
 
CrossFirst
Bankshares,
 
Inc.,
 
a
 
Kansas
 
corporation
 
(the
 
“Holding
 
Company,”
 
each
 
such
 
affiliated
 
company
 
an
""Affiliate," and, collectively all Affiliates, the “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 retains Employee
 
to serve as
 
the President
of the Company.
(a)
 
LIMITS ON AUTHORITY.
 
Employee shall, to the best of his abilities, perform his
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.
(b)
REPORTING
 
AND
 
AUTHORITY.
 
Employee
 
shall
 
report
 
to
 
the
 
Company
 
as
directed 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.
1.2
 
ACCEPTANCE.
 
Employee
 
hereby
 
accepts
 
employment
 
by
 
the
 
Company
 
in
 
the
capacity
 
set forth in Section 1.1,
 
above, and agrees
 
to continue
 
to perform the
 
duties of such
 
position
 
Table of Contents
 
2
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
Dallas
,
Texas 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 three (3)
 
years, which term shall
 
thereafter automatically renew for
 
successive one (1) year
terms unless:
 
i) the
 
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 $400,000 worth
 
of Shares of the
 
Holding Company
(“Required Stock”) in
 
accordance with the
 
Company’s stock
 
ownership requirement policy,
 
which
may be amended from
 
time to time by
 
the Compensation Committee of
 
the Board of Directors
 
of the
Holding Company (the “Committee”).
 
Unless such failure is waived by
 
the Committee, in the event
Employee fails
 
to hold
 
sufficient Company
 
stock in
 
accordance with
 
the stock
 
ownership requirement
policy 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.
 
2.
COMPENSATION.
 
The
 
Company
 
shall
 
compensate
 
Employee
 
for
 
his
 
services
 
pursuant
 
to
 
this
Agreement as follows:
2.1
BASE COMPENSATION.
(a)
BASE SALARY.
 
Effective
 
June 1,
 
2022, the
 
Company shall
 
pay to
 
Employee an
initial annual salary
 
in the amount
 
of Four Hundred
 
and Ten
 
Thousand
Dollars ($410,000)
(“Base Salary”), payable in periodic installments in accordance with the Company’s regular
payroll practices as in effect from time to time.
 
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.
(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.
 
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3
2.2
BONUSES.
(a)
CRITERIA.
 
Employee
 
shall
 
be
 
eligible
 
to
 
receive
 
periodic
 
incentive
 
bonuses
 
in
accordance
 
with
 
the
 
terms
 
and
 
conditions
 
of
 
the
 
Company’s
 
Annual
 
Incentive
 
Plan
 
(the
“AIP”), as amended, restated or supplemented from time to time (“each a “Bonus”), in such
amounts,
 
if
 
any,
 
and
 
at
 
such
 
times
 
as
 
may
 
be
 
determined
 
by
 
the
 
Committee,
 
in
 
its
 
sole
discretion.
 
For 2022,
 
Employee’s target bonus
 
opportunity shall
 
be 50%
 
of Employee’s Base
Salary; such
 
bonus opportunity may,
 
based on the
 
Company’s or
 
Employee’s
 
performance
during the applicable year,
 
be increased to a maximum of
 
75% of Employee’s
 
Base Salary.
In accordance with
 
the AIP,
 
the Committee will
 
establish the terms
 
and conditions of
 
such
Bonus for Employee for the following year based upon measurable 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
th
 
of the calendar
year immediately following the end of the calendar year in which
 
such Bonus is earned.
(c)
 
ONE-TIME PROMOTION BONUS.
 
Employee shall receive a one-time
cash promotion bonus of Ten Thousand Dollars ($10,000) which shall be paid in
2022.
 
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
 
mobile
 
communication
 
devices
 
or
 
a
 
reimbursement
 
for
 
use
 
of
 
a
 
personal
device for his use in connection with the
 
Company’s business with a provider acceptable to
the Company.
 
Employee shall use
 
and maintain such devices
 
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
 
the
 
Company
 
and
 
its
Affiliates, Employee
 
shall have
 
the right
 
to participate
 
in the
 
current CrossFirst
 
Bankshares, Inc.
 
2018
Omnibus Equity
 
Incentive Plan,
 
as amended,
 
supplemented or
 
restated from
 
time to
 
time (the
 
“Equity
Incentive Plan”),
 
for certain
 
eligible key
 
employees, a
 
copy of
 
which has
 
been provided
 
by Company.
 
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 as approved
 
by the 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.
 
For 2022, Employee
 
will
receive equity
 
awards consisting
 
of: (i)
 
5,000 time-based
 
restricted stock
 
units that
 
vest ratably
 
in
annual increments over three years
 
and (ii) 5,000 stock
 
appreciation rights that vest
 
ratably in annual
increments over seven years
 
with a grant date strike
 
price equal to the fair
 
market value of a Share
 
of
Holding Company on the grant date. For awards granted under
 
the Equity Incentive Plan after 2022,
Employee will be eligible for awards with a fair value as of
 
the grant date equal to 40% of his then-
applicable base salary.
3.
TERMINATION.
3.1
DEFINITIONS. 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, as amended, supplemented or restated from time to time.
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 (60th) 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
 
Table of Contents
 
5
enrolled
 
in
 
a
 
health,
 
vision
 
or
 
dental
 
plan
 
sponsored
 
by
 
the
 
Company
 
before
 
the
 
Date
 
of
Termination.
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 Section 3 or any other provision of this Agreement to the
 
contrary:
(a)
CONFIDENTIALITY.
 
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.
 
On or before
 
the Date of
 
Termination,
or
 
upon
 
request
 
of
 
the
 
Company,
 
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.
Nothing contained in
this Section 3.2(a)
 
shall be construed
 
as preventing Employee
 
from providing Confidential
Information
 
in
 
compliance
 
with
 
a
 
valid
 
court
 
order
 
issued
 
by
 
a
 
court
 
of
 
competent
jurisdiction,
 
providing
 
Employee
 
takes
 
reasonable
 
steps
 
to
 
prevent
 
dissemination
 
of
 
such
Confidential
 
Information
 
and
 
notifies
 
the
 
Company
 
in
 
a
 
reasonable
 
amount
 
of
 
time
 
in
advance
 
of
 
such
 
dissemination.
 
Nothing
 
in
 
this
 
Agreement
 
prohibits
 
Employee
 
from
reporting possible violations of federal or state law or regulation to any
 
government agency
or entity, including but not limited to, the Equal Employment Opportunity Commission, the
Department
 
of
 
Justice,
 
Congress,
 
or
 
other
 
applicable
 
regulatory
 
agency,
 
or
 
making
 
other
disclosures that are protected under the whistleblower provisions of
 
applicable law.
(b)
NONSOLICITATION.
 
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
 
Company offering the
compensation and
 
perquisites provided
 
under this
 
Agreement, and
 
subject to
 
the condition
precedent of
 
the Company
 
timely providing
 
Employee the
 
payments called
 
for hereunder,
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 with whom
 
Employee personally
 
had any contact
during Employee’s employment and 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
 
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6
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
 
and
 
with
 
whom
 
Employee
 
personally
 
had
 
any
 
contact
 
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 Holding Company or its
 
successor
owns a
 
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
 
percent
 
(5%)
 
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
contractors
 
of
 
the
 
Company with
 
whom
 
Employee
 
personally
 
had
 
any
 
contact
 
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.
(c)
OTHER
 
EMPLOYMENT.
 
In
 
the
 
event
 
Employee
 
becomes
 
employed
 
as
 
an
employee
 
or
 
consultant for
 
a
 
company
 
that
 
provides financial
 
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(c) or 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
Employee’s lawful profession, trade or business.
 
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7
(d)
GENERAL RELEASE. Employee shall not be entitled to receive any benefits upon
termination of
 
employment described
 
in
 
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,
 
(iii)
 
any
 
claims
 
for
workers compensation benefits;
 
(iv) Employee’s rights, if any, under the Severance
 
Plan, (v)
Employee’s
 
rights,
 
if
 
any,
 
as
 
an
 
owner
 
of
 
any
 
Shares
 
of
 
the
 
Holding
 
Company,
 
(vi)
Employee’s rights under this
 
Agreement, or
 
(vi) 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
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.
3.6
 
LIMITATION
 
ON PAYMENTS.
 
Notwithstanding any other provision of
 
this Agreement,
payments and benefits which
 
Employee has a right to
 
receive from the Company under
 
Section 3.3
which
 
result
 
in there
 
being
 
a “parachute
 
payment”
 
under
 
Section
 
280G
 
of the
 
Internal
 
Revenue
Code,
 
(the
 
“Code”),
 
then
 
such
 
payments
 
shall
 
be reduced
 
by the
 
minimum
 
amount
 
necessary
 
to
avoid
 
the imposition
 
of the
 
excise
 
tax (“Excise
 
Tax”)
 
under
 
Section
 
4999 of
 
the Code,
 
provided,
however,
 
that no
 
such reduction
 
in such
 
payments shall
 
be made
 
if by
 
not making
 
such reduction,
Employee’s
 
Retained Amount (as
 
hereinafter defined) would
 
be greater than
 
Employee’s Retained
Amount if such payments are so reduced. All determinations required to be made under this Section
3.6 shall be
 
made by tax
 
counsel selected by
 
the Company and
 
reasonably acceptable to
 
Employee
(“Tax
 
Counsel”),
 
which
 
determinations
 
shall
 
be
 
conclusive
 
and
 
binding
 
on
 
Employee
 
and
 
the
Company absent manifest error.
 
All fees and
 
expenses of Tax
 
Counsel shall be
 
borne solely by
 
the
Company.
 
Prior to
 
any reduction
 
in such
 
payments to
 
Employee pursuant
 
to this
 
Section 3.6,
 
Tax
Counsel
 
shall provide
 
Employee and
 
the
 
Company with
 
a report
 
setting forth
 
its calculations
 
and
containing related
 
supporting information.
 
In the
 
event any
 
such reduction
 
is required,
 
such payments
shall be reduced in the following order: (i) any
 
COBRA payments, (ii) the Severance Payments,
 
(iii)
any
 
other
 
portion
 
of
 
such
 
payments
 
that
 
are
 
not
 
subject
 
to
 
Section 409A
 
of
 
the
 
Code
 
(other
 
than
payments resulting
 
from any accelerated
 
vesting of
 
an equity award
 
under the Equity
 
Incentive Plan),
(iv) any payments that are subject to Section 409A of the Code in reverse order of payment, and (v)
any portion
 
of such
 
payments that
 
are not
 
subject to
 
Section 409A
 
and arise
 
from any
 
accelerated
vesting of
 
an award
 
under the
 
Equity Incentive
 
Plan. “Retained
 
Amount” shall
 
mean the
 
present value
(as determined in accordance with
 
Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the
 
Code) of such
payments net of all federal, state and local taxes imposed on Employee
 
with respect thereto.
4.
MISCELLANEOUS
4.1
NOTICES.
 
Any
 
notices
 
permitted
 
or
 
required
 
to
 
be
 
given
 
pursuant
 
to
 
this
 
Agreement
shall
 
be
 
sufficient
 
if
 
given
 
in
 
writing
 
and
 
if
 
personally delivered
 
by receipted
 
hand
 
delivery to
 
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8
Employee or to the
 
Company, or if deposited in the United
 
States mail, postage prepaid,
 
first class or
certified
 
mail,
 
to
 
Employee
 
at
 
his
 
residence
 
address
 
or
 
to
 
the
 
Company’s
 
corporate
 
headquarters
address (attention General
 
Counsel) or to such
 
other addresses as
 
each party may
 
give the other party
notice in accordance with this Agreement.
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.
4.7
FURTHER ASSURANCES. Each party agrees, upon the request
 
of another party, to
 
make,
execute, and deliver, and to
 
take such additional steps
 
as may be necessary
 
to effectuate the purposes
of this Agreement.
4.8
REASONABLE
 
VERIFICATION.
 
The
 
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.
 
 
Table of Contents
 
9
(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.
[The remainder of this page is intentionally blank. Signatures follow.]
 
 
 
Table of Contents
 
10
IN WITNESS
 
WHEREOF,
 
the
 
parties hereto
 
have executed
 
this Agreement,
 
effective
 
as of
 
the
 
date set
forth above.
COMPANY:
EMPLOYEE:
CrossFirst Bank
 
By:
 
/s/ Amy Fauss
 
Signature: /s/ W. Randall Rapp
 
 
Amy Fauss
 
Chief Human Resources Officer
 
 
W.
 
Randall Rapp