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.
Table of Contents
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.
Table of Contents
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.
Table of Contents
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.
Table of Contents
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
Table of Contents
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
Table of Contents
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.
Table of Contents
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.
Table of Contents
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.
Table of Contents
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