SAR Award v. 2023.02.17
Exhibit 10.20
SAR Award v. 2023.02.17
2018 OMNIBUS EQUITY INCENTIVE PLAN
STOCK APPRECIATION RIGHT AWARD AGREEMENT
Date of Grant: ______________________________________
Number of SARs: ______________________________________
Exercise Price per SAR: $_____________________________________
Expiration Date: _______________________________________
This Stock Appreciation Right Award Agreement (the "SAR Award Agreement") is
entered into on _______________________, by and between CrossFirst Bankshares, Inc., a
Kansas corporation (the "Company"), and ________________________ (the "SAR Holder").
RECITALS:
2018 Omnibus Equity Incentive Plan (the "Plan") pursuant to which the Company may, from time
to time, grant Stock Appreciation Rights to eligible Service Providers of the Company and its
Affiliates.
B. The SAR Holder is a Service Provider of the Company or one of its Affiliates and
the Company desires to grant to the SAR Holder a SAR subject to the terms and conditions
reflected in this SAR Award Agreement, the Plan and as otherwise established by the Committee.
AGREEMENT:
In consideration of the mutual covenants contained herein and other good and valuable
consideration, the receipt of which is xxxxxx acknowledged, the parties agree as follows:
Section 1. Incorporation of the Plan.
and the rights of the SAR Holder hereunder are subject in all respects to the provisions of the Plan,
the terms of which are incorporated herein by reference, and the powers of the Committee therein
provided. Capitalized terms used in this SAR Award Agreement but not defined herein have the
meanings set forth in the Plan.
Section 2. Grant of Stock Appreciation Rights.
SAR Holder, subject to the terms of this SAR Award Agreement and the Plan, the aggregate
number of the Stock Appreciation Rights identified above opposite the heading "Number of SARs"
(the "SARs"). Each SAR entitles the SAR Holder to receive, upon exercise, an amount equal to
the excess of (a) the Fair Market Value of a Share on the date of exercise, over (b) the Exercise
Price per SAR identified above (the "Appreciation Value").
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Section 3. Exercisability and Vesting of SARs.
The SARs will vest and become
exercisable as follows:
[Insert Time Vesting Schedule or Performance Vesting Terms and Conditions]
3.1 Forfeiture of SARs.
Except as otherwise provided in this SAR Award
Agreement, any unvested SARs will not be exercisable on or after the date on which the
SAR Holder ceases to be a Service Provider to the Company or an Affiliate.
Notwithstanding the foregoing, (a) the Committee may, it its sole discretion, accelerate the
vesting for any portion of or all the SARs, if in its judgment the performance of the SAR
Holder has warranted such an acceleration and/or such acceleration is in the best interest
of the Company, and (b) if the SAR Holder's position as a Service Provider with the
Company or any of its Affiliates is terminated by reason of the SAR Holder's death or
Disability, the vesting date of the SARs will be accelerated to the date of the SAR Holder's
termination as a Service Provider.
3.2 Expiration of SARs.
at 5:00 p.m. central time on the Expiration Date identified above, or earlier as provided in
this SAR Award Agreement or the Plan. In no event may the Expiration Date be later than
the tenth anniversary of the SARs' Date of Grant. If the Expiration Date is not a business
day, then the SARs will expire at 5:00 p.m. central time on the first business day following
the Expiration Date. If the SARs, or any portion thereof, are not exercised before the
Expiration Date (or an earlier time upon which the SARs terminate in accordance with the
terms of the Plan or this SAR Award Agreement), the SARs, or any unexercised portion
thereof, shall be deemed to have been forfeited and to have no further force or effect.
Section 4.
Method of Exercise.
Provided that the SARs have not expired, been
terminated, or cancelled in accordance with the terms of the Plan or this SAR Award Agreement,
the portion of the SARs which is otherwise exercisable pursuant to Section 3 of this SAR Award
Agreement may be exercised, in whole or in part and from time to time, by delivery to the General
Counsel and Corporate Secretary of the Company, or the designee of such officers, a written or
electronic notice specifying the number of SARs being exercised. Such notice must be in a form
satisfactory to the Company and must set forth the number of SARs being exercised. If a person
other than the SAR Holder is exercising the SARs, the notice must be accompanied by satisfactory
evidence of such person's right to exercise the SARs. During the life of the SAR Holder, only the
SAR Holder may exercise the SARs; however, after the SAR Holder's death or incapacity, the
SAR Holder's executor, administrator, Beneficiary, heir, or legatee, as the case may be, may
exercise the SARs.
S
ection 5. Withholding.
Before the payment of the Appreciation Value in connection
with the exercise of the SARs, the SAR Holder must make arrangements satisfactory to the
Company to pay or provide for any applicable federal, state, and local withholding obligations of
the Company. The SAR Holder agrees to make appropriate arrangements with the Company for
the satisfaction of any such withholding requirements. Unless specifically denied by the
Committee, the SAR Holder may elect to satisfy any such withholding obligations by one or a
combination of the following methods:
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SAR Award v. 2023.02.17
(a) payment of an amount in cash equal to the amount to be withheld;
(b) payment by tendering previously acquired Shares (either actually or by
attestation) valued at each Share's then Fair Market Value and equal to the amount to be
withheld;
(c) requesting that the Company withhold from the Appreciation Value Shares
issuable to the SAR Holder having a Fair Market Value equal to the amount to be withheld,
if the Appreciation Value is to be paid in Shares; or
(c) withholding from any other compensation otherwise due to the SAR
Holder.
To the extent the Committee permits withholding through the payment of previously acquired
Shares pursuant to Section 5(b), any such withholding shall be in accordance with any rules or
established procedures for election by Participants, including any rules or restrictions relating to
the period of time any previously acquired Shares have been held or owned, including any
elections, the irrevocability of any election, or any special rules relating to a SAR Holder who is
an officer of the Company within the meaning of Section 16 of the 1934 Act.
S
ection 6. Form of Payment.
SAR Holder will be entitled to, in the Committee's sole discretion, a cash payment or a whole
number of Shares of equivalent value, or a combination of cash and Shares, equal to the
Appreciation Value of the SARs being exercised, less any amounts withheld pursuant to Section
5 of this SAR Award Agreement.
Section 7.Section 409A; No Deferral of Compensation.
not intended to provide for the deferral compensation within the meaning of Section 409A of the
Internal Revenue Code (the "Code"). The Company reserves the right to unilaterally amend or
modify the Plan or this SAR Award Agreement, to the extent the Company considers it necessary
or advisable, in its sole discretion, to comply with, or to ensure that the SARs granted hereunder
are not subject to, Section 409A of the Code.
S
ection 8. Effect of Separation from Service.
Service Provider of the Company or an Affiliate for any reason other than the SAR Holder's death,
Disability, or termination with Cause, the SAR Holder may exercise any vested SAR, but only
within such period of time ending on the earlier of (a) 5:00 p.m. central time on the date that is 90
days after the date on which the SAR Holder ceased to be a Service Provider or (b) 5:00 p.m.
central time on the Expiration Date.
8.1Separation from Service for Cause.
an Affiliate is terminated with Cause, the SARs (whether vested or unvested) will
immediately terminate and cease to be exercisable.
8.2Separation from Service due to Death.
If the SAR Holder ceases to be a Service
Provider due to the SAR Xxxxxx's death, the portion of the SARs vested as of the date of
the SAR Holder's death may be exercised by the SAR Holder's executor, administrator,
Beneficiary, heir or legatee as the case may be, at any time before the earlier of (a) 5:00
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p.m. central time on the date that is 365 days after the date on which the SAR Holder ceased
to be a Service Provider due to death or (b) 5:00 p.m. central time on the Expiration Date.
8.3Separation from Service due to Disability.
Provider due to the SAR Holder's Disability, the portion of the SARs vested as of the date
on which the SAR Holder ceased to be a Service Provider may be exercised by the SAR
Holder at any time before the earlier of (a) 5:00 p.m. central time on the date that is 365
days after the date on which the SAR Holder ceased to be a Service Provider due to
Disability or (b) 5:00 p.m. central time on the Expiration Date.
Section 9.
Transferability of SARs.
to be transferred to a Permitted Transferee, the SARs shall not be transferable by the SAR Holder,
except by will or pursuant to the laws of descent and distribution. Shares issuable pursuant to the
exercise of the SARs shall be delivered only to or for the account of the SAR Holder, or in the
event of the SAR Holder's incapacity, to the SAR Holder's guardian or legal representative.
S
ection 10. No Right to Continue as a Service Provide; No Rights as Shareholder.
Neither the Plan nor this SAR Award Agreement confers upon the SAR Holder any right to be
retained in any position as an Employee, Consultant, or Director of the Company. Further, nothing
in the Plan or this SAR Award Agreement shall be construed to limit the discretion of the Company
to terminate the SAR Holder as a Service Provider at any time, with or without Cause.
S
ection 11.
Restrictive Covenants.
In consideration for the granting of the SARs and
in addition to any other restrictive agreements that the SAR Holder may have entered into with the
Company or an Affiliate, the SAR Holder accepts and agrees to be bound (except in cases in which
the following covenants conflict with the terms of any employment agreement between the
Company or an Affiliate and the SAR Holder; in such cases the terms of such an employment
agreement shall control) in accordance with the provisions set forth in Exhibit A.
Section 12.
Compliance with Law.
compliance by the Company and the SAR Holder with all applicable laws, including the
requirements of any stock exchange on which the Company's Shares may be listed. The SAR
Holder may not exercise the SARs if such exercise would violate any applicable federal or state
securities laws or other laws or regulations. No Shares shall be issued pursuant to the SARs unless
and until any then applicable requirements of state or federal laws and regulatory agencies have
been fully complied with to the satisfaction of the Company and its counsel. The SAR Holder
understands that the Company is under no obligation to register the Shares with the Securities and
Exchange Commission, any state securities commission or any stock exchange to effect such
compliance.
S
ection 13. Notices.
SAR Award Agreement shall be in writing and addressed to the General Counsel and Corporate
Secretary of the Company at the Company's principal corporate office. Any notice required to be
delivered to the SAR Holder under this SAR Award Agreement shall be in writing and addressed
to the SAR Holder at the SAR Xxxxxx's address as shown in the records of the Company. Either
party may designate another address in writing (or such other method approved by the Company)
from time to time.
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S
ection 14. Governing Law.
This SAR Award Agreement will be construed and
interpreted in accordance with the laws of the State of Kansas without regard to conflict of law
principles.
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ection 15. Adjustments.
If any change is made to the outstanding Stock or capital
structure of the Company, if required, the SARs may be adjusted or terminated in any manner
contemplated by Section 7 of the Plan.
S
ection 16. Amendment.
that is materially adverse to the SAR Holder only by a writing executed by the parties hereto which
specifically states that it is amending this SAR Award Agreement.
S
ection 17. Clawback Policy.
The SARs will be subject to certain provisions of the
Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act of 2010 (“Xxxx-Xxxxx”) and any
other compensation clawback policy that the Committee has adopted or is required to adopt
pursuant to the listing standatds of any national securities exchange on which the Company's
securities are listed or as is otherwise required by Xxxx Xxxxx or any other applicable law,
including without limitation the CrossFirst Bankshares, Inc. Incentive Compensation Clawback
Policy. The SAR Holder acknowledges that the SARs may be clawed back by the Company in
accordance with any policies and procedures adopted by the Committee in order to comply with
Xxxx Xxxxx or as set forth in this SAR Award Agreement.
Section 18. Interpretation.
Any dispute regarding the interpretation of this SAR
Award Agreement shall be submitted by the SAR Holder or the Company to the Committee for
review. The resolution of such dispute by the Committee shall be final and binding on the SAR
Holder and the Company.
S
ection 19. Titles.
Titles are provided herein for convenience only and are not to serve
as a basis for interpretation or construction of this SAR Award Agreement.
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ection 20.Successors and Assigns.
The Company may assign any of its rights under this
SAR Award Agreement. This SAR Award Agreement will be binding upon and inure to the benefit
of the successors and assigns of the Company. Subject to the restrictions on transfer set forth
herein, this SAR Award Agreement will be binding upon the SAR Holder and the SAR Holder's
beneficiaries, executors, administrators and the person(s) to whom the SARs may be transferred
by will or the laws of descent or distribution.
S
ection 21.Severability.
The invalidity or unenforceability of any provision of the Plan
or this SAR Award Agreement shall not affect the validity or enforceability of any other provision
of the Plan or this SAR Award Agreement, and each provision of the Plan and this SAR Award
Agreement shall be severable and enforceable to the extent permitted by law.
Section 22. No Impact on Other Benefits.
SAR Holder's normal or expected compensation for purposes of calculating any severance,
retirement, welfare, insurance or similar employee benefit.
Section 23.
Counterparts.
counterparts, each of which shall be deemed an original but all of which together will constitute
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SAR Award v. 2023.02.17
one and the same instrument. Counterpart signature pages to this SAR Award Agreement
transmitted by facsimile transmission, by electronic mail in portable document format (.pdf), or by
any other electronic means intended to preserve the original graphic and pictorial appearance of a
document, will have the same effect as physical delivery of the paper document bearing an original
signature.
Section 24. Acceptance.
the Plan and this SAR Award Agreement. The SAR Holder has read and understands the terms
and provisions thereof and accepts the SARs subject to all of the terms and conditions of the Plan
and this SAR Award Agreement.
Section 25. Entire Agreement and Binding Effect.
This SAR Award Agreement and
the Plan constitute the entire contract between the parties hereto with regard to the subject matter
hereof. They supersede any other agreements, representations or understandings (whether oral or
written and whether express or implied) that relate to the subject matter hereof. Except as
expressly stated herein to the contrary, this SAR Award Agreement will be binding upon and inure
to the benefit of the respective heirs, legal representatives, successors and assigns of the parties
hereto.
[Signature Page Follows]
Exhibit 10.20
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SAR Award v. 2023.02.17
of the date provided in the preamble of this agreement.
By: _____________________
Name:___________________
Title:____________________
[SAR HOLDER NAME]
By: _____________________
Name:___________________
Exhibit 10.20
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SAR Award v. 2023.02.17
EXHIBIT A
Restrictive Covenants for SAR Holder Employed in Arizona, Georgia, Kansas, Missouri,
Texas or New Mexico
1.
NONCOMPETITION. For a period of one year following the date of SAR
Holder's termination as a Service Provider ("
Termination Date")
, SAR Holder
will not contribute his or her knowledge, directly or indirectly, in whole or in part, as an
employee, officer, owner, manager, advisor, consultant, agent, partner, director,
shareholder, volunteer, intern or in any other similar capacity to an entity engaged in the
same or similar business as the Company or one of its Affiliates within the state, region
or metropolitan statistical area (as appropriate) for which SAR Holder had responsibility
for, or conducted business on behalf of, the Company or one of its Affiliates during the
two years prior to the Termination Date.
2.
NONSOLICITATION OF EMPLOYEES. For a period of
one year following
the
Termination Date , SAR Holder will not directly or indirectly, solicit, hire, recruit,
attempt to hire or recruit, or induce the termination of employment of any employee of
the Company or one of its Affiliates.
3.
NONSOLICITATIO N OF COMPANY CUSTOMERS. For a period of
one year
following
the Termination Date , SAR Holder will not directly or indirectly, solicit,
contact (including, but not limited to, e-mail, regular mail, express mail, telephone, fax,
and instant message), attempt to contact or meet with the current, former or prospective
customers of the Company or one of its Affiliates with whom SAR Holder had material
contact during SAR Holder's employment, for purposes of offering or accepting goods or
services similar to or competitive with those offered by the Company or one of its
Affiliates.
4.
NO DETRIMENTAL COMMUN ICATIONS.
SAR Holder
agrees not to disclose
or cause to be disclosed at any time any untrue, negative, adverse or derogatory comments
or information about the Company or one of its Affiliates, any product or service provided
by the Company or one of its Affiliates , or prospects for the future of the Company or
one of its Affiliates. Notwithstanding the foregoing, this provision does not in any way
limit, restrict or impede SAR Holder’s ability to provide truthful testimony or information
in response to a subpoena, court or arbitral order, or as otherwise required by law.
5.
CONFIDENTIALITY.
SAR Holder
acknowledges that it is the policy of the
Company to maintain as confidential all information about the Company’s and its
Affiliates' business, proprietary, and technical information that is not known to others,
including without limitation, customer lists, information relating to the Company's or one
of its Affiliates' customers, their businesses, operations, employees and customers, unique
concepts, lending practices, sales presentations, marketing programs, marketing
strategies, business practices, pricing information, employment handbooks, training
materials/manuals, cost information, customer leads, documents identifying past, present
and future customers, hiring and training methods, investment policies, financial and
other confidential, proprietary and/or trade secret information concerning the Company’s
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SAR Award v. 2023.02.17
and its Affiliates' operations and growth plans ("Confidential Information"). SAR Holder
recognizes that the Confidential Information is the sole and exclusive property of the
Company or one of its Affiliates, and that disclosure of Confidential Information would
cause damage to the Company or one of its Affiliates . SAR Holder shall not at any time
disclose or authorize the disclosure of Confidential Information that (a) is disclosed to or
known by SAR Holder as result of as a consequence of or through the SAR Holder's
performance of services for the Company or one of its Affiliates, (b) is not publicly or
generally known outside the Company or one of its Affiliates and (c) relates in any
manner to the Company's or one of its Affiliates' business. This Section 5 shall apply in
addition to, and not in derogation of any other confidentiality agreements that may exist,
now or in the future, between SAR Holder and the Company or one of its Affiliates.
a)
On or before the Termination Date
,
SAR Holder shall return to the 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 SAR Holder will certify that the provisions
of this paragraph have been complied with.
b)
Notwithstanding the above or any provision of this Exhibit A or any other
agreement executed by the SAR Holder to the contrary, there shall be no restriction
on the SAR Holder's ability to (i) report violations of any law or regulation, (ii)
provide truthful testimony or information pursuant to subpoena, court order, or
similar legal process, (iii) provide truthful information to government or regulatory
agencies, or (iv) otherwise engage in whistleblower activity protected by the
Securities Exchange Act of 1934, the Xxxx-Xxxxx Xxxx Street Reform and
Consumer Protection Act, or any rules or regulations issued thereunder, including,
without limitation, Rule 21F-17. In addition, 18 U.S.C. §1833(b) provides, in part:
“(1) An individual shall not be held criminally or civilly liable under any Federal
or State trade secret law for the disclosure of a trade secret that (A) is made (i) in
confidence to a Federal, State, or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of reporting or
investigating a suspected violation of law; or (B) is made in a complaint or other
document filed in a lawsuit or other proceeding, if such filing is made under seal.
…. (2) An individual who files a lawsuit for retaliation by an employer for reporting
a suspected violation of law may disclose the trade secret to the attorney of the
individual and use the trade secret information in the court proceeding, if the
individual (A) files any document containing the trade secret under seal; and (B)
does not disclose the trade secret, except pursuant to court order.” Nothing in this
Exhibit A, any other agreement executed by the SAR Holder is intended to conflict
with the statutory protection in 18 U.S.C. §1833(b).
6.
BREACH OF COVENANTS.
In the event of a breach of any of the covenants
contained in this Exhibit A: (a) any unvested portion of the SARs shall be forfeited
effective as of the date of such breach, unless sooner terminated by operation of another
term of condition of the SAR Award Agreement or the Plan; and (b) the SAR Holder
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xxxxxx consents and agrees that the Company or one of its Affiliates shall be entitled to
seek, in addition to other available remedies, a temporary or permanent injunction or other
equitable relief against such breach or threatened breach from any court of competent
jurisdiction, without the necessity of showing any actual damages or that money damages
would not afford an adequate remedy, and without the necessity of posting any bond or
security. The aforementioned equitable relief shall be in addition to, not in lieu of, legal
remedies, monetary damages or other available forms of relief.
7.
SEVERABILITY. If any of the provisions of this Exhibit A shall otherwise contravene
or be invalid under the laws of any state, country or other jurisdiction where this Exhibit A
is applicable but for such contravention or invalidity, such contravention or invalidity shall
not invalidate all of the provisions of this Exhibit A 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, or a court
of competent jurisdiction may reform any such invalid provision, and the rights and
obligations created hereby shall be construed and enforced accordingly.
Restrictive Covenants for SAR Holder Employed in Oklahoma
1.
NONSOLICITATION OF EMPLOYEES. For a period of one year following
the date of
SAR Holder's termination as a Service Provider ("
Termination Date "), SAR
Holder will not directly solicit, hire, recruit, attempt to hire or recruit, or induce the
termination of employment of any employee of the Company or one of its Affiliates during
the two years prior to the Termination Date.
2.
NONSOLICITATION OF COMPANY CUSTOMERS. For a period of one year following
the Termination Date, SAR Holder will not directly solicit, interfere with, or attempt to
interfere with any of the Company's or one of its Affiliates' established customer
relationships that existed at SAR Holder's Termination Date for purposes of offering or
accepting goods or services similar to or competitive with those offered by the Company
or one of its Affiliates.
3.
NO DETRIMENTAL COMMUNICATIONS. XXX Xxxxxx agrees not to disclose or cause
to be disclosed at any time any untrue, negative, adverse or derogatory comments or
information about the Company or one of its Affiliates, any product or service provided by
the Company or one of its Affiliates, or prospects for the future of the Company or one of
its Affiliates. Notwithstanding the foregoing, this provision does not in any way limit,
restrict or impede SAR Holder’s ability to provide truthful testimony or information in
response to a subpoena, court or arbitral order, or as otherwise required by law.
4.
CONFIDENTIALITY. XXX Xxxxxx acknowledges that it is the policy of the Company to
maintain as confidential all information about the Company’s and its Affiliates' business,
proprietary, and technical information that is not known to others, including without
limitation, customer lists, information relating to the Company's or one of its Affiliates'
customers, their businesses, operations, employees and customers, unique concepts,
lending practices, sales presentations, marketing programs, marketing strategies, business
practices, pricing information, employment handbooks, training materials/manuals, cost
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SAR Award v. 2023.02.17
information, customer leads, documents identifying past, present and future customers,
hiring and training methods, investment policies, financial and other confidential,
proprietary and/or trade secret information concerning the Company’s and its Affiliates'
operations and growth plans ("Confidential Information"). SAR Holder recognizes that the
Confidential Information is the sole and exclusive property of the Company or one of its
Affiliates, and that disclosure of Confidential Information would cause damage to the
Company or one of its Affiliates. SAR Holder shall not at any time disclose or authorize
the disclosure of Confidential Information that (a) is disclosed to or known by SAR Holder
as result of as a consequence of or through the SAR Xxxxxx's performance of services for
the Company or one of its Affiliates, (b) is not publicly or generally known outside the
Company or one of its Affiliates and (c) relates in any manner to the Company's or one of
its Affiliates business. This Section 4 shall apply in addition to, and not in derogation of
any other confidentiality agreements that may exist, now or in the future, between SAR
Holder and the Company or one of its Affiliates.
a)
On or before the Termination Date, SAR Holder shall return to the 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 SAR Holder will certify that the provisions
of this paragraph have been complied with.
b)
Notwithstanding the above or any provision of this Exhibit A or any other
agreement executed by the SAR Holder to the contrary, there shall be no restriction
on the SAR Holder's ability to (i) report violations of any law or regulation, (ii)
provide truthful testimony or information pursuant to subpoena, court order, or
similar legal process, (iii) provide truthful information to government or regulatory
agencies, or (iv) otherwise engage in whistleblower activity protected by the
Securities Exchange Act of 1934, the Xxxx-Xxxxx Xxxx Street Reform and
Consumer Protection Act, or any rules or regulations issued thereunder, including,
without limitation, Rule 21F-17. In addition, 18 U.S.C. §1833(b) provides, in part:
“(1) An individual shall not be held criminally or civilly liable under any Federal
or State trade secret law for the disclosure of a trade secret that (A) is made (i) in
confidence to a Federal, State, or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of reporting or
investigating a suspected violation of law; or (B) is made in a complaint or other
document filed in a lawsuit or other proceeding, if such filing is made under seal.
…. (2) An individual who files a lawsuit for retaliation by an employer for reporting
a suspected violation of law may disclose the trade secret to the attorney of the
individual and use the trade secret information in the court proceeding, if the
individual (A) files any document containing the trade secret under seal; and (B)
does not disclose the trade secret, except pursuant to court order.” Nothing in this
Exhibit A, any other agreement executed by the SAR Holder is intended to conflict
with the statutory protection in 18 U.S.C. §1833(b).
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SAR Award v. 2023.02.17
5.
BREACH OF COVENANTS. In the event of a breach of any of the covenants contained
in this Exhibit A: (a) any unvested portion of the SARs shall be forfeited effective as of
the date of such breach, unless sooner terminated by operation of another term of condition
of the SAR Award Agreement or the Plan; and (b) the SAR Holder hereby consents and
agrees that the Company or one of its Affiliates shall be entitled to seek, in addition to other
available remedies, a temporary or permanent injunction or other equitable relief against
such breach or threatened breach from any court of competent jurisdiction, without the
necessity of showing any actual damages or that money damages would not afford an
adequate remedy, and without the necessity of posting any bond or security. The
aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies,
monetary damages or other available forms of relief.
6.
SEVERABILITY. If any of the provisions of this Exhibit A shall otherwise contravene or
be invalid under the laws of any state, country or other jurisdiction where this Exhibit A is
applicable but for such contravention or invalidity, such contravention or invalidity shall
not invalidate all of the provisions of this Exhibit A 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.
Restrictive Covenants for SAR Holder Employed in Colorado
1.
The provisions in paragraphs 2 and 4 are for the protection of the Company's or one of its
Affiliates' trade secrets. The provisions in paragraphs 2 apply only to a SAR Holder whose
annualized cash compensation is equivalent to or greater than the threshold amount for
highly compensated workers established by the Division of Labor Standards and Statistics
in the Colorado Department of Labor and Employment. The provisions in paragraphs 2
and 4 apply only to a SAR Holder whose annualized cash compensation is equivalent to or
greater than 60% of the threshold amount for highly compensated workers established by
the Division of Labor Standards and Statistics in the Colorado Department of Labor and
Employment.
2.
NONCOMPETITION. For a period of one year following the date of SAR
Holder's termination as a Service Provider ("
Termination Date")
, SAR Holder
will not contribute his or her knowledge, directly or indirectly, in whole or in part, as an
employee, officer, owner, manager, advisor, consultant, agent, partner, director,
shareholder, volunteer, intern or in any other similar capacity to an entity engaged in the
same or similar business as the Company or one of its Affiliates within the state, region or
metropolitan statistical area (as appropriate) for which SAR Holder had responsibility for,
or conducted business on behalf of, the Company or one of its Affiliates during the two
years prior to the Termination Date.
3.
NONSOLICITATION OF EMPLOYEES. For a period of one year following the
Termination Date, SAR Holder will not directly solicit, hire, recruit, attempt to hire or
recruit, or induce the termination of employment of any employee of the Company or one
of its Affiliates.
Exhibit 10.20
13
SAR Award v. 2023.02.17
4.
NONSOLICITATIO N OF COMPANY CUSTOMERS. For a period of
one year
following
the Termination Date , SAR Holder will not directly or indirectly, solicit,
contact (including, but not limited to, e-mail, regular mail, express mail, telephone, fax,
and instant message), attempt to contact or meet with the current, former or prospective
customers of the Company or one of its Affiliates with whom SAR Holder had material
contact during SAR Xxxxxx's employment, for purposes of offering or accepting goods or
services similar to or competitive with those offered by the Company or one of its
Affiliates.
5.
NO DETRIMENTAL COMMUNICATIONS. XXX Xxxxxx agrees not to disclose or cause
to be disclosed at any time any untrue, negative, adverse or derogatory comments or
information about the Company or one of its Affiliates, any product or service provided by
the Company or one of its Affiliates, or prospects for the future of the Company or one of
its Affiliates. Notwithstanding the foregoing, this provision does not in any way limit,
restrict or impede SAR Holder's ability to provide truthful testimony or information in
response to a subpoena, court or arbitral order, or as otherwise required by law.
6.
CONFIDENTIALITY. XXX Xxxxxx acknowledges that it is the policy of the Company to
maintain as confidential all information about the Company’s or one of its Affiliates'
business, proprietary, and technical information that is not known to others, including
without limitation, customer lists and information relating to the Company's or one of its
Affiliates' customers, their businesses, operations, employees and customers, unique
concepts, lending practices, sales presentations, marketing programs, marketing strategies,
business practices, pricing information, employment handbooks, training
materials/manuals, cost information, customer leads, documents identifying past, present
and future customers, hiring and training methods, investment policies, financial and other
confidential, proprietary and/or trade secret information concerning the Company’s or one
of its Affiliates' operations and growth plans ("Confidential Information"). SAR Holder
recognizes that the Confidential Information is the sole and exclusive property of the
Company or one of its Affiliates , and that disclosure of Confidential Information would
cause damage to the Company or one of its Affiliates. SAR Holder shall not at any time
disclose or authorize the disclosure of Confidential Information that (a) is disclosed to or
known by SAR Holder as result of as a consequence of or through the SAR Holder's
performance of services for the Company or one of its Affiliates, (b) is not publicly or
generally known outside the Company or one of its Affiliates and (c) relates in any manner
to the Company's or one of its Affiliates' business. This Section 6 shall apply in addition
to, and not in derogation of any other confidentiality agreements that may exist, now or in
the future, between SAR Holder and the Company or one of its Affiliates.
a)
On or before the Termination Date, SAR Holder shall return to the 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 SAR Holder will certify that the provisions
of this paragraph have been complied with.
Exhibit 10.20
14
SAR Award v. 2023.02.17
b)
Notwithstanding the above or any provision of this Exhibit A or any other
agreement executed by XXX Xxxxxx to the contrary, there shall be no restriction on
the SAR Holder’s ability to (i) report violations of any law or regulation, (ii)
provide truthful testimony or information pursuant to subpoena, court order, or
similar legal process, (iii) provide truthful information to government or regulatory
agencies, or (iv) otherwise engage in whistleblower activity protected by the
Securities Exchange Act of 1934, the Xxxx-Xxxxx Xxxx Street Reform and
Consumer Protection Act, or any rules or regulations issued thereunder, including,
without limitation, Rule 21F-17. In addition, 18 U.S.C. §1833(b) provides, in part:
“(1) An individual shall not be held criminally or civilly liable under any Federal
or State trade secret law for the disclosure of a trade secret that (A) is made (i) in
confidence to a Federal, State, or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of reporting or
investigating a suspected violation of law; or (B) is made in a complaint or other
document filed in a lawsuit or other proceeding, if such filing is made under seal.
…. (2) An individual who files a lawsuit for retaliation by an employer for reporting
a suspected violation of law may disclose the trade secret to the attorney of the
individual and use the trade secret information in the court proceeding, if the
individual (A) files any document containing the trade secret under seal; and (B)
does not disclose the trade secret, except pursuant to court order.” Nothing in this
Exhibit A, any other agreement executed by the SAR Holder is intended to conflict
with the statutory protection in 18 U.S.C. §1833(b).
7.
BREACH OF COVENANTS. In the event of a breach of any of the covenants contained
in this Exhibit A: (a) any unvested portion of the SARs shall be forfeited effective as of
the date of such breach, unless sooner terminated by operation of another term of condition
of the SAR Award Agreement or the Plan; and (b) the SAR Holder hereby consents and
agrees that the Company or one of its Affiliates shall be entitled to seek, in addition to other
available remedies, a temporary or permanent injunction or other equitable relief against
such breach or threatened breach from any court of competent jurisdiction, without the
necessity of showing any actual damages or that money damages would not afford an
adequate remedy, and without the necessity of posting any bond or security. The
aforementioned equitable relief shall be in addition to, not in lieu of, legal remedies,
monetary damages or other available forms of relief.
8.
SEVERABILITY. If any of the provisions of this Exhibit A shall otherwise contravene or
be invalid under the laws of any state, country or other jurisdiction where this Exhibit A is
applicable but for such contravention or invalidity, such contravention or invalidity shall
not invalidate all of the provisions of this Exhibit A 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, or
a court of competent jurisdiction may reform any such invalid provision, and the rights
and obligations created hereby shall be construed and enforced accordingly.
