Time-Based Vesting RSU Award
Exhibit 10.13
Time-Based Vesting RSU Award Agreement
v. 02.17.2023
DB04/0835466.0001/14124542.2
2018 OMNIBUS EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
Date of Grant: ________________________________
Number of Restricted Stock Units Granted: ________________________________
This Restricted Stock Unit Award Agreement (this "RSU Award Agreement"), is entered into on
___________________________, by and between CrossFirst Bankshares, Inc., a Kansas Corporation (the
"Company") and _________________ (the "Grantee").
RECITALS:
Omnibus Equity Incentive Plan (the "Plan") pursuant to which the Company may, from time to time,
grant Restricted Stock Units to eligible Service Providers of the Company and its Affiliates.
B. The Grantee is a Service Provider of the Company or one of its Affiliates and the
Company desires to grant to the Grantee Restricted Stock Units relating to the Company's Shares on the
terms and conditions reflected in this RSU 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 hereby acknowledged, the parties agree as follows:
S
ection 1. Incorporation of the Plan.
the rights of the Grantee 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 RSU Award Agreement but not defined herein have the meanings set forth
in Plan.
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ection 2. Grant of Restricted Stock Units.
As of the Date of Grant identified above, the
Company hereby grants to the Grantee and credits to a separate account maintained on the books of the
Company ("Account") that number of Restricted Stock Units identified above opposite the heading
"Number of Restricted Stock Units Granted" (the "RSUs"). On any date, the value of each RSU shall equal
the Fair Market Value of a Share and each RSU shall represent a right to receive one Share, if the applicable
terms and conditions are satisfied. The Grantee's interest in the Account shall make the Grantee only a
general, unsecured creditor of the Company. Unless otherwise provided for in the Plan, the RSUs may not
be sold, transferred, gifted, bequeathed, pledged, assigned, or otherwise alienated or hypothecated,
voluntarily or involuntarily. The rights of the Grantee with respect to the RSUs shall remain forfeitable at
all times prior to the date or dates (each a "Vesting Date") on which such rights are vested in accordance
with Section 3 below.
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ection 3. Vesting and Settlement of RSUs.
Grantee or his or her Beneficiary, as applicable, either, as determined by the Company in its sole discretion,
(a) an amount of cash equal to the Fair Market Value of a Share as of the Vesting Date multiplied by the
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number of Shares underlying the RSUs held by the Grantee (or a specified portion of the RSUs in the event
of any partial vesting), or (b) a number of Shares equal to the whole number of Shares underlying the RSUs
then held by the Grantee (or a specified portion of the RSUs in the event of any partial vesting). The date
on which the Company pays cash or issues Shares to the Grantee in connection with vesting of an RSU is
the settlement date.
Except as specifically provided elsewhere under the Plan or in this RSU Award Agreement, the restrictions
on the RSUs will lapse and the RSUs will become vested in accordance with the schedule set forth below:
Vesting Date
Percentage of RSUs Vested
_______
_______%
_______
_______%
_______
_______%
Notwithstanding the foregoing, (a) if the Grantee's position as a Service Provider with the Company or any
of its Affiliates is terminated by reason of the Grantee's death or Disability, the Vesting Date for all of the
RSUs automatically will be accelerated to the date of the Xxxxxxx's termination as a Service Provider; or
(b) if the Grantee resigns his or her position as a Service Provider with the Company or any of its Affiliates
due to Retirement, the unvested RSUs shall not be forfeited upon Xxxxxxx's Retirement and shall instead be
settled in accordance with the vesting schedule shown above (i.e., the specified percentage of RSUs shall
be settled no later than the 60
th
above that occurs after the date on which the Grantee resigns his or her position as a Service Provider due
to Retirement). For purposes of this RSU Award Agreement, "Retirement" shall mean the Grantee
resigning his or her position as a Service Provider with the Company or any of its Affiliates (other than a
resignation in connection with the Grantee's employment being terminated for Cause) after the first
anniversary of the Date of Grant and after (i) attaining age 55, (ii) providing 10 years of service to the
Company or its Affiliates (for purposes of this RSU Award Agreement, a "year of service" is a consecutive
365 day period during which the Grantee served as a Service Provider), and (iii) six months have elapsed
from the date the Grantee provided the General Counsel and Corporate Secretary of the Company, or his
or her designee(s), with advance written notice of the Grantee's intent to resign due to Retirement.
Payment of the cash and/or Shares following a Vesting Date (or, in the case of a Grantee who has resigned
his or her position as a Service Provider due to Retirement, each original "Vesting Date" listed on the
vesting schedule above) shall be made by the Company to the Grantee as soon as administratively
practicable, but no later than the 60th day following a Vesting Date (or, in the case of a Grantee who has
resigned his or her position as a Service Provider due to Retirement, each original "Vesting Date" listed on
the vesting schedule above).
Section 4. Cancellation of RSUs.
if, prior to the final Vesting Date, the Grantee's position as a Service Provider to the Company or any of its
Affiliates is terminated for any reason (other than the Grantee's death, Disability, or Retirement) or no
reason, the Grantee shall thereupon immediately forfeit any and all unvested RSUs, all such unvested RSUs
shall be cancelled and the Grantee shall have no further rights under this RSU Award Agreement. For
purposes of this RSU Award Agreement, the transfer of employment between the Company and any of its
Affiliates (or between Affiliates) shall not constitute a termination of the Grantee's position as a Service
Provider.
Section 5. Dividends and Voting.
entitled to receive Dividend Equivalent payments for any dividends paid by the Company on Shares,
whether payable in Stock, in cash or in kind, or other distributions, declared as of a record date that occurs
on or after the Date of Xxxxx xxxxxxxxx and prior to any cancellation of such RSUs, provided that any such
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Dividend Equivalent payments shall be held in escrow by the Company and, be subject to the same rights,
restrictions on transfer and conditions applicable to the underlying RSUs. In the event of cancellation of
any or all of the RSUs, the Grantee will forfeit all Dividend Equivalent payments held in escrow and relating
to the underlying cancelled RSUs. The Grantee will have no voting rights with respect to any of the RSUs.
Section 6. Tax Withholding.
The Grantee shall be required to pay to the Company, and the
Company shall have the right to deduct from any compensation paid to the Grantee pursuant to the Plan, or
from any other compensation otherwise due to the Grantee, the amount of any federal, state, and local
withholding obligations of the Company with respect to the RSUs. The Company will not deliver Shares
to the Grantee under this RSU Award Agreement unless the Grantee has remitted (or in appropriate cases
agrees to remit) or otherwise provided for the satisfaction of any withholding obligation. Unless
specifically denied by the Committee, the Grantee may elect to satisfy any such withholding obligations by
one or a combination of the following methods:
(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 the Share's then Fair Market Value and equal to the amount to be withheld; or
(c) requesting that the Company withhold from the Shares otherwise issuable to the Grantee
Shares having a Fair Market Value equal to or less than the amount to be withheld.
To the extent the Committee permits withholding through either the payment of previously acquired Shares
or withholding from Shares otherwise issuable to the Grantee, 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 Grantee who is an officer of
the Company within the meaning of Section 16 of the 1934 Act.
In the event that the Grantee becomes eligible to resign his or her position as a Service Provider due to
Retirement (i.e., when the Grantee has attained age 55 and provided 10 years of service to the Company or
its Affiliates), for purposes of certain FICA tax withholding obligations, any unvested RSUs shall no longer
be subject to a substantial risk of forfeiture as of the date the Grantee both attains age 55 and has provided
10 years of service to the Company or its Affiliates.
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ection 7. No Right to Continue as a Service Provider.
Neither the Plan nor this RSU
Award Agreement confers upon the Grantee any right to be retained in any position as an Employee,
Consultant, or Director of the Company. Further, nothing in the Plan or this RSU Award Agreement shall
be construed to limit the discretion of the Company to terminate the Grantee as a Service Provider at any
time, with or without Cause.
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ection 8. Restrictive Covenants.
In consideration for the granting of the RSUs and in
addition to any other restrictive agreements that the Grantee may have entered into with the Company or
an Affiliate, the Grantee 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 Grantee;
in such cases the terms of such an employment agreement shall control) in accordance with the provisions
set forth in Exhibit A.
Section 9.
Compliance with Law.
compliance by the Company and the Grantee with all applicable requirements of federal and state securities
laws and with all applicable requirements of any stock exchange on which the Company's Shares may be
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listed. No Shares shall be issued with respect to the RSUs 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 Grantee 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.
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ection 10. Notices.
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 Grantee
under this RSU Award Agreement shall be in writing and addressed to the Grantee at the Grantee'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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ection 11. Governing Law.
This RSU 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 12. Adjustments.
If any change is made to the outstanding Stock or capital structure
of the Company, if required, the RSUs shall be adjusted or terminated in any manner as contemplated by
the Plan.
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ection 13. Amendment.
materially adverse to the Grantee only by a writing executed by the parties hereto which specifically states
that it is amending this RSU Award Agreement.
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ection 14. Clawback Policy.
The RSUs 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. Grantee acknowledges that the RSUs 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 RSU Award Agreement.
Section 15. Interpretation.
Any dispute regarding the interpretation of this RSU Award
Agreement shall be submitted by the Grantee or the Company to the Committee for review. The resolution
of such dispute by the Committee shall be final and binding on the Grantee and the Company.
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ection 16. Titles.
Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this RSU Award Agreement.
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ection 17.Section 409A Compliance.
Award Agreement to the contrary, (i) this RSU Award Agreement shall not be amended in any manner that
would cause any amounts payable hereunder that are not subject to Code Section 409A ("Section 409A")
to become subject thereto (unless they also are in compliance therewith), and the provisions of any
purported amendment that may reasonably be expected to result in such non-compliance shall be of no
force or effect with respect to this RSU Award Agreement and (ii) the Company, to the extent it deems
necessary or advisable in its sole discretion, reserves the right, but shall not be required, to unilaterally
amend or modify this RSU Award Agreement to reflect the intention that the Plan qualifies for exemption
from or complies with Section 409A in a manner that as closely as practicable achieves the original intent
of this RSU Award Agreement and with the least reduction, if any, in overall benefit to a Grantee to comply
with Section 409A on a timely basis, which may be made on a retroactive basis, in accordance with
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regulations and other guidance issued under Section 409A. Neither the Company nor the Committee makes
any representation that this RSU Award Agreement shall be exempt from or comply with Section 409A
and makes no undertaking to preclude Section 409A from applying to this RSU Award Agreement.
S
ection 18.Successors and Assigns.
The Company may assign any of its rights under this RSU
Award Agreement. This RSU 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 RSU
Award Agreement will be binding upon the Grantee and the Grantee's beneficiaries, executors,
administrators and the person(s) to whom the RSUs may be transferred by will or the laws of descent or
distribution.
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ection 19.Severability.
The invalidity or unenforceability of any provision of the Plan or this
RSU Award Agreement shall not affect the validity or enforceability of any other provision of the Plan or
this RSU Award Agreement, and each provision of the Plan and this RSU Award Agreement shall be
severable and enforceable to the extent permitted by law.
Section 20. No Impact on Other Benefits.
normal or expected compensation for purposes of calculating any severance, retirement, welfare, insurance
or similar employee benefit.
Section 21.
Counterparts.
each of which shall be deemed an original but all of which together will constitute one and the same
instrument. Counterpart signature pages to this RSU 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 22. Acceptance.
this Agreement. The Grantee has read and understands the terms and provisions thereof, and accepts the
RSUs subject to all of the terms and conditions of the Plan and this RSU Award Agreement.
Section 23. Entire Agreement and Binding Effect.
This RSU 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 RSU 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]
The parties to this RSU Award Agreement have executed this RSU Award Agreement as of the
date provided in the preamble to this agreement.
Exhibit 10.13
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By: _____________________
Name:___________________
Title:____________________
[GRANTEE NAME]
By: _____________________
Name:___________________
Exhibit 10.13
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EXHIBIT A
Restrictive Covenants for Grantee Employed in Arizona, Georgia, Kansas, Missouri, Texas
or New Mexico
1.
NONCOMPETITION. For a period of one year following the date of Xxxxxxx's
termination as a Service Provider ("
Termination Date")
, Grantee
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 Grantee 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 , Grantee 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 , Grantee 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 Grantee had material
contact during Grantee'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 COMMUNICATIO
NS. Grantee
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 Xxxxxxx’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.
Grantee
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 and its Affiliates'
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operations and growth plans ("Confidential Information"). Grantee 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. Grantee shall not at any time disclose or authorize the
disclosure of Confidential Information that (a) is disclosed to or known by Grantee as
result of as a consequence of or through the Grantee'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
Grantee and the Company or one of its Affiliates.
1.
On or before the Termination Date
,
Grantee 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 Grantee will certify that the provisions of
this paragraph have been complied with.
2.
Notwithstanding the above or any provision of this Exhibit A or any other
agreement executed by the Grantee to the contrary, there shall be no restriction on
the Grantee'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 Grantee 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 RSUs shall be forfeited
effective as of the date of such breach, unless sooner terminated by operation of another
term of condition of the RSU Award Agreement or the Plan; and (b) the Grantee hereby
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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 Grantee Employed in Oklahoma
1.
NONSOLICITATION OF EMPLOYEES. For a period of one year following
the date of
Xxxxxxx's termination as a Service Provider ("
Termination Date "), Grantee 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, Grantee 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 Grantee'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. Xxxxxxx 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 Xxxxxxx’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. Grantee 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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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"). Grantee 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. Grantee shall not at any time disclose or authorize the
disclosure of Confidential Information that (a) is disclosed to or known by Grantee as result
of as a consequence of or through the Xxxxxxx'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 Grantee and the
Company or one of its Affiliates.
1.
On or before the Termination Date, Grantee 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 Grantee will certify that the provisions of
this paragraph have been complied with.
2.
Notwithstanding the above or any provision of this Exhibit A or any other
agreement executed by the Grantee to the contrary, there shall be no restriction on
the Grantee'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 Grantee is intended to conflict with the statutory protection in 18
U.S.C. §1833(b).
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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 RSUs shall be forfeited effective as of
the date of such breach, unless sooner terminated by operation of another term of condition
of the RSU Award Agreement or the Plan; and (b) the Grantee 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 Grantee 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 Grantee 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 Grantee 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 Grantee's
termination as a Service Provider ("
Termination Date")
, Grantee
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 Grantee 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, Grantee 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 10.13
12
Time-Based Vesting RSU Award Agreement
v. 02.17.2023
4.
NONSOLICITATIO N OF COMPANY CUSTOMERS. For a period of
one year
following
the Termination Date , Grantee 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 Grantee had material contact during
Xxxxxxx'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 COMMUNICATION S. Xxxxxxx 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 Xxxxxxx'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. Grantee 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"). Grantee
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. Grantee shall not at any time disclose
or authorize the disclosure of Confidential Information that (a) is disclosed to or known by
Grantee as result of as a consequence of or through the Xxxxxxx'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 Grantee
and the Company or one of its Affiliates.
1.
On or before the Termination Date, Grantee 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 Grantee will certify that the provisions of
this paragraph have been complied with.
Exhibit 10.13
13
Time-Based Vesting RSU Award Agreement
v. 02.17.2023
2.
Notwithstanding the above or any provision of this Exhibit A or any other
agreement executed by Xxxxxxx to the contrary, there shall be no restriction on the
Grantee’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 Grantee 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 RSUs shall be forfeited effective as of
the date of such breach, unless sooner terminated by operation of another term of condition
of the RSU Award Agreement or the Plan; and (b) the Grantee 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.