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EXHIBIT 10.13
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Amended
Agreement"), is made and entered into as of this 30th day of January, 2001, to
be effective as of October 1, 2000 ("Effective Date"), by and between LOCAL
FINANCIAL CORPORATION, a Delaware corporation ("LFC"), its wholly-owned
subsidiary, LOCAL OKLAHOMA BANK, N.A., a national banking association ("Bank"),
both with address of 0000 X. X. 00xx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000, and
XXXXXX X. XXXXXXXX, an individual resident of the State of Oklahoma, with
mailing address of 00000 Xxxxx 000, Xxxxx, Xxxxxxxx 00000 ("Xxxxxxxx").
RECITALS:
A. LFC is a one-bank holding company which owns all of the
issued and outstanding stock of Bank. Bank is engaged in the commercial banking
business in the State of Oklahoma, with principal offices in Oklahoma City,
Oklahoma, and branch locations at various sites all in the State of Oklahoma.
LFC and Bank made and entered into that certain Employment Agreement with
Xxxxxxxx dated September 8, 1997 ("Original Agreement") whereby LFC and Bank
employed Xxxxxxxx to serve as the Chairman of the Board of Directors and Chief
Executive Officer of LFC and of the Bank, respectively, and to manage and direct
the conduct of their banking and all other businesses pursuant to the terms and
conditions and for the compensation and benefits to be paid to Xxxxxxxx as set
forth and described in the Original Agreement, as amended in certain specific
respects by that certain First Amendment to Employment Agreement dated November
6, 1998, by and between LFC, the Bank and Xxxxxxxx ("First Amendment"), which
completely amended and restated Sections 3, 9(a) and 9(f) of the Original
Agreement and added a new Section 10 thereto. The Original Agreement and the
First Amendment shall be sometimes hereinafter collectively referred to as the
"Employment Agreement."
B. LFC, the Bank and Xxxxxxxx are now desirous of further
amending the Employment Agreement to amend certain specific provisions with
regard to the severance benefits which Xxxxxxxx may be entitled to receive in
the event of a "Change of Control," as that term is defined in the Employment
Agreement, occurring to LFC and the Bank during the term of the Employment
Agreement, in order to grant him the right to receive the payment of the
severance benefit after the consummation of a Change of Control if Xxxxxxxx
thereafter voluntarily resigns from such employment for any reason whatsoever.
At the same time, LFC, the Bank and Xxxxxxxx are desirous of preparing and
entering into this Amended Agreement in order to effect not only the desired new
amendment but to set forth in one document the Original Agreement, as amended by
the First Amendment, and to correct and update the names, dates and references
in the Employment Agreement to reflect changes which have occurred since it was
originally entered into.
C. The respective Boards of Directors of the Bank and of LFC
have each specifically approved and authorized their respective execution and
entering into of this Amended Agreement with Xxxxxxxx for the reasons and
purposes set forth herein; and
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D. Accordingly, LFC, the Bank and Xxxxxxxx desire to enter
into this Amended Agreement in order to: (i) effect certain specific amendments
to the Severance Benefits provisions in Section 10 of the Employment Agreement,
as described above; (ii) update, correct and clarify certain references,
information and dates contained in the Employment Agreement in order to make
such references, names and dates accurately reflect the changes and developments
which have occurred to LFC and the Bank, and otherwise, since the Original
Agreement was entered into, and (iii) set forth in one document all of the terms
and provisions of the Original Agreement, the First Amendment and the amendments
effected hereby in one consolidated Amended Agreement for ease of future
reference.
NOW, THEREFORE, in consideration of the aforementioned
recitals, the premises, the mutual covenants set forth herein and of such other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by LFC, the Bank and Xxxxxxxx, respectively, they each do hereby
execute and enter into this Amended Agreement and covenant and agree as follows:
1. EMPLOYMENT. Xxxxxxxx is hereby employed as the Chairman of
the Board of Directors and Chief Executive Officer of LFC and of the Bank,
respectively, to manage and direct the conduct of their banking businesses.
Xxxxxxxx shall devote all of his business time exclusively to LFC's and the
Bank's business and shall render services to LFC and to the Bank, respectively,
as their Chairman of the Board and Chief Executive Officer to the best of his
ability for and on behalf of LFC and the Bank, respectively. Xxxxxxxx shall
comply with all laws, statutes, ordinances, rules and regulations relating to
the performance of services for LFC and for the Bank under this Amended
Agreement. During the term of this Amended Agreement, Xxxxxxxx shall serve as
the Chairman of the Board of Directors and as the Chief Executive Officer of LFC
and of the Bank, and in those respective capacities shall, subject to the
control of the Board of Directors of LFC and of the Bank, respectively,
generally supervise, plan and direct the business and affairs of LFC and of the
Bank and shall preside at all meetings of the shareholders of LFC and of the
Board of Directors of LFC and of the Bank, respectively. As Chairman of the
Board of Directors and Chief Executive Officer of LFC and of the Bank, Xxxxxxxx
shall exercise and perform such other powers and duties as are usually vested in
a chairman of the board of directors and chief executive officer of a bank
holding company and/or a national banking association, or as may be from time to
time prescribed or assigned to him by the Board of Directors of LFC, or by the
Board of Directors of the Bank, or as may be otherwise prescribed or assigned to
him by the By-Laws of LFC or of the Bank. During the term of this Amended
Agreement, Xxxxxxxx shall not, at any time or place, directly or indirectly,
engage in the same business in which LFC or the Bank is engaged for any other
person or entity to any extent whatsoever, other than to the extent required by
the terms and conditions of this Amended Agreement, or as a private investor for
his own account, in a publicly held corporation engaged in the banking business,
unless his holdings shall not exceed five percent (5%) of the issued and
outstanding stock of such publicly held corporation and, so long as such
investment activities do not interfere with the performance of Xxxxxxxx'x duties
for LFC and for the Bank during the term of this Amended Agreement. The
designation by LFC's or the Bank's Board of Directors of any other duties or any
other titles for Xxxxxxxx during the term of this Amended Agreement shall not
affect Xxxxxxxx'x compensation as provided for in this Amended Agreement.
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2. TERM OF EMPLOYMENT. Subject to the provisions on
termination of employment contained in Section 9 herein, the term of the
employment provided for herein of Xxxxxxxx by LFC and by the Bank shall be for a
period of three (3) years, beginning on the Effective Date of this Amended
Agreement and ending on the date which is the last day prior to the third (3rd)
anniversary of the Effective Date, unless extended as provided in this Section
2, below. Subject to the provisions on termination of employment as provided for
in Section 9, below, prior to the first anniversary of the Effective Date of
this Amended Agreement and prior to each anniversary of that date thereafter,
the Board of Directors of LFC and the Board of Directors of the Bank,
respectively, shall consider, review (with appropriate corporate documentation
thereof, and after taking into account all relevant factors, including
Xxxxxxxx'x performance) and, if appropriate, explicitly approve a one (1) year
extension of the remaining term of this Amended Agreement. The term of this
Amended Agreement shall continue to so extend each year if the Boards of
Directors so approve such extension, respectively, unless Xxxxxxxx gives written
notice to LFC or the Bank, respectively, of Xxxxxxxx'x election not to extend
the term, with such notice not to be less than sixty (60) days prior to any such
anniversary date. If the Board of Directors of LFC, or the Board of Directors of
Bank, respectively, elect not to extend the term, that Board of Directors shall
give written notice to Xxxxxxxx of such decision not less than sixty (60) days
prior to any such anniversary date. If either party hereto gives such timely
notice to the other party that the term of this Amended Agreement will not be
extended as of any such anniversary date, then, and in such event, this Amended
Agreement shall terminate at the conclusion of its then remaining term.
References in this Amended Agreement to the term of this Amended Agreement shall
be deemed to refer both to the initial term and all successive terms hereunder.
3. COMPENSATION.
(a) The Bank agrees to pay Xxxxxxxx as a guaranteed
salary throughout the term of this Amended Agreement, unless Xxxxxxxx
voluntarily resigns without "Good Reason," as that term is defined in
Section 9(b), below, of this Amended Agreement, from his employment by
LFC and by Bank during the term of this Amended Agreement, or unless
this Amended Agreement is terminated for "Cause" by LFC or the Bank, as
set forth and described in Section 9(a), below, in this Amended
Agreement, an annual base salary for the services rendered to LFC and
Bank by Xxxxxxxx, as described above, in the amount of Three Hundred
Twenty Thousand and No/100 Dollars ($320,000.00) per year. This salary
shall be payable to Xxxxxxxx in twelve (12) equal, monthly installments
of Twenty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars
($26,666.67) per month for each month during which services are
rendered by Xxxxxxxx to LFC or the Bank during the term of this Amended
Agreement. LFC and Bank covenant and agree that the amount of salary to
be paid to Xxxxxxxx cannot be decreased by LFC or Bank during the term
of this Amended Agreement for any reason and must be paid to Xxxxxxxx
in all events (together with the other compensation and benefits
described below in this Section and in Section 9), each month during
the term of this Amended Agreement unless Xxxxxxxx voluntarily resigns
from his employment by LFC and the Bank without "Good Reason" during
the term of this Amended Agreement, or unless Xxxxxxxx is terminated
for "Cause" by the Bank for the specific reasons set forth and
described below in Section 9(a) of this Amended Agreement.
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Accordingly, LFC and Bank agree that if during the term of this Amended
Agreement, (i) Xxxxxxxx resigns with "Good Reason," or (ii) Xxxxxxxx is
terminated by LFC and the Bank without "Cause," as those terms are
respectively defined below in Section 9 of this Amended Agreement, he
shall still be entitled to receive as liquidated damages for the
termination of his employment in either such event, as further provided
below in Section 9 of this Amended Agreement: (x) the full amount of
his remaining guaranteed salary under this Amended Agreement to be paid
to him in monthly installments in the same amount and manner as if he
had remained employed by LFC or the Bank during the term of this
Amended Agreement which shall be remaining after the date his
employment is so terminated; plus (y) the sum obtained by dividing the
average amount of the annual cash bonuses which were paid to Xxxxxxxx
for the three (3) calendar years immediately preceding the date of the
said termination of his employment by twelve (12) and paying the amount
so determined to him each month (or pro-rated for any portion of any
such remaining month) which shall be remaining in the term of this
Amended Agreement as of the date of the said termination of his
employment at the same time, and together with, the monthly base salary
payments being made to him, as described above; and (z) causing him to
continue to receive all of the other fringe benefits of his employment
which he would otherwise have received during the remaining term of
this Amended Agreement pursuant to Section 5, below (or the economic
equivalency thereof), as fully as if he had remained employed by LFC
and the Bank during the entire said remaining term of this Amended
Agreement. It is expressly provided, however, that the foregoing
obligations shall be subject to and supplanted by the specific
severance benefit entitlements being granted to Xxxxxxxx under the
provisions of Section 10 of this Amended Agreement, below, which shall
be deemed to be the applicable benefits and entitlements of Xxxxxxxx in
the event a "Change of Control," as that term is defined in Section 10
of this Amended Agreement, below, occurs to LFC or the Bank during the
term of this Amended Agreement. Xxxxxxxx, LFC and the Bank hereby
expressly covenant and agree, anything in this Amended Agreement to the
contrary notwithstanding, including, without limitation, the provisions
of Sections 3 through 6 and Sections 9 and 10 of this Amended
Agreement, that any payments made to Xxxxxxxx by Bank pursuant to this
Amended Agreement, or otherwise, are in all respects expressly subject
to and conditioned upon their compliance with the provisions of 12
U.S.C. Section 1828(k) and any regulations promulgated thereunder.
(b) Bank shall pay Xxxxxxxx his annual base salary on
a monthly basis on the first day of each month, subject to normal
salary deductions for the amount so owing, including, but not limited
to, Social Security, Medicare, federal and state income withholding
taxes. Xxxxxxxx'x base annual salary may be increased in the future,
from time to time, by the actions of LFC's or the Bank's Board of
Directors, based upon Xxxxxxxx'x performance and other relevant factors
and LFC's or the Bank's Board of Directors will review Xxxxxxxx'x
salary for the purposes of determining any appropriate increase in the
base annual salary of Xxxxxxxx at least annually. In addition, LFC or
Bank may, from time to time, enter into supplemental agreements or
memoranda in writing with Xxxxxxxx for the award and payment to him of
additional compensation or bonuses upon such terms and conditions as
LFC or Bank shall deem to be in their respective best interests, and in
the event of the execution by LFC or Bank of any such agreement or
memoranda, the right of Xxxxxxxx to
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additional compensation or bonuses shall be determined in accordance
with the applicable provisions thereof. In the absence of any such
supplemental agreements or memoranda and expressly subject to
Xxxxxxxx'x rights and benefits: (i) under Section 9, below, in the
event of the termination of his employment "without cause" or due to
his resignation for "Good Reason," as defined and provided for in
Section 9, below, or (ii) his rights and benefits in the event of a
"Change of Control" occurring to LFC or the Bank, as defined in Section
10 of this Amended Agreement, below, neither LFC nor Bank shall be
obligated to pay to Xxxxxxxx any additional compensation or bonus
whatsoever, irrespective of the payments of additional compensation or
bonus to Xxxxxxxx in any past or succeeding year, or the payment of
additional compensation or bonus to other employees of LFC or the Bank
at the end of the year, but may do so in the sole discretion of LFC's
or the Bank's Board of Directors, respectively, and the determination
of LFC's or the Bank's Board of Directors, respectively, in the
exercise of such discretion, with respect to the payment and amount of
any additional compensation or bonus to Xxxxxxxx for any fiscal year of
LFC or Bank if made, shall be final and conclusive.
4. GRANTING OF STOCK OPTIONS. As an additional inducement to
Xxxxxxxx to enter into this Amended Agreement with LFC and Bank and to render
his services to LFC and Bank upon a long-term basis and as additional
compensation to him for services to be rendered under the provisions of this
Amended Agreement, LFC, has granted to Xxxxxxxx certain stock options to acquire
LFC's Common Stock. The stock options have been granted by LFC to Xxxxxxxx
pursuant to that certain Local Financial Corporation 1998 Stock Option Plan
("Plan"). In order to evidence these stock options, LFC has executed and entered
into with Xxxxxxxx that certain 1998 Non-Qualified Stock Option Agreement dated
effective as of September 23, 1998 ("Stock Option Agreement"), which sets forth
the terms and conditions of the stock options granted to Xxxxxxxx by LFC in
accordance herewith and the manner and method of exercising such options and
acquiring such stock by Xxxxxxxx. Attached as Exhibit "A" to this Amended
Agreement, and by this reference made a part hereof, is an executed copy of the
Stock Option Agreement.
5. XXXXXXXX'X ADDITIONAL EMPLOYMENT BENEFITS. In addition to
the annual base salary and the discretionary bonuses, provided for in Section 3
above, LFC and Bank agree to provide to Xxxxxxxx, or to reimburse Xxxxxxxx for,
the following additional employment benefits and expenses:
(a) During the term of this Amended Agreement, Bank
shall furnish and provide to Xxxxxxxx, at its sole cost and expense,
the following described employee benefits, upon the same basis that
Bank accords these same benefits to its other executive employees. In
the event Bank does not provide any of the following benefits to its
executive level employees, it shall not be required to initiate a
program solely to provide such benefits to Xxxxxxxx. However, if Bank
should at any time in the future provide such benefits to its
employees, any such benefits shall also be provided to Xxxxxxxx upon
the same basis that it is provided to such other employees of Bank,
whether or not such benefit is listed below:
(i) hospitalization, dental, accident and
major medical insurance benefits to Xxxxxxxx and all members
of Xxxxxxxx'x immediate family. The
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opportunity to participate in any group life insurance program
on a basis comparable to the participation provided under any
plans of such kind to other executive officers of Bank. In any
case, Bank will be expected to make contributions towards the
cost of such plans for Xxxxxxxx at the same rate and in the
same manner as it makes for its other employees of like status
who participate therein.
(ii) The right and opportunity to
participate in and become vested under and pursuant to the
Defined Benefit Pension Plan maintained by Bank, or any other
qualified pension and profit sharing plans hereafter
maintained by Bank, upon the same basis accorded to other
full-time employees of Bank. In addition, Bank shall provide
to Xxxxxxxx such other fringe benefits as may be provided by
Bank to its executives, or its other employees, in accordance
with the policies heretofore or hereafter adopted by Bank.
(b) In addition to the above and foregoing fringe
benefits of employment which the Bank customarily provides to all of
its executive employees, Xxxxxxxx shall be entitled to receive the
following specific additional benefits in consideration and as
additional compensation to him for entering into this Amended Agreement
and agreeing to provide the services required herein to LFC and to the
Bank:
(i) Payment of his dues for an individual
membership in his name in a golf and country club of his
choosing located in Oklahoma County, Oklahoma; provided,
however, the Bank's obligation shall be for dues and any
member assessments only, and it shall have no obligation to
pay any charges or expenses incurred by Xxxxxxxx as a member
of the aforesaid country club; and
(ii) Throughout the term of this Amended
Agreement, Xxxxxxxx shall be provided an automobile of a type
and kind comparable to that which Bank provides to its other
executive officers for use in their employment by the Bank.
(c) In addition to the compensations set forth above,
Xxxxxxxx shall also be entitled to reimbursement by LFC or the Bank for
his actual out-of-pocket expenses incurred in the conduct of LFC's or
the Bank's business, respectively, which shall be limited to ordinary
and necessary items and such other valid expenditures as may be
determined to be appropriate expenditures on behalf of LFC or the Bank
by their respective Board of Directors, from time to time. The
reimbursement of said expenses and the amounts and the extent to which
they shall be reimbursed shall be decided on a case-by-case basis by
the respective Board of Directors of LFC or the Bank, as the case may
be; provided, however, the respective Board of Directors of LFC or the
Bank may, at any time, and from time to time, establish a policy or
policies for allowing certain amounts for reimbursements of certain
types of specified business expenses incurred by Xxxxxxxx. Xxxxxxxx
shall, in every instance, wherever practical, support any claims for
reimbursement for expenses by adequate proof of such expenditures in
the form of cancelled checks, vouchers, bills, or in any other forms
satisfactory to the respective Board of Directors of LFC or the Bank,
as the case may be.
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(d) Xxxxxxxx shall be entitled to such period of
vacation with pay during any one (1) year of the term of this Amended
Agreement as may be permitted by the Board of Directors of Bank on a
case-by-case basis, in its sole discretion, or pursuant to any policy
established by the Board of Directors of the Bank for the benefit of
its executive employees, from time to time. Xxxxxxxx agrees that he
will take vacation days only at such times that will not unduly
interfere with or hamper the operation of the Bank's business. Xxxxxxxx
shall not be entitled to receive any additional compensation from the
Bank on account of his failure to take a paid vacation as authorized
pursuant to this Subsection 5(d). Xxxxxxxx shall also not be entitled
to accumulate unused paid vacation time from one calendar year to the
next calendar year during the term of this Amended Agreement.
6. DISABILITY.
(a) For purposes of this Amended Agreement, Xxxxxxxx
shall be deemed to be "disabled" or have a "disability" if Xxxxxxxx
shall have an illness, injury or other physical or mental condition
which results in Xxxxxxxx'x inability to perform substantially the
duties he performed in his employment capacity for LFC and Bank under
this Amended Agreement to the extent he was performing such duties
immediately prior to the commencement of such condition.
(b) If Xxxxxxxx shall be disabled for not more than
ninety (90) days during any twelve (12) month period of the term of
this Amended Agreement, then, Xxxxxxxx, during the continuance of such
disability, shall remain employed by Bank hereunder, shall continue to
receive his base salary and other compensation pursuant to this Amended
Agreement and otherwise shall continue to have all of the rights and be
subject to all of Xxxxxxxx'x obligations and duties under this Amended
Agreement, other than the obligation and duty to render services to
Bank otherwise in accordance with this Amended Agreement during the
period of such disability.
(c) If Xxxxxxxx shall be disabled for more than
ninety (90) days during any twelve (12) month period during the term of
this Amended Agreement, but not more than one hundred twenty (120) days
during any twelve (12) month period, then, from and after the
expiration of the ninetieth (90) day of disability and during the
continuance of such disability up to and including the day immediately
preceding the one hundred twentieth (120th) day, Xxxxxxxx shall be
deemed to have taken a leave of absence from the Bank commencing on the
ninetieth (90th) day of such disability and, during the continuance of
such disability, the following provisions shall apply:
(i) Xxxxxxxx'x annual base salary shall be
apportioned up to and including the ninetieth (90th) day of
such disability and from and after the ninetieth (90th) day of
such disability and up to and including the day immediately
preceding the one hundred twentieth (120th) day of such
disability, neither LFC nor Bank shall pay any salary to
Xxxxxxxx and Xxxxxxxx shall receive no salary from LFC or
Bank;
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(ii) Bank, in the sole discretion of its
Board of Directors, shall have the right and power to remove
Xxxxxxxx from the positions of Chairman of the Board of
Directors and Chief Executive Officer of the Bank, and LFC, in
turn, in the sole discretion of LFC's Board of Directors,
shall have the right and power to remove Xxxxxxxx from the
positions which he holds as LFC's Chairman of the Board of
Directors and Chief Executive Officer, or either of them may
delegate all or any portion of Xxxxxxxx'x duties as Chairman
of the Board of Directors and Chief Executive Officer of the
Bank or LFC, respectively, to one or more other employees of
the Bank or LFC, respectively, as they shall see fit in their
respective, sole discretion; and
(iii) Xxxxxxxx shall otherwise have all of
the rights and be subject to all of Xxxxxxxx'x obligations and
duties under this Amended Agreement, except that Xxxxxxxx
shall have no obligation or duty to render services to LFC or
the Bank, respectively, otherwise in accordance with this
Amended Agreement during such period of time; provided that
LFC or the Bank shall be excused from providing any insurance
coverage or benefits which, by reason of Xxxxxxxx'x
disability, LFC or the Bank shall not be able to obtain,
continue or maintain at substantially the same cost or expense
or substantially the same terms and conditions that LFC or the
Bank was able to obtain, continue or maintain immediately
prior to the commencement of Xxxxxxxx'x disability.
(d) If Xxxxxxxx shall be disabled for more than one
hundred twenty (120) days in any twelve (12) month period during the
term of this Amended Agreement, the employment of Xxxxxxxx by LFC and
Bank hereunder shall cease and terminate pursuant to the provisions of
Section 9, below.
(e) If LFC and the Bank and Xxxxxxxx are unable to
agree whether Xxxxxxxx is disabled within the meaning of this Section
6, then this issue shall be submitted to arbitration in the manner
provided for in Section 14 of this Amended Agreement below.
7. STANDARDS. Xxxxxxxx shall perform all of his duties and
responsibilities under this Amended Agreement in accordance with such reasonable
standards as are established from time to time by the Board of Directors of the
Bank or of LFC, respectively. The reasonableness of such standards shall be
measured against standards for executive performance generally prevailing
commercial banking industry.
8. CONFIDENTIAL INFORMATION.
(a) Xxxxxxxx acknowledges that in Xxxxxxxx'x
employment under this Amended Agreement, Xxxxxxxx will be making use
of, acquiring and adding to the Bank's trade secrets and its
confidential and proprietary information of a special and unique nature
and value relating to such matters as, but not limited to, the Bank's
depositor list, loan customers, business operations, internal
structure, financial affairs, programs, software, systems, procedures,
manuals, confidential reports, lists of investors and prospective
investors
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and sales and marketing methods, as well as the amount, nature and type
of services and methods used and preferred by the Bank and its
investors, all of which shall be deemed to be Confidential Information
for purposes of this Amended Agreement. Xxxxxxxx acknowledges that such
Confidential Information has been and will continue to be of central
importance to the business of the Bank and that disclosure of it to, or
its use by, others could cause substantial loss to the Bank.
Accordingly, during the term of this Amended Agreement and upon and
after leaving the employ of Bank for any reason whatsoever, Xxxxxxxx
shall not, for any purpose whatsoever, directly or indirectly, divulge
or disclose to any person or entity any of such Confidential
Information which was obtained by Xxxxxxxx as a result of Xxxxxxxx'x
employment with Bank or any trade secrets of the Bank, but shall hold
all of the same confidential and inviolate.
(b) All contracts, agreements, financial books,
records, instruments and documents, a depositor list, borrower list,
investor list, memoranda, data, reports, programs, software, tapes,
rolodexes, telephone and address books, letters, research, cardex,
listings, programming and any other instruments, records or documents
relating or pertaining to the business of LFC or of the Bank
(collectively herein the "Records") shall at all times be and remain
the property of LFC and the Bank, respectively. Upon termination of
this Amended Agreement and Xxxxxxxx'x employment under this Amended
Agreement for any reason whatsoever, Xxxxxxxx shall return to LFC or
the Bank, respectively, all Records (whether furnished by LFC or the
Bank or prepared by Xxxxxxxx).
(c) All inventions and other creations, whether or
not patented, or copyrightable, and all ideas, reports and other
creative works, including, without limitation, computer programs,
manuals and related materials, made or conceived in whole or in part by
Xxxxxxxx while employed by LFC or the Bank which relate in any manner
whatsoever to the business, existing or proposed, of LFC or the Bank or
any other business or research or developmental efforts in which LFC or
the Bank, or any of its subsidiaries or affiliates engages in during
Xxxxxxxx'x employment by LFC and the Bank will be disclosed promptly by
Xxxxxxxx to LFC and the Bank and shall be the sole and exclusive
property of LFC or the Bank, as the case may be.
9. TERMINATION OF EMPLOYMENT.
(a) The Board of Directors of the Bank and/or the
Board of Directors of LFC, respectively, may terminate Xxxxxxxx'x
employment by the Bank and/or by LFC, respectively, under this Amended
Agreement, with or without "Cause," at any time during the term hereof,
effective upon delivery of written notice to that effect to Xxxxxxxx,
but any such termination by the Bank or LFC, as the case may be, of
Xxxxxxxx'x employment, other than termination of his employment for
"Cause," as defined below in this Section 9(a), or as a result of
Xxxxxxxx'x voluntary resignation, without "Good Reason," as that term
is defined below in Section 9(b), shall not prejudice Xxxxxxxx'x right
to receive as liquidated damages the full amount of the remaining
compensation which would have otherwise been paid him throughout the
term of this Amended Agreement and to receive all such other fringe
benefits which he would have otherwise been entitled to receive during
the then remaining term of
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this Amended Agreement, as provided above in Section 3, subject only to
Xxxxxxxx'x prior and paramount rights to receive the severance benefits
specifically accorded to him pursuant to the provisions of Section 10,
below, of this Amended Agreement, which shall arise in the event that a
"Change of Control," as defined in Section 10, below, occurs to LFC or
the Bank during the term of this Amended Agreement. The severance
rights, benefits and entitlements set forth in Section 10, below,
shall, in the event a Change of Control occurs to LFC or the Bank, be
deemed to supersede, substitute for and supplant Xxxxxxxx'x rights to
receive the benefits and entitlements accorded to Xxxxxxxx under this
Section 9, such that Xxxxxxxx shall look solely to his rights to be
paid the severance benefits and payments under Section 10, below, in
the event a Change of Control occurs to LFC or the Bank while he is
employed by either of them, in lieu of his rights under this Section 9.
Xxxxxxxx'x rights, benefits and entitlements under this Section 9 shall
apply to the termination of his employment by LFC or the Bank during
the term of this Amended Agreement where a Change of Control has not
occurred to either LFC or the Bank. On the other hand, Xxxxxxxx shall
not have any right to receive any further compensation or any other
benefits to which he would have otherwise been entitled under this
Amended Agreement after either (i) his voluntary resignation from his
employment by the Bank or LFC, during the term of this Amended
Agreement, without "Good Reason," as that term is defined below in this
Section 9 (in the absence of a Change of Control having occurred to LFC
or the Bank, as provided in Section 10, below); or (ii) after his
termination from his employment for "Cause" by the Bank or LFC, in
accordance with the terms of this Amended Agreement, except for the
vested rights of Xxxxxxxx hereunder, i.e., any and all compensation
benefits and rights which Xxxxxxxx was entitled to receive prior to the
effective date of such termination. For all purposes under this Amended
Agreement, termination for "Cause" shall mean termination because of
Xxxxxxxx'x personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure
to perform stated duties under this Amended Agreement, willful
violation of any law, rule or regulation (other than traffic violations
or similar offenses) or of a final cease-and-desist order, or any
material breach by Xxxxxxxx of any provisions of this Amended Agreement
or the death or permanent disability, as that term is defined below, of
Xxxxxxxx occurring during the term of this Employment Agreement. For
purposes of this Employment Agreement, the term "permanent disability"
shall mean if Xxxxxxxx shall have an illness, injury or other physical
or mental condition which results in Xxxxxxxx'x inability to perform
substantially all of the duties he performs in his employment capacity
for the Bank or LFC to the extent he was performing such duties
immediately prior to the commencement of such condition and that such
disability has continued for a period of more than one hundred twenty
(120) days in any consecutive twelve (12) month period during the term
of this Amended Agreement. Subject to the additional rights of LFC and
the Bank under Section 6, above, if Xxxxxxxx shall be so disabled for
more than one hundred twenty (120) days in a twelve (12) month period
during the term of this Amended Agreement, the employment of Xxxxxxxx
by the Bank and LFC shall be deemed by reason of his said permanent
disability to have been for all purposes hereunder terminated for
"Cause." In determining the incompetence of Xxxxxxxx, the acts or
omissions of Xxxxxxxx shall be measured against standards generally
prevailing in the commercial banking industry. Unless: (i) Xxxxxxxx
voluntarily resigns from his employment by LFC and the Bank without
"Good Reason," as that term is defined in this Section 9(b), below,
during the term of this Amended
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Agreement; or (ii) Xxxxxxxx'x employment under this Amended Agreement
is terminated by the Bank or LFC for "Cause," as defined above, LFC and
the Bank shall be obligated to continue to pay to Xxxxxxxx his
compensation and to provide to him all other benefits of his employment
as set forth in this Amended Agreement in the manner described in
Section 3, above, during the remaining term of this Amended Agreement,
after the termination of his employment, unless he is otherwise
entitled to receive instead, at such time, the specific severance
benefits accorded him under the provisions of Section 10, below,
because a "Change of Control" has occurred to LFC or the Bank. The said
severance benefits accorded to Xxxxxxxx under Section 10, below, after
a Change of Control, shall be deemed to control over and substitute for
the rights and benefits accorded to Xxxxxxxx under this Section 9, as
provided above. LFC, the Bank and Xxxxxxxx agree that it would be
difficult to ascertain the amount of damages owing to Xxxxxxxx if this
Amended Agreement is terminated: (i) without "Cause," or (ii) he
resigns for "Good Reason" during the term of this Amended Agreement.
Accordingly, the amount to be paid by LFC and Bank to Xxxxxxxx as
compensation and the other benefits to be provided by LFC and Bank to
Xxxxxxxx during the remaining term of this Amended Agreement, in the
event of the termination of his employment for one of those reasons,
shall be deemed to be liquidated damages for the termination of this
Amended Agreement in either such event, as provided for in Section 3,
above, or below in this Section 9(a), and not as a forfeiture or
penalty. Xxxxxxxx, LFC and Bank specifically covenant and agree that
the amount of such liquidated damages, as determined in the manner set
forth below in this Section 9(a) and in Section 3, above, would be a
fair and reasonable amount of damages for Xxxxxxxx to receive due to
the termination of his employment under such circumstances and that the
right to receive such compensation as liquidated damages shall be
Xxxxxxxx'x sole and only remedy in such event, except for and subject
to the prior and superior rights of Xxxxxxxx to the severance benefits
set forth and described in Section 10, below, in the event a "Change of
Control" has occurred to LFC or the Bank. Specifically, as provided in
Section 3, above, if Xxxxxxxx'x employment under this Amended Agreement
is terminated: (i) without "Cause," or (ii) he resigns for "Good
Reason" during the term of this Amended Agreement, then, and in such
event, he shall be entitled to receive from LFC or the Bank as
liquidated damages by reason thereof, the following: (x) the full
amount of his remaining guaranteed salary under this Amended Agreement
to be paid to him in monthly installments in the same amount and manner
as if he had remained employed by LFC or the Bank during the term of
this Agreement which shall be remaining after the date his employment
is so terminated; plus (y) the sum obtained by dividing the average
amount of the annual cash bonuses which were paid to Xxxxxxxx for the
three (3) calendar years immediately preceding the date of the said
termination of his employment by twelve (12) and paying the amount so
determined to him each month (or a pro-rated amount for any portion of
any such remaining month) which shall be remaining in the term of this
Amended Agreement as of the date of the said termination of his
employment at the same time, and together with, the monthly base salary
payments being made to him, as described above, and (z) causing him to
continue to receive all of the other fringe benefits and entitlements
of his employment which he was receiving pursuant to Section 5 of this
Amended Agreement on the date of the termination of his said employment
and which he would have otherwise received for the then remaining term
of this Amended Agreement (or the economic
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equivalency thereof) as fully as if he had remained employed by LFC or
the Bank during the entire said remaining term thereof.
(b) For all purposes in this Amended Agreement and,
in particular, this Section 9, the term "Good Reason" with respect to
Xxxxxxxx shall have the following meaning:
(i) A significant diminution of Xxxxxxxx'x
Role, as that term is defined below in this Section 9(b), if
the diminution in his Role is not reasonably related to an
adverse change in his performance of his assigned duties at
LFC or the Bank; provided that Good Reason shall not exist
under this clause in the case of termination for Cause, as
that term is defined above, in Section 9(a), or diminution of
his Role by reason of the voluntary actions of Xxxxxxxx, or on
account of disability, retirement or death, as described and
defined above, in this Amended Agreement, or the voluntary
termination by Xxxxxxxx of his employment with LFC or Bank
other than for a Good Reason, as defined hereunder;
(ii) (x) A reduction in the base salary
and/or bonuses paid to Xxxxxxxx to an amount such that the sum
of his base salary and cash bonuses as so reduced is less than
the sum of his base salary, as of the Effective Date of this
Amended Agreement, plus an amount equal to the average of the
annual cash bonuses which were paid to Xxxxxxxx for the three
(3) immediately preceding calendar years, or (y) a failure
after twenty (20) days' written notice by Xxxxxxxx to LFC and
the Bank of LFC or the Bank to pay Xxxxxxxx any installment
owing to him of such salary or bonus;
(iii) The failure by LFC or Bank to provide
Xxxxxxxx with any material benefit that is provided to the
executive officers of LFC and the Bank generally, or any
action or inaction by LFC or the Bank which could adversely
affect his continued participation in any benefit plan,
entitlements or other arrangements of Bank or LFC, or his
ability to enjoy or realize upon any material benefit under
any such plan, entitlement or arrangement;
(iv) LFC's or the Bank's assigning Xxxxxxxx,
without his prior written consent, to perform his duties under
the Agreement at a location anywhere other than Oklahoma
County, State of Oklahoma; or
(v) The failure by LFC or the Bank to obtain
the assumption of all of their obligations under this Amended
Agreement and under the Stock Option Agreement made and
entered into by and between LFC and Xxxxxxxx, as referenced
above, by the Successor, or to otherwise comply with the terms
and provisions of Subsection 10(c), below.
(vi) "Role" shall have the meaning for all
purposes under this Amended Agreement of (x) prior to any
Change of Control, as defined herein, Xxxxxxxx'x authority or
responsibilities with the Bank or LFC on the Effective Date
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of this Amended Agreement; or any enhanced Role (other than by
way of an interim or otherwise expressly temporary
appointment) to which he had ascended from the Effective Date
of this Amended Agreement to the consummation date of any
Change of Control; and (y) after the consummation of any
Change of Control, the authority and responsibilities with the
Successor described in writing by such Successor prior to the
Change of Control and which is reasonably commensurate with
Xxxxxxxx'x Role, as defined in clause (x) above, in this
definition thereof.
(c) If Xxxxxxxx is suspended and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a
notice served under the provisions of Section 8(e)(3) or (g)(1) of the
Federal Deposit Insurance Act [12 U.S.C. Section 1818(e)(3) and
(g)(1)], the Bank's obligations under this Amended Agreement shall be
suspended as of the date of service of said notice pursuant to the Act
unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank may, in its discretion, (i) pay Xxxxxxxx all or
part of the compensation which was withheld by the Bank while its
obligations under this Amended Agreement were suspended in accordance
herewith, and (ii) reinstate (in whole or in part) any of its
obligations which were so suspended.
(d) If Xxxxxxxx is removed and/or permanently
prohibited from participating in the conduct of the Bank's affairs by
an order issued under Section 8(e)(4) or (g)(1) of the Federal Deposit
Insurance Act [12 U.S.C. Section 1818(e)(4) or (g)(1)], all obligations
of the Bank under this Amended Agreement shall terminate as of the
effective date of the order; provided, however, the vested rights of
the Bank and Xxxxxxxx under this Amended Agreement shall not be
affected thereby.
(e) If the Bank is in default (as defined in Section
3(x)(1) of the Federal Deposit Insurance Act), all obligations under
this Amended Agreement shall terminate as of the date of such default,
but this Section 9(e) shall not affect any vested rights of the Bank or
Xxxxxxxx under this Amended Agreement.
(f) All obligations under this Amended Agreement
shall be terminated, except to the extent determined that the
continuation of this Amended Agreement is necessary for the continued
operations of the Bank:
(i) by the Director of the Federal Deposit
Insurance Corporation, or his or her designee, at the time the
Federal Deposit Insurance Corporation enters into an agreement
to provide assistance to or on behalf of the Bank under the
authority contained in ' 13(c) of the Federal Deposit
Insurance Act; or
(ii) by the Director of the Federal Deposit
Insurance Corporation, or his or her designee, at the time the
Director, or his or her designee approves a supervisory merger
to resolve problems related to operation of the Bank, or when
the Bank is determined by the Director to be in an unsafe or
unsound condition.
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Any rights of the Bank or Xxxxxxxx under the Agreement that
have already vested, however, shall not be affected by such action.
(g) If Xxxxxxxx resigns voluntarily from his
employment by the Bank during the term of this Amended Agreement
without "Good Reason," as that term is defined in Section 9(b), above,
then, and in such event, all of the rights, benefits and entitlements
of Xxxxxxxx under this Amended Agreement, including without limitation,
his right to receive salary payments, shall cease on the date of such
voluntary resignation, except: (i) for the right to receive severance
and other benefits if a Change of Control has occurred to either LFC or
the Bank prior thereto, as expressly provided for in Section 10, below;
and (ii) for the rights of Xxxxxxxx which have vested prior to the date
of his voluntary resignation.
10. SEVERANCE BENEFITS TO BE PAID TO XXXXXXXX IN THE EVENT OF
A CHANGE OF CONTROL.
(a) For all purposes in this Amended Agreement and,
in particular, this Section 10, the following terms shall have the
respective meanings specified below:
(i) "Annual Cash Compensation" means the sum
of (a) Xxxxxxxx'x annual base salary in effect as of the date
of this Agreement, or if greater, Xxxxxxxx'x base salary in
effect at the time of the Change of Control, and (b) an amount
equal to the average of the annual cash bonuses which were
paid to Xxxxxxxx during the three (3) calendar years
immediately preceding the effective date of a Change of
Control.
(ii) "Bank" means (x) the Bank until a
Change of Control, and (y) the successor to the Bank upon a
Change of Control (the "Successor").
(iii) "Cause" shall have the same meaning
ascribed to that term in Section 9, above, in this Amended
Agreement.
(iv) "Change of Control" shall for all
purposes in this Amended Agreement mean the occurrence of any
of the following events:
(x) the consummation of any
agreement of merger, statutory share exchange or
consolidation pursuant to which either LFC or the
Bank is merged or consolidated into, or more than
eighty percent (80%) of the outstanding shares of
LFC's or the Bank's common stock are acquired by,
another corporation, partnership, limited liability
company or limited liability partnership, or any
other business entity; or
(y) another corporation or such
other business entity is merged or consolidated into
LFC or the Bank in circumstances under which the
outstanding shares of the LFC's or the Bank's common
stock are converted into or exchanged for cash or
securities of another such corporation
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or entity which was not a wholly-owned subsidiary of
LFC or the Bank at all times within one year prior to
the said merger or consolidation; or
(z) (1) the consummation of a sale
of fifty percent (50%) or more of the issued and
outstanding common stock of the Bank by LFC; or (2)
fifty percent (50%) or more of the issued and
outstanding common stock of LFC is acquired by
persons (including corporations or any other form of
business entity) who are acting in concert; or (3)
the consummation of the sale of all or substantially
all of the assets of the Bank by LFC, or of LFC by
the Bank.
(v) "LFC" means (x) LFC until a Change of
Control, and (y) the successor to LFC upon a Change of Control
(the "Successor").
(vi) "Severance Period" shall for all
purposes in this Amended Agreement mean a period of years
after Xxxxxxxx'x termination that is equal to the number by
which Xxxxxxxx'x Annual Cash Compensation is multiplied to
determine the Severance Benefit payable under the provisions
of this Amended Agreement.
(vii) "Successor" shall mean for all
purposes in this Amended Agreement any entity that assumes the
respective obligations of LFC and the Bank under this Amended
Agreement pursuant to subparagraph 10(c), below.
(b) If, during the term of this Amended Agreement, a
Change of Control is consummated as to either LFC or the Bank and at
any time prior to the fifth (5th) anniversary of the consummation of
that said Change of Control, as specifically defined above, the
employment of Xxxxxxxx is terminated (x) by LFC or the Bank, or their
respective Successor, without "Cause," or (y) by Xxxxxxxx'x voluntary
resignation from his employment, at any time, and for any reason
whatsoever, in his sole and absolute discretion, then, and in such
event, LFC, the Bank and/or the Successor shall be expressly obligated
to pay to Xxxxxxxx the following:
(i) The Bank or its Successor shall pay to
Xxxxxxxx, and/or LFC or its Successor shall pay or shall cause
the Bank or its Successor to pay to Xxxxxxxx, an amount (the
"Severance Benefit") equal to the sum of his Annual Cash
Compensation, multiplied by three (3), payable in equal
quarterly installments (i.e., every successive (3) month
period) from the date of said termination of his employment,
as provided above, until the date which is three (3) years
from the date of said termination, with the first said
quarterly installment thereof being due and payable within
five (5) days after the date of such termination of Xxxxxxxx'x
employment for the foregoing reasons. Xxxxxxxx shall have no
obligation to seek other employment or to otherwise attempt to
mitigate the effect of this Section 10 of this Amended
Agreement or the benefits payable hereunder in order to be
entitled to receive the Severance Benefit or the other
benefits hereunder, and any payment
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received by Xxxxxxxx from any other employment shall not serve
to reduce in any way the amount of the Severance Benefit
payable to him hereunder.
(ii) During the Severance Period, Xxxxxxxx
shall be entitled to all benefits under the group
hospitalization plan, healthcare plan, dental plan, life or
other insurance or death benefit plan, or any similar benefit
plan or program of LFC and the Bank or the Successor for which
key executives of LFC, the Bank or the Successor are eligible,
to the same extent as if Xxxxxxxx had continued to be an
employee of LFC or the Bank at a compensation level equal to
his Annual Cash Compensation, and Xxxxxxxx'x share of the
costs shall be the same as that cost, if any, for which
Xxxxxxxx was responsible while an employee of LFC and the
Bank. If any such plan or program does not permit continued
participation by Xxxxxxxx, or does not permit continued
participation by Xxxxxxxx through the end of the Severance
Period, LFC, the Bank or the Successor shall arrange to
provide Xxxxxxxx with substantially similar benefits through
the end of the Severance Period, with Xxxxxxxx responsible
solely for that share of the costs with regard to such
benefits which he was formerly paying as outlined above. At
Xxxxxxxx'x sole and exclusive option, Xxxxxxxx may elect to be
paid in cash an amount equivalent to LFC's, the Bank's or the
Successor's costs of providing such benefits during the
Severance Period, such election to be made within thirty (30)
days after Xxxxxxxx'x said termination of employment, with
such payment to be made to him within ten (10) days after his
delivery of such election to LFC, the Bank or the Successor
hereunder.
(iii) Any stock options, restricted stock or
other stock or stock-based awards to Xxxxxxxx shall
immediately vest and become exercisable to the extent exercise
is required and all restrictions on the ability of Xxxxxxxx to
obtain the full economic benefit of such vested awards shall
immediately lapse.
(c) If LFC or the Bank enters into a definitive
agreement that would result in a Change of Control, as defined herein,
then LFC and the Bank may elect (i) to assign this Amended Agreement to
the Successor effective on the occurrence of the Change of Control,
provided that such Successor shall assume in writing all of the
obligations of LFC and the Bank hereunder and under that certain Stock
Option Agreement by and between LFC and Xxxxxxxx of even date herewith
and shall expressly acknowledge that a Change of Control of LFC or the
Bank has occurred within the meaning of this Amended Agreement so as to
entitle Xxxxxxxx to be paid the Severance Benefit and other benefits
set forth in Section 10(b) of this Agreement, above, if, in the five
(5) year period following the consummation of that Change of Control
his employment is terminated either (i) without "Cause" by LFC, the
Bank or the Successor, or (ii) by reason of his voluntary resignation
from his employment, for any reason whatsoever, in his sole discretion,
and provided further that LFC and the Bank shall remain liable for the
performance of all of their respective obligations under this Amended
Agreement if the Successor fails to so perform any of its assumed
obligations under this Amended Agreement; or (iii) to terminate this
Amended Agreement upon written notice to Xxxxxxxx given pursuant to the
terms and conditions of this Amended Agreement not later than thirty
(30) days after the execution of any such
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definitive agreement to effect such a Change of Control, to be
effective on the date the Change of Control is consummated or
effective, and, upon the consummation of the Change of Control, paying
to Xxxxxxxx, in readily available funds, a lump sum amount equal to:
(x) his compensation and benefits under this Amended Agreement to the
date on which such termination shall take effect (i.e., on the
consummation date of the Change of Control), (y) the full amount of the
Severance Benefit as provided for in this Section 10, above, and (z)
the full value of all such other benefits as are also to be provided to
Xxxxxxxx as the result of the termination of his employment without
"Cause," or due to his voluntary resignation, after the occurrence of a
Change of Control, as set forth and provided in Section 10(b)(ii) and
(iii), above.
(d) All payments to be made to Xxxxxxxx under this
Amended Agreement will be subject to required withholding of federal,
state and local income and employment taxes. Notwithstanding anything
in this Amended Agreement to the contrary, if any of the payments
provided for in this Amended Agreement, together with any other payment
which Xxxxxxxx has the right to receive from LFC or the Bank, or any
other corporation which is a member of an "affiliated group" (as
defined in Section 1504(a) of the Internal Revenue Code of 1986
("Code") without regard to Section 1504(b) of the Code) of which LFC or
the Bank is a member, would constitute an "Excess Parachute Payment"
(as defined in Section 280Gb(2) of the Code), the payments pursuant to
this Amended Agreement shall be reduced to the largest amount that will
result in no portion of such payments being subject to the excise tax
imposed by Section 4999 of the Code; provided, however, that the
determination as to whether any reduction in the payment under this
Amended Agreement pursuant to this proviso is necessary shall be made
by Xxxxxxxx in good faith, and such reasonable determination shall be
conclusive and binding upon the Bank with respect to its treatment of
the payment for tax reporting purposes and, provided further, that
Xxxxxxxx may determine in his discretion what payment or benefit so
provided to him herein shall be so reduced.
11. NO ASSIGNMENT OR SUCCESSION; DEATH OF XXXXXXXX. This
Amended Agreement is personal to Xxxxxxxx and to the Bank and LFC. Neither
Xxxxxxxx nor the Bank or LFC may assign or delegate any of his or their
respective rights or obligations under this Amended Agreement without first
obtaining the prior written consent of all of the other parties hereto. In the
event of Xxxxxxxx'x death during the term of this Amended Agreement, all of the
rights and entitlements of Xxxxxxxx under this Amended Agreement shall cease
except for the rights of Xxxxxxxx which have vested prior to the date of his
death. Any and all remaining vested compensation or benefits to which Xxxxxxxx
is entitled under this Amended Agreement prior to the date of his death shall be
payable by Bank to the estate of Xxxxxxxx or to the person designated by
Xxxxxxxx in his Last Will and Testament to receive such payments or benefits. In
the event the Bank is involuntarily dissolved for any reason by the Comptroller
of the Currency ("OCC"), or the Federal Deposit Insurance Corporation ("FDIC"),
or any other governmental entity having authority over the Bank, this Amended
Agreement shall terminate as of the date of such dissolution and Xxxxxxxx shall
have no further rights except for the rights which are vested in him prior to
the effective date of such dissolution.
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12. AMENDMENTS OR ADDITIONS: ACTION BY LFC'S OR THE BANK'S
BOARD OF DIRECTORS. No amendments or additions to this Amended Agreement shall
be binding unless in writing and executed by both LFC and the Bank and by
Xxxxxxxx. The prior approval by the affirmative vote of the majority of the full
Board of Directors of the Bank or of LFC, respectively, shall be required in
order for the Bank or LFC, respectively, to authorize and execute any amendments
or additions to this Amended Agreement, to give any consents or waivers of the
provisions of this Amended Agreement, or to take any other action under this
Amended Agreement, including any termination of the employment of Xxxxxxxx, with
or without cause, under the provisions of Section 9(a), above.
13. REIMBURSEMENT OF DISALLOWED EXPENSES. If any expenses paid
by LFC or the Bank for Xxxxxxxx or any reimbursement of expenses by LFC or the
Bank to Xxxxxxxx shall, upon audit or other examination of the income tax
returns of LFC or the Bank, be determined not to be allowable deductions from
the gross income of LFC or the Bank, as the case may be, and such determination
shall be acceded to by LFC or the Bank, respectively, or such determination
shall be made final by the appropriate taxing authority or a final judgment of a
court of competent jurisdiction, and no appeal shall be taken therefrom, or the
applicable period for the filing of a notice of appeal shall have expired, then,
and in such event, Xxxxxxxx shall rebate to LFC or the Bank, as the case may be,
the dollar amount of the expenses so disallowed by such taxing authority. Such
repayment may not be waived by LFC or by the Bank, respectively.
14. BINDING ARBITRATION. Unless LFC, Bank and Xxxxxxxx all
expressly agree otherwise in writing, all disputes relating to this Amended
Agreement, or any breach thereof or the meaning and effect of any term and
provisions hereof, shall be submitted to binding arbitration by Bank, LFC and
Xxxxxxxx pursuant to the provisions of the Oklahoma Uniform Arbitration Act, 15
O.S. Section 801, et seq. (the "Act"), and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "Rules"). In the
event a dispute arises which cannot be informally resolved by the parties
hereto, a panel of three (3) arbitrators shall be selected to settle the
dispute. Within twenty (20) days following the demand by either party for
arbitration of a dispute arising under this Amended Agreement, LFC and Bank
shall jointly designate an arbitrator knowledgeable and experienced in
commercial banks and Xxxxxxxx shall designate an arbitrator knowledgeable and
experienced in commercial banks. The two (2) arbitrators so appointed shall
together appoint a third arbitrator, also knowledgeable and experienced in
commercial banks, within twenty (20) days following the appointment of the last
arbitrator so selected by either LFC and the Bank or by Xxxxxxxx. In the event
that the two (2) arbitrators selected by LFC and the Bank and by Xxxxxxxx are
unable to mutually select a third arbitrator within the twenty (20) day period,
the third arbitrator shall be selected by the then presiding judge of the
Oklahoma County, Oklahoma District Court. If the presiding judge of the Oklahoma
County, Oklahoma District Court is unable or unwilling to make such selection,
the parties will request that the Chief United States District Judge of the
United States District Court for the Western District of Oklahoma make such
selection. The panel of three (3) arbitrators shall then determine a time and a
place for the hearing and shall notify the parties in writing personally or by
registered mail no less than twenty (20) days before the hearing. The
arbitrators will hear the dispute in accordance with the Act and the Rules. Each
party hereto shall be entitled to be represented by counsel and each party shall
be solely responsible for the fees of their respective counsel. A majority of
arbitrators shall render a final award within twenty (20) days
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following the conclusion of the hearing which shall be final and binding upon
all parties hereto. The expenses and fees of the third arbitrator mutually
selected by the first two (2) arbitrators shall be divided equally between the
parties. Each party shall be solely responsible for the expenses and fees of the
arbitrator whom it selected. The arbitrators may include, as part of any award,
for the recovery of attorney's fees by the prevailing party. All other expenses
incurred in the conduct of the arbitration shall be divided equally between the
parties. Judgment upon the award rendered by the arbitrators may be entered in
any court having jurisdiction thereof.
15. MISCELLANEOUS PROVISIONS.
(a) This Amended Agreement shall be binding upon, and
shall inure to the benefit of LFC, Bank and Xxxxxxxx and their
respective heirs, personal and legal representatives, successors and
assigns.
(b) LFC, Bank and Xxxxxxxx agree that the
construction and interpretation of this Amended Agreement shall at all
times and in all respects be governed by the laws of the United States
of America where applicable and otherwise in all respects by the laws
of the State of Oklahoma.
(c) All notices required or permitted herein must be
in writing and shall be deemed to have been duly given on the date of
service and served personally or by telecopier, telex, or other similar
communication to the party or parties to whom notice is to be given, on
the next day if notice is effected by overnight mail service, or on the
third business day after mailing in the United States mail, if mailed,
to the party or parties to whom notice is to be given by registered or
certified mail, return receipt requested, postage prepaid, to the
address of such party, as set forth in the first paragraph of this
Amended Agreement, or to such other address as any party to this
Amended Agreement may designate to the other from time-to-time for this
purpose in a manner complying with the provisions of this section. Any
communication which is mailed by overnight mail or sent by telecopier
or telex shall be confirmed immediately, but failure to so confirm
shall not affect the effectiveness of such notice from and after the
day on which such notice is actually received.
(d) Any provision of this Amended Agreement which is
prohibited or unenforceable in any jurisdiction shall not invalidate
the remaining provisions hereof and any prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
(e) This Amended Agreement contains the entire
agreement and understanding by and between LFC, the Bank and Xxxxxxxx
with respect to Xxxxxxxx'x employment by LFC and the Bank, as herein
described, and supersedes all prior agreements and understandings
between the parties to this Amended Agreement, relating to the subject
matter of this Amended Agreement. No change or modification of this
Amended Agreement shall be valid or binding unless the same is in
writing and signed by the party intending to be so bound. No waiver of
any provision of this Amended Agreement shall be valid unless the same
is in writing and signed by the party against whom such waiver is
sought
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to be enforced. Moreover, no valid waiver of any provision of this
Amended Agreement, at any time, shall be deemed to be a waiver of any
other provision of this Amended Agreement at such time, or will be
deemed a valid waiver of such provision at any other time.
(f) This Amended Agreement may be executed in two (2)
or more counterparts, each of which shall be deemed an original, but
all of which shall constitute one and the same instrument.
(g) Time shall be of the essence with regard to the
performance by the parties hereto of their respective obligations
hereunder.
IN WITNESS WHEREOF, LFC, the Bank and Xxxxxxxx have each duly
executed this Amended Agreement to be effective as of the date stated in the
first paragraph above.
LFC: LOCAL FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name: Xxx X. Xxxxxx
Title: President
Date: January 30, 2001
------------------------------------
BANK: LOCAL OKLAHOMA BANK, N.A.,
a national banking association
By: /s/ Xxx X. Xxxxxx
--------------------------------------
Name: Xxx X. Xxxxxx
Title: President
Date: January 30, 2001
------------------------------------
XXXXXXXX: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
XXXXXX X. XXXXXXXX
Date: January 30, 2001
------------------------------------
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