BOK FINANCIAL CORPORATION
Exhibit 10.4.1(a)
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made, effective this 17th day of
November, 1997 among Bank of Oklahoma, National Association (the "Bank"), BOK
Financial Corporation ("BOKF"), and V. ▇▇▇▇▇ ▇▇▇▇▇▇ an individual residing in
Oklahoma City, Oklahoma (the "Executive").
The Bank, BOKF, and Executive, in consideration of the promises and
covenants set forth herein (the receipt and adequacy of which is hereby
acknowledged) and intending to be legally bound hereby, agree as follows:
5(1) Purpose of This Agreement. The purpose of this agreement is as
follows:
(a) The Bank is a national association engaged in the banking
business in State of Oklahoma.
(b) Executive is currently engaged in the practice of law as a
stockholder in the Oklahoma City law firm of McAfee & ▇▇▇▇, A
Professional Corporation. Executive currently serves as a member
of the Board of Directors of the Bank and of BOKF.
(c) The purpose of this Agreement is to set forth the terms and
conditions on which the Bank shall employ Executive.
(2) Employment. The Bank hereby employs the Executive, and the Executive
hereby agrees to accept employment with the Bank, on the following
terms and conditions:
(a) BOKF shall cause Executive to be elected, and Executive shall
serve as, Vice Chairman of the Bank, subject to the direction of
the Chief Executive Officer of the Bank.
(b) Executive shall devote his full time, attention and efforts,
exclusively on behalf of the Bank except as otherwise expressly
provided in this Agreement.
(c) Executive shall devote all time and attention reasonably
necessary to the affairs of the Bank and shall serve the Bank
diligently, loyally, without any conflict of interest, and to the
best of his ability.
(e) Executive shall perform such duties as may be assigned to him
from time to time by the Chief Executive Officer of the Bank and
shall serve in such positions as an officer and/or director of
BOKF or any of its affiliates as the Chief Executive Officer of
BOKF shall may direct; provided, however, Executive's residence
and place of work shall remain in Oklahoma City, Oklahoma.
(f) Notwithstanding anything herein to the contrary:
(i) Executive shall not be precluded from engaging in any
charitable, civic, political or community activity or
membership in any professional organization;
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(ii) Bank consents to Executive appearing on the television show,
Flashpoint, currently airing on KFOR, Oklahoma City, and
KTUL, Tulsa, or a similar production in content and length
during the term of this contract and to retain the revenues
resulting therefrom for his own account.
(iii)Subject to the condition respecting compensation hereafter
set forth, Executive may serve as a member of the Board of
Directors of other corporations with the prior approval of
the Bank (which approval shall not be unreasonably
withheld).
(3) Compensation. As the sole, full and complete compensation to the
Executive for the performance of all duties of Executive under this
Agreement and for all services rendered by Executive to the Bank or to
any affiliate of the Bank:
(a) The Bank shall pay to Executive the sum of Two Hundred and
Twenty-Five Thousand dollars ($225,000) per year payable in
installments in arrears, less usual and customary payroll
deductions for FICA, federal and state withholding, and the like,
at the times and in the manner in accordance with the usual and
customary payroll policies generally in effect from time to time
at the Bank ("Annual Salary"). The Annual Salary shall be
increased effective as of each anniversary date to an amount at
least equal to (i) $225,000 times (ii) 1.03 to the Nth power
where N equals the number of agreement years the Agreement has
been in effect as of the anniversary date, if the Annual Salary
is otherwise less than such amount. For example and by way of
illustration, at the second anniversary date, the Annual Salary
would be increased so that the Annual Salary was at least equal
to $225,000 times 1.0609 or $238,702.50, if the Annual Salary
would otherwise be less than $238,500. As hereafter used in this
Agreement, Annual Salary shall mean the Annual Salary as
increased the Bank from time to time.
(b) The Bank shall pay and provide to Executive pension, thrift,
medical insurance, disability insurance plan benefits, and other
fringe benefits, generally in effect for senior executive
employees of the Bank and its affiliates (the "Additional
Benefits"). The pension benefits provided to Bank's employees are
fully described in the official plan document.
(c) The Bank may, from time to time in Bank's sole discretion
consistent with the practices generally in effect for senior
executive employees of the Bank and its affiliates, pay or
provide, or agree to pay or provide, Executive a bonus, stock
option, or other incentive or performance based compensation. All
such bonus, stock option or other incentive or performance based
compensation, regardless of its nature (hereinafter called
"Performance Compensation") shall not constitute Annual Salary.
(d) The Bank shall reimburse Executive for reasonable and necessary
entertainment, travel and other expenses in accordance with
BOKF's standard policies in general effect for senior executive
employees of BOKF's affiliates (which includes dues for lunch
clubs, but does not include reimbursement for country club
memberships or dues).
(e) The Executive shall be allowed vacation, holidays, and other
employee benefits not described above in accordance with the
Bank's standard policy in general effect for Bank's senior
executive employees; provided, however, Executive shall be
entitled to vacation during the first year of this Agreement.
(f) The Executive shall be awarded options to acquire 10,000 shares
of BOKF Common Stock at the same price, and on the same terms and
conditions, as options are awarded generally to Bank employees in
1997 pursuant to BOKF's 1997 Stock Option Plan. The Bank shall
consider Executive for the award of options in subsequent years
during the term of this Agreement on the same terms and
conditions as senior executives of the Bank are considered
generally.
(g) The Executive shall be paid the special compensation ("Special
Compensation") set forth in paragraph 4 below.
(h) In the event the Bank approves a request by Executive to serve on
the board of directors of another corporation and the Bank
determines, in its discretion, that such service is of benefit to
the Bank, Executive may accept and retain the usual and customary
board compensation paid by such corporation generally to its
directors; otherwise, any board compensation received by
Executive shall be received by Executive for the account of the
Bank and paid over to the Bank upon receipt.
(i) Executive hereby agrees to accept the foregoing compensation in
lieu of and as the sole, full and complete compensation to
Executive for the performance of all duties of Executive under
this Agreement and for all services rendered by Executive to the
Bank or any affiliate of the Bank (including service as a member
of the Board of Directors of BOKF and the Bank, or any committee
thereof).
(4) Special Compensation. The Special Compensation shall be the
compensation described in this paragraph.
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On or before the 1st day of December, 1997, Bank shall pay to Executive the
sum of Fifty Thousand Dollars ($50,000). In the event Executive is paid a bonus
by McAfee & ▇▇▇▇ in respect to 1997 (the "M&T Bonus") in excess of $25,000 (the
"Excess"), Executive shall receive the first $50,000 of such Excess for the
account of the Bank and, upon receipt, pay such excess over to the Bank.
(5) Term of this Agreement. The term of this Agreement (the "Term") shall
commence (the "Commencement") as of the 1st day of December, 1997 and
shall terminate on the fifth anniversary date of the Commencement.
(6) Termination of This Agreement. Notwithstanding the provisions of
paragraph 5 of this Agreement, this Agreement may be terminated by the
Bank for cause on the following terms and conditions:
(a) The Bank shall be deemed to have cause to terminate Executive's
employment only in one of the following events:
(i) The Executive shall, after one prior written notice,
willfully fail to substantially perform his obligations
under this Agreement (it being understood that any such
failure resulting from Executive's incapacity due to
physical or mental illness shall not be deemed willful);
(ii) Any act which is intended by Executive to materially injure
the Bank;
(iii) Any criminal act involving moral turpitude;
(iv) Any dishonest or fraudulent act; or,
(v) Any refusal to obey written orders or instructions of the
Board of Directors of the Bank, after one prior written
notice, unless such instructions would require Executive to
commit an illegal act, which could subject Executive to
personal liability, would require Executive to violate the
terms of this Agreement, or would otherwise be inconsistent
with the duties of an officer of a national banking
association.
(b) The Bank shall be deemed to have cause to terminate Executive's
employment only when a majority of the members of the Board of
Directors of the Bank finds that, in the good faith opinion of
such majority, the Executive committed any of the acts set forth
in clauses (i) through (vi) of the preceding subparagraph, such
finding to have been made after at least ten (10) business days'
notice to the Executive and an opportunity for the Executive,
together with his counsel, to be heard before such majority. The
determination of such majority, made as set forth above, shall be
binding upon the Bank, BOKF, and the Executive, absent bad faith
or willful misconduct.
(c) The effective date of a termination for cause shall be the date
of the action of such majority finding the termination was with
cause. In the event the Bank terminates this Agreement for cause,
(i) the Bank shall pay Executive the Executive's then Annual
Salary through, but not beyond, the effective date of the
termination and (ii) the Executive shall receive those benefits
accrued through but not beyond the effective date of such
termination which are thereafter payable under the terms and
provisions of benefit plans then in effect in accordance with
paragraph 3 above.
(a) The Bank may terminate Executive's services under this Agreement;
provided, however, the Executive shall continue to receive the
Annual Salary and the Additional Benefits for the term of this
Agreement reduced only by any compensation actually received for
work performed during the term of this Agreement (determined on a
cash basis for each year of this Agreement).
(8) Death of Executive. In the event of Executive's death during the term
of this Agreement, this Agreement shall terminate and his estate,
legal representatives, or named beneficiaries (as set forth in a
writing by Executive delivered to the Bank prior to death) (i) shall
be paid Executive's Annual Salary for a period of three (3) months
following the date of Executive's death and (ii) shall receive those
benefits which are accrued through the date three (3) months after the
date of Executive's death and which are thereafter payable under the
terms and provisions of the benefit plans then in effect in accordance
with paragraph 3 above.
(9) Provisions Respecting Illness. In the event Executive is unable to
perform his duties under this Agreement on a full-time basis for a
period of six (6) consecutive months by reason of illness or other
physical or mental disability, and at or before the end of such
period, Executive does not return to work on a full-time basis, the
Bank may terminate this Agreement without further or additional
compensation being due the Executive from the Bank except annual
salary and benefits accrued through the date of such termination under
benefit plans then in effect in accordance with paragraph 3 above.
(10) Continuation of Certain Existing Legal Engagements. Bank acknowledges
that Executive desires to complete certain limited legal engagements,
not exceeding two or three in number. Executive has advised Bank that,
in the conduct of such engagements, Executive does not and would not,
have a conflict of interest with the Bank. Bank agrees that Executive
may conclude such engagements. Executive agrees that he shall conclude
such engagements as rapidly as possible and that such engagements
shall not materially or adversely affect the performance of his duties
and responsibilities under this Agreement. To the extent such
engagements require the Executive to expend in excess of ten days
which would otherwise be expended on the business and affairs of the
Bank and the Executive receives compensation therefore, the Bank shall
receive a credit to the Annual Salary.
(11) Executive's Assistant. Bank shall employ Executive's present
administrative assistant at her existing salary level subject to all
other terms and conditions of employment generally applicable to Bank
employees, including provisions respecting employment at will and
termination. Executive's Administrative Assistant shall be entitled to
take vacation during the first year of this Agreement giving her
credit for 22 years of service.
(12) Miscellaneous Provisions. The following miscellaneous provisions shall
apply to this Agreement:
(a) All notices or advices required or permitted to be given by or
pursuant to this Agreement, shall be given in writing. All such
notices and advices shall be (i) delivered personally,
(ii) delivered by facsimile or delivered by U.S. Registered or
Certified Mail, Return Receipt Requested mail, or (iii) delivered
for overnight delivery by a nationally recognized overnight
courier service. Such notices and advices shall be deemed to have
been given (i) the first business day following the date of
delivery if delivered personally or by facsimile, (ii) on the
third business day following the date of mailing if mailed by
U.S. Registered or Certified Mail, Return Receipt Requested, or
(iii) on the date of receipt if delivered for overnight delivery
by a nationally recognized overnight courier service. All such
notices and advices and all other communications related to this
Agreement shall be given as follows: If to the Bank: BOK
Financial Corporation ▇.▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Old City Hall
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Executive: V. ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
or to such other address as the party may have furnished to the
other parties in accordance herewith, except that notice of
change of addresses shall be effective only upon receipt.
(a) This Agreement is made and executed in Tulsa County, Oklahoma,
and all actions or proceedings with respect to, arising directly
or indirectly in connection with, out of, related to or from this
Agreement, shall be litigated in courts having situs in Tulsa
County, Oklahoma.
(b) This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law provisions)
of the State of Oklahoma.
(c) This Agreement is the entire Agreement of the parties respecting
the subject matter hereof. There are no other agreements,
representations or warranties, whether oral or written,
respecting the subject matter hereof, except as stated in this
Agreement.
(d) This Agreement, and all the provisions of this Agreement, shall
be deemed drafted by all of the parties hereto.
(e) This Agreement shall not be interpreted strictly for or against
any party, but solely in accordance with the fair meaning of the
provisions hereof to effectuate the purposes and interest of this
Agreement.
(f) Each party hereto has entered into this Agreement based solely
upon the agreements, representations and warranties expressly set
forth herein and upon his own knowledge and investigation.
Neither party has relied upon any representation or warranty of
any other party hereto except any such representations or
warranties as are expressly set forth herein.
(g) Each of the persons signing below on behalf of a party hereto
represents and warrants that he or she has full requisite power
and authority to execute and deliver this Agreement on behalf of
the parties for whom he or she is signing and to bind such party
to the terms and conditions of this Agreement.
(h) This Agreement may be executed in counterparts, each of which
shall be deemed an original. This Agreement shall become
effective only when all of the parties hereto shall have executed
the original or counterpart hereof. This Agreement may be
executed and delivered by a facsimile transmission of a
counterpart signature page hereof.
(i) In any action brought by a party hereto to enforce the
obligations of any other party hereto, the prevailing party shall
be entitled to collect from the opposing party to such action
such party's reasonable litigation costs and attorneys fees and
expenses (including court costs, reasonable fees of accountants
and experts, and other expenses incidental to the litigation).
(j) This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective successors and
assigns.
(k) This is not a third party beneficiary contract, provided,
however, each affiliate of BOKF shall be a third party
beneficiary of this Agreement. No person or entity other than a
party signing this Agreement and those designated as a third
party beneficiary herein shall have any rights under this
Agreement.
(l) This Agreement may be amended or modified only in a writing which
specifically references this Agreement.
(m) A party to this Agreement may decide or fail to require full or
timely performance of any obligation arising under this
Agreement. The decision or failure of a party hereto to require
full or timely performance of any obligation arising under this
Agreement (whether on a single occasion or on multiple occasions)
shall not be deemed a waiver of any such obligation. No such
decisions or failures shall give rise to any claim of estoppel,
laches, course of dealing, amendment of this Agreement by course
of dealing, or other defense of any nature to any obligation
arising hereunder.
(n) In the event any provision of this Agreement, or the application
of such provision to any person or set of circumstances, shall be
determined to be invalid, unlawful, or unenforceable to any
extent for any reason, the remainder of this Agreement, and the
application of such provision to persons or circumstances other
than those as to which it is determined to be invalid, unlawful,
or unenforceable, shall not be affected and shall continue to be
enforceable to the fullest extent permitted by law.
Dated and effective the date first set forth above. Bank of
Oklahoma, National Association
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇ Financial Corporation
BY /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ V. ▇▇▇▇▇ ▇▇▇▇▇▇
V. ▇▇▇▇▇ ▇▇▇▇▇▇
