Exhibit 10.4.2 (b)
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made this 29th day of September,
2003 (the "Agreement Date") between the following parties ("Parties"):
(i) BOK Financial Corporation, an Oklahoma corporation ("BOKF"); and,
(ii) Xxxxxx X. Xxxxxxxx, an individual residing in Tulsa, Oklahoma (the
"Executive").
BOKF and Executive, in consideration of the promises and covenants set
forth herein (the receipt and adequacy of which are hereby acknowledged) and
intending to be legally bound hereby, agree as follows:
(1) Purpose of This Agreement. The purpose of this Agreement is as follows:
(a) BOKF is a multi-bank holding company, subject to regulation by the
Board of Governors of the Federal Reserve System. The subsidiary banks
of BOKF include Bank of Oklahoma, National Association ("BOk"), Bank
of Arkansas, National Association ("BArk"), Bank of Texas, National
Association ("BoT"), and Colorado State Bank and Trust, National
Association ("CSBT"). The subsidiary broker-dealer of BOKF is BOSC,
Inc. ("BOSC").
(b) The Executive currently serves as Executive Vice-President, Consumer
Banking, of Bank of Oklahoma, National Association.
(c) BOKF desires to employ Executive and Executive desires to accept
employment by BOKF as Senior Executive Vice-President, Consumer
Banking and Wealth Management.
(d) The purpose of this Agreement is to set forth the terms and conditions
(i) on which BOKF shall employ the Executive.
(2) Employment. BOKF hereby employs the Executive, and the Executive hereby
accepts employment with BOKF, on the following terms and
conditions:
(a) Executive shall serve as Senior Executive-Vice President of BOKF and
as Senior Executive-Vice President of BOk. Executive shall be
responsible for Consumer Banking in the BOKF subsidiary xxxxx, XXx
Mortgage Division, Trust Division in the BOKF subsidiary, Private
Banking in the BOKF subsidiary banks, and BOSC.
(b) Executive shall devote all time and attention reasonably necessary to
the affairs of the BOKF and BOk and shall serve the BOKF and BOk
diligently, loyally, and to the best of his ability.
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(c) Executive shall serve in such other or additional positions as an
officer and/or director of the BOKF and BOk or any of its affiliates
as the Chief Executive Officer of BOKF may reasonably request;
provided, however, Executive's residence and place of work shall be in
Tulsa, Oklahoma area.
(d) Notwithstanding anything herein to the contrary, Executive shall not
be precluded from engaging in any charitable, civic, political or
community activity or membership in any professional organization.
(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 BOKF and/or to any affiliate of
the BOKF:
(a) BOKF shall pay the Executive an annual salary (the "Annual Salary")
during the Term (as hereafter defined). Initially, the Annual Salary
shall be at the rate of $280,000 per year. The Annual Salary shall be
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 effect in accordance with the usual and
customary payroll policies generally in effect from time to time at
BOKF.
(i) The Annual Salary shall not be decreased at any time during the
Term (as hereafter defined) of this Agreement.
(ii) The Annual Salary may be increased annually in accordance with
BOKF's compensation review practices in effect from time to time
for senior executives.
(b) BOKF shall pay and provide to Executive pension, thrift, medical
insurance, disability insurance plan benefits, and other fringe
benefits, on the same terms and conditions generally in effect for
senior executive employees of the BOKF and its affiliates (the
"Additional Benefits").
(c) BOKF may, from time to time in BOKF's sole discretion consistent with
the practices generally in effect for senior executive employees of
the BOKF and its affiliates, pay or provide, or agree to pay or
provide, Executive a bonus, stock option, or other incentive or
performance based compensation.
(i) 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.
(A) BOKF shall consider Executive for the award of bonus and
other incentive compensation on the same terms and
conditions as offered generally to the senior
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executive officers of the BOKF; provided, however:
(B) BOKF shall pay Executive a minimum bonus of $125,000 for
year 2004, payable on or before March 15, 2005;
(C) BOKF shall provide an annual incentive award (as a percent
of Annual Salary) to Executive pursuant to BOKF's Executive
Incentive Compensation Plan as in effect from time to time
which award shall have a 50% target award and maximum of
100% performance award, subject to approval by the BOKF
Independent Compensation Committee; and,
(D) BOKF shall provide a long-term incentive award (as a percent
of Annual Salary) to Executive pursuant to BOKF's Executive
Incentive Compensation Plan as in effect from time to time
which award shall have a 100% target award and maximum of
150% performance award, subject to approval by the BOKF
Independent Compensation Committee.
(d) BOKF shall reimburse Executive for reasonable and necessary
entertainment, travel and other expenses in accordance with BOKF's
standard policies in general effect for senior executives of BOKF.
(i) BOKF shall consider Executive for the award of options to acquire
shares of BOKF Common Stock in respect of the BOKF stock option
plan at the time and on the same terms and conditions as offered
generally to the senior executive officers of BOKF.
(ii) At the election of Executive, BOKF shall issue to Executive, in
lieu of all or any part of the Options which would otherwise be
awarded pursuant to the preceding sub-paragraph, BOKF restricted
shares (on the terms and conditions set forth in the BOKF
Executive Incentive Compensation Plan, "Restricted Shares").
(e) The Executive shall be allowed vacation, holidays, and other employee
benefits not described above in accordance with BOKF's standard policy
in general effect for BOKF's senior executive employees.
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(f) BOKF shall permit Executive to participate in a deferred compensation
plan on the terms and conditions substantially the same as those
established from time to time for the Chief Executive Officer of BOKF.
(g) Executive hereby agrees to accept the foregoing compensation 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 BOKF or any affiliate of the BOKF.
(4) Term of Employment. The term (the "Term") of Executive's employment
("Employment") pursuant to this Agreement shall commence on October 15,
2003 (the "Commencement") and shall continue thereafter provided that upon
ninety days prior written notice, either Party may terminate this Agreement
effective on or after the first anniversary date of the Commencement.
(5) Termination of Employment. Notwithstanding the provisions of paragraph 4 of
this Agreement, the Employment may be terminated on the following terms and
conditions:
(a) Termination by BOKF Without Cause. In the event the BOKF terminates
Employment of Executive without cause:
(i) BOKF shall forthwith upon such termination (A) pay to Executive
BOKF's standard severance pay and in addition an amount equal to
Executive's then Annual Salary, (B) the Executive shall, for the
remaining portion of the Term, be entitled to receive any
benefits, insured or otherwise, that Executive would otherwise be
able to receive under any Benefit Plan of the BOKF of which
Executive is a beneficiary in accordance with paragraph 3(b), (C)
Executive shall be entitled to receive pay for vacation in
accordance with BOKF's then existing policy for terminating
senior executive employees, and (D) Executive shall be entitled
to receive those amounts due Executive pursuant to paragraph 7(b)
and shall be bound by the Non-Solicitation Agreement (as
hereafter defined).
(ii) If, within one year of the Commencement, Executive is terminated
for any reason other than for cause following a Change of Control
(as hereafter defined), BOKF shall pay Executive upon such
termination in one lump sum payment an amount equal to two times
Executive's Annual Salary at the time of termination. As used
herein, a Change Control shall be deemed to have occurred if, and
only if:
(A) Xxxxxx X. Xxxxxx, affiliates of Xxxxxx X. Xxxxxx, and/or
members of the family of Xxxxxx X. Xxxxxx collectively cease
to own
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more shares of the voting capital stock of BOKF than any
other shareholder (or group of shareholders acting in
concert to control BOKF to the exclusion of Xxxxxx X.
Xxxxxx, affiliates of Xxxxxx X. Xxxxxx, or members of the
family of Xxxxxx X. Xxxxxx); or,
(B) BOKF shall cease to own directly and indirectly more than
50% of the voting capital stock of the BOk.
(b) Termination by BOKF for Cause. BOKF may terminate the Employment for
cause on the following terms and conditions:
(i) BOKF shall be deemed to have cause to terminate Executive's
Employment only in one or more of the following events:
(A) The Executive shall fail to substantially perform his
obligations under this Agreement except as a result of
Executive's incapacity due to physical or mental illness
after having first received notice of such failure and
thirty days within which to correct the failure;
(B) The Executive commits any act which is intended by Executive
to injure BOKF or any of its affiliates;
(C) The Executive is convicted of any criminal act or act
involving moral turpitude which the BOKF reasonably deems
adversely affects the suitability of Executive to serve BOKF
or any of its affiliates;
(D) The Executive commits any dishonest or fraudulent act which
the BOKF reasonably deems material to the BOKF, including
the reputation of the BOKF or any of its affiliates; or,
(E) Any refusal by Executive to obey orders or instructions of
the Chief Executive Officer of the BOKF or BOk unless such
instructions would require Executive to commit an illegal
act, could subject Executive to personal liability, would
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require Executive to violate the terms of this Agreement,
are inconsistent with recognized ethical standards, or would
otherwise be inconsistent with the duties of an officer of a
bank.
(ii) BOKF 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 BOKF finds
that, in the good faith opinion of such majority, the
Executive committed one or more of the acts set forth
in clauses (A) through (E) of the preceding
subparagraph, such finding to have been made after at
least twenty (20) 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 BOKF and the
Executive;
(iii)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 BOKF
terminates Executive's Employment for cause, (A) BOKF
shall pay Executive the Executive's then Annual Salary
through, but not beyond, the effective date of the
termination and (B) the Executive shall receive those
Additional 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(b) above,
(C) BOKF shall pay the Executive for vacation in
accordance with BOKF's then existing policy for senior
executive employees, and (D) Executive shall be bound
by the provisions of the Non-Solicitation Agreement.
(6) Provisions Respecting Illness and Death. 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, BOKF
may terminate Executive's Employment without further or additional
compensation being due the Executive from BOKF except Annual Salary
accrued through the date of termination, Additional Benefits accrued
through the date of such termination under benefit plans then in
effect in accordance with paragraph 3(b) above, and vacation in
accordance with BOKF's then existing policy for senior executive
employees, and the provisions of paragraph 7 shall apply. Without
limiting the generality of Paragraph 3(f), Executive shall upon such
termination receive those benefits provided in the BOKF long term
disability policy then in effect. In the event of the death of the
Executive, the
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Employment of the Executive shall automatically terminate as of the
date of death without further or additional compensation being due the
Executive, except BOKF shall pay to the estate of the Executive the
Annual Salary accrued through the date of termination and the
Additional Benefits accrued through the date of such termination under
benefit plans then in effect in accordance with paragraph 3(b) above.
(7) Agreement Not to Solicit. The provisions of this paragraph are
hereafter called the "Non-Solicitation Agreement".
(a) Executive agrees that, for a period of two (2) years following
any termination of the Employment for cause, and for a period of
one (1) year following any termination of the Employment for any
reason other than cause (including expiration of the Term),
Executive shall not directly or indirectly (whether as an
officer, director, employee, partner, stockholder, creditor or
agent, or representative of other persons or entities) contact or
solicit, in any manner indirectly or directly, individuals or
entities who were at anytime during the original or any extended
Term clients of BOKF or any of its affiliates for the purpose of
providing banking, trust, investment, or other services provided
by BOKF or any of its affiliates during the Term or contact or
solicit employees of BOKF or any affiliates of BOKF to seek
employment with any person or entity except BOKF and its
affiliates. This Non-Solicitation Agreement shall not apply to
ownership by Executive of up to ten percent (10%) of the common
stock of a corporation traded on the facilities of a national
securities exchange engaged in the banking business of which
Executive is not a director, officer, employee, agent or
representative.
(b) BOKF shall pay Executive, in addition to any other amounts which
may be due Executive, during each year in which the
Non-Solicitation Agreement is in effect, $3,000 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 effect in accordance with the
usual and customary payroll policies generally in effect from
time to time at BOKF.
(c) Executive agrees that the Non-Solicitation Agreement and all the
restrictions set forth in this Non-Solicitation Agreement are
fair and reasonable.
(d) Executive agrees that (i) any remedy at law for any breach of
this Non- Agreement would be inadequate, (ii) in the event of any
breach of this Non-Solicitation Agreement, the Non-Solicitation
Agreement shall constitute incontrovertible evidence of
irreparable injury to BOKF, and (iii) BOKF shall be entitled to
both immediate and permanent injunctive relief without the
necessity of establishing or posting any bond therefor to
preclude any such breach (in addition to any remedies of law
which BOKF may be entitled).
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(8) Confidential Information.
(a) Executive acknowledges that, during the Term and prior to the
Term, Executive has had and will have access to Confidential
Information, all of which shall be made accessible to Executive
only in strict confidence; that unauthorized disclosure of
Confidential Information will damage the BOKF's business; that
Confidential Information would be susceptible to immediate
competitive application by a competitor of the BOKF; that BOKF's
business is substantially dependent on access to and the
continuing secrecy of Confidential Information; that Confidential
Information is unique to the BOKF and known only to Executive and
certain key employees and contractors of BOKF; that the BOKF
shall at all times retain ownership and control of all
Confidential Information; and that the restrictions contained in
this paragraph are reasonable and necessary for the protection of
the BOKF's business.
(b) All documents or other records containing or reflecting
Confidential Information ("Confidential Documents") prepared by
or to which Executive has access are and
shall remain the property of the BOKF. Executive shall not copy
or use any Confidential Document for any purpose not relating
directly to Executive's work on the BOKF's behalf, or use,
disclose or sell any Confidential Document to any party other
than the BOKF and its employees. Upon the termination of this
Agreement or upon the BOKF's request before or after such
termination, Executive shall immediately deliver to the BOKF or
its designee (and shall not keep in Executive's possession or
deliver to anyone else) all Confidential Documents and all other
property belonging to the BOKF. This paragraph shall not bar
Employee from complying with any subpoena or court order,
provided that Executive shall at the earliest practicable date
provide a copy of the subpoena or court order to the BOKF's Chief
Executive Officer.
(c) During the Term and for a period of four (4) years thereafter,
regardless of the reason for termination of Executive's
employment, (i) Executive shall not disclose any Confidential
Information to any third party and (ii) Executive shall use
Confidential Information only in connection with and in
furtherance of Executive's work for the BOKF and its affiliates.
(d) As used herein, Confidential Information means all nonpublic
information concerning or arising from the BOKF's business,
including particularly but not by way of limitation trade secrets
used, developed or acquired by the BOKF in connection with its
business; information concerning the manner and details of the
BOKF's operations, organization and management; financial
information and/or documents and nonpublic policies, procedures
and other printed or written material generated or used in
connection with the BOKF's business; the BOKF's business plans
and strategies; electronic files or documents prepared by BOKF or
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Executive containing the identities of the BOKF's customers
(including their addresses and telephone numbers), the nature and
amounts of their assets and liabilities, and the specific
individual customer needs being addressed by the BOKF; the nature
of fees and charges assessed by the BOKF; nonpublic forms,
contracts and other documents used in the BOKF's business; the
nature and content of any proprietary computer software used in
the BOKF's business, whether owned by the BOKF or used by the
BOKF under license from a third party; and all other nonpublic
information concerning the BOKF's concepts, prospects, customers,
employees, contractors, earnings, products, services, equipment,
systems, and/or prospective and executed contracts and other
business arrangements. Confidential Information shall not include
(i) general skills and general knowledge of the industry obtained
by reason of Executive's association with the BOKF; (ii)
information that is or becomes public knowledge through no fault
or action of Executive; (iii) any information received from an
independent third party who is under no duty of confidentiality
with respect to the information; or (iv) any information that, on
advice of counsel, Executive is required to disclose by law or
regulation.
(9) Surrender of Records and Property. Upon termination of Executive's
employment with BOKF for whatever reason, Executive shall deliver promptly
to the BOKF all records, manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, data, tables, calculations or copies
thereof that relate in any way to the business, products, practices or
techniques of the BOKF or any of its affiliates, and all other information
of the BOKF or any of its affiliates, including, but not limited to, all
documents that in whole or in part contain any information which is defined
in this Agreement as Confidential Information and which is in the
possession or under the control of Executive.
(10) Executive's Representations. Executive hereby represents that (i) prior to
the Agreement Date Executive has, and as of the Commencement Executive will
have, continued to fulfill Executive's duty of loyalty to Executive's
present employer, (ii) the conditions of Executive's present employment do
not restrict Executive's ability to accept employment in accordance with
this Agreement, and (iii) as of the Commencement, Executive will not have
in his possession any confidential or proprietary information belonging to
Executive's present employer.
(11) 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
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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 BOKF: BOKF Financial Corporation
Att: Xxxxxxx X. Xxxxxxxx
Bank of Oklahoma Tower
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
xxxxxxxxx@XXXX.xxx
With a Copy to: Xxxxxxxx Xxxxxxx
Old City Hall
000 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
XXxxxxxx@XXXxx.xxx
If to Executive: Xxxxxx X. Xxxxxxxx
-------------------------
Tulsa, Oklahoma ________
Telephone No.: ______________
Telecopy No.: _______________
-------------------------
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.
(b) This Agreement is made and executed in Tulsa, 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,
Oklahoma.
(c) This Agreement shall be subject to, and interpreted by and in
accordance with, the laws of the State of Oklahoma.
(d) This Agreement is the entire Agreement of the parties respecting
the subject matter hereof. There are no other agreements,
representations or warranties,
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whether oral or written, respecting the subject matter hereof,
except as stated in this Agreement.
(e) This Agreement, and all the provisions of this Agreement, shall
be deemed drafted by all of the parties hereto.
(f) 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.
(g) Each party hereto has entered into this Agreement based solely
upon the agreements, representations and warranties expressly set
forth herein and upon her or 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.
(h) 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.
(i) 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.
(j) 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).
(k) This Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective heirs,
administrators, successors and assigns.
(l) This is not a third party beneficiary contract, except each
affiliate of BOKF shall be a third party beneficiary of this
Agreement.
(m) This Agreement may be amended or modified only in a writing, as
agreed to by the parties hereto, which specifically references
this Agreement.
(n) 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
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Agreement by course of dealing, or other defense of any nature to
any obligation arising hereunder.
(o) 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 as of the Agreement Date.
BOK FINANCIAL CORPORATION
/s/ Xxxxxxx X. Xxxxxxxx
By_________________________________
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Executive's Signature
