Exhibit 10.4 (f)
BOK FINANCIAL CORPORATION
Third Amendment to 1991 Employment Agreement
This amendment to 1991 Employment Agreement (the "Third Amendment") is
made this ____ day of December 2006 (the "Third Amendment Date") between the
following parties (the "Parties"):
i. Xxxxxxx X. Xxxxxxxx, an individual residing in Tulsa, Oklahoma
("Executive"); and,
ii. Bank of Oklahoma, National Association ("Bank").
The Bank and Executive, in exchange for the promises hereafter set forth
and other good and valuable consideration (the receipt and adequacy of which the
Parties hereby acknowledge), and intending to be legally bound hereby, agree as
follows:
(1) Purpose of this Agreement. The Parties have heretofore entered in (i) that
certain Employment Agreement effected June 7, 1991 and signed December 17,
1991 (the "Employment Agreement"), (ii) that certain Amendment to
Employment Agreement dated July 31, 2001 (the "First Amendment"), and
(iii) that certain Second Amendment to 1991 Employment Agreement dated
March 31, 2003 (the "Second Amendment"). The purpose of this Third
Amendment is to (i) amend the Employment Agreement as herein provided and
(ii) to supersede in their entirety the First Amendment and the Second
Amendment. BOK Financial Corporation ("BOKF") owns all of the issued and
outstanding capital stock of Bank.
(2) First Amendment and Second Amendment. The First Amendment and the Second
Amendment are hereby superseded in their entirety by this Third Amendment.
For sake of clarity, BOK acknowledges that:
(i) Executive has recruited one or more candidates who have the
qualifications to serve as chief operating officer for BOKF
(collectively the "COO");
(ii) The COO currently possesses the experience and qualifications
on the basis of which the Chairman of the Board and Executive
mutually agree it is reasonable to assume the COO should
become qualified to be the Chief Executive Officer of BOKF at
Termination.
(3) Special Provisions Respecting Executive's Employee Stock Options.
Executive has heretofore been awarded options to acquire BOKF Common Stock
pursuant to the BOKF 1997 Stock Option Plan, the BOKF 1996 Stock Option
Plan, the BOKF 1995 Stock Option Plan, the BOKF 1994 Stock Option Plan and
the BOKF 1993 Stock Option Plan and may be awarded options to acquire BOKF
Common Stock pursuant to future BOKF stock option plans (collectively, the
"Stock Option Plans" and the "Stock Options"). In addition, Executive may
hereafter be issued restricted or performance shares of BOKF Common Stock
("Restricted Shares") pursuant to one or more BOKF restricted or
performance share plans ("Performance Share Plans"). Notwithstanding any
provisions of the Stock Option Plans or Performance Share Plans to the
contrary, all Stock Options and all Restricted Shares which have been
issued to the Executive shall, subject to the following conditions
precedent vest, on the Termination Date:
(a) Unless terminated by BOKF without cause or terminated by Executive
pursuant to Paragraph 6(a) of the Employment Agreement ("Termination
By the Executive Following Occurrence of a Termination Event"),
Executive shall have satisfactorily (as determined by the agreement
of the Chairman of the Board and Executive) served as Chief
Executive Officer until December 15, 2011(herein called "Termination
Date");
(b) The Chairman of the Board and Executive, each in the exercise of his
good faith judgment, continue to agree as of July 1 of year from and
after the Amendment Date (each an "Anniversary Date"), that the COO
is qualified to be the Chief Executive Officer of the Corporation at
Termination;
(c) The Chairman of the Board and Executive, each in the exercise of his
good faith judgment, agree that BOKF has maintained satisfactory
performance through the Termination Date, giving due consideration
to the performance of the United States economy in general and peer
group financial institutions in the United States in particular;
(d) In the event the Chairman of the Board and Executive do not, each in
the exercise of his good faith judgment, reach the agreements
described in sub-paragraphs (a), (b) and (c) above, the issue or
issues shall be presented to the full Board of Directors of Bank for
determination and the determination of the Bank Board of Directors
shall be binding upon Bank and Executive;
(e) Unless the Chairman of the Board shall advise Executive in writing
on or before each applicable Anniversary Date that a condition
precedent described in sub-paragraphs (a), (b), and/or (c) has not
been met, such condition precedent shall be deemed to have been met.
(f) Notwithstanding any provisions of the Stock Option Plans to the
contrary, all Stock Options which have been awarded to Executive and
which have
vested as of the Termination Date (whether pursuant to the
provisions of the preceding subparagraph or otherwise) shall
terminate, if not sooner exercised, fifteen (15) months following
Termination Date.
(4) Amendment of Paragraph 6(b) of Employment Agreement. Paragraph 6(b) of the
Employment Agreement is hereby amended by inserting in the third line
thereof following the words "may terminate this Agreement" and preceding
the words "as follows" the words "only after December 15, 2011".
(5) Amendment of Paragraph 3(b) of Employment Agreement. Paragraph 3(b) of the
Employment Agreement is amended by substituting the word "executives" for
the word "employees" in the sixth line thereof.
(6) Amendment of Paragraph 2(b) of Employment Agreement. Paragraph 2(b) of the
Employment Agreement is hereby amended by inserting the word "materially"
immediately preceding the word "interferes" in the fourth line thereof.
(7) Amendment of Paragraph 5(b)(i)(C) of Employment Agreement. Paragraph
5(b)(i)(C) of the Employment Agreement is hereby amended by adding at the
end thereof following the words "fraudulent act" the words "materially
injurious to Bank."
(8) Amendment of Paragraph 5(b)(ii) of Employment Agreement. Paragraph
5(b)(ii) is hereby deleted in its entirety and there is hereby substituted
therefore the following:
For purposes of this paragraph 5(b):
(A) any act or omission to act by Executive in reliance upon an
opinion of counsel to the Bank or upon a directive of the
Board of Directors of the Bank or of BOKF shall not be deemed
to be willful; and,
(B) no failure to act described in paragraph 5(b)(i)(A) or act
described in paragraph 5(b)(i)(B) shall be deemed willful
unless written notice thereof has been given to Executive and
Executive has been given a reasonable period of time to cure.
(9) Executive's Continued Involved with BOKF Beyond Termination and Prior to
Age 65. In the event of Termination prior to reaching age 65, Executive
will be permitted to continue to be involved in the business and affairs
of BOKF as a part-time special employee, consultant, director with special
duties, or in some other capacity to the extent reasonably required to
permit Executive to continue to participate in BOKF's employee health care
benefits until age 65, but only for so long as Executive continues to owe
a duty of loyalty to BOKF. The costs of such participation shall be
allocated between Bank and Executive equitably depending upon the level of
Executive's continued involvement with BOKF. In the event Executive
continues to be involved in any such capacity, all
compensation due Executive which is deferred compensation within the
meaning of Section 409A of the Internal Revenue Code shall be paid to
Executive on a date which is the later of (i) the date provided in that
certain 409A Deferred Compensation Agreement dated March 15, 2005 between
Executive and BOK Financial Corporation and (ii) a date as soon as
administratively possible within the 45 day period after the later of six
months following the date such involvement shall cease.
(10) Agreement Not To Compete. In consideration for the foregoing, Executive
agrees not to Compete (as hereafter defined) for a period of two years
following Termination except in the case of Termination by the Bank
without cause. Executive agrees that (i) the restrictions imposed upon
Executive by this Non-Competition Agreement are essential and necessary to
ensure BOKF continues to enjoy the goodwill of the Bank, and (iii) all the
restrictions (including particularly the time and geographical
limitations) are fair and reasonable.
(a) As used herein, Compete means to directly or indirectly (whether
individually or as an officer, director, employee, partner,
stockholder, creditor, agent, or representative of other persons or
entities) (i) engage in the banking business generally, or in any
business in which the Bank or any of the Bank's affiliates has as of
the date of such termination engaged, in any metropolitan area or
any County contiguous thereto in which the Bank or any of the Bank's
affiliates maintains an office as of the date of such termination,
(ii) solicit clients of Bank or Bank's affiliates for banking
business generally or for any business in which the Bank or any of
Bank's affiliates have engaged as of the date of such termination,
or (iii) solicit any employee of Bank or any of Bank's affiliates to
seek employment with any person or entity except the Bank and its
affiliates, whether, in either case, such solicitation is made
within or without the area described herein.
(b) Executive agrees that any remedy at law for any breach of this
promise would be inadequate and, in the event of any such breach,
BOKF shall be entitled to both immediate and permanent injunctive
relief without the necessity of posting any bond therefor to
preclude any such breach (in addition to any remedies of law which
BOKF may be entitled).
(c) Executive agrees that the provisions of this paragraph were accepted
and agreed to in the First Amendment as of July 31, 2001, that
Executive has accepted and enjoyed the benefit of the First
Amendment since July 31, 2001, and that the restatement of the
obligations of this Paragraph in this Third Amendment shall not
adversely affect the ability of BOK or BOKF to enforce the
provisions hereof.
(11) Ratification of Employment Agreement. As amended by this Third Amendment,
the Employment Agreement shall remain in full force and effect in
accordance with its terms.
(12) Miscellaneous Provisions The Miscellaneous Provisions of Paragraph 8 of
the Employment Agreement shall apply to this Third Amendment; provided,
however, this Agreement is made for the benefit of BOKF and BOK.
Dated as of the Agreement Date.
Bank of Oklahoma, National Association
By
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Xxxxxxx X. Xxxxxxxx
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