Employment Agreement- Lybarger

Employment Agreement- Bradshaw

 

 

 

 

<DOCUMENT>

<TYPE>EX-99

<SEQUENCE>2

<FILENAME>employmentagreement122608.txt

<DESCRIPTION>(A) EMPLOYMENT AGREEMENT 122608

<TEXT>

                                                              Exhibit 99 (a)

                              AMENDED AND RESTATED

                              EMPLOYMENT AGREEMENT

 

     This amended and restated  employment  agreement (the  "Agreement") is made

this 26th day of December,  2008 (the  "Agreement  Date")  between the following

parties (the "Parties"):

 

     (i)  Bank of Oklahoma,  N.A., a national banking  association (the "Bank");

          and,

 

     (ii) Stanley A. Lybarger,  an individual  residing in Tulsa,  Oklahoma (the

          "Executive").

 

     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 purposes of this Agreement are as follows:

 

     (a)  The Parties have heretofore  entered into (i) that certain  Employment

          Agreement  effected  June 7, 1991 and signed  December  17,  1991 (the

          "1991  Employment   Agreement"),   (ii)  that  certain   Amendment  to

          Employment  Agreement  dated July 31,  2001 (the  "First  Amendment"),

          (iii) that certain Second Amendment to 1991 Employment Agreement dated

          March 31, 2003 (the "Second  Amendment"),  and that (iv) certain Third

          Amendment to 1991  Employment  Agreement  dated December 22, 2006 (the

          "Third Amendment").

 

<PAGE> 2

 

     (b)  One purpose of this Agreement is to (i) entirely amend and restate the

          1991 Employment Agreement and incorporate provisions of the Amendments

          into  one  agreement  (ii) to  supersede  in their  entirety  the 1991

          Employment  Agreement,  the First Amendment,  the Second Amendment and

          the Third Amendment,  and (iii) to be compliant with the American Jobs

          Creation  Act of 2004,  as  codified in Section  409A of the  Internal

          Revenue Code (the "Code").

 

     (c)  The Bank is a national  association  formed  under and pursuant to the

          laws of the United  States of  America.  The  Executive  is  currently

          serving as President and Chief  Executive  Officer of the Bank and BOK

          Financial  Corporation.  BOK Financial  Corporation ("BOKF"), of which

          George B. Kaiser is the majority  shareholder,  owns all of the issued

          and  outstanding  capital stock of the Bank. The Executive  desires to

          continue to render services to the Bank and BOKF.

 

     (d)  The  second  purpose of this  Agreement  is to set forth the terms and

          conditions of Executive's continued employment by the Bank.

 

(2)  Prior Agreements.  The 1991 Employment Agreement,  the First Amendment, the

     Second  Amendment and the Third  Amendment  are hereby  superseded in their

     entirety by this Agreement.

 

(3)  Employment. The Bank hereby employs the Executive, and the Executive hereby

     agrees  to work  for the  Bank,  until  such  time  as  this  Agreement  is

     terminated in accordance with the terms hereof,  on the following terms and

     conditions:

 

<PAGE> 3

 

     (a)  Executive shall serve in the capacity of President and Chief Executive

          Officer of the Bank and BOKF subject to the  direction of the Board of

          Directors of the Bank and BOKF.

 

     (b)  Executive  shall devote  substantially  all of his  business  time and

          efforts on behalf of the Bank and BOKF.  Executive shall not engage in

          any other business activity that materially interferes with his duties

          under this Agreement  whether or not such business activity is pursued

          for gain, profit or other pecuniary advantage.

 

     (c)  Executive  shall serve the Bank and BOKF diligently and to the best of

          his ability.

 

     (d)  Executive  shall serve in such  additional  positions  as the Board of

          Directors of the Bank or BOKF may reasonably request.

 

(4)  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 and BOKF, the Bank shall:

 

     (a)  Annual  Salary.  Pay  annually  to  Executive  a salary  in the sum of

          $828,600 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  the  Bank  pays its

          employees  generally.  This  salary,  as the  same  may  be  hereafter

          increased or decreased, is hereafter called the "Annual Salary."

 

<PAGE> 4

 

     (b)  Benefits.  Provide to  Executive  participation  in the Bank's  Master

          Thrift Plan and Trust,  Pension Plan, medical and disability insurance

          plan, and other employee  benefits and fringe  benefits,  on the basis

          generally  in  effect  from time to time for  executives  of the Bank.

          These benefits which do not include Incentive  Compensation as defined

          in paragraph (4)(d) are hereafter called the "Benefits."

 

     (c)  The   provisions  of   subparagraph   (4)(a)  above  to  the  contrary

          notwithstanding,  the  Executive's  Annual Salary may be (i) increased

          from  time to time by the  Board  of  Directors  of the  Bank  (or any

          committee thereof authorized to act by the Board of Directors) or (ii)

          decreased  from time to time by the Board of Directors of the Bank (or

          any committee thereof  authorized to act by the Board of Directors) if

          the annual  salaries of all officers of the Bank holding the office of

          executive vice president are decreased by the same percentage.

 

     (d)  The Bank may, from time to time in Bank's discretion,  pay or provide,

          or agree to pay or provide Executive a bonus, stock option, restricted

          stock  or other  incentive  or  performance  based  compensation  (all

          hereafter called  "Incentive  Compensation,"  it being understood that

          the term  "Incentive  Compensation"  can mean one or more  plans  with

          different types of awards and  compensation  determined and payable at

          different times). Any

 

<PAGE> 5

 

          such Incentive Compensation, regardless of its nature or amount, shall

          not constitute Annual Salary.

 

     (e)  The Bank  shall  reimburse  Executive  for  reasonable  and  necessary

          entertainment, travel and other expenses in accordance with the Bank's

          standard policy in general effect for Bank's executive employees.  The

          Bank  shall pay  Executive's  club dues  which  are  necessary  to the

          business of the Bank, as hereafter  mutually  agreed  between Bank and

          Executive.

 

     (f)  The  Executive  shall be allowed 5 weeks of  vacation,  holidays,  and

          other  employee  benefits not described  above in accordance  with the

          Bank's  standard policy in general effect from time to time for Bank's

          executive employees.

 

     (g)  Executive agrees to accept the compensation set forth in the foregoing

          subparagraphs (a) - (f) 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 (and

          BOKF).

 

(5)  Term of  Employment.  The  term  (the  "Term")  of  Executive's  employment

     ("Employment")  pursuant to this Agreement  shall commence on the Agreement

     Date and  terminate  on December 31,  2013,  unless  extended by the mutual

     agreement of Bank and Executive.  The date on which Executive's  Employment

     terminates  (whether  before,  at the  expiration  of the Term or after any

     extension) is hereafter called the Termination  Date;  provided,  such date

     can not be prior to

 

<PAGE> 6

 

     December 15, 2011. The  Termination  Date shall be determined in accordance

     with IRS Regulation 409A-1(h).

 

(6)  Provisions  Respecting  Executive's  Employee  Stock Options and Restricted

     Shares.  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  has been and 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").  The following provisions shall apply to Executive's Stock Options

     and Restricted  Shares upon the  termination of Executive's  employment for

     any reason (including,  for clarification  death,  disability (as hereafter

     defined), resignation prior to the expiration of the Term, termination upon

     expiration of the Term,  and  termination  after any extension of the Term)

     except by Bank for Cause.

 

     (a)  In  accordance  with the  provisions of the Stock Option Plans and the

          Executive  Incentive  Compensation Plan, all outstanding Stock Options

          awarded to the  Executive  have been awarded at 150% of the  Executive

          Incentive Plan target,  subject to adjustment in accordance therewith.

          All Stock  Options shall vest on the  Termination  Date subject to the

          following conditions precedent:

 

<PAGE> 7

 

          (i)  Termination  of  Employment  shall  not be by Bank for  Cause (as

               described in Section 9).

 

          (ii) Unless  terminated by BOKF without  cause,  Executive  shall have

               satisfactorily (as determined by the agreement of the Chairman of

               the Board and Executive)  served as Chief Executive Officer until

               the Termination Date;

 

          (iii) The Chairman of the Board and Executive, each in the exercise of

               his good faith judgment,  continue to agree on an annual basis as

               of  the  each   anniversary   of  the  Agreement  Date  (each  an

               "Anniversary  Date") that the COO (as defined below) is qualified

               to be the Chief Executive Officer of the Corporation;

 

          (iv) 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;

 

          (v)  In the event the Chairman of the Board and Executive do not, each

               in the exercise of his good

 

<PAGE> 8

 

               faith judgment,  reach the agreements described in sub-paragraphs

               (ii),  (iii)  and  (iv)  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;

 

          (vi) 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  (ii),  (iii),

               and/or (iv) has not been met, such condition  precedent  shall be

               deemed to have been met.

 

     (b)  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  (a) or  otherwise)  shall

          terminate,  if not sooner  exercised,  on the later of (i) ninety (90)

          days after the Termination Date or (ii) ten (10) days from the receipt

          by  Executive of a legal  opinion from legal  counsel to the Bank that

          the  provisions of this  paragraph  7(a)(ii)(C)  do not constitute the

          acquisition by Executive of a derivative  security under Section 16(b)

          of the  Securities  and Exchange Act of 1934, as amended,  unless such

          legal opinion cannot be given or is not given

 

<PAGE> 9

 

          in which case  expiration  of the options  shall occur one hundred and

          eighty-five (185) days after the Termination Date.

 

     (c)  Subject to the conditions  precedent listed in sub-sections  (6)(a)(i)

          through (vi) above, all previously  awarded  Restricted  Shares shall,

          following the  Termination  Date, be subject to increase or forfeiture

          and  shall  be paid at the  time  and in the  manner  provided  in the

          applicable  Performance  Share Plan,  subject to  pro-ration  from the

          first  day of such  plan  year (or  other  plan  period)  through  the

          Termination Date; provided,  however,  that shares shall vest upon the

          achievement of the performance goals.

 

     (d)  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  on the

               Termination Date.

 

(7)  Provisions  Respecting  Other Incentive  Compensation  (Not Including Stock

     Options  or  Restricted   Shares).   Bank  may  award  Executive  Incentive

     Compensation  (other than Stock Options and  Restricted  Shares,  including

     Annual

 

<PAGE> 10

 

     Incentive Compensation, hereafter "Other Incentive Compensation") from year

     to year pursuant to Bank's Executive  Incentive  Compensation Plan. Subject

     to the conditions  precedent listed in sub-sections  (6)(a)(i) through (vi)

     above,  upon termination of Executive's  employment with the Bank, the Bank

     shall pay Executive such Other Incentive Compensation for the plan year (or

     other plan period) during which the  Termination  Date occurs prorated from

     the  first  day of such  plan  year (or  other  plan  period)  through  the

     Termination  Date.  Subject  to  Paragraph  13(a),  payment  of such  Other

     Incentive  Compensation  shall,  except pursuant to Paragraph 8 (Provisions

     Respecting  Death and  Disability),  be calculated  in accordance  with the

     Performance  Plan  and  made in cash on a date as soon as  administratively

     possible  within  the 45 day  period  after  the first day of the year next

     following the year of such separation from service.

 

(8)  Provisions Respecting Death and Disability.  In the event Executive becomes

     disabled  as  such  term  is  used in  Section  409A(a)(2)(C)  of the  Code

     ("Disabled"   or   "Disability"),   the  Bank  may  terminate   Executive's

     Employment. In the event of the death of Executive or in the event the Bank

     terminates  Executive's  Employment  because he is Disabled pursuant to the

     provisions of this  Paragraph  (8), the Bank shall pay the Executive or, in

     the event of death, Executive's beneficiaries(1) the following but only the

     following  compensation:  (i) Annual Salary accrued through the Termination

     Date, (ii) Benefits accrued through the

 

-----------------------------

(1) As of the date hereof, the named beneficiaries are: (1) Primary Beneficiary:

Marcia S. Lybarger, trustee of the Marcia S. Lybarger Revocable Trust, u/t/d

11/2/94 or (2) Secondary Beneficiaries: 50% - Brooke E. Armstrong, Trustee of

the Brooke E. Armstrong Irrevocable Trust, u/t/d 5/24/04 and 50% - Stacy A.

Farmer, Trustee of the Stacy A. Lybarger 2004 Irrevocable Trust, u/t/d 4/28/04;

Such beneficiary designations may be changed upon receipt of a writing by

Executive delivered to the Bank prior to death (collectively referred to as the

"Executive's Representatives").

 

<PAGE> 11

 

     Termination  Date and  thereafter  payable  under the benefit plans then in

     effect in accordance  with  Paragraph  4(b) above,  (iii) Stock Options and

     Restricted Stock, and (iv) Other Incentive Compensation.

 

     (a)  Payment of amounts due  pursuant to clauses (i) and (ii) shall be paid

          within forty-five (45) days of the event giving rise to the obligation

          of the Bank to make the payment.

 

     (b)  Payment of the amount due pursuant to clause  (iii) of this  Paragraph

          shall be made as provided in  Paragraph  6;  provided,  however,  that

          notwithstanding  Paragraph 6(c),  Restricted  Stock shall  immediately

          vest and be calculated in accordance with the Performance  Share Plans

          as of the Termination Date, and paid.

 

     (c)  Payment of the amount due  pursuant to clause  (iv) of this  Paragraph

          shall be made as provided in  Paragraph  7;  provided,  however,  that

          notwithstanding   Paragraph  7,  Other  Incentive  Compensation  shall

          immediately  vest and be calculated in accordance with the Performance

          Share Plans as of the Termination Date, and paid.

 

     (d)  In  addition  to the  foregoing,  in the  event  of the  death  of the

          Executive,  Bank shall pay Executive's  Representatives not later than

          forty-five (45) days following the date of death:

 

          (i)  a lump sum cash  payment in an amount  equal to six (6) months of

               Executive's Annual Salary in effect at the time of death; and,

 

<PAGE> 12

 

          (ii) an  additional  lump sum cash payment of $70,000  (grossed up for

               income taxes)(2).

 

(9)  Termination  of  Employment  by Bank for Cause.  The Bank may terminate the

     Employment,  and Executive  shall be separated  from service with the Bank,

     for cause on the following terms and conditions:

 

     (a)  The Bank  shall be  deemed  to have  cause  to  terminate  Executive's

          employment  in the event,  but only in the  event,  one or more of the

          following events occur:

 

          (i)  Any  willful  failure  to   substantially   perform   Executive's

               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); or

 

          (ii) Any willful act materially injurious to Bank; or

 

          (iii) Any dishonest or fraudulent act materially injurious to Bank.

 

     (b)  For purposes of this paragraph 7(a), (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

 

----------------------------------

(2) The gross-up shall be calculated at the highest incremental rate actually

experienced by Executive. For example, if taxed in Oklahoma, the rate would be

as follows: assuming the highest tax bracket for federal, the Okla. state rate

less the federal benefit, medicare, and assuming the FICA limit has already been

met, the composite rate would be 41% broken down as follows: 35% Federal 4.55%

State (after federal deduction) 1.45% Medicare or a total 41%.

 

<PAGE> 13

 

          described  in  paragraph  7(a)(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.

 

     (c)  The  effective  date of a  termination  for  cause  shall  be the date

          specified by the Bank in a written  notice to  Executive  stating that

          the termination was with cause.

 

     (d)  In the event the Bank  terminates  this  Agreement for cause,  (A) the

          Bank shall pay Executive the  Executive's  then Annual Salary  though,

          but not beyond,  the  Termination  Date;  (B) the  Executive  (and his

          dependents)  shall  receive  those  Benefits  accrued  through but not

          beyond the  Termination  Date which are  thereafter  payable under the

          terms and  provisions  of Benefit  Plans then in effect in  accordance

          with  paragraph  4(b)  above;  and (C)  Executive  shall  forfeit  all

          unvested Incentive Compensation.

 

     (e)  Payments of amounts due  pursuant to this  Paragraph  shall be made in

          cash prior to March 15th of the year  following  the event giving rise

          to the obligation of the Bank to make the payment.

 

(10) Termination of Employment by Bank Without Cause or by Executive Following a

     Termination Event. In the event the Bank terminates Executive's employment,

     notwithstanding  the  provisions  of  Paragraph 5 of this  Agreement or the

     Executive   terminates  his  employment   following  the  occurrence  of  a

     Termination Event (as defined and described in Paragraph 11(d) below),  the

     Bank shall pay to Executive  (i) a lump sum cash payment in an amount equal

     to his Annual Salary in effect as

 

<PAGE> 14

 

     of the date of the termination, (ii) an additional lump sum cash payment of

     $70,000  (grossed  up  for  income  taxes)(3),   (iii)  Stock  Options  and

     Restricted Stock, and (iv) Other Incentive Compensation.

 

     (a)  Payment of amounts due  pursuant to clauses (i) and (ii) shall be paid

          within  the  forty-five  (45) day  period  after  the later of (1) one

          hundred  eighty-five (185) days following such Termination Date or (2)

          the first day of the year next  following the year of such  separation

          from service;  provided,  however,  if Termination of Employment is by

          Bank Without Cause, payment of amounts due pursuant to clauses (i) and

          (ii) shall be made as soon as administratively  possible following the

          Termination Date.

 

     (b)  Payment of the amount due pursuant to clause  (iii) of this  Paragraph

          shall be made as provided in Paragraph 6.

 

     (c)  Payment of the amount due  pursuant to clause  (iv) of this  Paragraph

          shall be made as provided in Paragraph 7.

 

(11) Termination By the Executive  Following  Occurrence of a Termination Event.

     The Executive may terminate  this  Agreement by written  notice to the Bank

     within  twenty-five  (25) days following a Termination  Event (as hereafter

     defined) except where the Termination Event constitutes a Change in Control

     (as  hereafter

 

(3) The gross-up shall be calculated at the highest incremental rate actually

experienced by Executive. For example, if taxed in Oklahoma, the rate would be

as follows: assuming the highest tax bracket for federal, the Okla. state rate

less the federal benefit, medicare, and assuming the FICA limit has already been

met, the composite rate would be 41% broken down as follows: 35% Federal 4.55%

State (after federal deduction) 1.45% Medicare or a total 41%.

 

<PAGE> 15

 

     defined) in which event such  written  notice must be given  within six (6)

     months following the Change in Control.

 

     (i)  Each of the following events shall constitute a "Termination Event":

 

          (A)  A "Change in  Control" of the Bank.  A "Change in Control"  shall

               occur  only  when  George B.  Kaiser  (together  with  affiliated

               entities and family members and relative) ceases either to be the

               largest  shareholder  of BOKF or the largest  shareholder  of the

               Bank  considering  indirect  ownership  of the Bank  through  the

               Parent  Corporation;  or (2) the date on which  George B.  Kaiser

               ceases to be Chairman of the Bank  unless  Executive  is named as

               the successor Chairman of the Bank.

 

          (B)  The  Executive's  Annual  Salary  is  reduced  otherwise  than in

               accordance with paragraph 4(c);

 

          (C)  There is a change  in  Executive's  duties  which  change  causes

               Executive's  position with the Bank to become of less  importance

               or responsibility than those currently held by Executive;

 

          (D)  There is a material breach of this Agreement by Bank.

 

     (ii) The effective  date of  termination  in the event the Executive  gives

          notice of termination pursuant to paragraph 8(a) shall be the

 

<PAGE> 16

 

          eleventh  (11th)  business day following the notice,  whether or not a

          Termination Event is ultimately determined to have occurred.

 

(12) Termination of Employment by Executive Without Cause.  Notwithstanding  the

     provisions of Paragraph 5, on or after December 15, 2011, the Executive may

     terminate  this  Agreement,  and Executive  shall be separated from service

     with the Bank,  upon one hundred and eighty (180) days prior written notice

     to the Bank.

 

(13) Executive's Continued Involvement with BOKF Beyond Termination and Prior to

     Age 65.

 

     (a)  In the event the Termination  Date occurs prior to Executive  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.

 

     (b)  Notwithstanding any other provision of this Agreement, no compensation

          which is deferred  compensation within the meaning of IRC Section 409A

          shall  be  paid  to  Executive  sooner  than  six  months  and one day

          following the date of Executive's separation

 

<PAGE> 17

 

          from  service  as such  date is  determined  in  accordance  with  IRS

          Regulation 1.409A-1(h).

 

(14) 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 (ii) 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 Termination Date 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  Termination  Date, (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 Termination  Date, 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,

 

<PAGE> 18

 

          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  Agreement  shall not  adversely  affect  the

          ability of BOK or BOKF to enforce the provisions hereof.

 

(15) Miscellaneous  Provisions.  The following  miscellaneous  provisions  shall

     apply to this Agreement:

 

     (a)  All notices or other  communications  provided  for in this  Agreement

          shall be in  writing  and shall be deemed to have been duly given when

          personally  delivered or mailed by United States mail,  return receipt

          requested, addressed as follows:

 

             If to the Bank:

 

             Bank of Oklahoma, N.A.

             P.O. Box 2300

 

<PAGE> 19

 

             Tulsa, OK 74192

 

             Attention: Chief Executive Officer

 

 

             If to the Executive:

 

             Stanley A. Lybarger

             3139 East 88th Street

             Wellington South

             Tulsa, OK  74137

 

     (b)  Or to such other address as the Bank or the Executive, as the case may

          be, may have furnished to the other in writing in accordance herewith,

          except that notices of change of address shall be effective  only upon

          receipt.

 

     (c)  This Agreement is made and executed in Tulsa County, Oklahoma.

 

     (d)  This Agreement  shall be subject to, and interpreted by, in accordance

          with the laws of the State of Oklahoma.

 

     (e)  This Agreement is the entire  agreement of the parties  respecting the

          subject matter hereof and supersedes and renders null and void any and

          all prior oral or written  agreements,  understandings  or commitments

          pertaining to the subject matter hereof, including the 1991 Employment

          Agreement,  the First  Amendment,  the Second  Amendment and the Third

          Amendment.  There are no other  agreements,  whether  oral or written,

          respecting the subject matter hereof.

 

     (f)  This  Agreement  may not be  amended or  modified  except in a writing

          executed by the parties hereto.

 

<PAGE>

 

     (g)  This  Agreement  shall be binding upon and inure to the successors and

          assigns of the Bank.

 

     (h)  This Agreement may not be assigned by the Executive.

 

IN WITNESS  WHEREOF,  this Agreement has been duly authorized by and executed on

behalf of the Bank and by the Executive as of the Agreement Date.

 

                                        "Bank"

                                        BANK OF OKLAHOMA, N. A.

 

                                        By:  /s/  George B. Kaiser

                                             Name:  George B. Kaiser

                                             Title: Chairman of the Board

 

 

                                        "EXECUTIVE"

 

                                        /s/  Stanley A. Lybarger

                                        Stanley A. Lybarger

</TEXT>

</DOCUMENT>

 

 

 

EX-99.A 2 ex99abradshawamendedandres.htm EXHIBIT

 

 

 

AMENDED AND RESTATED EMPLOYMENT AGREEMENT

 

June 15, 2013

 

This Amended and Restated Employment Agreement (“Agreement”) is made this 15th day of June, 2013 (the “Agreement Date”) between the following parties (“Parties”):

 

(i)

BOK Financial Corporation, an Oklahoma corporation (“BOK Financial”); and,

 

(ii)

Steven G. Bradshaw, an individual currently residing in Tulsa, Oklahoma (the “Executive”).

 

BOK Financial 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)

BOK Financial is a financial holding company, subject to regulation by the Board of Governors of the Federal Reserve System. The subsidiaries of BOK Financial include BOKF, NA, a national association engaged in banking and BOSC, Inc., a registered broker-dealer.

 

(b)

The Executive has extensive prior experience in financial services and banking and is currently employed as a Senior Executive Vice-President of BOK Financial and BOKF, NA, reporting to the Chief Executive Officer.

 

(c)

The purpose of this Agreement is to set forth the terms and conditions on which BOK Financial shall employ the Executive and the Executive shall serve as an officer of BOK Financial, BOKF, NA, and other of their affiliates.

 

(2)

Prior Agreement Superseded. This agreement supersedes, from and after the Effective Date, any employment agreement between Executive and BOK Financial and/or BOKF, NA (excluding, for avoidance of doubt, any rights of Executive arising under the BOK Financial 2003 Stock Option Plan, the BOK Financial 2009 Omnibus Incentive Plan, and the BOK Financial 2011 True-Up Plan).

 

(3)

Employment. Effective as of January 1, 2014, BOK Financial hereby employs the Executive, and the Executive hereby accepts employment with BOK Financial, on the following terms and conditions:

 

(a)

Executive shall serve as a member of the Board of Directors and as President and Chief Executive Officer of BOK Financial and as a member of the Board of Directors and as President and Chief Executive Officer of BOKF, NA.

 

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(b)

Executive shall devote all time and attention reasonably necessary to the affairs of BOK Financial and BOKF, NA and shall serve BOK Financial and BOKF, NA diligently, loyally, and to the best of his ability.

 

(c)

Executive shall serve in such other or additional positions as an officer and/or director of BOK Financial and BOKF, NA or any of their affiliates as the Board of Directors of BOK Financial may reasonably request; provided, however, Executive's residence and place of work shall be in the 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.

 

(4)

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 BOK Financial and/or to any affiliate of BOK Financial:

 

(a)

BOK Financial shall pay the Executive an annual salary (the “Annual Salary”) equal to Executive's Annual Salary in effect as of the Agreement Date during the Term (as hereafter defined). 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 BOK Financial.

 

(b)

The Annual Salary shall not be decreased at any time during the Term of this Agreement. The Annual Salary may be increased annually in accordance with BOK Financial's compensation review practices in effect from time to time for senior executives.

 

(c)

BOK Financial 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 BOK Financial and its affiliates (the “Additional Benefits”).

 

(d)

BOK Financial may, from time to time in BOK Financial's sole discretion consistent with the practices generally in effect for senior executive employees of the BOK Financial and its affiliates, pay or provide, or agree to pay or provide Executive a bonus, stock option, restricted stock, other incentive or performance based compensation.

 

(i)

BOKF Financial shall provide annual incentive and long term incentive awards to Executive in accordance with BOK Financial's Executive Incentive Compensation Plan as adopted by the BOK Financial's Board of Directors from time to time and BOK Financial's existing True-Up Plan.

 

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(ii)

All such bonus, stock option, restricted stock, or other incentive or performance based compensation, regardless of its nature (hereinafter called “Performance Compensation”) shall not constitute Annual Salary.

 

(e)

BOK Financial shall reimburse Executive for reasonable and necessary entertainment, travel and other expenses in accordance with BOK Financial's standard policies in general effect for senior executives of BOK Financial.

 

(f)

Executive shall be allowed vacation, holidays, and other employee benefits not described above in accordance with BOK Financial's standard policy in general effect for BOK Financial's senior executives. Executive shall be entitled to four weeks paid vacation each year.

 

(g)

BOK Financial shall permit Executive to participate in a deferred compensation plan on the terms and conditions established by BOK Financial for senior executives.

 

(h)

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 BOK Financial or any affiliate of BOK Financial.

 

(5)

Term of Employment. The term (the “Term”) of Executive's employment (“Employment”) pursuant to this Agreement shall commence on the Agreement Date (the “Commencement”) and shall continue thereafter provided that upon ninety days prior written notice, either Party may terminate this Agreement.

 

(6)

Termination of Employment. Notwithstanding the provisions of paragraph 5 of this Agreement, the Employment may be terminated on the following terms and conditions:

 

(a)

Termination by BOK Financial Without Cause. In the event BOK Financial terminates Employment of Executive without cause during the Term or upon termination of this Agreement as provided in Paragraph 5:

 

(i)

BOK Financial shall forthwith upon such termination (A) pay to Executive BOK Financial's standard severance pay for senior executives in effect at the time of termination and, in addition, an amount equal to Executive's then Annual Salary payable in one lump sum payment, (B) the Executive shall be entitled to receive any Additional Benefits accrued through, but not beyond the effective date of such termination which are payable under the terms and provisions of benefit plans then in effect in accordance with paragraph 4(c) above, (C) Executive shall be entitled to receive pay for vacation in accordance with BOK Financial's then existing policy for terminating senior executives, (D) options held by Executive under the BOKF 2003 Stock Option Plan and the BOKF 2009 Omnibus Incentive Plan shall vest shall be exercisable for a period of ninety days following such termination as provided

 

3

 


 

in such plans, (E) Restricted stock held by Executive shall continue to be owned by the Executive, but shall remain subject to all restrictions applicable to the restricted stock as provided under the Executive Incentive Plan and the 2009 Omnibus Incentive Plan, and (F) Executive shall be entitled to receive those amounts due Executive pursuant to paragraph 8(b) and shall be bound by the Non-Solicitation Agreement (as hereafter defined).

 

(ii)

If Executive is terminated for any reason other than for cause following a Change of Control (as hereafter defined), BOK Financial shall pay Executive upon such termination in one lump sum payment an amount equal to two times Executive's then Annual Salary at the time of termination in addition to an amount equal to Executive's then Annual Salary through, but not beyond the effective date of the termination. This payment shall be in lieu of any payment that would otherwise be paid pursuant to paragraph 6(a)(i)(A), but Executive shall be entitled to the benefit of the other provisions of paragraph 6(a)(i). As used herein, a Change of Control shall be deemed to have occurred if, and only if:

 

(A)

George B. Kaiser, affiliates of George B. Kaiser, George B. Kaiser Foundation, George Kaiser Family Foundation, and/or members of the family of George B. Kaiser collectively cease to own more shares of the voting capital stock of BOK Financial than any other shareholder (or group of shareholders acting in concert to control BOK Financial to the exclusion of George B. Kaiser, affiliates of George B. Kaiser, George B. Kaiser Foundation, George Kaiser Family Foundation, and/or members of the family of George B. Kaiser); or,

 

(B)

BOK Financial shall cease to own directly and indirectly more than fifty percent (50%) of the voting capital stock of BOKF, NA.

 

(b)

Termination by BOK Financial for Cause. BOK Financial may terminate the Employment for cause on the following terms and conditions:

 

(i)

BOK Financial 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 reasonably deemed to have been intended by Executive to injure BOK Financial or any of its affiliates;

 

4

 


 

(C)

The Executive is charged, indicted or convicted of any criminal act or act involving moral turpitude which BOK Financial reasonably deems adversely affects the suitability of Executive to serve BOK Financial or any of its affiliates;

 

(D)

The Executive commits any dishonest or fraudulent act which BOK Financial reasonably deems material to BOK Financial or any of its affiliates, including the reputation of BOK Financial or any of its affiliates; or,

 

(E)

Any refusal by Executive to obey orders or instructions of the Chief Executive Officer of BOK Financial or BOKF, NA, unless such instructions would require Executive to commit an illegal act, could subject Executive to personal liability, would 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)

BOK Financial shall be deemed to have cause to terminate Executive's Employment only when a majority of the members of the Board of Directors of BOK Financial 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 BOK Financial 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 BOK Financial terminates Executive's Employment for cause, (A) BOK Financial 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 payable under the terms and provisions of benefit plans then in effect in accordance with paragraph 4(c) above, (C) BOK Financial shall pay the Executive for vacation in accordance with BOK Financial's then existing policy for senior executives, and (D) Executive shall be entitled to receive those amounts due Executive pursuant to paragraph 8(b) and Executive shall be bound by the provisions of the Non-Solicitation Agreement.

 

(7)

Provisions Respecting Illness and Death. In the event Executive becomes disabled as defined in Section 409A(a)(2)(C) of the Internal Revenue Code, BOK Financial may terminate Executive's Employment without further or additional compensation being due

 

5

 


 

the Executive from BOK Financial 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 4(c) above, and vacation in accordance with BOK Financial's then existing policy for senior executives, and the provisions of paragraph 8 shall apply. Without limiting the generality of paragraph 4(c), Executive shall upon such termination receive those benefits provided in BOK Financial's long term disability policy then in effect. In the event of the death of the Executive, the Employment of the Executive shall automatically terminate as of the date of death without further or additional compensation being due the Executive, except BOK Financial shall pay to the estate of the Executive the Annual Salary in effect on the date of death and 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 4(c) above. BOK Financial shall make the payments due Executive in one lump sum within forty-five days following the date of termination.

 

(8)

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 any time during the original or any extended Term clients of BOK Financial or any of its affiliates for the purpose of providing banking, trust, investment, or other services provided by BOK Financial or any of its affiliates during the Term or contact or solicit employees of BOK Financial or any affiliates of BOK Financial to seek employment with any person or entity except BOK Financial 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)

BOK Financial 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 BOK Financial. Notwithstanding the foregoing, the amounts due for the first six months of the Non-Competition Agreement shall be paid in a lump sum as soon administratively possible following such six month period if Executive is determined to be a "specified employee as defined in Section 409A(a)(2)(B)(i).

 

6

 


 

(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 terms of this Non-Solicitation Agreement shall constitute incontrovertible evidence of irreparable injury to BOK Financial, and (iii) BOK Financial 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 to which BOK Financial may be entitled).

 

(9)

Confidential Information. All references in this Section 9 to BOK Financial shall include BOK Financial's affiliates.

 

(a)

Executive acknowledges that, during the Term and prior to the Term, Executive has had and will have access to Confidential Information (as hereinafter defined), all of which shall be made accessible to Executive only in strict confidence; that unauthorized disclosure of Confidential Information will damage BOK Financial's business; that Confidential Information would be susceptible to immediate competitive application by a competitor of BOK Financial; that BOK Financial's business is substantially dependent on access to and the continuing secrecy of Confidential Information; that Confidential Information is unique to BOK Financial and known only to Executive and certain key employees and contractors of BOK Financial; that BOK Financial shall at all times retain ownership and control of all Confidential Information; and that the restrictions contained in this Section 9 are reasonable and necessary for the protection of BOK Financial'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 BOK Financial. Executive shall not copy or use any Confidential Document for any purpose not relating directly to Executive's Employment on BOK Financial's behalf, or use or disclose any Confidential Document to any party other than BOK Financial or its employees and shall not sell Confidential Documents to any party. Upon the termination of this Agreement or upon BOK Financial's request before or after such termination, Executive shall immediately deliver to BOK Financial 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 BOK Financial. 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 BOK Financial'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

 

7

 


 

Information only in connection with and in furtherance of Executive's Employment by BOK Financial and on behalf of its affiliates.

 

(d)

As used herein, Confidential Information means all nonpublic information concerning or arising from BOK Financial's business, including particularly but not by way of limitation trade secrets used, developed or acquired by BOK Financial in connection with its business; information concerning the manner and details of BOK Financial'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 BOK Financial's business; BOK Financial's business plans and strategies; electronic files or documents prepared by BOK Financial or Executive containing the identities of BOK Financial'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 BOK Financial; the nature of fees and charges assessed by BOK Financial; nonpublic forms, contracts and other documents used in BOK Financial's business; the nature and content of any proprietary computer software used in BOK Financial's business, whether owned by BOK Financial or used by BOK Financial under license from a third party; and all other nonpublic information concerning BOK Financial'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 BOK Financial; (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.

 

(10)

Surrender of Records and Property. Upon termination of Executive's employment with BOK Financial for whatever reason, in addition to Executive's obligations pursuant to Paragraph 9(b), Executive shall deliver promptly to BOK Financial 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 BOK Financial or any of its affiliates, and all other information of BOK Financial 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.

 

(11)

Compliance with Section 409A. This Agreement is subject to the following provisions in order to ensure compliance with Section 409A of the Internal Revenue Code of 1986, as amended (Section 409A”).

 

(a)

If any payment, compensation or other benefit provided to the Executive in connection with his employment termination is determined, in whole or in

 

8

 


 

part, to constitute “nonqualified deferred compensation” within the meaning of Section 409A and the Executive is a specified employee as defined in Section 409A(2)(B)(i), no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the date of termination.

 

(b)

The Parties acknowledge and agree that Section 409A and its application, if any, to the terms of this Agreement may be subject to change as additional guidance and regulations become available. Anything to the contrary herein notwithstanding, all benefits or payments provided by the Company to the Executive that would be deemed to constitute “nonqualified deferred compensation” within the meaning of Section 409A are intended to comply with Section 409A. If, however, any such benefit or payment is deemed to not comply with Section 409A, the Company and the Executive agree to renegotiate in good faith any such benefit or payment (including, without limitation, as to the timing of any severance payments payable hereof) so that either (i) Section 409A will not apply or (ii) compliance with Section 409A will be achieved.

 

(c)

All payments required to be made by Bank hereunder to the Executive may be adjusted to the withholding of such amounts, if any, relating to tax and other payroll deductions as the Bank may reasonably determine should be withheld pursuant to any applicable law or regulation.

 

(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 or (ii) 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 (ii) 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 BOK Financial:        

BOK Financial Corporation

Attn: Stanley A. Lybarger

Bank of Oklahoma Tower

P.O. Box 2300

Tulsa, Oklahoma 74192

Telephone No.: (918) 588-6000

Facsimile No.: (918) 295-6379

slybarger@mail.bok.com

 

 

9

 


 

and

 

Chief Human Resources Officer

Attn: Stephen D. Grossi

Bank of Oklahoma Tower

P.O. Box 2300

Tulsa, Oklahoma 74192

Telephone No. 918- 595-3153

 

 

With a Copy to:    Frederic Dorwart

Old City Hall

124 East Fourth Street

Tulsa, OK 74103-5010

Telephone No.: (918) 583-9945

Facsimile No.: (918) 583-8251

FDorwart@FDLaw.com

 

If to Executive:    Steven G. Bradshaw

2707 South Birmingham Place

Tulsa, Oklahoma 74114

Telephone No.: (918) 595-6218

sbradshaw@mail.bok.com

                        

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 without regard to its conflict of law provisions.

 

(d)

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.

 

(e)

This Agreement, and all the provisions of this Agreement, shall be deemed drafted by all of the Parties hereto.

 

 

10

 


 

(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, personal representatives, successors and assigns.

 

(l)

This is not a third party beneficiary contract, except BOK Financial (including each affiliate thereof) 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 Agreement by course of dealing, or other defense of any nature to any obligation arising hereunder.

 

11

 


 

(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.

 

(p)

None of the compensation or other payments to Executive provided for in, or that may be made pursuant to, this Agreement are intended by the Parties to be deferred compensation within the meaning of Section 409A. If, however, the Executive is a " specified employee" as defined in Section 409A(a)(2)(B)(i), then the other provisions of this Agreement notwithstanding, no compensation that is "deferred compensation" within the meaning of Section 409A shall be paid to Executive sooner than six months and one day following the date of Executive s separation from service from the Company, as such date is determined in accordance with Section 409A.

 

Dated as of the Agreement Date.

 

BOK Financial Corporation

 

 

/s/ Stanley A. Lybarger

 

Name: Stanley A. Lybarger

 

Title: President and Chief Executive

Officer

             

 

 

 

Executive

 

 

 

/s/ Steven G. Bradshaw

 

Individually

 

 

 

 

 

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