Exhibit 10.4.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(C. Fred Ball, Jr.)
Amended as of June 14, 2002
This Employment Agreement ("Agreement") is made, effective as of
April 14, 1997 (the "Effective Date") among First National Bank of Park Cities
(the "Bank"), BOK Financial Corporation ("BOKF") and C. Fred Ball, Jr., an
individual residing in Dallas, Texas (the "Executive").
The Bank and Executive, in consideration of the promises and
covenants set forth herein (the receipt and adequacy of which is hereby
acknowledged) and intending to be legally bound hereby, agree as follows:
(1) Purpose of This Agreement. The purpose of this agreement is as follows:
(a) The Bank is a national association formed under and pursuant to
the laws of the United States of America. The Bank is engaged in
the banking business in Dallas, Texas.
(b) The issued and outstanding capital stock of the Bank and of First
Texas Bank ("FTB") is owned by Park Cities Corporation, a Nevada
corporation. The issued and outstanding capital stock of Park
Cities Corporation is owned by Park Cities Bancshares, Inc., a
Texas corporation ("PC Bancshares"). BOKF owns all of the issued
and outstanding capital stock of PC Bancshares. Thus, BOKF
indirectly owns the Bank and TFB.
(c) The Executive has been engaged in the banking business for many
years.
(d) The Bank desires to employ Executive and the Executive desires to
enter the employment of the Bank.
(e) The purpose of this Agreement is to set forth the terms and
conditions on which the Bank shall employ the Executive from and
after the Effective Date.
(2) Employment. The Bank hereby employs the Executive, and the Executive
hereby agrees to work for the Bank, on the following terms and conditions:
(a) Executive shall serve as President of the Bank and as a member of
the Board of Directors of the Bank. The Executive shall report to
the Chief Executive Officer of the Bank.
(b) Executive shall devote his full time, attention and efforts,
exclusively on behalf of the Bank.
(c) Executive shall devote all time and attention reasonably
necessary to the affairs of the Bank and shall serve the Bank
diligently, loyally, and to the best of his ability.
(d) Executive shall serve in such other or additional positions as an
officer and/or director of the Bank as the Board of Directors of
the Bank may request or of any affiliate of the Bank as the Chief
Executive officer of BOKF may request; provided, however,
Executive's residence and place of work shall remain in Dallas,
Texas.
(e) In the event, the Bank and FTB are merged, as is the present
intention of BOKF, BOKF shall cause the Executive to be elected
President and Chief Operating Officer and a director of PC
Bancshares.
(3) Compensation. As the sole, full and complete compensation to the Executive
for the performance of all duties of Executive under this Agreement and for
all services rendered by Executive to the Bank or to any affiliate of the
Bank, the Bank shall:
(a) Pay to Executive the sum of two hundred thousand dollars
($200,000) per year payable in installments in arrears, less
usual and customary payroll deductions for FICA, federal and
state withholding, and the like, at the times and in the manner
in effect in accordance with the usual and customary payroll
policies generally in effect from time to time at the Bank
("Annual Salary").
(b) Pay to Executive as a bonus in respect of 1997 not less than
$50,000 payable at the time BOKF generally pays 1997 bonuses to
its senior management personnel.
(c) Pay and provide to Executive pension, thrift, medical insurance,
disability insurance plan benefits, and other fringe benefits,
generally in effect for employees of BOKF and its affiliates. The
pension benefits provided to BOKF employees are fully described
in the official plan document. Executive shall not be credited
with prior service in BOKF's pension plan, but in the event
Executive is not vested at the time Executive's employment with
the Bank is terminated (for whatever reason other than for cause
as provided in paragraph 5), Bank shall pay Executive an amount
equal to the pension plan contributions made by the Bank in
respect of Executive.
(d) The Bank may, from time to time in Bank's sole discretion, pay or
provide, or agree to pay or, provide Executive a bonus, stock
option, or other incentive or performance based compensation and
shall provide the compensation set forth in paragraph 3(g) below.
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.
(e) The Bank shall reimburse Executive for reasonable and necessary
entertainment, travel and other expenses in accordance with
BOKF's standard policies in general effect for employees of BOKF
affiliates (which does not include reimbursement for country club
memberships or dues); provided, however, the Bank shall, at the
Bank's cost, provide Executive with the use of a membership in
the Park Cities Club.
(f) The Executive shall be allowed vacation, holidays, and other
employee benefits not described above in accordance with the
Bank's standard policy in general effect for Bank's employees.
(g) The Executive shall be awarded, in respect of calendar year 1997,
options to acquire 15,000 shares of BOKF Common Stock pursuant to
the BOKF 1997 Stock Option Plan.
(h) Provided the Executive is employed by the Bank at the time BOKF
issues Award Letters under the BOKF 1997 Stock Option Plan at the
time Award Letters are issued generally by BOKF in respect of
calendar year 1998, the Executive shall be awarded, in respect of
calendar year 1998, options to acquire not less than 10,000
shares of BOKF Common Stock pursuant to the BOKF 1997 Stock
Option Plan.
(i) 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 Bank or any
affiliate of the Bank.
(4) Term of this Agreement. The term of this Agreement (the "Term") shall
commence (the "Commencement") as of the Effective Date and shall continue
thereafter until terminated by Bank or Executive as hereafter provided in
paragraphs 5 and 6; provided, however, the obligations of BOKF arising
under paragraph 3(h) of this Agreement shall survive the expiration of the
Term.
(5) Termination of This Agreement. This Agreement may be terminated by the Bank
on the following terms and conditions:
(a) Termination By the Bank Without Cause. This Agreement may be
terminated by the Bank without cause at any time as follows:
(i) The Bank may, at any time, give written notice of
termination to Executive. The termination shall be effective
on the eleventh (11th) business day following the notice of
termination.
(ii) In the event the Bank terminates this Agreement without
cause, at anytime, (A) the Bank shall pay to Executive his
then effective Annual Salary for the greater of (i) six
months or (ii) the number of months equal to twelve (12)
less twice the number of full calendar months of employment
previously completed hereunder and (B) the Executive shall
receive those benefits which are accrued through the
effective date of such termination and thereafter payable
under the terms and provisions of the benefit plans then in
effect in accordance with paragraph 3(c) above.
(b) Termination by Bank for Cause. The Bank may terminate this
Agreement at any time for cause on the following terms and
conditions:
(i) The Bank shall be deemed to have cause to terminate
Executive's employment only in one of the following events:
(A) The Executive shall willfully fail to substantially
perform his obligations under this Agreement (it being
understood that any such failure resulting from
Executive's incapacity due to physical or mental
illness shall not be deemed willful);
(B) Any intentional act materially injurious to the Bank;
(1) Any act of moral turpitude;
(2) Any dishonest or fraudulent act; or,
(3) Any refusal to obey orders or instructions of the Board
of Directors of the Bank.
(C) The Bank shall be deemed to have cause to terminate
Executive's employment only when a majority of the
members of the Board of Directors of the Bank finds
that, in the good faith opinion of such majority, the
Executive committed any of the acts set forth in
clauses (A) through (E) of the preceding subparagraph,
such finding to have been made after at least five (5)
business days' notice to the Executive and an
opportunity for the Executive, together with his
counsel, to be heard before such majority. The
determination of such majority, made as set forth
above, shall be binding upon the Bank and the
Executive.
(ii) The effective date of a termination for cause shall be the
date of the action of the majority of the Board of the Bank
finding the termination was with cause. In the event the
Bank terminates this Agreement for cause, (A) the Bank 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 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.
(6) Termination of This Agreement by Executive. The Executive may terminate
this agreement on the following terms and conditions:
(a) By the Executive Following Occurrence of a Termination Event. The
Executive may, on the terms and conditions set forth below, terminate
this Agreement by written notice to the Bank with twenty-five (25)
business days following a Termination Event (as hereafter defined).
(i) Each of the following events shall constitute a "Termination
Event":
1) George B. Kaiser and his family shall cease to own
(considering both direct and indirect ownership) more than
fifty percent (50%) of the capital stock of the Bank;
2) The Executive's Annual Salary is reduced below his Annual
Salary as of the Agreement Date;
3) The Executive is not elected as Chairman of the Board and
Chief Executive Officer of the Bank;
4) 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; or,
5) There is a material breach of this Agreement by Bank.
ii. In the event the Executive terminates this Agreement by written
notice pursuant to this paragraph 6(a) and a Termination Event is
determined to have occurred (as provided in the following
subparagraph 6(a)(iii), (A), the Bank shall pay to Executive his
then effective Annual Salary (determined immediately prior to the
Termination Event) for twelve (12) months after the effective
date of the termination, and (B) the Executive shall receive
those Benefits which are accrued through the date of such
termination which are thereafter payable under the terms and
provisions of the benefit plans then in effect in accordance with
paragraph 3(c) above.
iii. The determination of a Termination Event shall be made in the
same manner and with the same effect as a determination of cause
is made as set forth in paragraph 5(b)(ii).
iv. The effective date of termination in the event the Executive
gives notice of termination pursuant to this paragraph 6(a) shall
be the twenty-sixth (26th) business day following the notice,
whether or not a Termination Event is determined to have occurred
in accordance with subparagraph 6(a)(iii).
v. In the event the Executive terminates this Agreement pursuant to
this paragraph 6(a) and a Termination Event is not determined to
have occurred, the Bank shall have no obligation to Executive
beyond the effective date of the termination; provided, however,
that the Executive shall be entitled to receive any benefits,
insured or otherwise, that Executive would otherwise be able to
receive under any benefit plan of the Bank of which Executive is
a beneficiary in accordance with paragraph 3(c).
b. By the Executive in the Absence of a Termination Event. In the absence
of a Termination Event, Executive may terminate this Agreement as
follows:
i. The Executive may at any time give written notice of termination
to the Bank. The termination shall be effective on the
twenty-sixty (26th) business day following the notice of
termination.
ii. In the absence of a determination of a Termination Event, the
Bank shall have no obligation to Executive under this Agreement
beyond the effective date of the termination; provided, however,
that the Executive shall be entitled to receive any benefits,
insured or otherwise, that Executive would otherwise be able to
receive under any benefit plan of the Bank of which Executive is
a beneficiary in accordance with paragraph 3(c).
(7) Death of Executive. In the event of Executive's death during the term of
this Agreement, this Agreement shall terminate at the date of Executive's
death and the Bank shall have no obligation to Executive under this
Agreement beyond the effective date of the termination; provided, however,
the Executive shall be entitled to receive any benefits, insured or
otherwise, that Executive would otherwise be able to receive under any
benefit plan of the Bank of which Executive is a beneficiary in accordance
with paragraph 3(b).
(8) Miscellaneous Provisions. The following miscellaneous provisions shall
apply to this Agreement:
(a) All notices or advices required or permitted to be given by or
pursuant to this Agreement, shall be given in writing. All such
notices and advices shall be (i) delivered personally, (ii) delivered
by facsimile or delivered by U.S. Registered or Certified Mail, Return
Receipt Requested mail, or (iii) delivered for overnight delivery by a
nationally recognized overnight courier service. Such notices and
advices shall be deemed to have been given (i) the first business day
following the date of delivery if delivered personally or by
facsimile, (ii) on the third business day following the date of
mailing if mailed by U.S. Registered or Certified Mail, Return Receipt
Requested, or (iii) on the date of receipt if delivered for overnight
delivery by a nationally recognized overnight courier service. All
such notices and advices and all other communications related to this
Agreement shall be given as follows:
If to the Bank:
BOK Financial Corporation
P.O. Box 2300
Tulsa, OK 74192
Attention: Stanley A. Lybarger
Telecopy No.: (918) 588-6888
and
First National Bank of Park Cities,
National Association
6125 Hillcrest
P.O. Box 8380
Dallas, TX 75205
Attention: Mr. Tommy E. Turner
Telecopy No.: (214) 521-9072
With a Copy to:
Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, OK 74103-5010
Telecopy No.: (918) 583-8251
If to Executive:
C. Fred Ball, Jr. 6203 Waggoner Drive
Dallas, TX 75230
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 Dallas County, Texas
(c) This Agreement shall be subject to, and interpreted by and in
accordance with, the laws (excluding conflict of law provisions) of
the State of Texas.
(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.
(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 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 successors and assigns.
(l) This is not a third party beneficiary contract, except BOKF (including
each affiliate thereof) shall be a third party beneficiary of this
Agreement. No person or entity other than a party signing this
Agreement and those designated as a third party beneficiary herein
shall have any rights under this Agreement.
(m) This Agreement may be amended or modified only in a writing 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.
(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 and effective the date first set forth above.
Bank of Texas, National Association
By
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C. Fred Ball, Jr.
BOK Financial Corporation
By
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