Exhibit 10.4.6
BOK FINANCIAL CORPORATION
409A Deferred Compensation Agreement
This Deferred Compensation Agreement (the "Agreement") is made this
31st day of December, 2004 (the "Agreement Date") between the following parties
(the "Parties"):
i. Mark W. Funke, an individual residing in Edmond, Oklahoma ("Executive"); and,
ii. BOK Financial Corporation, an Oklahoma corporation ("BOKF").
Recitals
Whereas, Executive and BOKF desire to enter into a Deferred
Compensation Agreement that is compliant with the American Jobs Creation Act of
2004, as codified in Section 409A of the Internal Revenue Code ("Code").
Now, therefore:
The Executive and BOKF, 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 purpose of this Agreement is as follows:
a) Executive is employed by BOKF as its Senior Executive Vice President.
i) Executive may hereafter be issued performance or restricted shares (as
provided, from time to time, in the BOKF Executive Compensation Plans)
and/or awarded options (the "Options") to acquire Common Stock of BOKF
and has heretofore been awarded options which, as of the Agreement
Date, have not vested or been exercised, as set forth on Schedule 1
hereto (such performance shares, restricted shares, and shares of
Common Stock of BOKF issued upon exercise of the Options, being
hereinafter collectively called the "Shares").
b) Executive may hereafter be issued an annual incentive bonus in respect
of calendar year 2004, payable in March 2005 pursuant to the BOKF
Executive Compensation Plan (the "2004 Annual Bonus").
c) This Agreement is entered into in order to permit Executive to defer
the receipt of all or a portion of the Shares otherwise payable to
Executive upon the exercise of Options or the vesting of performance
shares or restricted shares issued to Executive and/or the receipt of
all or a portion of the 2004 Annual Bonus.
d) This Agreement sets forth the terms and conditions on which Executive
may defer the receipt of Shares pursuant to the exercise of the Options
or the vesting of performance shares or restricted shares, and/or the
receipt of the 2004 Annual Bonus.
2) Election to Defer Receipt of Shares. The Executive may, at the sole and
absolute discretion of the Executive (without any obligation to provide
an explanation for the exercise of such discretion), elect to defer the
receipt of Shares upon exercise of Options or the vesting of
performance or restricted shares, on the following terms and
conditions:
a) Executive shall:
i) not less than six months prior to the vesting of performance shares or
restricted shares or the intended date of exercise of any of the
Options, as applicable, give written notice (the "Notice") to BOKF that
Executive elects to defer the receipt of Shares or the vesting of
performance or restricted shares (the "Election"); and/or,
ii) on or before March 15, 2005, give written notice (also called a
"Notice") to BOKF that Executive elects to defer receipt of some or all
of the 2004 Annual Bonus (also called an "Election").
b) Each Notice shall set forth:
i) the name of the BOKF Stock Option Plan pursuant to which the Options
were awarded, the date on which the Options were awarded (the "Stock
Option Award Date"), the number of Shares under option to be exercised;
ii) the number of Shares which are performance shares or restricted shares
which Executive elects to defer; and
iii) the amount of 2004 Annual Bonus which the Executive elects to defer;
and,
iv) whether the deferral shall be until retirement or until a date, not
earlier than five years from the Notice, which executive shall specify
in the Notice (the "Deferral Date")
c) Executive agrees to use shares of BOKF Common Stock previously owned by
him for at least six months to satisfy the exercise price of the
Options, rather than the cash or broker assisted exercise methods.
d) In the event Executive elects to defer the vesting of performance
shares or restricted shares, the Executive shall assign and deliver
such shares to BOKF together with the Notice of deferral.
e) The Election shall be irrevocable.
3) Special BOKF Liability Account.
a) Upon the exercise of an Option for which an Election has previously
been made by the Executive pursuant to Section 2 and/or the deferral or
vesting of Shares which are restricted shares or performance shares
assigned and delivered to BOKF in accordance with Section 2(d), BOKF
shall establish a special BOKF Liability Account ("Special Account").
i) The Special Account shall reflect the number of BOKF Shares for which
Options were exercised by the Executive, the number of BOKF Shares
which are performance shares and restricted shares, and the amount of
2004 Annual Bonus, which Executive has elected to defer. The Executive
shall pay any FICA taxes that may be due in one or the other of the
following ways:
(1) Executive shall pay FICA in cash; or,
(2) In the case of the deferral of BOKF Shares, the Special Account shall
be debited that amount of BOKF Shares necessary to pay FICA. Executive
acknowledges that, in the event Executive elects the provision of this
sub-paragraph (2), the value of the debited shares shall not be
deferred under this Agreement and shall be taxable income to the
Executive, subject to federal and state income tax and withholding.
ii) BOKF shall periodically (but not less than once each calendar quarter)
report the number of BOKF Shares reflected in the Special Account and
related current value of such BOKF Shares to Executive.
iii) The Special Account shall be for bookkeeping purposes only.
iv) The Executive shall not, in fact, own the BOKF Shares reflected in the
Special Account.
b) If there are any changes in the capitalization of BOKF (or of any
Alternative Investment, as hereafter defined) affecting the number or kind
(after the recapitalization) of issued and outstanding shares of BOKF
Common Stock (or the shares of any Alternative Investment) existing
immediately prior to the change in capitalization, whether such changes
have been occasioned by reorganization, combination of shares, declaration
of stock dividends, stock splits, reverse stock splits, reclassification or
recapitalization of such stock, the merger or consolidation of BOKF (or any
Alternative Investment) with some other corporation or other similar
transaction, then the number and kind of shares reflected in the Special
Account shall be appropriately adjusted to reflect the number and kind of
shares the Executive would have owned had the Executive actually owned the
BOKF Shares (or shares of Alternative Investment) reflected in the Special
Account on the date of such changes.
c) On the Distribution Date, BOKF shall comply with the provisions
described in section 5:
4) Special Diversified Liability Account.
a) At any time after the exercise of an Option as described in Section 2
and before the Distribution Date but no more than once each calendar
quarter, the Executive may elect to convert (the "Conversion") all or a
portion of the value of the Special Account into a credit value in the
Special Account equal to the value so converted (less applicable FICA
taxes). The converted value ("Converted Value") shall be represented by
one or more Alternative Investments (as hereafter defined) selected by
Executive.
b) As a condition of a Conversion, the Executive shall select one or more
of the investment opportunities listed in Appendix A of this Agreement
(the "Alternative Investments") to measure the value of the Special
Account as if such converted Special Account value had actually been
invested in such Alternative Investments.
c) After one or more Conversions:
i) The Special Account shall reflect the BOKF Shares and Alternative
Investments remaining after each such Conversion and the value thereof
from time to time.
ii) BOKF shall periodically (but not less than once each calendar quarter)
report the BOKF Shares and Alternative Investments reflected in the
Special Account and related current value thereof to Executive.
iii) The Special Account shall be for bookkeeping purposes only.
iv) The Executive shall not own the BOKF Shares or Alternative Investments
reflected in the Special Account and shall have no right to ownership
or possession thereof.
v) BOKF may from time to time amend Exhibit A by adding additional
investment opportunities to, but not deleting investment opportunities
from, the list contained in Appendix A.
5) Distribution Date and Distribution.
a) The Distribution Date for the Special Account shall be a date selected by
BOKF between January 15 and March 1 of the year next following the year in
which the Executive retires from BOKF(not less than six months following
the date of such retirement), his employment with BOKF is terminated for
whatever reason (not less than six months following the date of such
termination), or the Deferral Date; provided, however, in the event the
Executive becomes disabled (as such term is defined in Section
409A(a)(2)(C) of the Code) or dies prior to retiring from BOKF or prior to
his employment with BOKF having terminated for whatever reason, the
Distribution Date shall be a date selected by BOKF not later than 90
calendar days following the date of death; and,
b) If the Executive experiences an unforeseeable emergency (as such term
is defined in 409A(a)(2)(B) of the Code), Executive may request (i)
suspension of any deferrals required to be made by Executive and/or
(ii) receive a partial or full payout from the Special Account. The
payout shall not exceed the lesser of the Executive's account balance,
calculated as if such Executive were receiving a termination benefit,
or the amount reasonably needed to satisfy the unforeseeable emergency.
c) On the Distribution Date, the Company shall:
i) Pay the value of the Special Account (net of applicable federal and
state taxes required to be withheld) to Executive in cash, BOKF Shares,
Alternative Investments or a combination thereof, in sole the
discretion of BOKF; and,
ii) eliminate the Special Account or, in the case of a Distribution
associated with a Deferral Date, reflect any payment out of the Special
Account.
d) In the event of the death of the Executive, the distribution provided
in the preceding subsection shall be made to the beneficiary or
beneficiaries previously designated by the Executive in a writing filed
with the Secretary of BOKF or, in the absence of such designation, as
provided by Executive in any trust or will and, in the absence of any
such trust or will, to Executive's estate.
6) No Executive Interest in Any BOKF Assets.
a) BOKF shall have no obligation to actually hold BOKF Shares reflected in
the Special Account or invest funds in any Alternative Investment
selected by Executive.
b) If BOKF, in its sole discretion, actually holds BOKF Shares reflected
in the Special Account or invests BOKF funds in Alternative
Investments, the Executive shall have no right or interest therein.
c) The Executive shall have the right under this Agreement only to the
payment in cash of an amount measured by reference to the values of
BOKF Shares and Alternative Investments reflected in the Special
Account (the "Reference Values"). Such contractual right of the
Executive constitutes the Executive a general unsecured creditor of
BOKF.
d) BOKF may satisfy its obligation to pay the Referenced Values by making
payment in cash or by the delivery of the BOKF Shares and/or
Alternative Investments by which the Reference Values are determined.
7) No Enlargement of Employment Rights. Nothing contained in this
Agreement shall (i) give or be construed as giving the Executive the
right to be retained in the service of BOKF or (ii) modify or be
construed as modifying the terms and conditions of employment of
Executive with BOKF.
8) Indemnification. Executive hereby agrees to defend and indemnify BOKF,
and hold BOKF harmless from, all claims of third parties arising out of
the operations of any Alternative Investment selected by Executive that
BOKF may actually acquire. BOKF shall not be responsible for any
decline in value of the Shares or of any Alternative Investment.
9) Termination of this Agreement. This Agreement shall remain in full
force and effect from the Agreement Date until Executive's retirement
or termination; provided, however, either BOKF or Executive may
terminate the provisions of Section 2 hereof by notice given on or
before November 1 of any year in which event such termination shall be
effective as of January 1 immediately following such notice; provided,
further, no such termination shall effect the time at which any
distribution shall be made to Executive.
10) American Jobs Creation Act of 2004 Compliant. The Agreement is intended
to comply in all regards with Section 409A of the Internal Revenue
Code, 26 U.S.C. ss. 409A (2004). To the extent that any provision
contained herein is determined to be non-compliant, such provision
shall be deemed amended so as to comply with Section 409A and the
parties hereto shall execute an agreement reflecting such amendment.
11) Miscellaneous Provisions. The following miscellaneous provisions shall
apply to this Agreement:
a) All notices or advices required or permitted to be given by or pursuant to
this Agreement, shall be given in writing. All such notices and advices
shall be (i) delivered personally, (ii) delivered by facsimile or delivered
by U.S. Registered or Certified Mail, Return Receipt Requested mail, or
(iii) delivered for overnight delivery by a nationally recognized overnight
courier service. Such notices and advices shall be deemed to have been
given (i) the first business day following the date of delivery if
delivered personally or by facsimile, (ii) on the third business day
following the date of mailing if mailed by U.S. Registered or Certified
Mail, Return Receipt Requested, or (iii) on the date of receipt if
delivered for overnight delivery by a nationally recognized overnight
courier service. All such notices and advices and all other communications
related to this Agreement shall be given as follows:
If to BOKF: BOK Financial Corporation
Att: Chief Financial Officer
P.O. Box 2300
Tulsa, Oklahoma 74192
918-588-6319 - Telephone
918-588- 6853 - Facsimile
If to Executive: Mark W. Funke
13 Oakdale Farm Road
Edmond, OK 73013
(405) 478-5943 - Telephone
With Copy to: Frederic Dorwart
Old City Hall
124 East Fourth Street
Tulsa, OK 74103
(918) 583-9945 - Telephone
(918) 583-8251 - Facsimile
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 County, Oklahoma.
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 Oklahoma.
d) This Agreement contains 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.
e) No course of prior dealings involving any of the parties hereto and no
usage of trade shall be relevant or advisable to interpret, supplement,
explain or vary any of the terms of this Agreement, except as expressly
provided herein.
f) This Agreement, and all the provisions of this Agreement, shall be
deemed drafted by all of the parties hereto.
g) 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 intent of this Agreement.
h) 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.
i) 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.
j) 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.
k) 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).
l) This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and assigns.
m) This is not a third party beneficiary contract. No person or entity
other than a party signing this Agreement shall have any rights under
this Agreement. This Agreement may not be assigned by any party hereto.
n) This Agreement may be amended or modified only in a writing which
specifically references this Agreement.
o) Any cause of action for a breach or enforcement of, or a declaratory
judgment respecting, this Agreement shall be commenced and maintained
only in the United States District Court for the Northern District of
Oklahoma or the applicable Oklahoma state trial court sitting in Tulsa,
Oklahoma and having subject matter jurisdiction.
Dated as of the Agreement Date.
BOK Financial Corporation
By____________________________
Its ______________________
Mark W. Funke
Print Name of Executive
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Signature of Executive
Schedule 1
(To Deferred Compensation Agreement)
(Description of Options Held at Agreement Date)
Exhibit A
(To Deferred Compensation Agreement)
(Additional Investment Opportunities)
As of ______________________
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