Exhibit 10.4.6 (a)
BOK FINANCIAL CORPORATION
Amended and Restated Deferred Compensation Agreement
(Amended As Of December 1, 2003)
This Deferred Compensation Agreement (the "Agreement") is made this 15th
day of October, 2003 (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 have heretofore entered into that certain
Deferred Compensation Agreement dated October 15, 2003;
Whereas, Executive and BOKF desire to amend and restate the Deferred
Compensation Agreement.
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 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 in 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 September 30, 2004, 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;
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
of 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 an 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 described in section 5, BOKF shall:
i) distribute BOKF Shares (newly issued or held in Treasury) to the
Executive equal to the number of BOKF Shares reflected in the
Special Account (net of that number of BOKF shares equal to the
applicable Federal Insurance Contributions Act (FICA), federal
and state taxes required to be withheld, determined on the basis
of the fair market value of such BOKF Shares on the Distribution
Date); and,
ii) eliminate the Special Account.
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, his employment with
BOKF is terminated for whatever reason or the Deferral Date; provided,
however:
i) In the event the Executive 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,
ii) The Executive may, at any time and from time to time (but not
more frequently than once each calendar quarter), accelerate the
Distribution Date with respect to the value of some or all of the
BOKF Shares and/or with respect to one or more Alternative
Investments reflected in the Special Account to a date no earlier
than ten (10) business days after written notice to BOKF
requesting such accelerated Distribution Date provided Executive
agrees in such notice to an irrevocable forfeiture of ten per
cent (10%) of the value which Executive has requested be
distributed (the "Forfeiture"). All Forfeitures shall be debited
to the Special Account and allocated among BOKF Shares and/or
Alternative Investments reflected in the Special Account in such
manner as BOKF shall in its discretion determine.
b) On the Distribution Date (whether accelerated or otherwise), the
Company shall:
i) Pay the value of the Special Account (or so much thereof as
Executive may have requested be accelerated) on the Distribution
Date (net of applicable federal and state taxes required to be
withheld and less any Forfeiture) 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 so much thereof as Executive
may have requested be accelerated).
c) 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) 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 and the Employment Agreement as amended are 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
/s/ Steven E. Nell
By____________________________
EVP - CFO
Its __________________________
Mark W. Funke
__________________________
Print Name of Executive
/s/ Mark W. Funke
__________________________
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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