Exhibit 10.12
Form of Severance Agreement
CONFIDENTIAL
[DATE]
[ADDRESSEE]
Dear [SALUTATION]:
Boise Cascade Corporation (the "Company") considers it essential to
the best interests of its stockholders to ▇▇▇▇▇▇ the continuous employment of
key management personnel in the event certain material sale events are
threatened or occur. In this regard, the Board of Directors of the Company (the
"Board") recognizes that the possibility of a sale of assets related to the
Company's forest products businesses may exist and that the uncertainty and
questions which this possibility may raise among management could result in the
departure or distraction of management personnel to the detriment of the Company
and its stockholders.
The Board has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including yourself, to their assigned duties without
distraction in the face of the possibility of such a sale.
In order to induce you to remain in the employ of the Company in the
face of such a sale, the Company agrees that you shall receive the severance
benefits set forth in this letter agreement (the "Agreement") if your employment
is terminated under the circumstances described below.
1. Term of Agreement. This Agreement is effective on the date hereof and
shall continue in effect for three years following a Qualifying Sale with
respect to you, provided that this Agreement shall immediately expire if a
Qualifying Sale has not occurred prior to December 31, 2005. The period during
which this Agreement is in effect is referred to herein as the "Term."
2. Qualifying Sale.
A. A "Qualifying Sale" shall be deemed to have occurred if, prior to
December 31, 2005:
(1) All or substantially all of the assets, as determined in the
Board's sole discretion, of the Company's Boise Building Solutions and Boise
Paper Solutions divisions are sold in a single transaction,
(2) All or substantially all of the assets, as determined in the
Board's sole discretion, of the Company's Boise Building Solutions and Boise
Paper Solutions divisions are sold through a series of related transactions; or
(3) Certain assets of the Company's Boise Building Solutions and
Boise Paper Solutions divisions are sold and the Board determines, in its sole
discretion, that such sale shall be treated as a Qualifying Sale with respect to
you.
3. Qualifying Termination. Except as set forth in Sections 6, 7, and 9.A,
no benefits shall be payable under this Agreement unless there is a Qualifying
Sale and your employment is terminated pursuant to a Qualifying Termination
during the Term. Your termination is a Qualifying Termination if (1) a
Qualifying Sale occurs with respect to you, you accept and commence employment
with an entity purchasing assets ("Purchaser") in connection with a Qualifying
Sale and your employment with Purchaser subsequently terminates during the Term,
unless your termination is because of your death, by Purchaser for Cause or
Disability, or by you other than for Good Reason, or (2) a Qualifying Sale
occurs with respect to you, you are not offered or do not accept and commence
employment with a Purchaser, and your employment with the Company terminates
during the Term, unless your termination is because of your death, by the
Company for Cause or Disability, or by you other than for Good Reason. A
transfer of your employment from the Company to one of its subsidiaries, from a
subsidiary to the Company, or between subsidiaries is not a termination of
employment for purposes of this Agreement. Notwithstanding the foregoing, if, in
connection with a Qualifying Sale, you are offered and do not accept employment
with a Purchaser, and the Board determines, in its discretion, that the terms
and conditions of such employment offer would not have resulted in your having
Good Reason (as defined herein), any termination of your employment with the
Company shall not constitute a Qualifying Termination.
A. Disability. If, as a result of your incapacity due to physical or
mental illness or injury, you are absent from your duties with the Company or
Purchaser on a full-time basis for 6 consecutive months, and within 30 days
after written notice of termination is given you have not returned to the
full-time performance of your duties, your employment may be terminated for
"Disability."
B. Cause. Termination of your employment for "Cause" means
termination upon (1) your willful and continued failure to substantially perform
your duties with the Company or Purchaser (other than failure resulting from
your incapacity due to physical or mental illness or injury, or actual or
anticipated failure resulting from your termination for Good Reason), after a
demand for substantial performance is delivered to you by the Board (which term,
as the context requires, shall hereinafter be deemed to include the comparable
body of Purchaser) which specifically identifies the manner in which the Board
believes that you have not substantially performed your duties, or (2) your
willful engagement in conduct which
is demonstrably and materially injurious to the Company or Purchaser, monetarily
or otherwise. For purposes of this Section 3.B, no act or failure to act on your
part shall be considered "willful" unless done or omitted to be done by you not
in good faith and without reasonable belief that your act or omission was in the
best interest of the Company or Purchaser. Notwithstanding the foregoing, you
shall not be deemed to have been terminated for Cause unless and until:
- a resolution is duly adopted by the affirmative vote of not less
than three-quarters of the entire membership of the Board at a
meeting of the Board called and held for the purpose (after
reasonable notice to you and an opportunity for you, together
with your counsel, to be heard before the Board), finding that in
the good faith opinion of the Board you were guilty of conduct
set forth above in clauses (1) or (2) of this Section 3.B and
specifying the particulars of your conduct in detail, and
- a copy of this resolution is delivered to you.
Any decision by the Board that a termination for Cause is
warranted must be supported by clear and convincing evidence.
C. Good Reason. "Good Reason" means any of the following, if
occurring without your express written consent after a Qualifying Sale:
(1) The assignment to you by Purchaser or the Company of any
duties inconsistent with your responsibilities as an executive officer of the
Company or a significant adverse alteration in your responsibilities from those
in effect immediately prior to the Qualifying Sale;
(2) The disposition after a Qualifying Sale by Purchaser of the
business for which your services are principally provided pursuant to a partial
or complete liquidation, a sale of assets (including stock of a subsidiary), or
otherwise, unless the acquirer of the business also assumes and agrees to fully
perform this Agreement and Purchaser guarantees the obligations of the
subsequent acquirer under this Agreement;
(3) A reduction in your annual base salary as in effect
immediately prior to a Qualifying Sale, except for across-the-board salary
reductions similarly affecting all executives of the Company or Purchaser;
(4) A reduction in your target annual cash incentive as in
effect immediately prior to a Qualifying Sale;
(5) A requirement that you be based anywhere other than in the
metropolitan area in which you were based immediately prior to a Qualifying
Sale, except for required travel on the Company's or Purchaser's business to an
extent substantially consistent with your business travel obligations as existed
immediately prior to the Qualifying Sale;
(6) The failure by the Company or Purchaser to continue to
provide you with benefits and compensation, including paid time off, welfare
benefits, short- and long-term incentives, pension, life insurance, healthcare,
and disability plans, no less favorable in the aggregate than the benefits and
compensation available to you immediately prior to the Qualifying Sale;
(7) Any purported termination of your employment which is not
effected pursuant to a Board resolution satisfying the requirements of Section
3.B or a Notice of Termination satisfying the requirements of Section 3.D, as
applicable. Furthermore, no such purported termination of your employment shall
be effective for purposes of this Agreement.
Your right to terminate your employment pursuant to this Section 3.C
shall not be affected by your incapacity due to physical or mental illness or
injury. Your continued employment shall not constitute consent to, or a waiver
of rights with respect to, any event, circumstance, act or failure to act
constituting Good Reason.
D. Notice of Termination. Any purported termination by the Company
or Purchaser or by you shall be communicated by written Notice of Termination to
the other party according to Section 10. A "Notice of Termination" must indicate
the specific termination provision in this Agreement relied upon and set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of your employment under the indicated provision.
E. Date of Termination. "Date of Termination" means:
(1) if your employment is terminated for Disability, 30 days
after the Notice of Termination is given (provided that you have not returned to
the performance of your duties on a full-time basis during that 30-day period);
(2) if your employment is terminated for Cause, for Good Reason,
or for any other reason other than Disability, the date specified in the Notice
of Termination (which, in the case of a termination for Cause shall not be less
than 30 days from the date the Notice of Termination is given, and in the case
of a termination for Good Reason shall not be more than 60 days from the date
the Notice of Termination is given); or
(3) if a dispute exists regarding the termination, the date on
which the dispute is finally determined, either by mutual written agreement of
the parties or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal having expired and no appeal having been
perfected), or, if earlier, the last day of the Term. This subsection (3) shall
apply only if (i) the party
receiving the Notice of Termination notifies the other party within 30 days that
a dispute exists; (ii) the notice of dispute is made in good faith; and (iii)
the party giving the notice of dispute pursues resolution of the dispute with
reasonable diligence. While any dispute is pending under this subsection (3),
the Company or Purchaser will continue to pay you your full compensation in
effect when the Notice of Termination giving rise to the dispute was given
(including, but not limited to, base salary) and continue you as a participant
in all compensation, benefit and insurance plans and programs in which you were
participating when the Notice of Termination giving rise to the dispute was
given, until the dispute is finally resolved, or if earlier, the last day of the
term of this Agreement. Amounts paid under this subsection (3) are in addition
to all other amounts due under this Agreement and shall not be offset against or
reduce any other amounts due under this Agreement.
4. Compensation During Disability or Upon Termination for Cause or Other
than for Good Reason.
A. During any period that you fail to perform your duties as a
result of incapacity due to physical or mental illness or injury, you shall
continue to receive your full base salary at the rate then in effect and all
compensation paid during the period until your employment is terminated for
Disability pursuant to Section 3.A. Thereafter, your benefits shall be
determined in accordance with the insurance programs then in effect of the
Company, Purchaser or subsidiary corporation by which you are employed, and any
qualified and nonqualified retirement plan(s) in which you are a participant.
B. If your employment is terminated for Cause or by you other than
for Good Reason, the Company or Purchaser shall pay you only your full base
salary through the Date of Termination at the rate in effect at the time Notice
of Termination is given, plus all other amounts to which you are entitled under
any compensation plan at the time those payments are due, and the Company or
Purchaser shall have no further obligations to you under this Agreement.
5. Compensation upon a Qualifying Termination. If your employment is
terminated pursuant to a Qualifying Termination, then you shall be entitled to
the payments and benefits provided in this Section 5.
A. Not later than the 5th day following the date the release
required pursuant to Section 8.D becomes effective, the Company or Purchaser (as
applicable) will pay you the following amounts:
(1) Your full base salary through the Date of Termination at the
rate in effect at the time Notice of Termination is given without regard to any
reduction in base salary that would constitute Good Reason (whether or not any
reduction is asserted as Good Reason), plus all other amounts to which you are
entitled under any compensation plan in which you then participate at the time
those payments are due (in each case, to the extent not already paid);
(2) A lump sum severance payment equal to 1 times the sum of
(a) your annual base salary at the rate in effect at the time Notice of
Termination is given without regard to any reduction in base salary that
would constitute Good Reason (whether or not any reduction is asserted as
Good Reason) ("Base Salary"), plus (b) your target annual incentive for
either (1) the year in which the Date of Termination occurs or (2) the year
in which the Qualifying Sale occurs, whichever is greater, without regard to
any reduction in the target incentive that would constitute Good Reason
(whether or not any reduction is asserted as Good Reason) ("Target Bonus");
and
(3) To the extent not already paid, a lump sum amount equal to
the greater of the value of your unused and accrued time off, less any advanced
time off, in accordance with the time off policy applicable to you immediately
prior to a Qualifying Sale or as in effect on the Date of Termination, whichever
is more favorable to you.
B. The Company or Purchaser (as applicable) shall, at its sole
discretion, comply with either subsection (1) or (2) below:
(1) for a 12-month period following the Date of Termination,
maintain, in full force and effect for your continued benefit, all life
(other than any life insurance plan available only to executive officers),
disability, accident and healthcare insurance plans, programs, or
arrangements, and financial counseling services in which you were
participating immediately prior to the Date of Termination without regard to
any reduction in such plans, programs, or arrangements (whether or not such
reduction is asserted as Good Reason), or
(2) not later than the 5th day following the date the release
required pursuant to Section 8.D becomes effective, pay you a lump sum
payment equal to twelve times 150% of the sum of (a) the monthly group
premium for the life (other than any life insurance plan available only to
executive officers), disability, accident and healthcare insurance plans,
programs, or arrangements, and (b) 1/12th of the annual allowance for
financial counseling services, in each case in which you were participating
immediately prior to the Date of Termination without regard to any reduction
in such plans, programs, or arrangements (whether or not such reduction is
asserted as Good Reason).
If the Company or Purchaser (as applicable) chooses to provide
the benefits indicated under subsection (1), and your continued participation
(or a particular type of coverage) is not possible or becomes impossible under
the general terms and provisions of the plans, programs or arrangements, then
the Company or Purchaser (as applicable) shall arrange to provide you with
benefits, at substantially the same cost to you as determined immediately prior
to your last day of employment, which are substantially similar to
those which you are entitled to receive under such plans, programs and
arrangements.
Notwithstanding the foregoing, the Company shall continue to
pay the Company-paid premium under the Company's Supplemental Life Plan (or,
in the case of a Purchaser, a life insurance plan providing substantially
similar benefits to executive officers) for 12 months following the Date of
Termination.
C. If you experience a Qualifying Termination from the Company,
then, in addition to the aggregate retirement benefits to which you may be
entitled under the Company's qualified pension plan and the Company's
nonqualified excess benefit pension plan, the Company shall pay you amounts
equal to (1), (2), (3), or (4), whichever is applicable:
(1) If you have satisfied the service, but not the age,
requirements of the Boise Cascade Corporation Supplemental Early Retirement Plan
for Executive Officers (the "SERP"), as in effect immediately prior to a
Qualifying Sale, you shall receive a monthly benefit, commencing on the earliest
date you could have elected to begin to receive benefits under the SERP, equal
to the benefit to which you would have been entitled under the SERP, as in
effect immediately prior to a Qualifying Sale, had you satisfied the age and
service requirements as of the Date of Termination; or
(2) If you have satisfied the age, but not the service,
requirement of the SERP, as in effect immediately prior to a Qualifying Sale,
you shall receive a monthly benefit, commencing as of the Date of Termination
equal to the benefit to which you would have been entitled under the SERP, as in
effect immediately prior to a Qualifying Sale, had you satisfied the age and
service requirements as of the Date of Termination; or
(3) If you have satisfied neither the age nor the service
requirements of the SERP, as in effect immediately prior to a Qualifying Sale,
you shall receive a monthly benefit, commencing on the earliest date you could
have elected to begin to receive benefits under the SERP, equal to the benefit
to which you would have been entitled under the SERP, as in effect immediately
prior to a Qualifying Sale, had you satisfied the age and service requirements
as of the Date of Termination; or
(4) If you have satisfied both the age and the service
requirements of the SERP, as in effect immediately before a Qualifying Sale, you
shall receive the benefits to which you are entitled under the terms of the
SERP.
Solely for purposes of calculating the amount of the benefit to which
you would have been or are entitled under the SERP pursuant to subsections (1)
through (4) above, you shall be deemed to have (i) accrued an additional one
years of service credit under the qualified pension plan following the actual
date of your termination of employment and (ii) earned compensation for each
additional year of service (without giving effect to limitations in the
qualified pension plan on the amount of compensation which may be taken into
account in calculating the benefit under that plan) equal to the sum of the
Base Salary and the Target Bonus. The benefits under this Section 5.C shall
be paid in the same manner as, and shall otherwise possess the same rights
and privileges as were available with respect to, benefits under the terms of
the SERP as in effect immediately prior to a Qualifying Sale.
If you experience a Qualifying Termination from a Purchaser, are
participating in a nonqualified supplemental retirement plan maintained by
Purchaser for a select group of its management and highly compensated
employees and have not, as of the Date of Termination, earned age and/or
service credit under such plan sufficient to entitle you to benefits under
such plan, Purchaser shall credit you with the age and service credit
necessary to entitle you to benefits under such plan and shall treat you for
purposes of calculating your benefit under such plan as having accrued an
additional one years of service credit following the Date of Termination and
as having earned compensation during such period at an annual rate equal to
the sum of the Base Salary and the Target Bonus.
D. You shall not be required to mitigate the amount of any payment
provided for in this Section 5 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in Sections 5.A and/or
5.C be reduced by any compensation earned by you as the result of employment by
another employer or by retirement benefits after the Date of Termination, or
otherwise. Payments otherwise receivable by you pursuant to Section 5.A(2) shall
be reduced by the amount of any severance benefits received by you pursuant to
any Company or Purchaser severance policy. Benefits otherwise receivable by you
pursuant to Section 5.B(1) shall be reduced to the extent comparable benefits
are actually received by you during the 12-month period following your
termination, and you must report any such benefits actually received by you
to the Company. Benefits and payments otherwise receivable by you pursuant to
Section 5 shall be reduced by the amount of benefits and payments received by
you pursuant to any other written agreement between you and the Company or
Purchaser, as the case may be, providing benefits upon termination.
6. Legal Fees. The Company (or Purchaser, as applicable) shall pay to you
all reasonable legal fees and expenses which you incur (a) as a result of your
termination (including any legal fees and expenses incurred in contesting or
disputing your termination), (b) in seeking in good faith to obtain or enforce
any right or benefit provided by this Agreement, or (c) in connection with any
tax audit or proceeding to the extent applicable to the application of Section
4999 of the Internal Revenue Code of 1986 as amended, to any payment or benefit
provided under this Agreement. This payment shall be made within 10 business
days after the
Company (or Purchaser, as applicable) receives your written request for payment
accompanied by reasonable evidence of fees and expenses incurred.
7. Protective Limitation.
A. Notwithstanding any provision of this Agreement to the contrary,
if you would receive payments under this Agreement or under any other plan,
program, or policy sponsored by the Company or Purchaser or their affiliates
which relate to a Qualifying Sale (the "Total Payments") and which are
determined to be subject to excise tax under Section 4999 of the Code (the
"Excise Tax"); then the Company (or Purchaser, as the case may be) shall pay to
you an additional amount (the "Gross-up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments and any
federal, state and local income and employment taxes, and Excise Tax upon the
Gross-up Payment, shall be equal to the Total Payments. For the avoidance of
doubt, in the event that the Company assigns its obligations hereunder to a
Purchaser, the Purchaser shall have the obligation to make the full Gross-up
Payment, if any, required hereunder, and Purchaser's obligations hereunder shall
not be reduced by the fact that some or all of the Total Payments may be made by
the Company.
B. For purposes of determining whether any of the Total Payments
will be subject to the Excise Tax and the amount of such Excise Tax, (1) all of
the Total Payments shall be treated as "parachute payments" (within the meaning
of Section 280G(b)(2) of the Code) unless, in the Company's or Purchaser's
opinion, the payments or benefits (in whole or in part) do not constitute
parachute payments, including by reason of Section 280G(b)(4)(A) of the Code,
and (2) all "excess parachute payments" within the meaning of Section 280G(b)(1)
of the Code shall be treated as subject to the Excise Tax unless, in the
Company's or Purchaser's opinion, the excess parachute payments (in whole or in
part) represent reasonable compensation for services actually rendered (within
the meaning of Section 280G(b)(4)(B) of the Code) in excess of the base amount
allocable to such reasonable compensation, or are otherwise not subject to the
Excise Tax. For purposes of determining the amount of the Gross-up Payment, you
will be deemed to pay federal income tax at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-up Payment is to be made
and state and local income taxes at the highest marginal rate of taxation in the
state and locality of your residence on the Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of state and local taxes.
C. The Company or Purchaser, as applicable will pay you the amount
of the Gross-up Payment as soon as the amount can be determined, but in no event
later than the 30th day after the Date of Termination. At the time that payments
are made under this Agreement, the Company or Purchaser, as applicable shall
provide you with a written statement setting forth the manner in which the
payments were calculated and the basis for the calculations including,
without limitation, any opinions or other advice the Company or Purchaser has
received from its tax counsel, its auditor, or other advisors or consultants
(and any opinions or advice which are in writing shall be attached to the
statement).
D. If the Excise Tax is finally determined to be less than the
amount taken into account in calculating the Gross-up Payment, you shall repay
to the Company or Purchaser, as applicable, within 5 business days following the
time that the amount of the reduction in Excise Tax is finally determined, the
portion of the Gross-up Payment attributable to the reduction (plus that portion
of the Gross-up Payment attributable to the Excise Tax and federal, state, and
local income and employment taxes imposed on the Gross-up Payment being repaid
by you, to the extent that such repayment results in a reduction in the Excise
Tax and a dollar-for-dollar reduction in your taxable income and wages for
purposes of federal, state, and local income and employment taxes). If the
Excise Tax is determined, for any reason, to exceed the amount taken into
account in calculating the Gross-up Payment, the Company or Purchaser shall make
an additional Gross-up Payment in respect of the excess (including any interest,
penalties, or additions payable by you with respect to the Excise Tax) within 5
business days following the time that the amount of the excess is finally
determined. You and the Company or Purchaser shall reasonably cooperate with the
other in connection with any administrative or judicial proceedings concerning
the existence or amount of liability for Excise Tax with respect to the Total
Payments.
8. Employee Covenants; Release.
A. You agree that you will not, directly or indirectly, use, make
available, sell, disclose or otherwise communicate to any person, other than in
the course of your assigned duties and for the benefit of the Company, either
during the period of your employment or at any time thereafter, any nonpublic,
proprietary or confidential information, knowledge or data relating to the
Company, any of its subsidiaries, affiliated companies or businesses, which you
obtained during your employment by the Company. This restriction will not apply
to information that (i) was known to the public before its disclosure to you;
(ii) becomes known to the public after disclosure to you through no wrongful act
of yours; or (iii) you are required to disclose by applicable law, regulation or
legal process (provided that you provide the Company with prior notice of the
contemplated disclosure and reasonably cooperate with the Company at its expense
in seeking a protective order or other appropriate protection of such
information).
B. During your employment with the Company and for one year after
your termination, you agree that you will not, directly or indirectly,
individually or on behalf of any other person, firm, corporation or other
entity, knowingly solicit, aid or induce any managerial level employee of the
Company or any of its subsidiaries or affiliates to leave employment in order to
accept employment with or render services to or with any other person, firm,
corporation or other entity unaffiliated with the Company or knowingly take any
action to materially assist or
aid any other person, firm, corporation or other entity in identifying or hiring
any such employee.
C. You agree that during and after your employment with the Company
you shall not make any public statements that disparage the Company, its
respective affiliates, employees, officers, directors, products or services.
Notwithstanding the foregoing, statements made in the course of sworn testimony
in administrative, judicial or arbitral proceedings (including, without
limitation, depositions in connection with such proceedings) shall not be
subject to this Section 8.C.
D. Notwithstanding anything in this Agreement to the contrary, the
payment to you of the benefits provided in Section 5 is conditioned upon your
execution and delivery to the Company and Purchaser, if applicable (and your
failure to revoke) a customary general release of claims which shall include a
release of the Company and, if applicable, purchaser, and their affiliates.
9. Successors; Binding Agreement.
A. To the extent that you are offered and accept and commence
employment with a Purchaser in connection with a Qualifying Sale, the Company
will require Purchaser to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would be required to
perform. Failure of the Company to do so shall be a breach of this Agreement and
shall entitle to you to compensation from the Company in the same amount and on
the same terms as if you had experienced a Qualifying Termination, except that
for purposes of this Section 9.A, the date on which the Qualifying Sale becomes
effective shall be deemed the Date of Termination. If the Company so assigns
this Agreement, for purposes of your Agreement, there shall be deemed to have
been a Qualifying Sale, whether or not such a sale has occurred at such time.
B. This Agreement shall inure to the benefit of and be enforceable
by your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If you should die while
any amount would still be payable to you under this Agreement if you had
continued to live, all such amounts, unless otherwise provided in this
Agreement, shall be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or if there is no such designee, to your
estate.
C. Any dispute between you and the Company or Purchaser, as
applicable, regarding this Agreement may be resolved either by binding
arbitration or by judicial proceedings at your sole election, and the Company or
Purchaser, as applicable, agrees to be bound by your election in that regard,
provided that the Company is entitled to seek equitable relief in a court of
competent jurisdiction in connection with the enforcement of the covenants set
forth in Section 8. Under no circumstance will a violation or alleged violation
of those covenants entitle the
Company or Purchaser, as applicable, to withhold or offset a payment or benefit
due under this Agreement
10. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement, provided
that all notices to the Company shall be directed to the attention of the Board
with a copy to the Secretary of the Company, or to such other address as either
party may have furnished to the other in writing in accordance with this Section
10, except that notice of change of address shall be effective only upon
receipt.
11. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and an officer designated by the Board. No waiver by
either party at any time of any breach by the other party of, or compliance
with, any condition or provision of this Agreement to be performed by the other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or at any prior or subsequent time. No agreements or
representations, oral or otherwise, express or implied, with respect to the
subject matter of this Agreement have been made by either party which are not
expressly set forth in this Agreement. All references to sections of the
Exchange Act or the Code shall be deemed also to refer to any successor
provisions to those sections. If obligations of the Company or Purchaser, as
applicable, arise prior to the expiration of the Term, those obligations shall
survive the expiration of the term.
12. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. No Guaranty of Employment. Neither this Agreement nor any action taken
under this Agreement shall be construed as giving you a right to be retained as
an employee or an executive officer of the Company or Purchaser.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with Delaware law.
16. Other Benefits; Indemnification. Any payments made to you pursuant to
this Agreement are in addition to, and not in lieu of, any amounts to which you
may be entitled under any other employee benefit plan, program or policy of the
Company, except that payments made to you pursuant to Section 5.A(2) shall be in
lieu of any severance payment to which you would otherwise be entitled under any
severance pay policy of the Company and payments made to you pursuant to Section
5.C by the Company shall be in lieu of any payments under the SERP.
Notwithstanding the foregoing, this Agreement does not supercede your agreement
with the Company dated [DATE] (the "Change in Control Agreement"), it being
understood, however, that under no circumstances shall you be entitled to
receive benefits pursuant to both this Agreement and the Change in Control
Agreement and that it shall be a condition to receipt of benefits and payments
pursuant to this Agreement that you acknowledge that no benefits or payments
will be payable to you pursuant to the Change in Control Agreement. In addition
to the other payments and benefits provided herein, for the six year period
immediately following any termination of your employment from the Company during
the Term other than a termination for Cause (but including a termination of
employment with the Company in connection with an acceptance of an employment
offer from a Purchaser in a Qualifying Sale), the Company shall cause you to be
covered under the directors and officers insurance coverage ("D&O insurance")
that is in effect with respect to the then-current officers of the Company, it
being understood that the level of such coverage provided to you during such
period shall be substantially identical to that being provided at such time to
the current officers of the Company; provided that if at any time during such
six year period no D&O insurance is in effect with respect to the then-current
officers of the Company, the Company shall purchase and maintain at its sole
expense for the remainder of the six year period a run-off directors and
officers insurance policy providing coverage for you at the same level as the
D&O insurance in effect at the time of your termination of employment from the
Company.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this letter
which will then constitute our agreement on this subject.
Sincerely,
BOISE CASCADE CORPORATION
By
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Senior Vice President and General Counsel
AGREED TO AND ACCEPTED this_____________day of______________________, 2004.
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Signature of Officer