As filed with the Securities and Exchange Commission on September 2, 1999
Registration No. 333-_____
___________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
_________________________________
BOISE CASCADE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 82-0100960
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1111 West Jefferson Street, P.O. Box 50, Boise, Idaho 83728-0001
(Address of Principal Executive Offices) (Zip Code)
_________________________________
BOISE CASCADE CORPORATION
1995 EXECUTIVE OFFICER DEFERRED COMPENSATION PLAN
(Full title of the plan)
_________________________________
JOHN W. HOLLERAN
Senior Vice President, Human Resources, & General Counsel
Boise Cascade Corporation
Post Office Box 50
Boise, Idaho 83728-0001
(Name and address of agent for service)
_________________________________
208/384-6161
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
___________________________________________________________________________
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to Price per Offering Registration
To be Registered be Registered Share Price(1) Fee(1)
___________________________________________________________________________
Common Stock, 100,000 shares )
$2.50 par value )
) Indeterminable $3,700,000 $1,091.50
Stock Units to Indeterminable )
be Credited to
Participants' Accounts
Under the Registrant's
1995 Executive Officer
Deferred Compensation Plan
Common Stock 100,000 shares N/A N/A N/A
Purchase Rights(2)
___________________________________________________________________________
(1) The shares of Common Stock being registered will be issued in
connection with the 1995 Executive Officer Deferred Compensation Plan. The
aggregate offering price and registration fee have been calculated in
accordance with 17 C.F.R. 230.457(h) and in accordance with Section 6(b) of
the Securities Act of 1933. The average of the high and low prices for the
Common Stock reported in the consolidated reporting system used for this
purpose on August 31, 1999, was $37.00 per share.
(2) Rights are evidenced by certificates for shares of the Common Stock
and automatically trade with such Common Stock.
___________________________________________________________________________
<PAGE>
BOISE CASCADE CORPORATION
Cross-reference sheet
Item in Page or Caption in 1995 Executive Officer Deferred
Form S-8 Compensation Plan Registration Statement
1........ Inapplicable
2........ Inapplicable
3........ Incorporation of Documents by Reference
4........ Description of Securities
5........ Interests of Named Experts and Counsel
6........ Indemnification of Directors and Officers
7........ Inapplicable
8........ Exhibits
9........ Undertakings
<PAGE>
Incorporation of Documents by Reference
The SEC allows us to "incorporate by reference" the information we
file with them. This means we can disclose important information to you by
referring you to those documents. The information incorporated by
reference is considered part of this Registration Statement, and later
information filed with the SEC will update and supersede this information.
We incorporate by reference the documents listed below and any future
filings made with the SEC under Sections 13(a), 13(c), 14, and 15(d) of the
Securities Exchange Act of 1934:
1. Annual Report on Form 10-K for the year ended December 31, 1998;
2. Interim Reports on Form 10-Q for the quarters ended March 31 and
June 30, 1999;
3. Definitive Proxy Statement dated March 11, 1999, used in
connection with the Annual Meeting of Shareholders held on
April 15, 1999; and
4. The description of the company's common stock which appears on
pages 19 to 22 of its Registration Statement on Form 10 filed with
the SEC on April 5, 1965, and in the amendments thereto on Form 8
dated May 24, 1965, and March 4, 1986.
You may request a copy of these filings, at no cost, by contacting us
at the following:
Investor Relations Department
Boise Cascade Corporation
P.O. Box 50
Boise, Idaho 83728-0001
(208) 384-6390
e-mail: [email protected]
Description of Securities
The securities covered by this Registration Statement consist of a
maximum of 100,000 shares of the company's common stock, together with the
related common stock purchase rights. The registration of these shares
will allow the common stock to be:
(a) issued to a participant in accordance with the terms of the plan
and his or her election under the Deferred Compensation Agreement;
(b) transferred to the trustee of the company's Deferred Compensation
and Benefits Trust in connection with a potential or actual change
in control of the company as set out in the plan provisions; and
(c) freely sold, transferred, or exchanged (without further
registration) by the trustee or participant following any
distribution under (a) or (b).
The stock units covered by this Registration Statement are notional
units credited to participants' accounts based on the amount of
compensation elected to be deferred under this method, accrued dividends,
and any company match. Each stock unit is equal in value to one share of
the company's common stock.
Interests of Named Experts and Counsel
The audited financial statements incorporated by reference in this
Registration Statement were audited by Arthur Andersen LLP, independent
public accountants, as indicated in their report accompanying the
statements. These financial statements are incorporated by reference in
reliance upon the authority of that firm in giving such reports as experts
in accounting and auditing.
The legality of the issuance of the common stock is being passed upon
for us by John W. Holleran, our Senior Vice President, Human Resources, and
General Counsel. As of June 30, 1999, Mr. Holleran was the beneficial
owner of 1,200 shares of our common stock and 915 shares of our Convertible
Preferred Stock, Series D, in the Employee Stock Option Plan. Mr. Holleran
holds options to purchase shares of our common stock under a company stock
option plan and holds stock units under the 1995 Executive Officer Deferred
Compensation Plan.
Indemnification of Directors and Officers
Section 145 of the General Corporation Law of Delaware authorizes the
company to indemnify its directors and officers under specified
circumstances. Our Restated Certificate of Incorporation and bylaws provide
that we shall indemnify, to the extent permitted by Delaware law, our
directors, officers, and employees against liabilities (including expenses,
judgments, and settlements) incurred by them in connection with any actual
or threatened action, suit, or proceeding to which they are or may become
parties and which arise out of their status as directors, officers, or
employees. The company has also entered into agreements with each director
to indemnify him or her to the fullest extent permitted by Delaware law.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, or persons
controlling the company pursuant to the above provisions, we have been
advised that in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act
of 1933. These provisions are, therefore, unenforceable.
Our directors and officers are insured, under insurance policies
maintained by the company, against certain expenses incurred in the defense
of actions, suits, or proceedings and certain liabilities which might be
imposed as a result of such actions, suits, or proceedings, to which they
are parties by reason of being or having been directors or officers
(subject to policy limitations).
Exhibits
Required exhibits are listed in the Index to Exhibits and are
incorporated by reference.
Undertakings
The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) Not applicable.
(ii) Not applicable.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
3. To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
4. Not applicable.
5. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
6. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers,
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report
dated January 29, 1999, incorporated by reference in Boise Cascade
Corporation's Form 10-K for the year ended December 31, 1998, and to all
references to our firm included in this Registration Statement.
/s/Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boise, Idaho
September 2, 1999
<PAGE>
Power of Attorney
Each person whose signature appears below appoints George J. Harad and
John W. Holleran, and each of them severally, acting alone and without the
other, his true and lawful attorney-in-fact with authority to execute in
the name of each such person and to file with the Securities and Exchange
Commission, together with any exhibits and other documents, any and all
amendments (including post-effective amendments) to this Registration
Statement necessary or advisable to enable the company to comply with the
Securities Act of 1933, as amended, and any rules, regulations, and
requirements of the Securities and Exchange Commission in respect thereof,
which amendments may make such other changes in the Registration Statement
as the aforesaid attorney-in-fact executing the same deems appropriate.
Signatures
Pursuant to the requirements of the Securities Act of 1933, the
company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Boise, state of Idaho, on
September 2, 1999.
BOISE CASCADE CORPORATION
By /s/George J. Harad
George J. Harad
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 2, 1999.
Signature Title
/s/George J. Harad Chairman of the Board and
George J. Harad Chief Executive Officer
(Principal Executive Officer)
/s/Theodore Crumley Senior Vice President and
Theodore Crumley Chief Financial Officer
(Principal Financial Officer)
/s/Thomas E. Carlile Vice President and Controller
Thomas E. Carlile (Principal Accounting Officer)
<PAGE>
Signature Title
A Majority of the Directors
/s/George J. Harad Director
George J. Harad
/s/Anne L. Armstrong Director
Anne L. Armstrong
/s/Philip J. Carroll Director
Philip J. Carroll
/s/Rakesh Gangwal Director
Rakesh Gangwal
/s/Edward E. Hagenlocker Director
Edward E. Hagenlocker
/s/Robert K. Jaedicke Director
Robert K. Jaedicke
/s/Donald S. Macdonald Director
Donald S. Macdonald
/s/Gary G. Michael Director
Gary G. Michael
/s/Paul J. Phoenix Director
Paul J. Phoenix
/s/A. William Reynolds Director
A. William Reynolds
/s/Francesca Ruiz de Luzuriaga Director
Francesca Ruiz de Luzuriaga
/s/Jane E. Shaw Director
Jane E. Shaw
/s/Frank A. Shrontz Director
Frank A. Shrontz
/s/Ward W. Woods, Jr. Director
Ward W. Woods, Jr.
Dated: September 2, 1999
<PAGE>
INDEX TO EXHIBITS
Filed With Registration Statement
on Form S-8
_____________________
Number Description Page Number
4 Boise Cascade Corporation 1995 Executive
Officer Deferred Compensation Plan, as
amended through December 10, 1998, and
Restated June 8, 1999
5 Opinion of John W. Holleran, Senior Vice
President, Human Resources, and General
Counsel for the Company
15 Inapplicable
23.1 Consent of Independent Public Accountants
(included in Registration Statement)
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included on signature page)
99 Inapplicable
Exhibit 4
BOISE CASCADE CORPORATION
1995 EXECUTIVE OFFICER DEFERRED COMPENSATION PLAN
(As Amended Through December 10, 1998,
and Restated June 8, 1999)
<PAGE>
BOISE CASCADE CORPORATION
1995 EXECUTIVE OFFICER DEFERRED COMPENSATION PLAN
1. Purpose of the Plan. The purpose of the Boise Cascade
Corporation 1995 Executive Officer Deferred Compensation Plan (the "Plan")
is to further the growth and development of Boise Cascade Corporation (the
"Company") by providing executive officers of the Company the opportunity
to defer a portion of their compensation and thereby encourage their
productive efforts on behalf of the Company. The Plan is also intended to
provide Participants with an opportunity to supplement their retirement
income through deferral of current compensation. The Plan is an unfunded
plan providing deferred compensation to a select group of senior management
or highly compensated employees of the Company.
2. Definitions.
2.1 Account Accumulation Rate. The rate of imputed interest
which shall be applied to Participants' Deferred Accounts. This rate shall
be equal to Moody's Times 130% during (i) the period of time the
Participant is employed by the Company or any of its subsidiaries, and
(ii) during the period following the Participant's Termination of
Employment, provided that at the time of such Termination of Employment the
Participant (i) satisfies the Rule of 70 or (ii) has attained age 55 and
has ten or more Years of Service. With respect to any time period not
included in the foregoing, the Account Accumulation Rate applicable to a
Participant's Deferred Account shall be equal to Moody's.
2.2 Compensation. A Participant's salary, commission, bonus,
and other payments for personal services rendered by a Participant to the
Company during a calendar year, determined prior to giving effect to any
deferral election under this Plan or any incentive compensation plan
sponsored by the Company. Compensation shall not include any amounts paid
by the Company to a Participant that are not strictly in consideration for
personal services, such as expense reimbursement, cost-of-living allowance,
education allowance, premium on excess group life insurance, or any Company
contribution to the Pension Plan or any savings or 401(k) plan sponsored by
the Company; the fact that an amount constitutes taxable income to the
Participant shall not be controlling for this purpose. Compensation shall
not include any taxable income realized by, or payments made to, an
employee as a result of the grant or exercise of an option to acquire stock
of the Company or as a result of the disposition of such stock, and shall
not include compensation resulting from any stock option, stock bonus,
restricted stock, phantom stock or similar long-term incentive plan.
2.3 Competitor. Any business, foreign or domestic, which is
engaged, at any time relevant to the provisions of this Plan, in the
manufacture, sale, or distribution of products, or in the providing of
services, in competition with products manufactured, sold or distributed,
or services provided, by the Company. The determination of whether an
entity is a competitor of the Company shall be made by the Company's
General Counsel, in his or her sole and absolute discretion.
2.4 Deferred Account. The record on the Company's books of the
cumulative amount of (i) a Participant's compensation deferred pursuant to
this Plan, including amounts credited to the Participant's account pursuant
to Section 4.3, plus either (ii) imputed interest on such deferred amounts
accrued as provided in Section 4.4, or (iii) the value of Stock Units
credited to the Participant's account as provided in Section 4.4.
2.5 Deferred Compensation Agreement. A written agreement
between a Participant and the Company, whereby a Participant agrees to
defer a portion of his or her Compensation pursuant to the provisions of
the Plan, and the Company agrees to make benefit payments in accordance
with the provisions of the Plan.
2.6 Deferred Compensation and Benefits Trust. The irrevocable
trust established by the Company with an independent trustee for the
benefit of persons entitled to receive payments or benefits hereunder, the
assets of which trust will be subject to claims of the Company's creditors
in the event of bankruptcy or insolvency.
The Deferred Compensation and Benefits Trust shall contain
the following provisions:
a. If a Change in Control of the Company does not occur
within one year after the Potential Change in Control, the Company may
reclaim the assets transferred to the trustee subject to the requirement
that it be again funded upon the occurrence of another Potential Change in
Control.
b. Upon a Change in Control, the assets of the Deferred
Compensation and Benefits Trust shall be used to pay benefits under this
Plan, except to the extent such benefits are paid by the Company, and the
Company and any successor shall continue to be liable for the ultimate
payment of those benefits.
c. The Deferred Compensation and Benefits Trust will be
terminated upon the exhaustion of the trust assets or upon payment of all
the Company's obligations.
d. The Deferred Compensation and Benefits Trust shall
contain other appropriate terms and conditions consistent with the purposes
sought to be accomplished by it. Prior to a Change in Control, the
Deferred Compensation and Benefits Trust may be amended from time to time
by the Company, but no such amendment may substantially alter any of the
provisions set out in the preceding paragraphs.
e. A "Potential Change in Control of the Company" shall be
deemed to have occurred if (i) the Company enters into an agreement, the
consummation of which would result in the occurrence of a Change in Control
of the Company; (ii) the Company or any Person publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control of the Company; (iii) any Person becomes the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 9.5% or more of either the then outstanding shares of common
stock of the Company or the combined voting power of the Company's then
outstanding securities; or (iv) the Board adopts a resolution to the effect
that a Potential Change in Control of the Company for purposes of this
Agreement has occurred.
f. A "Change in Control" shall mean a Change in Control of
a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or any successor provisions,
whether or not the Company is then subject to such reporting requirement;
provided that, without limitation, such a Change in Control shall be deemed
to have occurred if:
(i) Any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities beneficially owned by such Person any securities acquired
directly from the Company or its affiliates other than in connection with
the acquisition by the Company or its affiliates of a business)
representing 20% or more of either the then outstanding shares of common
stock of the Company or the combined voting power of the Company's then
outstanding securities; or
(ii) The following individuals cease for any reason to
constitute at least 66 2/3% of the number of directors then serving:
individuals who, on the date hereof, constitute the Board and any new
director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors of
the Company) whose appointment or election by the Board or nomination for
election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors on the date hereof or whose appointment, election, or nomination
for election was previously so approved (the "Continuing Directors"); or
(iii) The stockholders of the Company approve a merger
or consolidation of the Company with any other corporation or approve the
issuance of voting securities of the Company in connection with a merger or
consolidation of the Company (or any direct or indirect subsidiary of the
Company) pursuant to applicable stock exchange requirements, other than
(a) a merger or consolidation which would result in the voting securities
of the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity or any
parent thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the Company,
at least 66 2/3% of the combined voting power of the voting securities of
the Company or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (b) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the
securities Beneficially Owned by such Person any securities acquired
directly from the Company or its subsidiaries other than in connection with
the acquisition by the Company or its subsidiaries of a business)
representing 20% or more of either the then outstanding shares of common
stock of the Company or the combined voting power of the Company's then
outstanding securities; or
(iv) The stockholders of the Company approve a plan of
complete liquidation or dissolution of the Company or an agreement for the
sale or disposition by the Company of all or substantially all of the
Company's assets, other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least 66 2/3% of
the combined voting power of the voting securities of which are owned by
Persons in substantially the same proportions as their ownership of the
Company immediately prior to such sale.
Notwithstanding the foregoing, any event or transaction
which would otherwise constitute a change in control of the Company (a
"Transaction") shall not constitute a change in control of the Company if,
in connection with the Transaction, a Participant participates as an equity
investor in the acquiring entity or any of its affiliates (the "Acquiror").
For purposes of the preceding sentence, a Participant shall not be deemed
to have participated as an equity investor in the Acquiror by virtue of
(a) obtaining beneficial ownership of any equity interest in the Acquiror
as a result of the grant to a Participant of an incentive compensation
award under one or more incentive plans of the Acquiror (including but not
limited to the conversion in connection with the Transaction of incentive
compensation awards of the Company into incentive compensation awards of
the Acquiror), on terms and conditions substantially equivalent to those
applicable to other executives of the Company immediately prior to the
Transaction, after taking into account normal differences attributable to
job responsibilities, title and the like, (b) obtaining beneficial
ownership of any equity interest in the Acquiror on terms and conditions
substantially equivalent to those obtained in the Transaction by all other
stockholders of the Company, or (c) having obtained an incidental equity
ownership in the Acquiror prior to and not in anticipation of the
Transaction.
For purposes of this section, "Beneficial Owner" shall have
the meaning set forth in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
For purposes of this section, "Person" shall have the
meaning given in Section 3(a)(9) of the Exchange Act, as modified and used
in Sections 13(d) and 14(d) thereof, except that such term shall not
include (i) the Company or any of its subsidiaries, (ii) a trustee or other
fiduciary holding securities under an employee benefit plan of the Company
or any of its subsidiaries, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (iv) a
corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock
of the Company.
2.7 Early Retirement Date. The date of a Participant's
Termination of Employment for reasons other than death or Disability (as
defined in the Pension Plan), prior to attainment of age 65 but subsequent
to attaining age 55, and after completing ten Years of Service with the
Company.
2.8 Executive Officer. Executive Officers of the Company
required to be identified as such in the Company's Annual Report on
Form 10-K as filed with the Securities Exchange Commission.
2.9 Moody's. An annualized rate of interest equal to Moody's
Composite Average of Yields on Corporate Bonds as determined from Moody's
Bond Record published by Moody's Investor's Service, Inc. (or any successor
thereto) or, if such monthly report is no longer published, a substantially
similar rate determined in a manner determined to be appropriate by the
Company in its sole discretion. The rate to be applied for purposes of
this Plan shall be based, for any given month, on the published rate for
the immediately preceding calendar month.
2.10 Moody's Times 130%. An annualized rate of interest equal
to 130% times Moody's Composite Average of Yields on Corporate Bonds as
determined from Moody's Bond Record published by Moody's Investor's
Service, Inc. (or any successor thereto), or, if such monthly report is no
longer published, a substantially similar rate selected by the Company in
its sole discretion. The rate to be applied for purposes of this Plan
shall be based, for any given month, on such published rate for the
immediately preceding calendar month.
2.11 Normal Retirement Date. The first day of the month
coincident with or next following a Participant's 65th birthday.
2.12 Participant. An Executive Officer who has entered into a
written Deferred Compensation Agreement with the Company in accordance with
the provisions of the Plan.
2.13 Pension Plan. The Boise Cascade Corporation Pension Plan
for Salaried Employees, as adopted by the Company and as amended from time
to time.
2.14 Retirement. The termination of employment on or after
attainment of age 55 with ten or more "years of service" as defined in the
Company's Pension Plan for Salaried Employees, unless such termination of
employment is for "Disciplinary Reasons" as that term is used for purposes
of Corporate Policy 10.2.
2.15 Rule of 70. The attainment by a Participant of a number of
Years of Service and age which, when added together, equal or exceed 70.
2.16 Stock Unit. The notional account unit equal in value to
one share of the Company's common stock.
2.17 Year of Service. A Year of Service as accumulated under
the Pension Plan.
2.18 Termination of Employment. The Participant's ceasing to be
employed by the Company for any reason whatsoever, whether voluntarily or
involuntarily, including by reason of early retirement, normal retirement,
death or disability (as defined in the Pension Plan), provided that
transfer from the Company to a subsidiary or parent of the Company shall
not be deemed a Termination of Employment for purposes of this Plan.
3. Administration and Interpretation of the Plan. The Company,
acting through the Executive Compensation Committee of the board of
directors (the "Committee"), shall administer the Plan. The Committee has
sole discretion to interpret the Plan and all questions that may arise
under the Plan, including but not limited to questions of eligibility,
benefit amount, and interpretation of definitions. The responsibilities of
the Committee may be delegated to the extent permitted by law to the
Company's management or to third parties. Interpretation of this Plan by
the Committee shall be final and binding upon a Participant. The Committee
may adopt rules and regulations relating to the Plan as it may deem
necessary or advisable for the administration of the Plan. The Committee
may also delegate administrative responsibilities to advisors or other
persons who are not employees of the Company and may rely upon information
or opinions of legal counsel or experts selected to render advice with
respect to the Plan.
4. Participant Compensation Deferral.
4.1 Compensation Deferral. An Executive Officer who wishes to
participate in the Plan during the period from January 1, 1996, through
December 31, 2000, shall execute a written Deferred Compensation Agreement
in substantially the form attached hereto as Exhibit A. The amount of
annual Compensation to be deferred shall be in whole percentage increments
as specified in the Deferred Compensation Agreement. The period during
which Compensation is reduced shall be the calendar years specified in the
Deferred Compensation Agreement. The amount deferred shall result in
corresponding reductions in the Compensation payable to a Participant.
4.2 Alteration of Compensation Deferral. The amount of
compensation to be deferred, once selected by a Participant, shall be
irrevocable except upon written approval by the Company. A request to
alter the amount of compensation deferred must be submitted by a
Participant in writing to the Company prior to January 1 of the year for
which such modification is requested and shall detail the reasons for the
modification. If a modification of the deferral amount is granted by the
Company, the modification shall affect only future years of participation;
and all benefits under the Plan shall be adjusted to reflect the new
deferred amount and also to reflect any costs incurred by the Company to
effect the adjusted benefits payable to the Participant.
4.3 Company Contribution. The Company shall, at the election
of a Participant, contribute to the Participant's Deferred Account an
additional amount equal to 4.2% of the Participant's Compensation, to be
used to provide benefits as specified in the Deferred Compensation
Agreement. If a Participant elects to have such an amount contributed
under the Deferred Compensation Agreement, the Company shall not make any
matching contribution for such Participant under any savings or 401(k) plan
sponsored or participated in by the Company.
4.4 Account Elections.
(a) Each Participant may elect at any time, and from time
to time, to have his or her Deferred Account credited with either the
applicable Account Accumulation Rate or allocated Stock Units, with such
elections effective for deferrals of Compensation earned beginning with the
first pay period immediately following the Company's receipt of the
Participant's valid written election. However, under no circumstances may
such elections be made more frequently than once in any four month period.
If a Participant timely elects to have his or her Deferred Account
credited with Stock Units, the Participant's Deferred Account shall be
credited with the number of Stock Units, on the date on which the
Compensation would otherwise have been paid to the Participant, equal to
(1) 100% of the amount of such deferred Compensation ("Participant Stock
Units") plus (2) 25% of the amount of such deferred Compensation ("Company
Matching Stock Units"), with each Stock Unit value based on the closing
price of the Company's common stock on the New York Stock Exchange ("NYSE")
on that date (or, if the common stock is not traded on the NYSE on such
date, on the immediately preceding trading day). Each Stock Unit in a
Participant's Deferred Account shall thereafter have a value equal to the
market value of one share of the Company's common stock. Except as
provided in subparagraph (d) and Section 5.1(b) hereof, Stock Units must be
held for a minimum period of six months from the date on which such Stock
Units are first credited to the Participant's account. Stock Units may not
be sold, transferred, assigned, alienated, or pledged by any Participant.
(b) On each dividend payment date for the common stock,
additional Stock Units shall be credited to each Participant's Deferred
Account ("Dividend Equivalent Stock Units"). Dividend Equivalent Stock
Units shall (1) be equal in value to the imputed dividend on each Stock
Unit credited to the Participant's account as of the record date for such
dividend; (2) be allocated, as appropriate, to either the Participant Stock
Units or the Company Matching Stock Units credited to the Participant's
Deferred Account; and (3) vest in accordance with the vesting of the
underlying Stock Units to which they are allocated.
(c) A Participant shall be fully vested in his or her
Participant Stock Units, including allocated Dividend Equivalent Stock
Units, at all times. Vesting in Company Matching Stock Units, including
allocated Dividend Equivalent Stock Units, shall be as follows: (1) 100%
upon the Participant's death, permanent and total disability, or
Retirement; (2) 100% upon a Change in Control; (3) 100% upon the
Participant's involuntary termination (other than a termination for
"Disciplinary Reasons" as that term is used in Corporate Policy 10.2) or
termination as a direct result of the sale or permanent closure of a
facility, operating unit, or division of the Company; or (4) for
termination of employment for all other reasons (including voluntary
terminations), 20% (cumulative) on each anniversary of the date the
Participant's account was first credited with Stock Units under this Plan.
(d) Upon the occurrence of a Potential Change in Control,
shares of Common Stock equal to the number of Stock Units in all
Participants' Deferred Accounts shall be transferred to the Trustee of the
Deferred Compensation and Benefits Trust to be held in accordance with the
terms of that Trust and this Plan. Upon a Change in Control, all Stock
Units credited to a Participant's Deferred Account shall be converted to
Stock Units of equivalent value payable in the common stock of the
successor entity to the Company, as follows: if the Change in Control
involves the merger or sale of the entire Company or a tender offer for all
the outstanding Common Stock, conversion shall be at the conversion, sale,
or exchange price applicable to the Common Stock in connection with such
Change in Control. Shares of Common Stock held by the Trustee shall be
converted to shares of common stock of the successor entity (if any) at the
same conversion value as described in this subsection. Following a Change
in Control and after public disclosure of at least 30 days financial
results of the consolidated entity, each Participant may elect, at any time
or from time to time, to convert all or any portion of his or her Stock
Unit Account to a dollar equivalent and have such amount credited
thereafter with the applicable Account Accumulation Rate. If a Participant
makes such an election, the Trustee shall sell, into the open market,
shares of stock attributable to Stock Units in such Participant's Deferred
Account as previously acquired and held pursuant to this subsection, and
shall hold, invest, and reinvest the proceeds of such sale in accordance
with the terms of the Deferred Compensation and Benefits Trust. If the
Change in Control does not involve the merger or sale of the entire Company
or a tender offer for all the outstanding Common Stock, Stock Units shall
be converted to a dollar equivalent at the highest trading price of the
Company's Common Stock during the 20-day period immediately preceding the
date of the Change in Control and credited to the Participants' Interest
Account(s).
5. Payment of Deferred Amounts.
5.1 Participant Account.
(a) The Company shall maintain, for each Participant, a
record of the Participant's deferrals in accordance with elections made by
the Participant as described in Section 4.4. Each Participant's Deferred
Account will be credited with the amount of the Participant's deferred
Compensation, plus the amount of the Company contribution pursuant to
Section 4.3, if any. Each Deferred Account shall reflect, in accordance
with the Participant's election(s) with (1) the dollar amount of the
Participant's deferred Compensation plus the applicable Account
Accumulation Rate or (2) an allocation of Participant Stock Units equal in
value to the deferred Compensation plus Company Matching Stock Units and
Dividend Equivalent Stock Units in accordance with Section 4.4.
(b) If the Participant's Deferred Account is credited with
Stock Units, the Participant shall be paid the value of all vested Stock
Units in his or her Deferred Account in accordance with the Participant's
election under his or her Deferred Compensation Agreement and in the form
of the Company's Common Stock (or, if applicable, in accordance with
Section 4.4(d)). Such payment shall be made in accordance with the
Participant's Deferred Compensation Agreement. If a Participant's Deferred
Account is credited with Stock Units and the Participant terminates
employment and is eligible for a distribution but shares of Common Stock
are not then available for distribution, the Company may elect, in its
sole discretion, to delay the distribution until such shares become
available.
5.2 Plan Benefits Upon Termination of Employment
(Nonretirement). Upon Termination of Employment for reasons other than
death or disability prior to satisfying the Rule of 70 or attaining age 55
with ten or more Years of Service, the Account Accumulation Rate on such
Participant's Deferred Account shall be adjusted, effective as of the Date
of Termination of Employment, to a rate equal to Moody's. Such rate shall
apply prospectively from the Date of Termination to all undistributed
amounts of the Participant's Deferred Account.
If a Participant provides services for remuneration to a
Competitor following Termination of Employment, the Company may, in its
sole discretion, distribute the Participant's account balance in a lump sum
in lieu of any other benefits provided under this Plan. The Company may,
in its discretion, consent to a Participant's rendering services to a
Competitor; and if it does so consent, it may place whatever limitations it
considers appropriate on the consent. If the Participant breaches the
terms of the consent, the Company may, in its sole discretion, distribute
the Participant's account in a lump sum.
5.3 Plan Benefits Upon Retirement. Upon Termination of
Employment, for reasons other than disability, after satisfying the Rule
of 70 or attaining age 55 with ten or more Years of Service, a Participant
shall be paid his or her Deferred Account in a lump sum or in equal monthly
installments calculated to distribute his or her Deferred Account over a
period of not more than 15 years. Payments shall commence on the date and
shall be made in the manner elected by the Participant in the Deferred
Compensation Agreement. Unpaid balances under the installment election
continue to be credited with imputed interest at the applicable Account
Accumulation Rate. If a Participant does not make an election, his or her
account shall be paid out in monthly installments over 15 years beginning
January 1 of the year following Termination of Employment.
5.4 Hardship Distribution. In the event of serious and
unanticipated financial hardship, a Participant may request termination of
his or her participation in the Plan and a lump-sum distribution of all or
a portion of his or her account balance. The Participant making a hardship
termination and distribution request under this section shall document, to
the Company's satisfaction, that termination of participation and
distribution of his or her account is necessary to satisfy an
unanticipated, immediate, and serious financial need, and that the
Participant does not have access to other funds, including proceeds of any
loans, sufficient to satisfy the need. Upon receipt of a request under
this section, the Company may, in its sole discretion, terminate the
Participant's involvement in the Plan and distribute all or a portion of
the Participant's account balance in a lump sum, to the extent such
distribution is necessary to satisfy the financial need. The Participant
shall sign all documentation requested by the Company relating to any such
distribution, and any Participant whose participation in the Plan
terminates under this paragraph may not resume participation for a minimum
of 12 months following the date of any distribution.
5.5 Premature Distribution with Penalty. Notwithstanding any
provision in this Plan to the contrary, a Participant or beneficiary may,
at any time, request a single lump-sum payment of the amount credited to an
account or accounts of the Participant under the Plan. The amount of the
payment shall be equal to (i) the Participant's accumulated account balance
under the Plan as of the payment date, reduced by (ii) an amount equal to
10% of such accumulated account balance. This lump-sum payment shall be
subject to withholding of federal, state, and other taxes to the extent
applicable. This request must be made in writing to the Company. The
lump-sum payment shall be made within 30 days of the date on which the
Company received the request for the distribution. If a request is made
under this provision, the Participant shall not be eligible to participate
in any nonqualified deferred compensation plan maintained by the Company,
including this Plan, for a period of 12 months after such request is made.
In addition, in this event, any deferred compensation agreement under any
nonqualified deferred compensation plan of the Company shall not be
effective with respect to Compensation payable to the Participant during
this 12-month period.
5.6 Distribution Upon Extraordinary Events. In the event any
Participant terminates employment with the Company as a direct result of
the sale or divestiture of a facility, operating division, or reduction in
force in connection with any reorganization of the Company's operations or
staff, such Participant may request distribution of his or her entire
account balance. Upon receipt of a request for distribution under this
section, the Company may, in its sole discretion, elect whether to approve
or deny the request. If the Company approves a request under this section,
distribution of the Participant's account shall occur no later than the
January 1 of the year following the year during which such Termination of
Employment occurs.
5.7 Small Account Distributions. In the event a Participant
terminates employment with the Company for any reason and the Participant's
benefit under this Plan is less than either (1) $5,000 in lump sum present
value, calculated in accordance with reasonable assumptions, or (2) the
monthly payment under the benefit payment option selected by the
Participant is less than $75 per month, such Participant may request
distribution of his or her entire account balance. Upon receipt of a
request for distribution under this section, the Company may, in its sole
discretion, elect whether to approve or deny the request. If the request
is approved, the Company shall close the Participant's account and
distribute the Participant's entire account balance in a single lump sum.
Any distribution under this paragraph shall be made no later than January 1
of the year following the year in which such Termination of Employment
occurs.
5.8 Change of Election. A Participant may request a change in
the payout election any time prior to January 1 of the year benefits are
scheduled to be paid, provided that the request is received by the Company
at least 30 days prior to the date benefits are scheduled to be paid. The
changed payout election must be one of the payout options in the original
deferral agreement. Such request must be in writing and shall be approved
or denied at the sole discretion of the Company. No change will be
permitted that would allow a payment to be made earlier than originally
elected in the Deferred Compensation Agreement.
5.9 Distributions Following Participant Death. If a
Participant dies after his or her benefits have commenced and prior to the
distribution of his or her entire Deferred Account, his or her beneficiary
shall receive any benefit payments in accordance with the Deferred
Compensation Agreement. If a Participant dies prior to the commencement of
Plan distributions, the Company shall pay his or her designated beneficiary
or beneficiaries the Participant's Deferred Account balance. Payments
shall be made as specified in the Deferred Compensation Agreement. The
Participant Account shall be updated with a monthly rate of interest equal
to the Account Accumulation Rate.
5.10 Disability Benefit. If a Participate terminates employment
with the Company prior to attaining age 65 due to a disability, the
Participant may apply to the Company to have his or her account distributed
in monthly installments over a 15 year period commencing on the first day
of the month following the month in which the Company approves such
request. The Company may, in its sole discretion, approve or deny any such
request.
5.11 Recipients of Payments; Designation of Beneficiary. All
payments to be made by the Company shall be made to the Participant, if
living. In the event of a Participant's death prior to the receipt of all
benefit payments, all subsequent payments to be made under the Plan shall
be to the beneficiary or beneficiaries of the Participant. The Participant
shall designate a beneficiary by filing a written notice of such
designation with the Company in such form as the Company may prescribe. If
no designation shall be in effect at the time when any benefits payable
under this Plan shall become due, the beneficiary shall be the spouse of
the Participant, or if no spouse is then living, the representatives of the
Participant's estate.
6. Miscellaneous.
6.1 Assignability. A Participant's rights and interests under
the Plan may not be assigned or transferred except, in the event of the
Participant's death, to his or her designated beneficiary, or in the
absence of a designation, by will or to his or her legal representative.
6.2 Employment Not Guaranteed by Plan. Neither this Plan nor
any action taken hereunder shall be construed as giving a Participant the
right to be retained as an Executive Officer or as an employee of the
Company for any period.
6.3 Taxes. The Company shall deduct from all payments made
hereunder all applicable federal or state taxes required by law to be
withheld from such payments.
6.4 Construction. To the extent not preempted by federal law,
the Plan shall be construed according to the laws of the state of Idaho.
6.5 Form of Communication. Any election, application, claim,
notice, or other communication required or permitted to be made by a
Participant to the Company shall be made in writing and in such form as the
Company shall prescribe. Such communication shall be effective, upon
receipt by the Company's Manager of Executive Compensation, 1111 West
Jefferson Street, P.O. Box 50, Boise, Idaho 83728-0001.
7. No Reduction in Pension Benefit. To compensate a Participant for
any reduction in pension benefits under the Pension Plan which may result
from a Participant's deferring Compensation under this Plan, the Company
shall pay to the Participant an amount equal to the reduction in pension
benefits in accordance with the Company's Supplemental Pension Plan.
8. Amendment and Termination. The Company, acting through its board
of directors or any committee thereof, may at any time amend the Plan,
provided that the amendment shall not adversely affect any vested right or
benefit of a Participant under the Plan without the prior consent of a
Participant.
9. Unsecured General Creditor. Participants and their
beneficiaries, heirs, successors and assigns shall have no legal or
equitable rights, interest or claims in any property or assets of the
Company. Such assets of the Company shall not be held under any trust for
the benefit of Participants, their beneficiaries, heirs, successors, or
assigns, or held in any way as collateral security for the fulfilling of
the obligations of the Company under this Plan. Any and all Company assets
shall be, and remain, the general, unpledged, unrestricted assets of the
Company. The Company's obligation under the Plan shall be merely that of
an unfunded and unsecured promise of the Company to pay money in the
future.
10. Deferred Compensation and Benefits Trust. Upon the occurrence of
any Potential Change in Control of the Company, the Company will transfer
to the Deferred Compensation and Benefits Trust an amount of cash,
marketable securities, or other property acceptable to the trustee(s) equal
in value to 105 percent of the amount necessary to pay the Company's
obligations with respect to Deferred Accounts under this Plan, calculated
on an actuarial basis and in accordance with the terms of the Trust (the
"Funding Amount"), except as otherwise provided with respect to Stock Units
in Section 4.4(d). The cash, marketable securities, and other property so
transferred shall be held, managed, and disbursed by the trustee(s) subject
to and in accordance with the terms of the Trust. In addition, from time
to time the Company will make any and all additional transfers of cash,
marketable securities, or other property acceptable to the trustee(s) as
may be necessary in order to maintain the Funding Amount with respect to
this Plan.
11. Claims Procedure. Claims for benefits under the Plan shall be
filed in writing, within 90 days after the event giving rise to a claim,
with the Company's Manager of Executive Compensation, who shall have
absolute discretion to interpret and apply the Plan, evaluate the facts and
circumstances, and make a determination with respect to such claim in the
name and on behalf of the Company. Such written notice of a claim shall
include a statement of all facts believed by the Participant to be relevant
to the claim and shall include copies of all documents, materials, or other
evidence that the Participant believes relevant to such claim. Written
notice of the disposition of a claim shall be furnished the claimant within
90 days after the application is filed. This 90-day period may be extended
an additional 90 days by the Company, in its sole discretion, by providing
written notice of such extension to the claimant prior to the expiration of
the original 90-day period. In the event the claim is denied, the specific
reasons for such denial shall be set forth in writing, pertinent provisions
of the Plan shall be cited and, where appropriate, an explanation as to how
the claimant may perfect the claim or submit such claim for review will be
provided.
12. Claims Review Procedure. Any Participant, former Participant or
Beneficiary of either, who has been denied a benefit claim shall be
entitled, upon written request, to a review of his or her denied claim.
Such request, together with a written statement of the claimant's position,
shall be filed no later than 60 days after receipt of the written
notification provided for in the above paragraph, and shall be filed with
the Company's Manager of Executive Compensation, who shall promptly inform
the Committee. The Committee shall make its decision, in writing, within
60 days after receipt of the claimant's request for review. The
Committee's written decision shall state the facts and plan provisions upon
which its decision is based. The Committee's decision shall be final and
binding on all parties. This 60-day period may be extended an additional
60 days by the Committee, in its discretion, by providing written notice of
such extension to the claimant prior to the expiration of the original
60-day period.
1111 W. Jefferson Street John W. Holleran Exhibit 5
P.O. Box 50 Senior Vice President
Boise, Idaho 83728-0001 Human Resources and
208/384-7704 General Counsel
Fax: 208/384-4912
[email protected]
September 2, 1999
Securities and Exchange Commission
Attention: Division of Corporation Finance
450 Fifth Street, NW
Washington, DC 20549
Subject: Common Stock Issuable Under the Boise Cascade Corporation 1995
Executive Officer Deferred Compensation Plan
Ladies and Gentlemen:
I am the Senior Vice President, Human Resources, and General Counsel of
Boise Cascade Corporation, a Delaware corporation. In that capacity, I
represent the company in connection with the preparation and filing with
the SEC of a Registration Statement on Form S-8 relating to the
registration of 100,000 shares of the company's common stock to be issued
under the 1995 Executive Officer Deferred Compensation Plan (the "1995
DCP"). I reviewed originals (or copies) of certified or otherwise
satisfactorily identified documents, corporate and other records,
certificates, and papers as I deemed it necessary to examine for the
purpose of this opinion.
Based on the foregoing, it is my opinion that shares of common stock which
are issued under the 1995 DCP will, when sold, be validly issued, fully
paid, and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement. I also consent to the references to me therein under the
heading "Interests of Named Experts and Counsel." In giving this consent,
however, I do not admit that I am within the category of persons whose
consent is required by Section 7 of the Securities Act of 1933.
Very truly yours,
John W. Holleran
JWH:jas
