BOISE CASCADE CORPORATION
DEFERRED COMPENSATION AND BENEFITS TRUST
__________________
TRUST AGREEMENT
By and Between
BOISE CASCADE CORPORATION
and
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO
Dated
November 2, 1987
As Amended and Restated
As of December 13, 1996
CONTENTS
Article Page
I. The Plans
Section 1.01 Plans...............................
II. Trust and the Trust Corpus
Section 2.01 Delivery of Funds...................
Section 2.02 Trust Corpus........................
III. Change in Control
Section 3.01 Definition of Potential Change
in Control.....................................
Section 3.02 Definition of Change in Control.....
Section 3.03 Notice of Change....................
Section 3.04 Definition of Beneficial Owner......
Section 3.05 Definition of Person................
IV. Release of the Trust Corpus
Section 4.01 Delivery to the Company.............
Section 4.02 Deliveries to Participants..........
Section 4.03 Deliveries to Creditors of
the Company....................................
Section 4.04 Notification of Bankruptcy or
Insolvency.....................................
V. Trustee
Section 5.01 Trustee.............................
Section 5.02 Successor Trustee...................
VI. Termination and Amendment
Section 6.01 Termination.........................
Section 6.02 Amendment...........................
VII. General Provisions
Section 7.01 Further Assurances..................
Section 7.02 Certain Provisions Relating to
This Trust.....................................
Section 7.03 Notices.............................
Section 7.04 Trust Beneficiaries.................
Attachments
Exhibit A List of Plans Subject to the Trust
Schedule 1 Executive List
Schedule 2 Trustee's Fee Schedule
Exhibit B Funding Assumptions
BOISE CASCADE CORPORATION
DEFERRED COMPENSATION AND BENEFITS TRUST
TRUST AGREEMENT (the "Trust"), dated November 2, 1987, as
amended and restated as of December 13, 1996, by and between
BOISE CASCADE CORPORATION, a Delaware corporation (the
"Company"), and AMERICAN NATIONAL BANK AND TRUST COMPANY OF
CHICAGO (the "Trustee").
WHEREAS, the Company is or may become obligated under
certain employee benefit plans or agreements to make payments to
certain of its directors and executives (the "Executives"); and
WHEREAS, the aforesaid obligations of the Company are not
funded or otherwise secured and the Company has agreed to assure
that the future payment of such amounts will not be improperly
withheld in the event that a "Change in Control" of the Company
(as defined herein) should occur; and
WHEREAS, for purposes of assuring that payments will be made
in accordance with the terms of the plans, the Company shall
deposit with the Trustee, subject only to the claims of the
Company's creditors as provided herein, amounts of cash,
marketable securities, and other property acceptable to the
Trustee, sufficient to fund the payments as they may become due
and payable; and
WHEREAS, this Trust is intended to be a grantor trust within
the meaning of Section 671 of the Internal Revenue Code of 1986;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and for other good and valuable consideration,
the parties hereto agree as follows:
ARTICLE I
THE PLANS
SECTION 1.01 Plans. The Company plans and agreements
(collectively referred to as the "Plans") listed on Exhibit A,
which is attached hereto and incorporated herein by this
reference, are subject to this Trust.
The Company may, from time to time, add other plans and
agreements to this Trust pursuant to the terms herein.
Attached as Schedule 1 is a list of the names and
mailing addresses of Executives currently participating in the
Plans (the "Executive List"). The Company will revise the
Executive List no less often than quarterly to reflect, among
other things, the addition of new Plans and changes in the
identity of Executives participating in the Plans.
The creation and funding of this Trust will not
discharge the Company's obligations under the Plans.
Distributions made from the Trust to or for Executives in respect
of the Plans pursuant to Section 4.02 hereof, shall, to the
extent of such distributions, satisfy the Company's obligation to
pay benefits to Executives under the Plans.
Subject to the terms of each of the Plans, the Company
reserves the right to amend any of the Plans at any time prior to
a Change in Control of the Company, in which case the Plans, as
amended, shall continue to be subject to this Trust. At any time
prior to a Change in Control of the Company, the Company may
cause additional plans to become Plans subject to this Trust.
Any amended or additional plans shall become Plans subject to
this Trust only upon receipt by the Trustee of the amended or
additional plan documents. Upon and after a Change in Control of
the Company, the Company may not amend any Plan, withdraw any
Plan from this Trust, cause any additional plans to become Plans
hereunder, or add any participants to any Plan.
ARTICLE II
TRUST AND THE TRUST CORPUS
SECTION 2.01 Delivery of Funds.
(a) (1) Concurrently with the execution of this
Trust, the Company is delivering to the Trustee to be held in
trust hereunder the sum of $1,000 in cash to be administered and
disposed of by the Trustee as provided herein. (2) Within
60 days following a Potential Change in Control of the Company
(as defined in Article III hereof), the Company shall deliver to
the Trustee such sums of cash, marketable securities, and other
property acceptable to the Trustee in an amount equal to 105% of
the amount necessary to provide on an actuarial basis for the
payment when due of all the Company's obligations to or on behalf
of Executives under the Plans (the "Funding Amount") which shall
be invested by the Trustee and administered in accordance with
the terms of this Trust. The Trustee shall have no duty to
perform or independently evaluate the calculations and
determinations of the Company made pursuant to this
Section 2.01(a).
(b) In the event of a Potential Change in Control of
the Company, the Company shall, no less often than every six
months from the date of such Potential Change in Control unless
the entire Trust Corpus shall theretofore have been released
pursuant to Article IV hereof, recalculate the Funding Amount as
of the end of the month immediately preceding such six-month
interval date as if the Potential Change in Control had occurred
at the end of such month. If the amount so calculated exceeds
the then fair market value of the Trust Corpus, the Company shall
transfer to the Trustee an amount in cash, marketable securities,
or any other property acceptable to the Trustee equal to the
excess. If the Funding Amount so calculated is less than the
then fair market value of the Trust Corpus, the Trustee, upon
receipt of a written request from the Company and subject to
Section 4.03, shall distribute to the Company the difference in
cash.
(c) After a Change in Control shall have occurred and
at all times prior to the release of the entire Trust Corpus
pursuant to Article IV hereof, the Funding Amount shall be
recalculated by Milliman & Robertson, Inc., consulting actuaries
(the "Actuary"), and subject to the limitations of
Section 4.02(b) hereof, the recalculation by the Actuary shall be
binding on the Company, the Executives, and the Trustee. The
Trustee shall have no duty to perform or independently evaluate
the determination of the Actuary made pursuant to this
Section 2.01(c). If Milliman & Robertson, Inc. should decline to
serve as Actuary or should discontinue business with no
successor, or if 65% or more in number of the Executives
reflected on the then most recent Executive List should notify
the Trustee in writing to select another Actuary, the Trustee
shall select another firm of consulting actuaries to serve as
Actuary hereunder. The Trustee and the Company shall provide the
Actuary with such relevant information as may be in their
possession that is necessary to make the recalculation. The
first recalculation shall be made by the Actuary as soon as
possible after the end of the second calendar year following the
year in which the Change in Control occurred, and thereafter the
Actuary shall recalculate the Funding Amount annually. Upon any
recalculation by the Actuary, if the amount so calculated exceeds
the then fair market value of the Trust Corpus, the Actuary shall
so notify the Company and the Trustee, and the Company shall
forthwith transfer to the Trustee an amount in cash equal to such
excess. If the then fair market value of the Trust Corpus
exceeds 125% of the Funding Amount so calculated, the Trustee,
upon receipt of a written request from the Company and subject to
Section 4.03, shall distribute to the Company in cash an amount
equal to such excess.
(d) The Funding Amount shall be determined from time
to time in accordance with the terms of each of the Plans and in
accordance with the assumptions set forth in Exhibit B hereto.
(e) Payment by the Company pursuant to
Section 2.01(a), (b), or (c) hereof shall be accompanied by a
Payment Schedule (as defined in Section 4.02(a) hereof) with
respect to each Executive for whose account the payment is being
made.
SECTION 2.02 Trust Corpus.
(a) As used herein, the term "Trust Corpus" shall mean
the amounts delivered to the Trustee pursuant to the terms
hereof, less amounts distributed or paid from the Trust pursuant
to the terms hereof, plus all income earned by the Trust, in
whatever form held or invested as provided herein. Upon the
transfer to the Trustee of the amounts provided in
subsection 2.01(a)(2), to the extent the transferred amount
consists of property other than cash, the Trustee shall hold such
property in the form in which it was transferred and shall have
no power or authority to liquidate, transfer, or sell the
property prior to the date of a Change in Control without written
instructions from the Company to do so. To the extent the
transferred property consists of cash, the Trustee shall invest
it in the Short-Term Portfolio as defined below. Upon the
occurrence of a Change in Control, the Trustee shall, in an
orderly manner, liquidate all the noncash assets of the Trust
Corpus other than any split-dollar life insurance policies or
corporate-owned life insurance policies and shall invest the
proceeds of the liquidation in two portfolios as follows: (i) a
short-term fixed income portfolio (the "Short-Term Portfolio")
which, except as otherwise provided below in this
Section 2.02(a), shall be invested solely in U.S. Treasury
obligations having maturities of less than one year, and (ii) an
immunized/dedicated fixed income portfolio ("the "Dedicated
Portfolio") which shall constitute a portfolio of cash and/or
U.S. Treasury obligations that will produce a cash flow
sufficient to provide for the payment when due of all the
Company's obligations to Executives under those Plans, the
benefits under which are to be paid from the Dedicated Portfolio,
as reflected on Exhibit B hereto. So long as the Dedicated
Portfolio has a current and projected cash flow sufficient to pay
when due all amounts to be paid from the Dedicated Portfolio, the
Trustee shall hold the assets of the Dedicated Portfolio in that
form. If the Trustee is advised by the Actuary that the
Dedicated Portfolio is no longer sufficient for that purpose, the
Trustee shall liquidate and reinvest the assets in the Trust
Corpus as may be necessary to cause the Dedicated Portfolio to be
sufficient for that purpose, or as nearly so as possible, all in
accordance with the instructions of Loomis, Sayles and Company,
Inc., or its successor (the "Advisor"), or if that Company has
discontinued business with no successor, with the instructions of
a recognized professional expert in the creation of immunized/
dedicated fixed income portfolios to be selected by the Trustee.
The Trustee shall have no responsibility to verify any advice by
the Actuary or instructions from the Advisor. Any portion of the
Trust Corpus not allocated to the Dedicated Portfolio shall be
allocated to the Short-Term Portfolio. Prior to a Potential
Change in Control of the Company, the original funding of $1,000
shall be held uninvested by the Trustee.
(b) All expenses (including, as provided in
Section 5.01 hereof, any expenses of the Trustee) charged against
the Trust Corpus shall be for the account of the Company and the
Company shall be obligated promptly to reimburse the Trust Corpus
for any expense charged against the Trust Corpus except to the
extent that the amounts have been applied to reduce amounts
payable to the Company pursuant to Section 2.01(b) or (c) hereof.
The Trustee shall notify the Company from time to time of the
amount of the expenses, and the Company shall promptly reimburse
the Trust Corpus for those amounts. Notwithstanding the
foregoing, in determining the expenses charged against the Trust
Corpus, no amounts that may be paid pursuant to the Payment
Schedules shall be considered to be "expenses."
ARTICLE III
CHANGE IN CONTROL
SECTION 3.01 Definition of Potential Change in Control.
For purposes of this Trust, a "Potential Change in Control" 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 has occurred.
SECTION 3.02 Definition of Change in Control. For purposes
of this Trust, 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:
(a) 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
(b) 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
(c) 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 (i) 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
(ii) 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
(d) 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.
SECTION 3.03 Notice of Change. For purposes of this Trust,
a Potential Change in Control or a Change in Control of the
Company shall be deemed to have occurred only upon receipt by the
Trustee of written notice to that effect from the Board of
Directors or the Chief Executive Officer of the Company.
SECTION 3.04 Definition of Beneficial Owner. For purposes
of this Article III, "Beneficial Owner" shall have the meaning
set forth in Rule 13d-3 under the Exchange Act.
SECTION 3.05 Definition of Person. For purposes of this
Article III, "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.
ARTICLE IV
RELEASE OF THE TRUST CORPUS
SECTION 4.01 Delivery to the Company. Except as provided
in Section 4.03, when the Company delivers the Funding Amount to
the Trustee upon a Potential Change in Control, the remaining
Trust Corpus, less the original funding of $1,000, shall be
returned to the Company one year after delivery to the Trustee
unless a Change in Control shall have occurred during the one-
year period. The one-year period shall recommence in the event
of and upon the date of any subsequent Potential Change in
Control. If another Potential Change in Control should occur
after the Funding Amount has been returned to the Company as
provided in this Section 4.01, the Company shall deliver a new
Funding Amount to the Trustee pursuant to Section 2.01. The
Company shall provide written notice to the Trustee of the
occurrence of a Change in Control or Potential Change in Control
or the passage of the one-year period requiring the return of
trust assets to the Company pursuant to the terms of this
Section 4.01.
SECTION 4.02 Deliveries to Participants. The Trustee shall
hold the Trust Corpus in its possession under the provisions of
this agreement until authorized to deliver the Trust Corpus or
any specified portion thereof as follows:
(a) In connection with any payment of the Funding
Amount, the Company shall deliver to the Trustee schedules (the
"Payment Schedules") indicating the amounts payable to or on
behalf of each Executive, or providing a formula or instructions
for determining the amounts so payable, the person or persons to
whom so payable, the form in which the amount is to be paid (as
provided for or available under the Plans), and the time of
commencement for payment of the amounts. The Company (or, after
a Change in Control of the Company, the Actuary) shall revise the
Payment Schedules from time to time to the extent required under
the Plans or pursuant to this Trust Agreement. The appropriate
Payment Schedule also shall be delivered by the Trustee to each
Executive. Modified Payment Schedules shall be delivered by the
Company or the Actuary to the Trustee and by the Trustee to the
Executives at each time that additional amounts are paid by the
Company to the Trustee (or refunded to the Company) under the
terms hereof and upon the occurrence of any event, such as the
addition of new Executives or Plans or early retirement of an
Executive, requiring a modification of any Payment Schedule. The
Trustee shall have no duty to perform or to evaluate
independently the determination of the Company or the Actuary
made pursuant to this Section 4.02(a). At any time prior to a
Change in Control of the Company, the Company may add additional
Plans or additional Executives under any of the Plans, in which
case both the Payment Schedules and the Funding Amount shall be
adjusted accordingly. Except as otherwise provided herein, the
Trustee shall make payments to or for the Executives only in
accordance with the Payment Schedules. Upon and after a Change
in Control of the Company, the Company may not cause any
additional plans to become Plans hereunder nor may any additional
Executive be added under any of the Plans.
(b) After a Change in Control of the Company has
occurred, an Executive who reasonably believes that the then
current Funding Amount is inadequate or that the then current
Payment Schedule applicable to him or her does not properly
reflect the amount payable to or for the Executive or the time or
form of payment from the Trust Corpus in respect of the Plans may
deliver to the Trustee written notice (the "Executive's Notice")
setting forth the Funding Amount and/or payment instructions for
the amount the Executive believes is due under the relevant terms
of the Plans. The Trustee shall deliver a copy of the
Executive's Notice to the Company and the Actuary and to each
other Executive within 10 business days of the delivery to the
Trustee, and the Trustee will engage one or more independent
attorneys, accountants, actuaries, or other experts (the
"Experts"), including, if the Trustee so determines, the Actuary
and/or the Advisor, to determine the correct Funding Amount and
the correct Payment Schedule. The Trustee shall have no duty to
perform or independently evaluate the determination of the
Experts made pursuant to this Section 4.02(b). After any
determinations, appropriate adjustments to the Funding Amount and
the affected Payment Schedule may be made in accordance with the
determination of the Experts, and any increase in the Funding
Amount may be paid by the Company, in its sole discretion, to the
Trustee as provided in Section 2.01(c).
(c) The Trustee shall withhold from any payment due to
an Executive hereunder the amount required by law to be so
withheld under federal, state, and local wage withholding
requirements or otherwise and shall pay over to the appropriate
government authority the amounts so withheld.
(d) Except as otherwise provided herein, in the event
of any final determination by the Internal Revenue Service or a
court of competent jurisdiction, which determination is not
appealable or with respect to which the time for appeal has
expired, that the Executives or any particular Executive is
subject to federal income taxation on amounts held in Trust
hereunder prior to the distribution to the Executives or
Executive of such amounts, the Trustee shall, on receipt by the
Trustee of notice of the determination, pay to each Executive the
portion of the Trust Corpus includable in the Executive's federal
gross income.
(e) Any revisions, modifications, or additions
pertaining to Payment Schedules, Plans, or the Executive List
shall not be subject to this Trust until receipt by the Trustee
of copies thereof.
SECTION 4.03 Deliveries to Creditors of the Company. The
Trust Corpus is and shall remain at all times subject to the
claims of the general creditors of the Company in the event of
the Company's insolvency or bankruptcy as defined in
Section 4.04. Accordingly, the Company shall not create, and
except as otherwise provided by Section 5.01(f) this Trust
Agreement shall not be construed to create, a security interest
in the Trust Corpus in favor of the Executives or any creditor.
If the Trustee receives the notice provided for in Section 4.04
hereof, or if the Trustee receives a written allegation from a
person or entity claiming to be a creditor of the Company that
the Company is bankrupt or insolvent, the Trustee shall
discontinue payments to or on behalf of any of the Executives.
The Trustee shall, as soon as practicable thereafter, determine
whether the Company is bankrupt or insolvent, based upon the
evidence as may be available to the Trustee which would provide a
reasonable basis for making such a determination. Unless the
Trustee has actual knowledge or has received the notice or
written allegation referred to hereinabove, the Trustee shall
have no duty to inquire or determine whether the Company is
bankrupt or insolvent. If the Trustee determines that the
Company is bankrupt or insolvent, the Trustee shall hold the
Trust Corpus for the benefit of the Company's general creditors
and deliver any remaining Trust Corpus to satisfy the claims of
the creditors as a court of competent jurisdiction may direct,
and the Trustee is authorized to institute or participate in
appropriate legal proceedings to obtain directions or to
determine if the Company is bankrupt or insolvent. The Trustee
shall resume distributions of Trust Corpus to or for the
Executives under the terms hereof, including any arrearages,
after so notifying the Company, if it determines that the Company
was not, or is no longer, bankrupt or insolvent, or pursuant to
an order of a court of competent jurisdiction.
SECTION 4.04 Notification of Bankruptcy or Insolvency. The
Board of Directors and Chief Executive Officer of the Company
shall advise the Trustee in writing of the Company's bankruptcy
or insolvency within three business days following the occurrence
of an event of bankruptcy or insolvency. The Company shall be
deemed to be bankrupt or insolvent upon the occurrence of either
of the following:
(i) The Company is unable to pay its debts as the
debts become due; or
(ii) The Company is subject to a pending proceeding as
a debtor under the Bankruptcy Code.
ARTICLE V
TRUSTEE
SECTION 5.01 Trustee.
(a) The duties and responsibilities of the Trustee
shall be limited to those expressly set forth in this Trust, and
no implied covenants or obligations shall be read into this Trust
against the Trustee. The Trustee shall be entitled to reasonable
fees for the performance of its duties hereunder, as reflected on
Schedule 2, attached.
(b) The Trustee shall maintain such books, records,
and accounts as may be necessary for the proper administration of
the Trust Corpus based upon information supplied to the Trustee
by the Company or the Actuary. After the delivery to the Trustee
of the amounts specified in Section 2.01(a) hereof, the Trustee
shall render to the Company and to each Executive, on or prior to
each April 1 until the termination of this Trust (and within a
reasonable period of time after the date of termination), an
accounting with respect to the Trust Corpus as of the end of the
then most recent calendar year (and as of the date of
termination). Unless the Company or any Executive shall have
filed with the Trustee written exceptions or objections to any
accounting within 180 days after receipt thereof, the Company or
the Executive, as the case may be, shall be deemed to have
approved the accounting, and in such case the Trustee shall be
forever released and discharged with respect to all matters and
things reported in the accounting as though it had been settled
by a decree of a court of competent jurisdiction in an action or
proceeding to which the Company and the Executive were parties.
(c) The Trustee shall not be liable for any act taken
or omitted to be taken hereunder if taken or omitted to be taken
by it in good faith. Subject to the express provisions of
Section 4.03, the Trustee shall rely at all times on, and shall
have no duty of inquiry with respect to the most current Payment
Schedule, Plans, Executive List, or other notice or instruction
provided to it in accordance with this Trust Agreement.
(d) The Trustee may consult with legal counsel, the
Actuary, the Advisor, or other Experts to be selected by it, and
the Trustee shall not be liable for any action taken or suffered
by it in good faith in accordance with the advice of the Experts.
(e) The Company shall reimburse the Trustee for all
reasonable expenses incurred in connection with the performance
of duties hereunder, including, but not limited to, any fees or
expenses incurred by the Trustee, the Actuary, the Experts, or
any Executives pursuant to Sections 2.01(c), 4.02(b), 4.03, 5.01,
or 5.02. The provisions of this Section 5.01(e) shall survive
the termination of this Trust Agreement.
(f) The Company agrees to indemnify and hold harmless
the Trustee from and against any and all damages, losses, claims,
or expenses as incurred (including, without limitation, expenses
of legal proceedings, including reasonable counsel fees,
investigation, and fees and disbursements of the Actuary, the
Advisor, the Experts, or counsel to the Trustee, and any taxes
imposed on the Trust Corpus or income of the Trust) arising out
of or in connection with the performance by the Trustee of its
duties hereunder. Notwithstanding any other provision hereof,
any amount payable under paragraph (e) of this Section 5.01 or
this paragraph (f) and not previously paid by the Company shall
be paid by the Company promptly upon demand therefor or, if the
Trustee so chooses in its sole discretion, from the Trust Corpus.
In the event that payment is made hereunder from the Trust
Corpus, the Trustee shall promptly notify the Company in writing
of the amount of the payment. The Company agrees that, upon
receipt of notice, it will deliver to the Trustee to be held in
the Trust an amount in cash equal to any payments made from the
Trust Corpus pursuant to paragraph (e) of this Section 5.01 or
this paragraph (f). The failure of the Company to transfer any
amount shall not in any way impair the Trustee's right to
indemnification, reimbursement, and payment pursuant to
paragraph (e) of this Section 5.01 or this paragraph (f).
(g) The Trustee is specifically authorized to take any
action as may be necessary or appropriate, including the institu-
tion of litigation or other legal process, to enforce the
Company's obligations hereunder on behalf of either itself or the
Executives. Notwithstanding anything in this Trust Agreement to
the contrary, the Trustee shall not be obligated to take or to
continue any action hereunder that would cause an expense to it
in excess of the then fair market value of the Trust Corpus.
(h) Payments to or for Executives hereunder shall be
made when due in accordance with the Plans and the Payment
Schedules. In the event the Trust Corpus should be insufficient
to pay when due all amounts payable hereunder to or for the
Executives, amounts due first in time shall be paid in full
without proration until the Trust Corpus is exhausted. The
Trustee shall have no duty to make payments hereunder except from
the Trust Corpus.
SECTION 5.02 Successor Trustee. The Trustee may resign
from its duties hereunder at any time by giving notice in writing
of its resignation to the Company and each Executive specifying a
date (not less than 30 days after the giving of such notice) when
its resignation shall take effect. Promptly after notice, the
Company, or if a Change in Control shall previously have
occurred, the Company and a least 65% in number of the Executives
reflected on the then most recent Executive List, shall appoint a
successor trustee, and the successor trustee shall become Trustee
hereunder upon the resignation date specified in the notice. If
the Company is unable to designate a successor or if the Company
and the Executives are unable to so agree upon a successor
trustee within 30 days after notice, the successor trustee shall
be selected by the vote of not less than 65% in number of the
Executives. If the Executives cannot so agree on a successor
trustee, the Trustee shall be entitled to petition a United
States District Court or any court of competent jurisdiction in
the state in which the Trustee maintains its principal place of
business to relieve the Trustee of its duties hereunder. The
Trustee shall continue to serve until its successor accepts the
trust and receives delivery of the Trust Corpus. The Company, or
if a Change in Control shall previously have occurred, the
Company and at least 65% in number of the Executives reflected on
the then most recent Executive List, may at any time substitute a
new trustee by giving 15 days' notice thereof to the Trustee then
acting. In the event of removal or resignation, the Trustee
shall duly file with the Company and, on and after a Change in
Control, the Executives, a written statement or statements of
accounts and proceedings as provided in Section 5.01(b) hereof
for the period since the last previous annual accounting of the
Trust, and if written objection to such account is not filed as
provided in Section 5.01(b) hereof, the Trustee shall, to the
maximum extent permitted by applicable law, be forever released
and discharged from all liability and accountability with respect
to the propriety of its acts and transactions shown in such
account. Any successor trustee shall have no liability for the
acts or omissions of a predecessor trustee.
ARTICLE VI
TERMINATION AND AMENDMENT
SECTION 6.01 Termination. Except as provided herein, this
Trust shall be irrevocable. At any time prior to a Change in
Control of the Company, this Trust may be terminated by agreement
of the Company and at least 65% in number of the Executives
reflected on the then most recent Executive List. Upon or after
a Change in Control of the Company, this Trust shall be
terminated upon the earliest to occur of the following events:
(i) the written agreement to so terminate of the Company and all
of the Executives reflected on the then most recent Executive
List, provided, however, that no termination due to this event
shall operate to accelerate payment of any amount to or for the
Executives; (ii) the final payment from the Trust of the
remaining balance of the Trust Corpus; or (iii) 21 years after
the death of the last survivor of all of the Executives included
on the original Executive List and those persons now living who
have been designated as beneficiaries of the Executives in
accordance with the terms of any of the Plans. Promptly upon
termination of this Trust, any remaining portion of the Trust
Corpus shall be paid to the Company or its successor in interest.
SECTION 6.02 Amendment.
(a) At any time prior to a Change in Control of the
Company, this Trust may be amended by the Company, provided,
however, that no amendment may be made that would contravene the
terms of any of the Plans or accelerate payment to or for the
Executives thereunder and provided further that the Trustee must
consent to any amendment that would increase its duties
hereunder.
(b) Upon and after a Change in Control of the Company,
the following rules will govern amendments: (i) this Trust may
not be amended except by an instrument in writing signed on
behalf of the Trustee and the Company, together with the written
consent of at least 65% in number of the Executives reflected on
the then most recent Executive List; (ii) notwithstanding the
foregoing, any amendment may be made by written agreement of the
Trustee and the Company without obtaining the consent of the
Executives if the amendment does not adversely affect the rights
of any Executive hereunder or if the amendment is necessary in
order to obtain a favorable determination of the Internal Revenue
Service as to the federal income tax consequences to the
Executives of the creation and funding of the Trust hereunder;
(iii) no amendment relating to this Trust may be made that would
decrease the amounts payable hereunder to a particular Executive
unless the Executive has agreed in writing to the amendment; and
(iv) no amendment relating to this Trust may be made that would
contravene the terms of any of the Plans as in existence prior to
a Change in Control of the Company or accelerate payment to or
for the Executives thereunder.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.01 Further Assurances. The Company shall, at any
time and from time to time, upon the reasonable request of the
Trustee, execute and deliver further instruments and do further
acts as may be necessary or proper to effectuate the purposes of
this Trust. The Trustee shall incur no liability under this
Trust Agreement for any failure to act pursuant to any notice,
direction, or other communication from any person entitled to
instruct the Trustee hereunder, or in the absence thereof, unless
and until the Trustee shall have received instructions in form
satisfactory to it.
SECTION 7.02 Certain Provisions Relating to This Trust.
(a) This Trust sets forth the entire understanding of
the parties with respect to the subject matter hereof and
supersedes any and all prior agreements, arrangements, and
understandings relating thereto. This Trust shall be binding
upon and inure to the benefit of the parties and their respective
successors and legal representatives.
(b) This Trust shall be governed by and construed in
accordance with the laws of the state of Illinois, other than and
without reference to any provisions of the laws regarding choice
of laws or conflict of laws.
(c) In the event that any provision of this Trust or
the application thereof to any person or circumstances shall be
determined by a court of proper jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Trust, or the
application of any provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall
not be affected thereby, and each provision of this Trust shall
be valid and enforced to the fullest extent permitted by law.
(d) No Executive shall have any preferred claim on, or
any beneficial ownership interest in, any assets of the Trust
before the assets are paid to or for the Executive as provided in
Section 4.02, and all rights created under the Trust and the
Plans shall be unsecured contractual rights of the Executive
against the Company. No part of, or claim against, the assets of
the Trust may be assigned, anticipated, alienated, encumbered,
garnished, attached, or in any other manner disposed of by any of
the Executives, and no part of or claim against shall be subject
to any legal process or claims of creditors of any of the
Executives. Any amounts transferred to the Trust shall not in
any way represent security for payment of benefits under the
Plans, and benefits under the Plans are in no way governed or
limited by the amounts of assets, if any, held in this Trust.
The Company shall make no representation that the assets of the
Trust are not subject to claims of the Company's creditors in the
event of bankruptcy or insolvency of the Company.
SECTION 7.03 Notices. Any notice, report, demand, or waiver
required or permitted hereunder shall be in writing and shall be
given personally or by prepaid registered or certified mail,
return receipt requested, addressed as follows:
If to the Company: Boise Cascade Corporation
Attention General Counsel
1111 W. Jefferson Street
P.O. Box 50
Boise, ID 83728
If to the Trustee: American National Bank and Trust
Company of Chicago
Attention Trust Administration
Division
33 North LaSalle Street
Chicago, IL 60690
If to an Executive: The address of the Executive as
listed on the then most recent
Executive List.
A notice shall be deemed received upon the date of
delivery if given personally or, if given by mail, upon the
receipt thereof.
SECTION 7.04 Trust Beneficiaries. Each Executive is an
intended beneficiary under this Trust and shall be entitled to
enforce all terms and provisions hereof with the same force and
effect as if he or she had been a party hereto.
IN WITNESS WHEREOF, the parties have executed this Trust as
of the date first written above.
BOISE CASCADE CORPORATION
By: ______________________________
J. Michael Gwartney
Title: Vice President, Human Resources
AMERICAN NATIONAL BANK AND
TRUST COMPANY OF CHICAGO
By: ______________________________
Title: ___________________________