EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 29th day of October, 2004, between
Boise Cascade, L.L.C., a Delaware limited liability company (the "Company"), and
W. Xxxxxx Xxxxxxxx ("EXECUTIVE").
WHEREAS, the services of Executive and his managerial and professional
experience are of value to the Company.
WHEREAS the Company desires to employ Executive as its Chief Executive
Officer upon the terms and conditions set forth herein.
In consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT. The Company shall employ Executive, and Executive
hereby accepts employment with the Company, upon the terms and conditions set
forth in this Agreement for the period beginning on the closing date of the
acquisition of Boise Cascade Corporation's forest products business by the
Company (the "Effective Date") and ending as provided in paragraph 5 hereof (the
"EMPLOYMENT PERIOD").
2. POSITION AND DUTIES.
During the Employment Period, Executive shall serve as the Chairman and Chief
Executive Officer of the Company and shall have the normal duties,
responsibilities, functions and authority of such position, subject to the power
and authority of the Board of Managers of Boise Cascade Holdings, L.L.C. (the
"Board") to expand or limit such duties, responsibilities, functions and
authority and to overrule actions of officers of the Company. During the
Employment Period, Executive shall render such administrative, financial and
other executive and managerial services to the Company and its Affiliates which
are consistent with Executive's position as the Board may from time to time
direct.
(a) During the Employment Period, Executive shall report to the Board
and shall devote his best efforts and his full business time and attention
(except for permitted vacation periods and reasonable periods of illness or
other incapacity) to the business and affairs of the Company and its Affiliates.
Executive shall perform his duties, responsibilities and functions to the
Company and its Affiliates hereunder to the best of his abilities in a diligent,
trustworthy, professional and efficient manner and shall comply with the
Company's and its Affiliates' policies and procedures in all material respects.
In performing his duties and exercising his authority under the Agreement,
Executive shall support and implement the business and strategic plans approved
from time to time by the Board. During the Employment Period, Executive shall
not accept other employment, serve as an officer or director of, or otherwise
perform services for compensation for, any other entity without the prior
written consent of the Board; PROVIDED that Executive may serve as an officer or
director of or otherwise participate in purely educational, welfare, social,
religious and civic organizations so long as such activities do not interfere
with
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Executive's employment. The Company hereby consents to the service of Executive
on the boards of directors of Xxxxxx Investments and Trans-Canada Corporation
and their subsidiaries and affiliates.
(b) For purposes of this Agreement, "AFFILIATES" shall mean any
corporation or other entity of which is directly or indirectly controlled by or
under common control with the Company or its subsidiaries.
3. COMPENSATION AND BENEFITS.
(a) During the Employment Period, Executive's base salary shall be
One Million Dollars ($1,000,000) per annum or such higher rate as the Board may
determine from time to time (as adjusted from time to time, the "BASE SALARY"),
which salary shall be payable by the Company in regular installments in
accordance with the Company's general payroll practices (in effect from time to
time). Executive and the Company shall review the Base Salary each year during
the Term hereof, and Executive may receive increases in his Base Salary from
time to time, based upon his performance, subject to approval of the
Compensation Committee of the Board (the "Compensation Committee"). During the
period beginning on the date of this Agreement and ending December 31, 2004, the
Base Salary shall be pro rated on an annualized basis. In addition, during the
Employment Period, Executive shall be entitled to participate in the Company's
employee benefit programs for which other similarly situated senior executive
employees of the Company are generally eligible, and Executive shall be entitled
to four weeks of paid vacation each calendar year in accordance with the
Company's policies.
(b) In addition to Base Salary, Executive will have an opportunity to
earn a cash bonus each year as determined by the Compensation Committee or the
Board, with a target annual bonus equal to sixty-five percent (65%) of
Executive's Base Salary (the "Target Bonus") and a maximum annual bonus of two
hundred and twenty five percent (225%) of his Target Bonus with respect to any
calendar year. The Target Bonus will be based on financial and other objective
targets that the Compensation Committee or the Board reasonably believes are
reasonably attainable at the time that they are set.
(c) Executive shall also be eligible to participate in and receive
future grants under any stock option or equity-based program (including, without
limitation, a long-term incentive plan) offered by the Company to senior
executives, if any, subject to the discretion of the Board.
(d) The Company shall reimburse Executive for all reasonable business
expenses incurred by him in the course of performing his duties and
responsibilities under this Agreement (including, without limitation, reasonable
expenses incurred by Executive prior to the Effective Date for the benefit of
the Company, including trip cancellation costs) which are consistent with the
Company's policies in effect from time to time with respect to travel,
entertainment and other business expenses, subject to the Company's requirements
with respect to reporting and documentation of such expenses. During the
foregoing period, Executive shall be indemnified by the Company as provided in
paragraph 23 pursuant to the applicable provisions of its articles,
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bylaws, and the laws of Delaware, and the Company shall furnish director and
officer liability insurance to the Executive at the Company's sole cost.
(e) The Company shall also reimburse Executive for all reasonable
moving and relocation expenses (including relocation from Vancouver, BC and
movement of household goods from Denver). To the extent that Executive does not
sell his real property and boat located in Vancouver prior to the Effective
Date, the Company shall purchase such property, including condominium, attached
boat dock and boat, for its appraised fair market value (determined in good
faith and expected to be valued between $1,500,000 to $2,000,000), unless
Executive rejects the proposed purchase price and elects to retain ownership, in
which case the Company shall have no further obligations regarding such
property. If the Company purchases such property located in Vancouver pursuant
to the preceding sentence, Executive may, at his election, lease such property
from the Company at fair market value until such date that the Company sells
such property to a bona fide third party purchaser. If Executive is terminated
by the Company without Cause prior to the expiration of this Agreement, the
Company will purchase for cash Executive's condominium located in Boise for its
appraised fair market value.
(f) The Company shall at its expense maintain a term life insurance
policy or policies on the life of Executive with a face amount of Two Million
Dollars ($2,000,000), payable to such beneficiaries as Executive may designate.
Executive agrees to cooperate in any medical or other examination, supply any
information and execute and deliver any applications or other instruments in
writing as may be reasonably necessary to obtain such insurance. Executive
hereby represents that he has no reason to believe that his life is not
insurable at rates now prevailing for healthy men of his age. Executive may, at
his expense, purchase additional insurance at the time the Company purchases
said policy or policies. In the event Executive terminates employment for any
reason, Executive shall have the right, at his expense, to begin paying the
premiums required to continue such insurance coverage from and after the date of
his termination.
(g) All amounts payable to Executive as compensation hereunder shall
be subject to all required and customary withholding by the Company as provided
in paragraph 20 herein.
(h) On or as soon as reasonably practicable following the Effective
Date, Executive will receive a one-time consulting payment for services
performed from July 26, 2004 through the Effective Date (the "Consulting
Period") in an amount equal to the product of One Million Six Hundred Fifty
Thousand Dollars ($1,650,000) multiplied by a fraction, the numerator of which
is the number of days from July 26, 2004 through the Effective Date and the
denominator of which is Three Hundred Sixty Five (365).
4. BOARD MEMBERSHIP. With respect to all regular elections of the
Board of Managers of Boise Cascade Holdings, L.L.C. during the Employment
Period, the Company shall nominate, and use its reasonable efforts to cause the
election of, Executive to serve as Chairman of the Board. Upon the termination
or expiration of the Employment Period, Executive shall resign as Chairman and
as a member of the Board and all other governing bodies of the Company and its
Affiliates, as the case may be.
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5. TERM.
(a) The Employment Period shall end three years after the Effective
Date and shall automatically be renewed on the same terms and conditions set
forth herein as modified from time to time by the parties hereto for additional
one-year periods beginning on the second anniversary of the Effective Date,
unless the Company or Executive gives the other party written notice of the
election not to renew the Employment Period at least 60 days prior to any such
renewal date; provided that (i) the Employment Period shall terminate prior to
such date immediately upon Executive's resignation (with or without Good Reason,
as defined below), death or Disability and (ii) the Employment Period may be
terminated by the Company at any time prior to such date for Cause (as defined
below) or without Cause. Except as otherwise provided herein, any termination of
the Employment Period by the Company shall be effective as specified in a
written notice from the Company to Executive.
(b) If the Employment Period is terminated by the Company or its
successors in interest without Cause other than under the circumstances
described in Section 5(d) or upon Executive's resignation with Good Reason,
Executive shall be entitled to continue to receive:
(i) his full Base Salary through Executive's date of
termination,
(ii) a lump sum equal to two times the sum of Executive's
annual Base Salary and annual Target Bonus (disregarding any reductions in
Base Salary or Target Bonus which constitute good reason),
(iii) the value of any unused and accrued time off, less any
advanced time off, in accordance with the time off policy applicable to
Executive immediately prior to Executive's date of termination,
(iv) continued coverage under Executive's term life insurance
policy referred to in Section 3(f) with the Company paying directly or
reimbursing Executive for the entire premium for a twenty-four (24) month
period (the "SEVERANCE PERIOD"), and
(v) participation at active employee cost during the Severance
Period under life (other than life insurance available only to executive
officers), disability, accident and healthcare insurance plans, programs or
arrangements and financial counseling services in which Executive
participated immediately prior to his date of termination. The cost to
Executive for such continued coverage will be the same paid for such
coverage by actively employed executive officers during the Severance
Period.
Executive shall not be entitled to any other salary, compensation or benefits
after termination of the Employment Period, except as specifically provided for
in this agreement or as otherwise expressly required by applicable law.
Executive shall have no duty or obligation to seek other employment during the
Severance Period or otherwise mitigate damages hereunder. Amounts paid pursuant
to this paragraph shall be in lieu of all other severance payments that would
otherwise have been payable pursuant to the Company's severance plans, programs
or policies.
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(c) If the Employment Period is terminated by the Company for Cause or
is terminated pursuant to clause (a)(i) above (other than termination with Good
Reason), Executive shall only be entitled to receive his Base Salary through the
date of termination, the value of any unused and accrued time off, less any
advanced time off, in accordance with the time off policy applicable to
Executive immediately prior to Executive's date of termination and shall not be
entitled to any other salary, compensation or benefits from the Company or its
Affiliates thereafter, except as expressly required under applicable law.
(d) If the Employment Period expires due to the Company electing not
to renew the Agreement, Executive shall be entitled to receive (i) his base
Salary through the date of expiration, (ii) the value of any unused and accrued
time off, less any advanced time off, in accordance with the time off policy
applicable to Executive immediately prior to Executive's date of termination and
(iii) severance in accordance with the Company's general severance policy
(subject to the execution by Executive of a separation and release agreement in
a form mutually acceptable to Executive and the Company and the observation of
any applicable waiting or revocation periods that are necessary for the release
to become fully effective and irrevocable under state and federal laws).
(e) Except as otherwise expressly provided herein, all of Executive's
rights to salary, bonuses, employee benefits and other compensation hereunder
which would have accrued or become payable after the termination or expiration
of the Employment Period shall cease upon such termination or expiration, other
than those expressly required under applicable law (such as COBRA). The Company
may offset any amounts Executive owes it or its Affiliates against any amounts
it or its Affiliates owes Executive hereunder. Notwithstanding anything to the
contrary, payment of amounts under Section 5 of this Agreement are conditioned
upon the execution by Executive of a separation and release agreement in a form
mutually acceptable to Executive and the Company and the observation of any
applicable waiting or revocation periods that are necessary for the release to
become fully effective and irrevocable under state and federal laws.
(f) For purposes of this Agreement, "Cause" shall mean with respect to
Executive one or more of the following: Executive's theft or embezzlement, or
attempted theft or embezzlement, of money or property of the Company or its
Affiliates, perpetration or attempted perpetration of fraud, or participation in
a fraud or attempted fraud, on the Company or its Affiliates or unauthorized
appropriation of, or attempt to misappropriate, any tangible or intangible
assets or property of the Company or its Affiliates, (ii) any act or acts of
disloyalty, misconduct or moral turpitude by Executive injurious to the
interest, property, operations, business or reputation of the Company or its
Affiliates or conviction of Executive (or a plea of guilty or nolo contendre) of
a felony which results in injury to the Company or its Affiliates or (iii)
Executive's failure or inability (other than by reason of his Disability) to
carry out effectively his duties and obligations to the Company or its
Affiliates or to participate effectively and actively in the management of the
Company or its Affiliates, as determined in the reasonable judgment of the
Board; provided, however, that the Company shall provide specific written notice
of such alleged failure or inability and provide Executive with 15 days to cure
such alleged failure or inability.
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The Board shall give Executive written notice of the Board's concern
over Executive's action or inaction constituting alleged Cause and Executive
shall have 15 days to cure the alleged Cause and to prepare for a meeting with
the Board, at which time Executive may present any information and any other
factors relevant to the Board's determination of Cause, after which a majority
of the Board (disregarding Executive's membership on the Board) must ratify the
finding of "Cause" for it to be effective.
(g) For purposes of this Agreement, "DISABILITY" shall mean
Executive's inability to perform the essential duties, responsibilities and
functions of his position with the Company and its Affiliates for six (6)
consecutive months as a result of any mental or physical disability or
incapacity even with reasonable accommodations of such disability or incapacity
provided by the Company and its Affiliates or if providing such accommodations
would be unreasonable, all as determined by the Board in its reasonable good
faith judgment; provided, however, that the Company shall provide 30 days notice
of termination due to Disability where such termination shall be effective if
Executive does not return to full-time active employment within such 30-day
period. Executive shall cooperate in all respects with the Company if a question
arises as to whether he has become disabled (including, without limitation,
submitting to an examination by a medical doctor or other health care
specialists selected by the Company and authorizing such medical doctor or such
other health care specialist to discuss Executive's condition with the Company).
(h) For purposes of this Agreement, "GOOD REASON" shall exist if: (i)
the Company reduces the amount of Executive's Base Salary below $1,000,000 or
Target Bonus below 65% of Executive's Base Salary, (ii) the Company adversely
changes Executive's titles or impairs or reduces his responsibilities materially
inconsistent with the positions he holds or (iii) the Company changes
Executive's primary place of work to a location more than 50 miles from Boise,
Idaho; provided that written notice of Executive's resignation for Good Reason
must be delivered to the Company within 30 days after the occurrence of any such
event in order for Executive's resignation with Good Reason to be effective
hereunder.
6. CONFIDENTIAL INFORMATION.
(a) Executive acknowledges that the information, observations and
data (including trade secrets) obtained by him while employed by the Company and
its Affiliates, or during the Consulting Period, concerning the business or
affairs of the Company or any of its Affiliates ("CONFIDENTIAL INFORMATION") are
the property of the Company or such Affiliate. Therefore, Executive agrees that,
during the Employment Period and thereafter, he shall not disclose to any person
or entity or use for his own purposes any Confidential Information or any
confidential or proprietary information of other persons or entities in the
possession of the Company and its Affiliates ("THIRD PARTY INFORMATION"),
without the prior written consent of the Board, unless and to the extent that
the Confidential Information or Third Party Information becomes generally known
to and available for use by the public other than as a result of Executive's
acts or omissions. Executive shall deliver to the Company at the termination or
expiration of the Employment Period, or at any other time the Company may
request, all memoranda, notes, plans, records, reports, computer files, disks
and tapes, printouts and software and other documents and data (and copies
thereof) embodying or relating to Third Party
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Information, Confidential Information, Work Product (as defined below) or the
business of the Company or any other Affiliates which he may then possess or
have under his control.
(b) Executive shall be prohibited from using or disclosing any
confidential information or trade secrets that Executive may have learned
through any prior employment. If at any time during this employment with the
Company or any Affiliate, Executive believes he is being asked to engage in work
that will, or will be likely to, jeopardize any confidentiality or other
obligations Executive may have to former employers, Executive shall immediately
advise the Board so that Executive's duties can be modified appropriately.
Executive represents and warrants to the Company that Executive took nothing
with him which belonged to any former employer when Executive left his prior
position and that Executive has nothing that contains any information which
belongs to any former employer. If at any time Executive discovers this is
incorrect, Executive shall promptly return any such materials to Executive's
former employer. The Company does not want any such materials, and Executive
shall not be permitted to use or refer to any such materials in the performance
of Executive's duties hereunder.
7. INTELLECTUAL PROPERTY, INVENTIONS AND PATENTS. Executive
acknowledges that all discoveries, concepts, ideas, inventions, innovations,
improvements, developments, methods, designs, analyses, drawings, reports,
patent applications, copyrightable work and mask work (whether or not including
any confidential information) and all registrations or applications related
thereto, all other proprietary information and all similar or related
information (whether or not patentable) which relate to the Company's or any of
its Affiliates' actual or anticipated business, research and development or
existing or future products or services and which are conceived, developed or
made by Executive (whether alone or jointly with others) while employed by the
Company and its Affiliates, whether before or after the date of this Agreement
("WORK PRODUCT"), belong to the Company or such Affiliate. Executive shall
promptly disclose such Work Product to the Board and, at the Company's expense,
perform all actions reasonably requested by the Board (whether during or after
the Employment Period) to establish and confirm such ownership (including,
without limitation, assignments, consents, powers of attorney and other
instruments).
8. NON-COMPETE, NON-SOLICITATION.
(a) In further consideration of the compensation to be paid to
Executive hereunder, Executive acknowledges that during the course of his
employment with the Company and its Affiliates he shall become familiar with the
Company's trade secrets and with other Confidential Information and that his
services shall be of special, unique and extraordinary value to the Company and
its Affiliates, and therefore, Executive agrees that, during the Employment
Period and for two years thereafter (the "NONCOMPETE PERIOD"), he shall not
directly or indirectly own any interest in, manage, control, participate in,
consult with, render services for, be employed in an executive, managerial or
administrative capacity by, or in any manner engage in any business competing
with the businesses of the Company or its Affiliates, as such businesses exist
or are in process during the Employment Period or on the date of the termination
or expiration of the Employment Period, within any geographical area in which
the Company or its Affiliates engage or, solely with respect to geographical
areas with respect to which the Company has invested at least $500,000 in, plan
to engage in such businesses. Nothing herein shall
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prohibit Executive from being a passive owner of not more than 2% of the
outstanding stock of any class of a corporation which is publicly traded, so
long as Executive has no active participation in the business of such
corporation.
(b) During the Noncompete Period, Executive shall not directly or
indirectly through another person or entity (i) induce or attempt to induce any
employee of the Company or any Affiliate to leave the employ of the Company or
such Affiliate, or in any way interfere with the relationship between the
Company or any Affiliate and any employee thereof, (ii) hire any person (other
than Executive's secretary) who was an employee of the Company or any Affiliate
at any time during the Employment Period or (iii) induce or attempt to induce
any customer, supplier, licensee, licensor, franchisee or other business
relation of the Company or any Affiliate to cease doing business with the
Company or such Affiliate, or in any way interfere with the relationship between
any such customer, supplier, licensee or business relation and the Company or
any Affiliate.
(c) Executive agrees, during the Employment Period, he shall not make
any oral or written statements that disparage the Company, its subsidiaries or
respective affiliates, employees, officers, directors, products or services;
provided that this paragraph shall not be deemed to have been violated by
statements or releases of information by Executive (i) during the period of his
employment under this Agreement which Executive believes to be truthful and
which are made in good faith in the performance of his duties under this
Agreement or (ii) statements made in the course of sworn testimony in
administrative, judicial or arbitral proceedings.
(d) If, at the time of enforcement of this paragraph 8, a court shall
hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum period,
scope and area permitted by law. Executive acknowledges that the restrictions
contained in this paragraph 8 are reasonable and that he has reviewed the
provisions of this Agreement with his legal counsel.
(e) In the event of the breach or a threatened breach by Executive of
any of the provisions of this paragraph 8, the Company would suffer irreparable
harm, and in addition and supplementary to other rights and remedies existing in
its favor, the Company shall be entitled to specific performance and/or
injunctive or other equitable relief from a court of competent jurisdiction in
order to enforce or prevent any violations of the provisions hereof (without
posting a bond or other security). In addition, in the event of a breach or
violation by Executive of this paragraph 8, the Noncompete Period shall be
automatically extended by the amount of time between the initial occurrence of
the breach or violation and when such breach or violation has been duly cured.
9. EXCISE TAX GROSS-UP.
(a) Notwithstanding any provision of this Agreement to the contrary,
if Executive would receive payments under this Agreement or under any other
plan, program, or
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policy sponsored by the Company or its Affiliates which relate to a Change in
Control (as defined below)(the "Total Payments") and which are determined to be
subject to excise tax under Section 4999 of the Code (the "Excise Tax"); then
the Company shall pay to Executive an additional amount (the "Gross-up Payment")
such that the net amount retained by Executive, after deduction of any Excise
Tax on the Total Payments and any federal, state and local income and employment
taxes, and Excise Tax upon the Gross-up Payment, shall be equal to the Total
Payments. The term "Change in Control" means change in ownership or effective
control as set forth under Section 280G(b)(2)(A)(i).
(b) For purposes of determining whether any of the Total Payments
will be subject to the Excise Tax and the amount of such Excise Tax, (1) all of
the Total Payments shall be treated as "parachute payments" (within the meaning
of Section 280G(b)(2) of the Code) unless, in the Company's opinion, the
payments or benefits (in whole or in part) do not constitute parachute payments,
including by reason of Section 280G(b)(4)(A) of the Code, and (2) all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax unless, in the Company's opinion, the
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered (within the meaning of Section
280G(b)(4)(B) of the Code) in excess of the base amount allocable to such
reasonable compensation, or are otherwise not subject to the Excise Tax. For
purposes of determining the amount of the Gross-up Payment, Executive will be
deemed to pay federal income tax at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-up Payment is to be made and
state and local income taxes at the highest marginal rate of taxation in the
state and locality of Executive's residence on the Date of Termination, net of
the maximum reduction in federal income taxes which could be obtained from
deduction of state and local taxes.
(c) The Company will pay Executive the amount of the Gross-up Payment
as soon as the amount can be determined, but in no event later than the 30th day
after the Date of Termination. At the time that payments are made under this
Agreement, the Company shall provide Executive with a written statement setting
forth the manner in which the payments were calculated and the basis for the
calculations including, without limitation, any opinions or other advice the
Company has received from its tax counsel, its auditor, or other advisors or
consultants (and any opinions or advice which are in writing shall be attached
to the statement).
(d) If the Excise Tax is finally determined to be less than the
amount taken into account in calculating the Gross-up Payment, Executive shall
repay to the Company, within 5 business days following the time that the amount
of the reduction in Excise Tax is finally determined, the portion of the
Gross-up Payment attributable to the reduction (plus that portion of the
Gross-up Payment attributable to the Excise Tax and federal, state, and local
income and employment taxes imposed on the Gross-up Payment being repaid by
Executive, to the extent that such repayment results in a reduction in the
Excise Tax and a dollar-for-dollar reduction in Executive's taxable income and
wages for purposes of federal, state, and local income and employment taxes). If
the Excise Tax is determined, for any reason, to exceed the amount taken into
account in calculating the Gross-up Payment, the Company shall make an
additional Gross-up Payment in respect of the excess (including any interest,
penalties, or additions payable by Executive with respect to the Excise Tax)
within 5 business days following the time that the
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amount of the excess is finally determined. Executive and the Company shall
reasonably cooperate with the other in connection with any administrative or
judicial proceedings concerning the existence or amount of liability for Excise
Tax with respect to the Total Payments.
10. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and
warrants to the Company that (i) the execution, delivery and performance of this
Agreement by Executive do not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms. Executive hereby acknowledges and represents that he has consulted
with independent legal counsel regarding his rights and obligations under this
Agreement and that he fully understands the terms and conditions contained
herein.
11. SURVIVAL. Paragraphs 5 through 25, inclusive, shall survive and
continue in full force in accordance with their terms notwithstanding the
expiration or termination of the Employment Period.
12. NOTICES. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, sent by reputable overnight
courier service or mailed by first class mail, return receipt requested, to the
recipient at the address below indicated:
Notices to Executive:
W. Xxxxxx Xxxxxxxx
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Notices to the Company:
Boise Cascade, L.L.C.
0000 X. Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: General Counsel
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement shall be deemed to have been given when so
delivered, sent or mailed.
13. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall
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not affect any other provision of this Agreement or any action in any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
14. COMPLETE AGREEMENT. This Agreement embodies the complete
agreement and understanding among the parties and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
15. NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
16. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
17. SUCCESSORS AND ASSIGNS; NO THIRD PARTY BENEFICIARIES. This
Agreement is intended to bind and inure to the benefit of and be enforceable by
Executive, the Company and their respective heirs, successors and assigns,
except that Executive may not assign his rights or delegate his duties or
obligations hereunder without the prior written consent of the Company. This
Agreement shall not confer any rights or remedies upon any person other than the
Executive, the Company, the Company's Affiliates and their respective heirs,
successors and permitted assigns.
18. CHOICE OF LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICT OF LAW RULES OR PROVISIONS (WHETHER OF THE STATE OF IDAHO OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
19. AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended or waived only with the prior written consent of the Company (as
approved by the Board) and Executive, and no course of conduct or course of
dealing or failure or delay by any party hereto in enforcing or exercising any
of the provisions of this Agreement (including, without limitation, the
Company's right to terminate the Employment Period for Cause) shall affect the
validity, binding effect or enforceability of this Agreement or be deemed to be
an implied waiver of any provision of this Agreement.
20. INDEMNIFICATION AND REIMBURSEMENT OF PAYMENTS ON BEHALF OF
EXECUTIVE. The Company and its Affiliates shall be entitled to deduct or
withhold from any amounts owing from the Company or any of its Affiliates to
Executive any federal, state, local or foreign withholding taxes, excise tax, or
employment taxes ("TAXES") imposed with respect to
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Executive's compensation or other payments from the Company or any of its
Affiliates or Executive's ownership interest in the Company (including, without
limitation, wages, bonuses, dividends, the receipt or exercise of equity options
and/or the receipt or vesting of restricted equity). In the event the Company or
any of its Affiliates does not make such deductions or withholdings, Executive
shall indemnify the Company and its Affiliates for any amounts paid with respect
to any such Taxes, together with any interest, penalties and related expenses
thereto.
21. CONSENT TO JURISDICTION. Each of the parties irrevocably submits
to the non-exclusive jurisdiction of the United States District Court for the
District of Idaho located in Boise, Idaho, for the purposes of any suit, action
or other proceeding arising out of this Agreement, any related agreement or any
transaction contemplated hereby or thereby. Each of the parties hereto further
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any action, suit or proceeding in such court
with respect to any matters to which it has submitted to jurisdiction in this
paragraph 21. Each of the parties hereto irrevocably and unconditionally waives
any objection to the laying of venue of any action, suit or proceeding arising
out of this Agreement, any related document or the transactions contemplated
hereby and thereby in the United States District Court for the District of Idaho
located in Boise, Idaho, and hereby and thereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
22. WAIVER OF JURY TRIAL. As a specifically bargained for inducement
for each of the parties hereto to enter into this Agreement (after having the
opportunity to consult with counsel), each party hereto expressly waives the
right to trial by jury in any lawsuit or proceeding relating to or arising in
any way from this Agreement or the matters contemplated hereby.
23. INDEMNITY OF EXECUTIVE BY COMPANY. In addition to any
indemnification of Executive required by paragraph 9 and to the maximum extent
permitted by applicable law, the Executive is hereby indemnified and held
harmless by the Company, from and against any and all potential, threatened,
pending or completed claims, damages, liabilities (joint and/or several),
losses, expenses, judgments, fines, settlements and other amounts (including all
legal fees and expenses) arising from any and all claims, demands, actions,
suits or proceedings (including, but not limited to, those in civil, criminal,
administrative or investigative forums) in which the Executive may become
involved, as a party or otherwise, by reason of the management affairs of the
Company by the Executive, or other work performed by Executive on behalf of the
Company, or the rendering of advice by the Executive or consultation with
Executive in Executive's management capacity at the Company, or that relate in
any way to Executive serving as a director, officer, employee or agent of the
Company, its business or its affairs, provided that such actions or failures to
act are not finally adjudicated by a court of competent jurisdiction (a) to have
constituted criminal misconduct, and (b) were not taken or omitted (i) in good
faith and (ii) in the reasonable belief that such action was taken or omitted
in, or not opposed to, the best interests of the Company. In addition, the
Company will promptly pay on request any expenses, including all attorneys' fees
incurred by Executive, in defending any civil, criminal or regulatory action or
investigation relating to the Company, and in no case later than in advance of
the final disposition of such action, provided that the Executive agrees to
repay such expenses if the
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Executive is specifically and finally found by a court of competent jurisdiction
not to be entitled to such indemnification. The termination of any action, suit
or proceeding by judgment, order or settlement shall not create, of itself, a
presumption that the Executive did not act in good faith or in the best
interests of the Company.
24. CORPORATE OPPORTUNITY. During the Employment Period, Executive
shall submit to the Board all business, commercial and investment opportunities
or offers presented to Executive or of which Executive becomes aware which
relate to any lines of business that the Company or its Affiliates derive more
than $50,000 annually of their revenue from or with respect to which the Company
and its Affiliates have made a significant investment ("CORPORATE
OPPORTUNITIES"). Unless approved by the Board, Executive shall not accept or
pursue, directly or indirectly, any Corporate Opportunities on Executive's own
behalf or on behalf of another person or entity in or with respect to whom
Executive has any economic interest.
25. EXECUTIVE'S COOPERATION. During the Employment Period and
thereafter, Executive shall cooperate with the Company and its Affiliates in any
internal investigation, any administrative, regulatory or judicial investigation
or proceeding or any dispute with a third party as reasonably requested by the
Company (including, without limitation, Executive being available to the Company
upon reasonable notice for interviews and factual investigations, appearing at
the Company's request to give testimony without requiring service of a subpoena
or other legal process, volunteering to the Company all pertinent information
and turning over to the Company all relevant documents which are or may come
into Executive's possession, all at times and on schedules that are reasonably
consistent with Executive's other permitted activities and commitments). In the
event the Company requires Executive's cooperation in accordance with this
paragraph, the Company shall reimburse Executive solely for reasonable travel
expenses (including lodging and meals) upon submission of receipts.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
Boise Cascade, L.L.C.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Its: Executive Vice President,
Administration and Chief Legal
Officer
----------------------------------
/s/ W. Xxxxxx Xxxxxxxx
----------------------------------------
W. Xxxxxx Xxxxxxxx
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