Exhibit 10.38


 


BOISE PAPER HOLDINGS, L.L.C.


 


SUPPLEMENTAL EARLY RETIREMENT PLAN


FOR CERTAIN ELECTED OFFICERS


 


(Effective February 22, 2008)


 

















 


BOISE PAPER HOLDINGS, L.L.C.


SUPPLEMENTAL EARLY RETIREMENT PLAN


FOR CERTAIN ELECTED OFFICERS


 


ARTICLE I — PURPOSE OF THE PLAN


 


The purpose of the
Boise Paper Holdings, L.L.C. Supplemental Early Retirement Plan (the “Plan”) is
to facilitate the orderly succession of Elected Officers with continuity of
management by providing additional Early Retirement Benefits for the Elected
Officers.


 


ARTICLE II — DEFINITIONS


 


2.1           “Board.”  The term Board shall mean the Board of
Directors of Boise.


 


2.2           “Boise.”  The term Boise shall mean Boise Inc.,
ultimate parent company of Boise Paper Holdings, L.L.C.


 


2.3           “Change in Control.”
 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 Boise representing 35% or more of either the then outstanding
shares of common stock of Boise or the combined voting power of Boise’s then
outstanding securities; provided, however, if such Person acquires securities
directly from Boise, such securities shall not be included unless such Person
acquires additional securities which, when added to the securities acquired
directly from Boise, exceed 35% of Boise’s then outstanding shares of common
stock or the combined voting power of Boise’s then outstanding securities, and
provided further that any acquisition of securities by any Person in connection
with a transaction described in Section 2.3(c)(i) shall not be
deemed to be a Change in Control; or


 


(b)           During any 24-month period, the following individuals cease for any
reason to constitute at least a majority of the number of directors then
serving:  individuals who, on the
effective 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 Boise) whose appointment
or election by the Board or nomination for election by Boise’s stockholders was
approved by a vote of at least 2/3rds of the directors then still in office who
either were directors on the effective date hereof or whose appointment,
election, or nomination for election was previously so approved (the “Continuing
Directors”); or


 

















 


(c)           The consummation of a merger or consolidation of Boise with any other
corporation other than (i) a merger or consolidation which would result in
both (a) Continuing Directors continuing to constitute at least a majority
of the number of directors of the combined entity immediately following
consummation of such merger or consolidation, and (b) the voting securities
of Boise 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) more than
50% of the combined voting power of the voting securities of Boise 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 Boise (or similar transaction) in which no
Person is or becomes the Beneficial Owner, directly or indirectly, of
securities of Boise representing 35% or more of either the then outstanding
shares of common stock of Boise or the combined voting power of Boise’s then
outstanding securities; provided that securities acquired directly from Boise
shall not be included unless the Person acquires additional securities which,
when added to the securities acquired directly from Boise, exceed 35% of Boise’s
then outstanding shares of common stock or the combined voting power of Boise’s
then outstanding securities; and provided further that any acquisition of
securities by any Person in connection with a transaction described in Section 2.3(c)(i) shall
not be deemed to be a Change in Control; or


 


(d)           The Shareholders of Boise approve a plan of complete liquidation or
dissolution of Boise or the consummation of an agreement for the sale or
disposition by Boise of all or substantially all of Boise’s assets, other than
a sale or disposition by Boise of all or substantially all of Boise’s assets to
an entity, more than 50% of the combined voting power of the voting securities
of which are owned by Persons in substantially the same proportions as their
ownership of Boise immediately prior to such sale.


 


For purposes of this Section, “Beneficial Owner” shall have the meaning
set forth in Rule 13d-3 under the Exchange Act, and “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 “Person”
shall not include (i) Boise or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
Boise or any of its subsidiaries, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, (iv) a corporation
owned, directly or indirectly, by the Shareholders of Boise in substantially
the same proportions as their ownership of stock of Boise, (v) an
individual, entity or group that is permitted to and does report its beneficial
ownership of securities of Boise on Schedule 13G under the Exchange Act (or any
successor schedule), provided that if the individual, entity or group later
becomes required to or does report its ownership of Boise’s securities on
Schedule 13D under the Exchange Act (or any successor schedule), then the
individual, person or group shall be deemed to be a Person as of the first date
on which the individual, person or group becomes required to or does report its
ownership on Schedule 13D or (vi) any Exempt Person. For purposes of this
definition, “Exempt Person” means (i) Forest Products Holdings, L.L.C. or (ii) Madison
Dearborn. “Madison 


 


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Dearborn”
means Madison Dearborn Partners, L.L.C. and any investment fund controlled by
or under common control with Madison Dearborn Partners, L.L.C., and any
officer, director or employee of such persons, or any trust, corporation,
partnership or other entity controlled by such persons or any combination of
these identified relationships.


 


2.3           “Closing Date.”  February 22, 2008.


 


2.4           “Committee.”  The Compensation Committee of the Board.


 


2.5           “Company.”  Boise Paper Holdings, L.L.C., a limited
liability company organized and existing under the laws of the state of
Delaware, or its successor or successors.


 


2.6           “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 or any subsidiary, partnership, or joint
venture of the Company. The determination of whether a business is a Competitor
shall be made by the Company’s General Counsel, in his or her sole discretion.


 


2.7           Construction. Except
to the extent preempted by federal law, this Plan shall be construed according
to the laws of the state of Idaho. The words “hereof,” “herein,” “hereunder”
and other similar compounds of the word “here” shall mean and refer to the
entire Plan, not to any particular provision or section.


 


2.8           “Deferred
Compensation and Benefits Trust.” 
The irrevocable trust (the “DCB Trust”) which may be established by the
Company with an independent trustee for the benefit of persons entitled to
receive payments or benefits hereunder, the assets of which will be subject to
claims of the Company’s creditors in the event of bankruptcy or insolvency.


 


2.9           “Early Retirement.”  The termination of employment of an Elected
Officer prior to his or her Normal Retirement Date but after the Elected
Officer has completed 10 or more years of service and has reached the age
of at least 58 years (or, for Elected Officers elected as such by Boise Cascade
Corporation prior to June 1, 2004, 55 years).


 


2.10         “Early Retirement
Benefits.”  The benefits that will be
paid to an Elected Officer who retires from the Company under the provisions of
this Plan.


 


2.11         “Early Retirement Date.”  The date of an Elected Officer’s Early
Retirement, as defined in Section 2.8.


 


2.12         “Effective Date.”  February 22, 2008.


 


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2.13         “Elected Officer.”  An employee who has been duly elected to
serve as an elected officer of the Company in accordance with the Company’s
bylaws (but not including assistant treasurers or assistant secretaries), and
who was a participant in the Boise Cascade, L.L.C. Supplemental Early
Retirement Plan for Executive Officers immediately prior to the Closing Date.


 


2.14         “Involuntary
Retirement.”  The termination of
employment of an Elected Officer by action of the Company or the Board prior to
an Elected Officer’s Normal Retirement Date but after the Elected Officer has
completed 10 or more years of service and has reached the age of at least
58 years (or, for Elected Officers elected as such by Boise Cascade
Corporation prior to June 1, 2004, 55 years).


 


2.15         “Normal Retirement
Date.” The first day of the month on or after an Elected Officer’s 65th
birthday.


 


2.16         “Salaried Plan.”  The Boise Paper Holdings, L.L.C. Pension Plan
for Salaried Employees and the Boise Paper Holdings, L.L.C. Supplemental
Pension Plan as they currently are in effect and as amended from time to time
after the Effective Date of this Plan.


 


2.17         “Specified Employee.”  A “specified
employee” as defined in Treasury Regulation §1.409A-1(i) (or any successor
regulation). For purposes of identifying Specified Employees, the specified
employee identification date is December 31st of each year and the specified employee
effective date is April 1st of
each year.


 


ARTICLE III — ELIGIBILITY FOR EARLY RETIREMENT BENEFITS


 


3.1           Eligibility. An
Elected Officer (i) with 10 or more years of service with the
Company, as defined in the Salaried Plan; (ii) who has served as an
officer of the Company (vice president or higher) for at least 5 full
years measured from the date of his or her election to such office; and (iii) whose
employment with the Company is terminated through Involuntary Retirement, or
who elects Early Retirement, shall receive the Early Retirement Benefits as set
forth in Article IV hereof; provided, however, if an Elected Officer’s
employment is terminated for “disciplinary reasons,” as that term is used in
the Company’s Corporate Policy 10.2, Termination of Employment, as amended from
time to time, such Elected Officer shall not be eligible to receive any
benefits under this Plan. For purposes of this Plan, an Elected Officer’s years
of service with the Company shall include his or her years of service with
Boise Cascade Corporation and Boise Cascade, L.L.C., and an Elected Officer’s
years of service as an officer of the Company shall include his or her years of
service as an officer (vice president or higher) of Boise Cascade Corporation
and Boise Cascade, L.L.C.


 


3.2           Notice. If an
Elected Officer is required to take Involuntary Retirement under this Plan, he
or she shall be given a written notice thereof and shall 


 


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be advised of the Early
Retirement Benefits to be paid hereunder. Additionally, any eligible Elected
Officer desiring to elect Early Retirement shall notify the Company of his or
her decision, in writing, at least 30 days in advance of the Early
Retirement Date.


 


ARTICLE IV — EARLY RETIREMENT BENEFITS


 


4.1           Computation of Early Retirement Benefits.
The Early Retirement Benefits payable to any Elected Officer who is eligible
for such benefits under Section 3.1 hereof shall be calculated as follows:


 


Until age 65, the
Early Retirement Benefits payable hereunder shall be an amount equal to the
Basic Pension Benefit that would have been payable in the form of a single life
annuity at age 65 under the Salaried Plan (before reduction to reflect any
retirement option selected by the Elected Officer pursuant to Article VII
of the Boise Paper Holdings, L.L.C. Pension Plan for Salaried Employees)
without reduction on account of early retirement; provided that in calculating
the benefit under the Boise Paper Holdings, L.L.C. Supplemental Pension Plan,
the “Frozen Benefit” (as defined in that plan) shall not be subtracted from the
“Unrestricted Benefit” (as defined in that plan).


 


If the
calculations made pursuant to this section produce no Early Retirement Benefits
for an Elected Officer, then this Plan shall not apply to that Elected Officer.
The Company will be secondarily liable for the payment of any amounts that are
payable from the Salaried Plan.


 


4.2           Manner and
Adjustment of Payment. The Early Retirement Benefits, as computed in Section 4.1
and as provided hereunder, shall, except as provided in Section 4.5,
become an unfunded general obligation of the Company and shall be paid to the
Elected Officer in monthly installments as a supplemental retirement benefit. The
Early Retirement Benefits shall be paid in the form of a single life annuity
until the earlier of the Participant’s death or the date the Participant
reaches age 65. Payment of Early Retirement Benefits shall commence as soon as
practicable following the Participant’s Early Retirement or Involuntary
Retirement, subject to Section 4.6. For purposes of Section 409A of
the Internal Revenue Code, the date of the Participant’s Early Retirement or
Involuntary Retirement shall be the “designated payment date.”


 


4.3           Elected Officer Not
to Compete. If an Elected Officer who is receiving Early Retirement
Benefits hereunder and who has not yet reached his or her Normal Retirement
Date provides significant services as an employee or consultant, or otherwise
renders services of a significant nature for remuneration, to a Competitor, the
Company may, in its discretion, cancel all further Early Retirement Benefits
due to be payable to the Elected Officer hereunder, and after the date of
cancellation, the Elected Officer shall forfeit all future benefits under this
Plan. The Company may, in its discretion, consent to an Elected Officer’s
rendering services to a Competitor, and if it does consent, it may place
whatever limitations it considers appropriate on the consent. If the Elected
Officer breaches the terms of the consent, the Company may, in its 


 


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discretion, cancel all
further Early Retirement Benefits due to be payable to the Elected Officer
hereunder, and after the date of cancellation, the Elected Officer shall
forfeit all future benefits under this Plan.


 


4.4           Supplemental Survivor’s Retirement Benefit. If an Elected Officer terminates employment at
any age by reason of death, his or her spouse, if any, shall be eligible to
receive a supplemental Survivor’s Retirement Benefit under this Plan. The
amount of the supplemental Survivor’s Retirement Benefit payable under this
section shall be equal to the difference between the Survivor’s Retirement
Benefit payable under the terms of the Salaried Plan and the amount to which
the spouse would be entitled under the terms of both this Plan and the Salaried
Plan if the Elected Officer, without regard to the requirements of Section 3.1
of this Plan, had elected early retirement on the date of his or her death and
had elected to receive benefits in the form of a 100% Joint and Survivor
Annuity with the spouse as joint annuitant, provided that if the Elected
Officer dies prior to reaching age 55, the otherwise unreduced benefit payable
under this Plan shall be actuarially reduced to reflect the Elected Officer’s
age at death. Payment of this benefit shall commence as soon as practicable
following the Participant’s death. For purposes of Section 409A of the
Internal Revenue Code, the date of the Participant’s death shall be the “designated
payment date.”  A surviving spouse shall not be eligible for
a supplemental survivor’s benefit under this Plan unless the spouse is eligible
for a survivor’s benefit under the terms of the Salaried Plan.


 


Notwithstanding
the foregoing, any benefits received pursuant to this section shall exclude the
amounts of any such benefits that are based on or relate to an Elected
Officer’s years of service performed for Boise Cascade Corporation and that are
payable under either the Boise Cascade Corporation Spun-off Pension Plan for
Salaried Employees or the Boise Cascade Corporation Supplemental Early
Retirement Plan for Elected Officers or would have been payable under such
plans as of the day before the Closing Date if all vesting and eligibility
provisions thereunder are deemed to have been met. To the extent that the Boise
Cascade Corporation Supplemental Early Retirement Plan for Elected Officers is
terminated and participants and surviving spouses thereunder are paid out in a
lump sum in connection with such termination prior to the payment of benefits
under this Plan, such lump sum (or its actuarial equivalent) shall be excluded
from the benefits payable under this Section 4.4.


 


4.5           Deferred
Compensation and Benefits Trust. Upon the occurrence of a Change in Control
of the Company or at any time thereafter, the Company, in its sole discretion,
may transfer to the DCB Trust cash, marketable securities, or other property
acceptable to the trustee to pay the Company’s obligations under this Plan in
whole or in part (the “Funding Amount”). Any cash, marketable securities, and
other property so transferred shall be held, managed, and disbursed by the
trustee subject to and in accordance with the terms of the DCB Trust. In
addition, from time to time, the Company may make additional transfers of cash,
marketable securities, or other property acceptable to the trustee as desired
by the Company in its sole discretion to maintain or increase the Funding
Amount with respect to this Plan. The assets of the DCB Trust, if any, shall be
used to pay benefits under this Plan, except to the extent the 


 


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Company pays such
benefits. The Company and any successor shall continue to be liable for the ultimate
payment of those benefits.


 


4.6           Payments to
Specified Employees. Payments to a
Specified Employee made pursuant to Section 4.2 above may not be made
within six calendar months following the date of the Participant’s Early
Retirement or Involuntary Retirement. Payments
which would otherwise be made to a Participant during that six month period
shall be accumulated and paid on the first day of the seventh calendar month
after the date of the Participant’s Early Retirement or Involuntary
Retirement.


 


ARTICLE V — DUTIES


 


5.1           Committee’s Powers.
Except as otherwise provided in the Plan with regard to the powers of the
Company, the Committee shall have control of administration of the Plan, with
all powers necessary to enable it to carry out its duties hereunder. The
Committee shall have the right to inspect the records of the Company whenever
such inspection may be reasonably necessary in order to determine any fact
pertinent to the performance of the duties of the Committee. The Committee,
however, shall not be required to make such inspection but may, in good faith,
rely on any statement of the Company or any of its officers or employees.


 


5.2           Copy of Plan to Be
Furnished. The Committee shall furnish a copy of this Plan to all Elected
Officers of the Company who are or become entitled to be covered under this
Plan as eligible Elected Officers.


 


5.3           Records. The
Committee shall keep a complete record of all its proceedings and all data
necessary for administration of the Plan.


 


5.4           Appeal Procedure.
If any Elected Officer feels aggrieved by any decision of the Committee
concerning his or her benefits hereunder, the Committee shall provide, upon
written request of the Elected Officer, specific written reasons for the
decision. The Committee shall afford an Elected Officer, whose claim for
benefits has been denied, 60 days from the date notice of denial is mailed
in which to request a hearing before the Committee. If an Elected Officer
requests a hearing, the Committee shall review the written comments, oral statements,
and any other evidence presented on behalf of the Elected Officer at the
hearing and render its decision within 60 days of such hearing. If the
Elected Officer still feels aggrieved by the Committee’s decision concerning
his or her benefits hereunder, the Elected Officer can request the Elected
Compensation Committee of the Board to review his or her case. The request for
hearing must be made in writing within 60 days from the date of the
Committee’s decision. The Elected Compensation Committee of the Board shall
review said decision within 4 months after receiving the Elected Officer’s
request for review and shall, within a reasonable time thereafter, render a
decision respecting the Elected Officer’s claim, which shall be final, binding
and conclusive.


 


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If any Elected
Officer feels aggrieved by any decision of the Company concerning his or her
rights hereunder, the Company shall provide, upon the written request of the
Elected Officer, specific written reasons for its decision. If the Elected
Officer is not satisfied with the Company’s decision with respect to his or her
rights, the Elected Officer can request the Compensation Committee of the Board
to review his or her case. The Elected Officer’s request must be made within
60 days of the mailing of the Company’s written decision, and the
Compensation Committee of the Board will handle the review in the same manner
as set forth above with respect to appeals from Committee decisions.


 


ARTICLE VI — AMENDMENT AND TERMINATION


 


6.1           Amendment. To
provide for contingencies which may require the clarification, modification, or
amendment of this Plan, the Company reserves the right to amend this Plan at
any time; provided, however, no amendment shall affect any benefits previously
granted hereunder to any Elected Officer who elected or was required, pursuant
to this Plan, to retire early. Further, prior to any amendment of the Plan, the
Company shall give at least 90 days’ prior written notice to any Elected
Officer, who at the time of the amendment will be eligible to receive Early
Retirement Benefits hereunder, of the proposed amendment and his or her
eligibility to elect early retirement prior to the effective date of the
amendment.


 


6.2           Termination. It
is the present intention of the Company to maintain this Plan indefinitely. Nonetheless,
the Company reserves the right, at any time, to terminate the Plan; provided,
however, no termination shall affect any benefits previously granted hereunder
to an Elected Officer who elected or was required, pursuant to this Plan, to
retire early, and provided, further, that prior to any termination, the Company
shall give at least 90 days’ prior written notice to any Elected Officer,
who at the time of the termination will be eligible to receive Early Retirement
Benefits hereunder, of the proposed termination and of his or her option to
elect, prior to the termination, to take early retirement under this Plan prior
to the effective date of the termination.


 


ARTICLE VII — MISCELLANEOUS


 


7.1           Benefits Not
Transferable or Assignable. None of the benefits, payments, proceeds,
claims, or rights of any Elected Officer hereunder shall be subject to the
claim of any creditor of the Elected Officer, other than the Company as permitted
in Section 7.2, nor shall any Elected Officer have any right to transfer,
assign, encumber, or otherwise alienate any of the benefits or proceeds which
he or she may expect to receive, contingently or otherwise, under this Plan.


 


7.2           Setoff. The
Company shall have the right to withhold and deduct from payments due hereunder
to any Elected Officer any amounts owed by the Elected Officer to the Company
or its affiliates that were incurred prior to the Elected Officer’s Early
Retirement Date.


 


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