Exhibit
10.1


 


SETTLEMENT
AGREEMENT AND RELEASE


 


                THIS
SETTLEMENT AGREEMENT AND RELEASE (“Release”) is made and entered into by and
between Gary J. Peterson (“Executive”) and OfficeMax Contract, Inc., formerly
known as Boise Cascade Office Products Corporation (“OfficeMax Contract”) in
connection with Executive’s separation of employment from OfficeMax North
America, Inc., formerly known as OfficeMax, Inc. (“Employer”), effective
February 6, 2005 (“Separation Date”).


 


                In
consideration of the mutual promises and releases contained herein and other
good and valuable consideration as set forth herein, it is hereby agreed as
follows:


 


                1.             In full and final settlement of any
claims and demands for relief which may be asserted by Executive against
Employer, OfficeMax Contract, OfficeMax Incorporated (formerly known as Boise
Cascade Corporation), and their parents, predecessors, successors, affiliates,
subsidiaries, and assigns, and the employees, current and former directors,
officers, agents, attorneys, and representatives of same, Employer will pay
(and OfficeMax Contract will cause Employer to pay) Executive a lump sum of
$2,810,000.00 (less applicable tax withholding at the rate required by law and
withholding to the extent permitted by the last sentence of this Section 1),
which amount equals the cash severance benefits payable under the Employment
Agreement dated December 10, 2003, by and between Executive and OfficeMax
Contract (the “Employment Agreement”). 
Executive agrees that such payment constitutes the exclusive payments
due to Executive from Employer or OfficeMax Contract, except as specifically
provided in Section 2 below.  Executive
shall receive such payment as soon as practicable after this Release becomes
irrevocable.  The amount withheld from
such payment or otherwise payable by Executive with respect to Executive’s
cost-share of the benefits under Section 2(g) below shall not exceed $5,400.00
in the aggregate, which shall be refunded to Executive to the extent benefits
under Section 2(g) are not provided.


 


                2.             Notwithstanding anything to the
contrary contained in this Release, Executive and OfficeMax Contract agree and
acknowledge that Executive is not waiving, discharging or otherwise releasing
in any way his rights or benefits to:


 


                                (a)           Payment of Executive’s salary, wage
payments, sales bonuses or commissions, and/or reimbursable business expenses
through the Separation Date, including the payments to which Executive is
entitled under Section 6(a) of the Employment Agreement, less applicable tax
withholding at the rate required by law.


 


                                (b)           Payment of Executive’s accrued but
unused Your Time Off as of the Separation Date, less applicable tax withholding
at the rate required by law.


 





















 


                                (c)           Payment and benefits accrued as of
the Separation Date under any “employee benefit plan” within the meaning of the
Employee Retirement Income Security Act of 1974, as amended, including without
limitation payments and benefits under any 401(k) plan; provided, however,
that as a condition to accepting the benefits payable under Section 1 above,
Executive agrees to waive, and is deemed to have waived, any right or
entitlement to severance or termination benefits related to Executive’s
termination of employment under any other severance or termination plan, policy,
program, or arrangement.


 


                                (d)           Executive’s existing rights with
respect to (w) limitations on his personal liability, (x) indemnification,
(y) advancement and reimbursement of expenses or other liabilities and
(z) directors’ and officers’ insurance coverage, including without
limitation any such rights of Executive under (i) the Certificate of
Incorporation, Articles of Incorporation, Bylaws, Code of Regulations or other
corporate governance documents of Employer, OfficeMax Contract, OfficeMax Incorporated
or any of their affiliates, as in effect on the Separation Date and at earlier
times, (ii) the directors’ and officers’ liability insurance coverage of
Employer, OfficeMax Contract, OfficeMax Incorporated or any of their
affiliates, which shall continue in force providing coverage to Executive for
all periods through and including the Separation Date, (iii) any state law
governing Employer, OfficeMax Contract, OfficeMax Incorporated or any of their
affiliates, (iv) that certain Agreement and Plan of Merger dated as of
July 13, 2003, among Boise Cascade Corporation, Challis Corporation and
OfficeMax, Inc. (including without limitation all rights of Executive under
Section 5.09 of such Agreement and Plan of Merger), or (v) any individual
indemnity or other agreement entered into between Executive and Employer,
OfficeMax Contract, OfficeMax Incorporated or any of their affiliates.  For avoidance of doubt, this Section 2(d)
does not create any new rights of Executive with respect to the matters
described in this Section 2(d).


 


                                (e)           Executive’s right to a payout of a
2004 annual incentive award, should any payout be made, under the terms of
Section 6(a) of the Employment Agreement.


 


                                (f)            Executive’s right to a payout of a
2005 annual incentive award on a pro rata basis, should any payout be made,
under the terms of Section 6(d)(ii) of the Employment Agreement.


 


                                (g)           Executive’s right to the benefits
provided by Section 6(f) of the Employment Agreement as a result of the
termination of Executive’s employment in a Qualifying Termination during the
Protected Period (as those terms are defined in the Employment Agreement),
which shall include without limitation the right to COBRA continuation coverage
for 18 months after coverage ceases.


 


                                (h)           Executive’s rights under Section 7 of
the Employment Agreement, including without limitation Executive’s rights to
payments (including without limitation any supplemental payments to make-up for
any payments that should have been made earlier by OfficeMax Contract or its affiliates
under such Section 7), benefits, 


 





















 


documentation and all other performance of
OfficeMax Contract and its affiliates under such Section 7.


 


                                (i)            Executive’s existing rights with
respect to any claims and demands for relief, of whatever nature or kind,
including attorneys’ fees, costs, and expenses, arising out of or related to
that certain case (or any successor case) presently known as Roth v.
OfficeMax, Inc., et al., which is pending in the United States District
Court for the Northern District of Illinois.


 


                3.             Except as set forth in Section 2
above and except for Executive’ s other rights and benefits under this Release,
Executive hereby expressly agrees and acknowledges that any and all claims and
demands for relief, of whatever nature or kind, including attorneys’ fees,
costs, and expenses, which Executive ever had or now has against Employer,
OfficeMax Contract Inc., OfficeMax Incorporated (formerly known as Boise
Cascade Corporation), and their parents, predecessors, successors, affiliates,
subsidiaries, assigns, and the employees, current and former directors,
officers, agents, attorneys, and representatives of same which arose out of or
relate in any way to Executive’s employment with or separation from employment
with Employer and/or its predecessors, shall be forever waived, released, or
discharged, including, but not limited to, (i) any claims under the Fair Labor
Standards Act, 29 U.S.C. Section 201, et seq.; the Employee Retirement
Income Security Act, 29 U.S.C. Section 1001, et seq.; the Family and
Medical Leave Act, 29 U.S.C. Section 2601, et seq.; the Age Discrimination in Employment Act, 29
U.S.C. Section 621, et seq.; Title VII of the Civil Rights Act of 1991,
42 U.S.C. Sections 1981 and 1981a; the American with Disabilities Act, 42
U.S.C. Section 12100, et seq. and any federal, state, or local laws
prohibiting employment discrimination; (ii) claims relating to harassment,
breach of contract or wrongful discharge, or breach of express or implied
covenants; and (iii) claims arising from any legal restrictions on Employer’s
right to terminate its employees.


 


                4.             Executive represents and agrees
that he has not relied on any statements by Employer or OfficeMax Contract
regarding his rights under the various federal and state laws prohibiting
discrimination in the workplace and that he is hereby advised, cautioned,
warned, recommended, encouraged, and provided the opportunity to discuss all
aspects of the Release with counsel of his own choosing, and that he has
carefully read the Release, and that he is voluntarily and of his own free will
and without any duress of any kind or nature entering into the Release.


 


                5.             Executive acknowledges the receipt
and sufficiency of the consideration adequate to support this Release in
general, and in particular, the Executive’s releases of rights set forth in
Sections 2 and 3 above, since the Executive is receiving benefits under Section
1 above that the Executive would otherwise not have been entitled to receive.


 


                6.             Executive and OfficeMax Contract further
expressly agree and understand that this Settlement Agreement and Release
(including the rights and benefits of Executive referred to in Section 2 above)
constitutes the complete and entire agreement 


 





















 


of the parties with respect to Executive’s separation
of employment from Employer, and that any 
and all previous promises, inducements, representations, warranties, or
agreements with respect to such subject matter have been superseded hereby and
are not intended to survive the Release, provided that any confidentiality,
non-solicitation and/or non-compete obligations and the remedies for a
violation thereof, all of which are set forth in Section 8 of the Employment
Agreement, shall continue to be binding on Executive in accordance with their
terms.  Notwithstanding the preceding,
Executive shall not be deemed to violate any employee non-solicitation or
non-hire obligations solely as a result of any general media advertisement of
employment opportunities not specifically directed at any employees of Employer
or its affiliates .  No amendment,
modification or waiver of any provision of this Release shall be effective
unless set forth in writing and signed by both the Executive and a duly
authorized officer of OfficeMax Contract.


 


                7.             Executive and OfficeMax Contract
agree that all matters relative to the construction and interpretation of this
Release shall be construed and interpreted in accordance with the internal
substantive laws of the State of Ohio. 
This Release shall inure to the benefit of, and be enforceable by,
OfficeMax Contract and Executive and their respective heirs, executors,
personal representatives, successors and assigns, except that neither party may
assign any rights or delegate any obligations hereunder without the prior
written consent of the other party; provided, however, that OfficeMax Contract
may assign this agreement to a successor so long as OfficeMax Contract requires
any successor (whether direct or indirect, by purchase, merger, consolidation,
or otherwise), to all or substantially all of the business and/or assets of
OfficeMax Contract, by agreement in form and substance satisfactory to
Executive, to expressly assume and agree to perform the obligations contained
in this Release in the same manner and to the same extent that OfficeMax
Contract would be required to perform it if no such succession had taken
place.  This Release may be executed in
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be a single agreement.  This Release shall be severable, so that if
any part of this Release is found to be unenforceable the other provisions of
this Release will remain fully valid and enforceable.


 


                8.             Executive represents and agrees
that he has been provided a period of 21 days to consider the terms of this
Release and has been advised that, once executed, this Release may be revoked
by Executive within seven days of execution.


 


                9.             Employer is obligated to make the
payments described in Section 1 above only if the following conditions are
met:


 


                                (a)           The seven-day revocation period under
Section 8 above expires without Executive revoking this Release; and


 


                                (b)           Executive resigns as an officer of
Employer by delivering a resignation to Employer in the form attached hereto as
Exhibit 1.


 





















 


                10.           Executive agrees not to disclose the
terms of this Release to any person, but this prohibition does not preclude
disclosure (a) to Executive’s financial, tax, or legal advisors, or spouse
provided that Executive first advises and cautions any of the above individuals
that the existence and terms of this Release are confidential and are not to be
disclosed, (b) that is legally compelled or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process), or (c) to the extent the terms of
this Release become generally available to the public other than as a result of
a disclosure by Executive or his financial, tax, or legal advisors, or spouse.


 


                11.           This Release shall not become
effective or enforceable until the eighth day after delivery of an executed
copy by the Executive to the Employer, at which point it shall be effective and
enforceable.


 


	
  Gary J. Peterson

  	
   

  	
  OFFICEMAX CONTRACT, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Gary J. Peterson

  	
   

  	
  By: 

  	
  /s/ Matthew R. Broad

  
	
  (Associate’s Signature)

  	
   

  	
  Title: 

  	
  EVP

  
	
   

  	
   

  	
   

  	
   

  
	
  Date 

  	
  3/22/2005

  	
   

  	
  Date 

  	
  3/22/05

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Linda R. Peterson

  	
   

  	
   

  	
   

  
	
  WITNESS

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date 

  	
  3/22/2005