Exhibit 10.8


 


AMENDMENT TO

OFFICEMAX INCORPORATED

2005 Restricted Stock Unit Award Agreement


 


WHEREAS, OfficeMax
Incorporated (the “Company”) granted Sam Duncan (“Awardee”) a Restricted Stock
Unit Award (the “Award”) on April 18, 2005, pursuant to the 2003 OfficeMax
Incentive and Performance Plan; and


 


WHEREAS,
the Company and Awardee desire to amend the Award in order to comply with
Internal Revenue Code Section 409A.


 


NOW,
THEREFORE, the Award is hereby amended, effective January 1,
2009, to read as follows:


 


1.             Section 5 is amended by adding a
paragraph at the end thereof to read as follows:


 


“Payment
shall be made as soon as practical but in no event later than March 15 of
the year following the year in which the Change in Control or Qualifying
Termination (as applicable) occurred. 
However, if you are a “specified employee,” as determined pursuant to
Code Section 409A and regulations issued thereunder, to the extent amounts
are (i) payable to you upon a Qualifying Termination and (ii) such
amounts are subject to Code Section 409A, payment shall be made on the
first day following the six month anniversary of your termination of
employment.


 


Notwithstanding
the foregoing definition of “Change in Control,” to the extent any amount is
payable because the continuing entity does not continue or replace the award
and such amount constitutes deferred compensation subject to Code Section 409A,
the definition of “Change in Control” provided in Appendix A shall apply.”


 


2.             The Award is amended by adding an
Appendix A at the end thereof to read as follows:


 


“APPENDIX A


 


To the
extent any amount payable under this Award constitutes deferred compensation
subject to Code Section 409A, the following definition of “Change in
Control” shall apply:


 


1.             Change in Control.  A “Change in Control” means, with respect to
OfficeMax or Subsidiary, the occurrence of any one of the following dates,
interpreted consistent with Treasury Regulation Section 1.409A-3(i)(5).


 


a.             Change in
Ownership.  The date any one Person,
or more than one Person Acting as a Group, acquires ownership of stock of
OfficeMax or Subsidiary that, together with stock held by such Person or Group,
constitutes more than 50% of the total fair market value or total voting power
of the stock of OfficeMax or Subsidiary, as the case may be.  Notwithstanding the foregoing, for purposes
of this paragraph, if any one Person, or more than one Person Acting as a
Group, is considered to own more than 50% of the total fair market value or
total voting 


 

















 


power
of the stock of OfficeMax or Subsidiary, as the case may be, the acquisition of
additional stock by the same Person or Persons is not considered to cause a
Change in Control.


 


b.             Change in
Effective Control.


 


i.              The date any one
Person, or more than one Person Acting as a Group, acquires (or has acquired
during the 12-month period ending on the date of the most recent acquisition by
such Person or Persons) ownership of stock of OfficeMax or Subsidiary
possessing 30% or more of the total voting power of the stock of OfficeMax or
Subsidiary, as the case may be. 
Notwithstanding the foregoing, for purposes of this subparagraph, if any
one Person, or more than one Person Acting as a Group, is considered to
effectively control OfficeMax or Subsidiary, as the case may be, the acquisition
of additional control of OfficeMax or Subsidiary, as the case may be, by the
same Person or Persons is not considered to cause a Change in Control; or


 


ii.             The date a majority
of the members of OfficeMax’s Board is replaced during any one year period by
directors whose appointment or election is not endorsed by a majority of the
members of OfficeMax’s Board before the date of the appointment or election.


 


c.             Change in
Ownership of a Substantial Portion of OfficeMax’s or Subsidiary’s Assets.  The date any one Person, or more than one
Person Acting as a Group, acquires (or has acquired during the one year period
ending on the date of the most recent acquisition by such Person or Persons)
assets from OfficeMax or Subsidiary that have a total gross fair market value
equal to or more than 40% of the total gross fair market value of all of the
assets of OfficeMax or Subsidiary, as the case may be, immediately before such
acquisition or acquisitions.  For
purposes of this paragraph (c), “gross fair market value” means the value of
the assets of OfficeMax or Subsidiary, as the case may be, or the value of the
assets being disposed of, determined without regard to any liabilities
associated with such assets. 
Notwithstanding the foregoing, a transfer of assets is not treated as a
Change in Control if the assets are transferred to:


 


i.              An entity that is
controlled by the shareholders of the transferring corporation;


 


ii.             A shareholder of
OfficeMax or Subsidiary, as the case may be, (immediately before the asset
transfer) in exchange for or with respect to its stock;


 


iii.            An entity, 50% or more
of the total value or voting power of which is owned, directly or indirectly,
by OfficeMax or Subsidiary, as the case may be;


 


iv.            A Person, or more than
one Person Acting as a Group, that owns, directly or indirectly, 50% or more of
the total value or voting power of all the outstanding stock of OfficeMax or
Subsidiary, as the case may be; or


 


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v.             An entity, at least
50% of the total value or voting power of which is owned, directly or
indirectly, by a Person described in clause iv.


 


2.             Definitions of “Person”
and “Acting as a Group.”  For
purposes of this Appendix, “Person” shall have the meaning set forth in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).  For
purposes of this Appendix, Persons shall be considered to be “Acting as a Group”
if they are owners of a corporation that enter into a merger, consolidation,
purchase or acquisition of stock, or similar business transaction with
OfficeMax or Subsidiary.  If a Person,
including an entity, owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of stock, or similar transaction, such
shareholder is considered to be Acting as a Group with the other shareholders
only with respect to the ownership in that corporation before the transaction
giving rise to the change and not with respect to the ownership interest in the
other corporation.  Notwithstanding the
foregoing, Persons shall not be considered to be Acting as a Group solely
because they purchase or own stock of the same corporation at the same time, or
as a result of the same public offering.”


 


IN
WITNESS WHEREOF, the Company and Awardee have caused this
Amendment to be executed on this             
day of                   ,
2008.


 


	
  OfficeMax Incorporated  

  	
   

  	
  Awardee  

  
	
   

  	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Sam Duncan

  
	
  Its:

  	
   

  	
   

  	
   

  



 


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