Exhibit 10.5


 


CONFIDENTIAL


 


(Date)


 


[                     ]


 


Dear [          ]:


 


OfficeMax
Incorporated (the “Company”) is amending and restating the terms of your letter
agreement dated
                          
(the “Agreement”) which provides you with severance benefits if your employment
with the Company is terminated before or after a “change in control of the
Company” (as defined in Section 2 of the Agreement).  Agreement terms are being amended solely to
comply with Section 409A of the Internal Revenue Code of 1986, as amended,
with such changes effective January 1, 2009.  As you may know, Section 409A subjects
non-qualified deferred compensation, including certain severance benefits, to
various rules and restrictions.  On
and after the execution of the amended and restated Agreement, it shall be
known as the Agreement.  The Agreement
terms are as follows:


 


1.             Term of Agreement.  This Agreement is effective as of             January 1, 2009 and shall
continue in effect through
                ;
provided that, on each January 1, the term of this Agreement shall
automatically be extended so as to terminate on the 2nd anniversary of such
date, unless, not later than September 30 of the preceding year, the
Company shall have given notice not to extend this Agreement.  However, if a change in control of the
Company occurs during the term of this Agreement, this Agreement shall continue
in effect for a period of 24 months after the month in which the change in
control of the Company occurred.


 


2.             Change in Control.


 


A.            A
“change in control of the Company” shall be deemed to have occurred if an event
set forth in any one of the following paragraphs occurs:


 


(1)           Any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 25% 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; provided, however, if such
Person acquires securities directly from the Company, such securities shall not
be included unless such Person acquires additional securities which, when added
to the securities acquired directly from the Company, exceed 25% of the Company’s
then outstanding shares of common stock or the combined voting power of the
Company’s then outstanding securities; and provided further that any
acquisition of securities by 


 


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any Person in connection with
a transaction described in Subsection 2.A(3)(i) of this Agreement
shall not be deemed to be a change in control of the Company; or


 


(2)           The
individuals who, on any date following the date hereof, constitute the Board
(the “Incumbent Board Members”), cease, in any two year period following such
date, to represent at least a majority of the number of directors then serving,
provided, however, that any new director whose appointment or election by the
Board or nomination for election by the Company’s stockholders was approved by
a vote of at least 2/3rds of the Incumbent Board Members shall be deemed for
purposes hereof to be Incumbent Board Members, unless such director’s 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; or


 


(3)           The
consummation of a merger or consolidation of the Company (or any direct or
indirect subsidiary of the Company) with any other corporation other than (i) a
merger or consolidation which would result in both (a) Incumbent Board
Members 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 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) more than 50% 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 with the
approval of the Board 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 representing 25% 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; provided
that securities acquired directly from the Company shall not be included unless
the Person acquires additional securities which, when added to the securities
acquired directly from the Company, exceed 25  % of the Company’s then
outstanding shares of common stock or the combined voting power of the Company’s
then outstanding securities; and provided further that any acquisition
of securities by any Person in connection with a transaction described in
Subsection 2.A(3)(i) of this Agreement shall not be deemed to be a
change in control of the Company; or


 


(4)           The
stockholders of the Company approve a plan of complete liquidation or
dissolution of the Company or the consummation of 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, more than 50% of the combined voting power
of the voting securities of which are owned by Persons in 


 


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substantially the same proportions as their ownership of the Company
immediately prior to such sale.


 


A transaction described in Section 2.A(3) which
is not a change in control of the Company solely due to the operation of
Subsection 2.A(3)(i)(a) will nevertheless constitute a change in control
of the Company if the Board determines, prior to the consummation of the
transaction, that there is not a reasonable assurance that, for at least two
years following the consummation of the transaction, at least a majority of the
members of the board of directors of the surviving entity or any parent will
continue to consist of Continuing Directors and individuals whose election or nomination
for election by the shareholders of the surviving entity or any parent would be
approved by a vote of at least two-thirds of the Continuing Directors and
individuals whose election or nomination for election has previously been so
approved.


 


Notwithstanding the foregoing, any event or
transaction which would otherwise constitute a change in control of the Company
(a “Transaction”) shall not constitute a change in control of the Company for
purposes of your benefits under this Agreement if, in connection with the
Transaction, you participate as an equity investor in the acquiring entity or
any of its affiliates (the “Acquiror”). 
For purposes of the preceding sentence, you shall not be deemed to have
participated as an equity investor in the Acquiror by virtue of (a) obtaining
beneficial ownership of any equity interest in the Acquiror as a result of the
grant to you of an incentive compensation award under one or more incentive
plans of the Acquiror (including but not limited to the conversion in connection
with the Transaction of incentive compensation awards of the Company into
incentive compensation awards of the Acquiror), on terms and conditions
substantially equivalent to those applicable to other executives of the Company
immediately prior to the Transaction, after taking into account normal
differences attributable to job responsibilities, title, and the like; (b) obtaining
beneficial ownership of any equity interest in the Acquiror on terms and
conditions substantially equivalent to those obtained in the Transaction by all
other stockholders of the Company; or (c) having obtained an incidental
equity ownership in the Acquiror prior to and not in anticipation of the
Transaction.


 


B.            For
purposes of this Agreement, a “potential change in control of the Company”
shall be deemed to have occurred if (1) the Company enters into an
agreement, the consummation of which would result in the occurrence of a change
in control of the Company, (2) 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; (3) 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, provided that securities acquired directly from the Company
shall not be included unless the Person acquires additional securities which,
when added to the securities acquired directly from the 


 


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Company, exceed 9.5% of the Company’s then outstanding shares of common
stock (or the combined voting power of the Company’s then outstanding securities);
or (4) the Board adopts a resolution to the effect that a potential change
in control of the Company for purposes of this Agreement has occurred.  You agree that, subject to the terms and
conditions of this Agreement, in the event of a potential change in control of
the Company, you will at the option of the Company remain in the employ of the
Company until the earlier of (a) the date which is 6 months from the
occurrence of the first potential change in control of the Company, or (b) the
date of a change in control of the Company.


 


C.            For purposes of this Agreement, “Beneficial Owner” shall
have the meaning set forth in Rule 13d-3 under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”).


 


D.            For
purposes of this Agreement, “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 (1) the Company or any of its
subsidiaries, (2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries, (3) an
underwriter temporarily holding securities pursuant to an offering of such
securities, (4) 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, or (5) an individual, entity or group
that is permitted to and does report its beneficial ownership of securities of
the Company 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 Company 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 for purposes of this Agreement as of the first
date on which the individual, person or group becomes required to or does
report its ownership on Schedule 13D.


 


                3.             Termination and Change in Control.  Except as set forth in Sections 6, 7, and
10.A, no benefits shall be payable under this Agreement unless there is a
change in control of the Company, your employment is terminated, and your
termination is a Qualifying Termination or a Qualifying Early Termination.  Your termination is a Qualifying Termination
if a change in control of the Company occurs and your employment subsequently
terminates during the term of this Agreement, unless your termination is
because of your death, by the Company for Cause or Disability, or by you other
than for Good Reason.  Your termination
is a Qualifying Early Termination if a potential change in control of the
Company occurs, your employment terminates during the pendency of the potential
change in control of the company and during the term of this Agreement, the
termination is in contemplation of a change in control of the Company, and an
actual change in control of the Company occurs within one year following your
termination, unless your termination is because of your death, by the Company for
Cause or Disability, or by you other 


 


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than for Good Reason.  A transfer
of your employment from the Company to one of its subsidiaries, from a
subsidiary to the Company, or between subsidiaries is not a termination of
employment for purposes of this Agreement.


 


A.            Disability.  If, as a result of your incapacity due to
physical or mental illness or injury, you are absent from your duties with the
Company on a full-time basis for 6 consecutive months, and within
30 days after written notice of termination is given you have not returned
to the full-time performance of your duties, the Company may terminate your
employment for “Disability.”


 


B.            Cause.  Termination by the Company of your employment
for “Cause” means termination upon (1) your willful and continued failure
to substantially perform your duties with the Company (other than failure
resulting from your incapacity due to physical or mental illness or injury, or
actual or anticipated failure resulting from your termination for Good Reason),
after a demand for substantial performance is delivered to you by the Board
which specifically identifies the manner in which the Board believes that you
have not substantially performed your duties, or (2) your willful
engagement in conduct which is demonstrably and materially injurious to the
Company, monetarily or otherwise.  For
purposes of this Section 3.B, no act or failure to act on your part shall
be considered “willful” unless done or omitted to be done by you not in good
faith and without reasonable belief that your act or omission was in the best
interest of the Company.  Notwithstanding
the foregoing, you shall not be deemed to have been terminated for Cause unless
and until:


 


·                  a
resolution is duly adopted by the affirmative vote of not less than
three-quarters of the entire membership of the Board at a meeting of the Board
called and held for the purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the Board),
finding that in the good faith opinion of the Board you were guilty of conduct
set forth above in clauses (1) or (2) of this Section 3.B
and specifying the particulars of your conduct in detail, and


 


·                  a
copy of this resolution is delivered to you.


 


All decisions by the Company regarding termination for
Cause must be supported by clear and convincing evidence.


 


C.            Good Reason.   “Good Reason” means any of the following, if
occurring without your express written consent after a change in control of the
Company:


 


(1)           The
assignment to you of any duties materially inconsistent with your
responsibilities as an Executive Officer of the Company or a 


 


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significant adverse alteration in your responsibilities from those in
effect immediately prior to the change in control of the Company;


 


(2)           A
material reduction by the Company in your annual base salary as in effect on
the date of this Agreement (as the same may be increased from time to time),
except for across-the-board salary reductions similarly affecting all
executives of the Company and all executives of any Person in control of the
Company;


 


(3)           A
material reduction by the Company in your target annual cash incentive as in
effect immediately prior to the change in control of the Company;


 


(4)           The
Company’s requiring you to be based anywhere located more than 50 miles from
the primary office location at which you were based immediately prior to the
change in control of the Company, except for required travel on the Company’s
business to an extent substantially consistent with your business travel
obligations as existed immediately prior to the change in control;


 


(5)           Following
the change in control of the Company, a material reduction by the Company in
aggregate benefits and compensation available to you, including paid time off,
welfare benefits, short-term incentives, pension, life insurance, healthcare,
and disability plans, as compared to such benefits and compensation available
to you immediately prior to the change in control of the Company;


 


(6)           Following
the change in control of the Company, a material reduction by the Company in
long-term equity incentives available to you as compared to such incentives
available to you immediately prior to the change in control of the Company,
except for across-the-board long-term equity incentive reductions similarly
affecting all executives of the Company and all executives of any Person in
control of the Company; or


 


(7)           The
failure of the Company to obtain a satisfactory agreement from any successor to
assume and agree to perform this Agreement, as contemplated in Section 10.


 


Notwithstanding
the foregoing, the events described in clauses (1) through (7) above
shall not constitute Good Reason unless (A) you have delivered a Notice of
Termination to the Company according to Sections 3.D. and 11 within 90 days of
the occurrence of the event, which notice sets forth in reasonable detail the
basis for your claim that Good Reason exists and (B) the Company fails to
cure such event or circumstance within the 30 day period following receipt of
such Notice of Termination.


 


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For purposes of
determining whether a Qualifying Early Termination has occurred, references to
a change in control of the Company in this Section 3.C shall be deemed to
refer to any potential change in control of the Company pending at the time of
the event or circumstance alleged to be Good Reason.


 


Your right to terminate
your employment pursuant to this Section 3.C shall not be affected by your
incapacity due to physical or mental illness or injury.  Your continued employment shall not
constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason.


 


D.            Notice of Termination.  Any purported termination by the Company or
by you shall be communicated by written Notice of Termination to the other
party according to Section 11.  A “Notice
of Termination” must indicate the specific termination provision in this
Agreement relied upon and set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your employment
under the indicated provision.


 


E.             Date of Termination.  “Date of Termination” means:


 


(1)           if
your employment is terminated for Disability, 30 days after the Notice of
Termination is given (provided that you have not returned to the performance of
your duties on a full-time basis during that 30-day period);


 


(2)           if
your employment is terminated for Cause, for Good Reason, or for any other
reason other than Disability or a Qualifying Early Termination, the date
specified in the Notice of Termination (which, in the case of a termination for
Cause shall not be less than 30 days from the date the Notice of Termination
is given, and in the case of a termination for Good Reason shall not be less
than 10 days or more than 60 days from the date the Notice of
Termination is given);


 


(3)           if
your termination is a Qualifying Early Termination, the later of the date determined
according to subsection (1) or (2) above, or the date upon which the
actual change in control of the Company occurs; or


 


(4)           if
a dispute exists regarding the termination, the date on which the dispute is
finally determined, either by mutual written agreement of the parties or by a
final judgment, order or decree of a court of competent jurisdiction (the time
for appeal having expired and no appeal having been perfected), or, if earlier,
the last day of the term of this Agreement. 
This subsection (4) shall apply only if (i) the party
receiving the Notice of Termination notifies the other party within 30 days
that a dispute exists, (ii) the notice of dispute is made in good faith,
and (iii) the party giving the notice of dispute pursues resolution of the
dispute with reasonable diligence. While any dispute is pending under this
subsection (4), the Company will continue to pay you your full compensation in
effect when the Notice of Termination 


 


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giving rise to the dispute was given (including, but not limited to,
base salary) and continue you as a participant in all compensation, benefit and
insurance plans and programs in which you were participating when the Notice of
Termination giving rise to the dispute was given, until the dispute is finally
resolved, or if earlier, the last day of the term of this Agreement.  Amounts paid under this subsection (4) are
in addition to all other amounts due under this Agreement and shall not be
offset against or reduce any other amounts due under this Agreement.


 


4.             Compensation upon
Termination for Cause or Other than for Good Reason.  If your employment is terminated for Cause or
by you other than for Good Reason, the Company shall pay you only your full
base salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given, plus all other amounts to which you are
entitled under any compensation plan of the Company at the time those payments
are due, and the Company shall have no further obligations to you under this
Agreement.


 


5.             Compensation upon
a Qualifying Termination or Qualifying Early Termination.  If your employment is terminated pursuant to
a Qualifying Termination or Qualifying Early Termination, then you shall be entitled
to the benefits provided in this Section 5.


 


A.            The
Company will pay you the amounts specified below within fifteen (15) days
after the execution of the release required pursuant to Section 8.E and
after the expiration of any revocation period provided for in the release has
passed.  Notwithstanding the foregoing,
in no event shall payment be made later than March 15 of the calendar year
after the calendar year in which your Date of Termination occurs.  If the applicable release revocation period
has not expired by March 10 of the calendar year following your Date of
Termination, all severance to which you are entitled pursuant to Section 5.A(3) shall
be forfeit.


 


(1)           Your
full base salary through the Date of Termination (or, in the case of a
Qualifying Early Termination, through your last day of employment if such
amount has not already been paid) at the rate in effect at the time Notice of
Termination is given without regard to any reduction in base salary that would
constitute Good Reason (whether or not any reduction is asserted as Good
Reason), plus all other amounts to which you are entitled under any
compensation plan of the Company at the time those payments are due (in each
case, to the extent not already paid); and


 


(2)           To
the extent not already paid, a lump sum amount equal to the greater of the
value of your unused and accrued time off, less any advanced time off, in
accordance with the Company’s Your Time Off Policy (or any successor policy) as
in effect immediately prior to the change in control of the Company or as in
effect on the Date of Termination (or, in the case of a Qualifying Early
Termination, as in effect on your last day of employment), whichever is more
favorable to you; and


 


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(3)           A
lump sum severance payment equal to two times the sum of (a) your annual
base salary at the rate in effect at the time Notice of Termination is given
without regard to any reduction in base salary that would constitute Good
Reason (whether or not any reduction is asserted as Good Reason) (“Base Salary”),
plus (b) the Target Bonus.  For
purposes of this paragraph (3), “Target Bonus” means (i) if the Date of
Termination occurs prior to March 1, 2008, an amount equal to 80% of your
target annual incentive for the year in which the Date of Termination occurs
(or, in the case of a Qualifying Early Termination, your last day of
employment) without regard to any reduction in the target incentive that would
constitute Good Reason (whether or not any reduction is asserted as Good
Reason), and (ii) if the Date of Termination occurs on or after March 1,
2008, an amount equal to the average annual incentive earned by you in the
three completed years preceding the Date of Termination, provided that in
either case, if you have earned fewer than three annual bonuses prior to
the Date of Termination, Target Bonus means your target annual incentive for
the year in which occurs the Date of Termination (or, in the case of a
Qualifying Early Termination, your last day of employment) without regard to
any reduction in the target incentive that would constitute Good Reason
(whether or not any reduction is asserted as Good Reason).


 


B.            With
respect to each benefit listed below, the Company shall, at its sole
discretion, comply with either subsection (1) or (2) below:


 


(1)           for
a 12-month period following the Date of Termination, maintain, in full force
and effect for your continued benefit at substantially the same cost to you as
determined immediately prior to your last day of employment, all life (other
than the Company’s Executive Life Insurance Program, if applicable),
disability, accident and healthcare insurance plans, programs, or arrangements,
and financial counseling services in which you were participating immediately
prior to the change in control of the Company (or in the case of a Qualifying
Early Termination, immediately prior to your last day of employment), or, if
more favorable to you, the plans, programs, or arrangements in which you were
participating immediately prior to the Date of Termination; or


 


(2)           at
the time specified in Section 5.A, pay you a lump sum payment equal to 12
times 150% of the sum of (a) the monthly group premium, less the amount of
employee contributions, for the life (other than executive life, if
applicable), disability, accident and healthcare insurance plans, programs, or
arrangements, and (b) the monthly allowance for financial counseling
services, in each case in which you were participating immediately prior to the
change in control of the Company (or in the case of a Qualifying Early
Termination, immediately prior to your last day of employment), or, if more
favorable to you, the plans, programs, or arrangements in which you were
participating immediately prior to the Date of Termination.


 


9














 


The forfeiture provision specified in Section 5.A.
applies to the benefits provided under this Section 5.B.


 


If the Company chooses to provide the benefits
indicated under subsection (1), and your continued participation (or a
particular type of coverage) is not possible or becomes impossible under the
general terms and provisions of the plans, programs or arrangements, then the
Company shall arrange to provide you with benefits, at substantially the same
cost to you as determined immediately prior to your last day of employment,
which are substantially similar to those which you are entitled to receive
under such plans, programs and arrangements.


 


Notwithstanding the foregoing, the Company shall
continue to pay the Company-paid premium under the Company’s Executive Life
Insurance Program (or a successor plan) for twelve months following the Date of
Termination.


 


For a Qualifying Early Termination, any portion of the
period commencing on the day after your last day of employment through and
including the Date of Termination during which the Company provides you with
benefit continuation or pays the Company-paid premium under the Company’s
Executive Life Insurance Program (or a successor plan) will apply toward the
12-month payment period required above.


 


C.            You
shall not be required to mitigate the amount of any payment provided for in
this Section 5 by seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for in Section 5.A be reduced by
any compensation earned by you as the result of employment by another employer
or by retirement benefits after the Date of Termination, or otherwise, except
as specifically provided in Section 5.D. 
Benefits otherwise receivable by you pursuant to Section 5.B(1) shall
be reduced to the extent comparable benefits are actually received by you
during the 12-month period following your termination, and you must report any
such benefits actually received by you to the Company.


 


D.            If
you experience a Qualifying Termination or a Qualifying Early Termination that
entitles you to benefits under this Agreement, and your termination also
entitles you to benefits under the offer letter between you and OfficeMax as
amended by letter dated February 22, 2005 (the “Offer Letter”), then
benefits otherwise receivable by you pursuant to Section 5.A shall be
offset by amounts to which you are entitled under the Offer Letter.


 


E.             Code
Section 409A Provision. 
Notwithstanding anything in this Agreement to the contrary, in all
cases, if you are a “specified employee” of the Company for purposes of Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”) at the time of
your separation from service (as determined pursuant to Code Section 409A)
with the Company and if an exception under Code Section 409A does not
apply, any severance payment(s) that are otherwise 


 


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scheduled to commence to you immediately after your separation from
service will be delayed in their entirety by 6 months from the date of your
separation from service.  On the first
regularly scheduled payroll date following the 6-month anniversary of the date
of your separation from service, the Company will pay you a lump sum payment
equal to the severance payment(s) that you would otherwise have received
through such payroll date, and the balance of the benefit payments to which you
are entitled under this Section 5 will be paid thereafter on the original
schedule.  The Company believes such
delay in payment will avoid the application of adverse taxation to you under
Code Section 409A.  However, the
Company does not guarantee such tax treatment and you are strongly encouraged
to consult your own tax, financial and legal advisors regarding the effects of
this Agreement on your personal tax situation.


 


6.             Legal Fees.  The Company shall pay to you all reasonable
legal fees and expenses which you incur following a change in control of the
Company (a) as a result of contesting or disputing your termination, (b) in
seeking in good faith to obtain or enforce any right or benefit provided by
this Agreement (provided, in the case of clauses (a) and (b) that you
shall refund all such fees and expenses to the Company should you not
substantially prevail in the applicable proceeding), or (c) in connection
with any tax audit or proceeding to the extent applicable to the application of
Section 4999 of the Internal Revenue Code of 1986 as amended, to any
payment or benefit provided under this Agreement.  This payment shall be made within 10 business
days after the Company receives your written request for payment accompanied by
reasonable evidence of fees and expenses incurred.


 


7.             Excise Tax
Provisions.


 


A.            Notwithstanding
any provision of this Agreement to the contrary (but except as provided in the
following sentence), if you would receive payments under this Agreement or
under any other plan, program, or policy sponsored by the Company which
relate to a change in control of the Company (the “Total Payments”) and which
are determined by the Company to be subject to excise tax under Section 4999
of the Code (the “Excise Tax”); then the Company shall pay to you an additional
amount (the “Gross-up Payment”) such that the net amount retained by you, after
deduction of any Excise Tax on the Total Payments and any federal, state and
local income taxes, employment taxes and Excise Tax upon the Gross-up Payment,
shall be equal to the Total Payments. 
Notwithstanding the preceding sentence, if it shall be determined that
the Total Payments do not exceed 110% of the greatest amount (the “Reduced
Amount”) that could be paid to you such that the receipt of Total Payments
would not give rise to any Excise Tax, then no Gross-Up Payment shall be made
to you, and the portion of the Total Payments that are payable hereunder shall
be reduced such that the Total Payments equal the Reduced Amount. The reduction
of the amounts payable hereunder shall be made in consultation with you and in
such a manner as to maximize the value of all Total Payments actually made you.


 


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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, you 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 your 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 you 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 you 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, you 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 you, to the
extent that such repayment results in a reduction in the Excise Tax and a
dollar-for-dollar reduction in your 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 you with
respect to the Excise Tax) within 5 business days following the time that
the amount of the excess is finally determined. 
In no event shall such payment be made later than December 31 of
the year following the year in which the Excise Tax is paid.  You and the Company shall reasonably
cooperate with 


 


12

















 


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.


 


8.             Employee Covenants; Release.


 


A.            You agree that you will not, directly or
indirectly, use, make available, sell, disclose or otherwise communicate to any
person, other than in the course of your assigned duties and for the benefit of
the Company, either during the period of your employment or at any time
thereafter, any nonpublic, proprietary or confidential information, knowledge
or data relating to the Company, any of its subsidiaries, affiliated companies
or businesses, which you obtained during your employment by the Company.  This restriction will not apply to
information that (i) was known to the public before its disclosure to you;
(ii) becomes known to the public after disclosure to you through no
wrongful act of yours; or (iii) you are required to disclose by applicable
law, regulation or legal process (provided that you provide the Company with
prior notice of the contemplated disclosure and reasonably cooperate with the
Company at its expense in seeking a protective order or other appropriate
protection of such information).


 


B.            During your employment with the Company and
for one year after your termination, you agree that you will not, directly or
indirectly, individually or on behalf of any other person, firm, corporation or
other entity, knowingly solicit, aid or induce any managerial level employee of
the Company or any of its subsidiaries or affiliates to leave employment in
order to accept employment with or render services to or with any other person,
firm, corporation or other entity unaffiliated with the Company or knowingly
take any action to materially assist or aid any other person, firm, corporation
or other entity in identifying or hiring any such employee.


 


C.            You agree that during and after your employment
with the Company you shall not make any public statements that disparage the
Company, its respective affiliates, employees, officers, directors, products or
services.  Notwithstanding the foregoing,
(i) statements made in the course of sworn testimony in administrative,
judicial or arbitral proceedings (including, without limitation, depositions in
connection with such proceedings) shall not be subject to this Section 8.C,
and (ii) nothing in this Section 8.C shall in any way be interpreted
to preclude or limit you from pursuing your legal rights or from otherwise
communicating with governmental agencies pursuant to legislation or regulations
permitting or requiring such communications.


 


D.            For a period of 12 months after your
termination of employment with the Company (or for a period of 12 months after
a final judgment or injunction enforcing this covenant), you agree not to,
directly as an employee or indirectly as a consultant or contractor, without
the prior written consent of the Company, be employed in the same or similar
capacity as you were employed by the Company 


 


13

















 


immediately prior to termination of your employment, by another
business entity or person engaged in the sale or distribution of office
supplies, office furniture, computer consumables or related office products or
services in North America.


 


In agreeing to this
restriction, you specifically acknowledge the substantial value to the Company
of Confidential Information and your intimate knowledge of the Company’s
business and agree that such constitutes goodwill and a protectable interest of
the Company.


 


E.             Notwithstanding anything in this Agreement to
the contrary, the payment to you of the benefits provided in Section 5 is
conditioned upon your execution and delivery to the Company (and your failure
to revoke) a customary general release of claims.


 


9.             Deferred Compensation and Benefits Trust.  The Company has established a Deferred
Compensation and Benefits Trust, and shall comply with the terms of that Trust.


 


For this purpose, the term Deferred Compensation and
Benefits Trust shall mean an irrevocable trust or trusts established or to be
established by the Company with an independent trustee or trustees for the
benefit of persons entitled to receive payments or benefits, the assets of
which nevertheless will be subject to claims of the Company’s creditors in the
event of bankruptcy or insolvency.


 


10.           Successors; Binding Agreement.


 


A.            The
Company will require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
and/or assets of the Company to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no succession had taken place.  Failure of the Company to obtain an
assumption and agreement prior to the effectiveness of any succession which
occurs during your employment with the Company and the term of this Agreement shall
be a breach of this Agreement and shall entitle you to compensation from the
Company in the same amount and on the same terms as you would be entitled
hereunder if you experience a Qualifying Termination or Qualifying Early
Termination, except that for purposes of this Section 10.A, the date on
which any such succession becomes effective shall be deemed the Date of
Termination.  As used in this Agreement, “Company”
shall mean OfficeMax Incorporated and any successor to its business and/or
assets which assumes and agrees to perform this Agreement.


 


B.            This
Agreement shall inure to the benefit of and be enforceable by your personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.  If
you should die while any amount would 


 


14

















 


still be payable to you under this Agreement if you had continued to
live, all such amounts, unless otherwise provided in this Agreement, shall be
paid in accordance with the terms of this Agreement to your devisee, legatee or
other designee or if there is no such designee, to your estate.


 


C.            Any
dispute between you and the Company regarding this Agreement may be resolved
either by binding arbitration or by judicial proceedings at your sole election,
and the Company agrees to be bound by your election in that regard, provided
that the Company is entitled to seek equitable relief in a court of competent
jurisdiction in connection with the enforcement of the covenants set forth in Section 8.  Under no circumstance will a violation or
alleged violation of those covenants entitle the Company to withhold or offset
a payment or benefit due under this Agreement.


 


11.           Notice.  For the purposes of this Agreement, notices
and all other communications provided for in the Agreement shall be in writing
and shall be deemed to have been duly given when delivered or mailed by United
States registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth on the first page of this Agreement,
provided that all notices to the Company shall be directed to the attention of
the Board with a copy to the Secretary of the Company, or to such other address
as either party may have furnished to the other in writing in accordance with
this Section 11, except that notice of change of address shall be
effective only upon receipt.


 


12.           Miscellaneous.  No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by you and an officer designated by the
Board.  No waiver by either party at any
time of any breach by the other party of, or compliance with, any condition or
provision of this Agreement to be performed by the other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time.  No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter of this Agreement have been made by either party
which are not expressly set forth in this Agreement.  All references to sections of the Exchange
Act or the Code shall be deemed also to refer to any successor provisions to
those sections.  If the obligations of
the Company under Sections 4, 5, 6 and 7 arise prior to the
expiration of the term of this Agreement, those obligations shall survive the
expiration of the term.


 


13.           Validity.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.


 


14.           Counterparts.  This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.


 


15

















 


15.           No Guaranty of Employment.  Neither this Agreement nor any action taken
under this Agreement shall be construed as giving you a right to be retained as
an employee or an executive officer of the Company.


 


16.           Governing Law.  This Agreement shall be governed by and
construed in accordance with Delaware law.


 


17.           Other Benefits.  Any payments made to you pursuant to this
Agreement are in addition to, and not in lieu of, any amounts to which you may
be entitled under any other employee benefit plan, program or policy of the
Company, except that (A) payments made to you pursuant to Section 5.A(3) shall
be in lieu of any severance payment to which you would otherwise be entitled
under any severance pay policy of the Company and (B) payments and
benefits to which you are entitled under this Agreement may be subject to
offset by payments and benefits to which you are entitled under the Offer
Letter, as specifically provided in this Agreement.


 


If this letter
correctly sets forth our agreement on the subject matter hereof, kindly sign
and return to the Company the enclosed copy of this letter which will then
constitute our agreement on this subject.


 


	
  Sincerely,

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  OFFICEMAX INCORPORATED

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
   

  
	
   

  	
  Name 

  	
   

  	
   

  	
   

  
	
   

  	
  Title 

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Agreed to this [   ] day of [     ],
  2008

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [Name of Officer]

  	
   

  	
   

  
						



 


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