BY THE EXECUTIVE OTHERWISE THAN BY WILL OR THE LAWS OF DESCENT AND
DISTRIBUTION.
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF AND BE ENFORCEABLE
BY THE EXECUTIVE'S LEGAL REPRESENTATIVES.
(B)
THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE BINDING UPON THE COMPANY AND ITS SUCCESSORS AND ASSIGNS.
(C)
THE COMPANY SHALL 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 EXPRESSLY
TO ASSUME AND AGREE TO PERFORM THIS AGREEMENT IN THE SAME MANNER AND TO THE SAME
EXTENT THAT THE COMPANY WOULD HAVE BEEN REQUIRED TO PERFORM IT IF NO SUCH
SUCCESSION HAD TAKEN PLACE.
AS USED IN THIS AGREEMENT, THE "COMPANY" SHALL MEAN
BOTH THE COMPANY AS DEFINED ABOVE AND ANY SUCH SUCCESSOR THAT ASSUMES AND AGREES
TO PERFORM THIS AGREEMENT, BY OPERATION OF LAW OR OTHERWISE.
11.
NO VIOLATIONS.
AS A MATERIAL INDUCEMENT TO
THE COMPANY'S WILLINGNESS TO ENTER INTO THIS AGREEMENT, THE EXECUTIVE REPRESENTS
TO THE COMPANY THAT NEITHER THE EXECUTION OF THIS AGREEMENT BY THE EXECUTIVE,
THE EMPLOYMENT OF THE EXECUTIVE BY THE COMPANY NOR THE PERFORMANCE BY THE
EXECUTIVE OF HIS DUTIES HEREUNDER WILL CONSTITUTE A VIOLATION BY THE EXECUTIVE
OF ANY EMPLOYMENT, NON-COMPETITION OR OTHER AGREEMENT TO WHICH THE EXECUTIVE IS
A PARTY.
12.
MISCELLANEOUS.
(A)
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS.
THE CAPTIONS OF THIS AGREEMENT ARE
NOT PART OF THE PROVISIONS HEREOF AND SHALL HAVE NO FORCE OR EFFECT.
THIS
AGREEMENT MAY NOT BE AMENDED OR MODIFIED EXCEPT BY A WRITTEN AGREEMENT EXECUTED
BY THE PARTIES HERETO OR THEIR RESPECTIVE SUCCESSORS AND LEGAL REPRESENTATIVES.
(B)
ALL NOTICES AND OTHER COMMUNICATIONS UNDER
THIS AGREEMENT
11
SHALL BE IN WRITING AND SHALL BE GIVEN BY HAND DELIVERY TO THE OTHER PARTY OR BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID,
ADDRESSED AS FOLLOWS:
If to the Executive:
Sam Duncan
1122 Pleasant Valley Drive
Oneida, WI
54115
If to the Company:
Matthew R. Broad
Executive Vice President and General Counsel
OfficeMax Incorporated
150 E. Pierce Rd.
Itasca, IL
60143
or to such other address as either party furnishes to the other in writing in
accordance with this paragraph (b) of Section 12.
Notices and communications
shall be effective when actually received by the addressee.
(C)
THE INVALIDITY OR UNENFORCEABILITY OF ANY
PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF
ANY OTHER PROVISION OF THIS AGREEMENT.
IF ANY PROVISION OF THIS AGREEMENT SHALL
BE HELD INVALID OR UNENFORCEABLE IN PART, THE REMAINING PORTION OF SUCH
PROVISION, TOGETHER WITH ALL OTHER PROVISIONS OF THIS AGREEMENT, SHALL REMAIN
VALID AND ENFORCEABLE AND CONTINUE IN FULL FORCE AND EFFECT TO THE FULLEST
EXTENT CONSISTENT WITH LAW.
(D)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, THE COMPANY MAY WITHHOLD FROM AMOUNTS PAYABLE UNDER THIS AGREEMENT
ALL FEDERAL, STATE, LOCAL AND FOREIGN TAXES THAT