OfficeMax 2013 Annual Report Download - page 327

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
(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 substantially the same proportions as their ownership of the Company immediately prior to such sale.
-2-