OfficeMax 2013 Annual Report Download - page 328

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 “Acquirer”). 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 Company,
exceed 9.5% of the Company’s then outstanding shares of common stock
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