OfficeMax 2013 Annual Report Download - page 336

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.
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
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