OfficeMax 2013 Annual Report Download - page 343

severance under a Company severance plan or policy as of the date of this Agreement) or (ii) Associate’s employment is terminated due to
Associate’s death or total and permanent disability, then the full amount of the unvested remainder of the Potential Bonus, without any adjustment
based on performance, shall immediately vest and be payable as soon as practical but in no event later than two and one-half months after the
termination date. Any amounts due under this Section 3 are contingent upon appropriate documentation, such as, in the case of section 3(a)(i),
Associate executing the Company’s customary release of claims agreement in favor of the Company, its officers, directors, employees/associates,
agents, affiliate entities, successors and assigns.
4. Successors and Binding Agreement. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of OfficeMax.
Associate shall have no right to assign this Agreement, it being personal to the Associate.
5. Non-Exclusivity of Rights. Nothing in this Agreement shall restrict or limit Associate’s continuing or future entitlement or participation in any
plan, program, practice, benefit or policy provided by the Company for which Associate qualifies, nor shall this Agreement in any respect limit or
otherwise affect any rights Associate may have under any other contract or agreement with the Company.
6. Section 409A. Any payment pursuant to this Agreement is intended to constitute a payment pursuant to the “short-term deferral” exception under
Code Section 409A, and this Agreement shall be interpreted consistent with this intent. To the extent applicable, this Agreement shall at all times be
operated in accordance with the requirements of Code Section 409A, including any applicable exceptions. The Company shall have authority to
take action, or refrain from taking action, with respect to the payments and benefits under this Agreement, that is reasonably necessary to comply
with Code Section 409A, including but not limited to delaying a payment pursuant to the six-month deferral rule should (i) the Associate be a
“specified employee” within the meaning of Code Section 409A and (ii) the Company make a good faith determination that any amount payable
pursuant to this Agreement constitutes nonqualified deferred compensation for purposes of Code Section 409A.
7. Confidentiality. Because the number of associates to whom a retention agreement may be offered is very limited, the terms and conditions of this
Agreement shall be kept strictly confidential at all times and Associate shall make no disclosure of its terms to anyone except as expressly
authorized by this Agreement. Associate further acknowledges and agrees that this confidentiality provision is an essential and material term of
this Agreement. Associate agrees not to disclose directly or indirectly to any third person: (i) the terms of this Agreement, or (ii) the existence of this
Agreement, except to the extent disclosure is made to Associate’s spouse or to obtain legal, accounting or financial advice. In the event that
Associate violates this provision of confidentiality, OfficeMax’s obligations under this Agreement shall immediately terminate.
8. Non-Solicitation and Non-Compete. Without limiting or otherwise impacting any other agreement or obligation regarding a restrictive covenant and
to the maximum extent allowable under applicable state law, for the period beginning on the date of this Agreement and ending one year following
Associate’s termination of employment with the Company (or its successor), Associate will not (i) directly or indirectly employ, recruit or solicit
for employment any person who is (or was within six (6) months prior to Associate’s employment termination date) an employee of OfficeMax, an
affiliate, subsidiary or successor; or (ii) commence Employment with a Competitor in a substantially similar capacity to any position Associate
held with the Company during the last twelve (12) months of Associate’s employment with the Company and having the responsibility with the
same geographic area(s) for which Associate had responsibility during the last twelve (12) months of Associate’s employment with Company. If
Associate violates the terms of this Section 8 at any time, Associate will forfeit, as of the first day of any such violation, all right, title and interest
to the Potential Bonus, whether vested and paid or not. The Company shall be entitled to repayment of any amount of the Potential Bonus that had
been paid, together with reimbursement of any fees and expenses (including attorneys’ fees) incurred by or on behalf of the Company in enforcing
its rights under this Section 8. As a condition of this Agreement, to the extent permitted by law, Associate consents to a deduction from any
amounts the Company, an affiliate, subsidiary, or successor owes to Associate (including wages or other compensation, fringe benefits, or
vacation pay, as well as other amounts owed to Associate), to the extent of any amounts that Associate owes to the Company under this Section 8.
If OfficeMax does not recover by means of set-off the full amount owed to OfficeMax, the Associate agrees to pay immediately the unpaid balance
to OfficeMax.
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