-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AAMcnQaA9QtQ+l/EdlnT8Y49DirwWczuaVZrL4xUkH3p+G1V+mP38g5bcXTGQ+be Mvm4OwNRCVTwpL5fAeGYfg== 0000950152-99-010045.txt : 19991231 0000950152-99-010045.hdr.sgml : 19991231 ACCESSION NUMBER: 0000950152-99-010045 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19991230 EFFECTIVENESS DATE: 19991230 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OFFICEMAX INC /OH/ CENTRAL INDEX KEY: 0000929428 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-MISCELLANEOUS SHOPPING GOODS STORES [5940] IRS NUMBER: 341573735 STATE OF INCORPORATION: OH FISCAL YEAR END: 0125 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-93949 FILM NUMBER: 99784336 BUSINESS ADDRESS: STREET 1: 3605 WARRENSVILLE CENTER RD CITY: SHAKER HEIGHTS STATE: OH ZIP: 44122 BUSINESS PHONE: 2169216900 MAIL ADDRESS: STREET 1: 3605 WARRENSVILLE CENTER RD CITY: SHAKE HEIGHTS STATE: OH ZIP: 44122 S-8 1 OFFICEMAX, INC. FORM S-8 1 As filed with the Securities and Exchange Commission on December 30, 1999 Registration No.333- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- OFFICEMAX, INC. (Exact Name of Registrant as Specified in Its Charter) Ohio 34-1573735 (State or Other Jurisdiction of (I.R.S. Employer Identification No.) Incorporation or Organization) 3605 Warrensville Center Road, Shaker Heights, Ohio 44122 (Address of Principal Executive Offices) (Zip Code) --------------- OFFICEMAX, INC. EXECUTIVE SAVINGS DEFERRAL PLAN (Full Title of the Plan) --------------- Michael Feuer Chairman and Chief Executive Officer OfficeMax, Inc. 3605 Warrensville Center Road, Shaker Heights, Ohio 44122 (Name and Address of Agent for Service) (216) 921-6900 (Telephone Number, Including Area Code, of Agent for Service) --------------- CALCULATION OF REGISTRATION FEE
========================================================================================================================= Title Of Amount Proposed Proposed Amount Of Securities To To Be Maximum Offering Maximum Aggregate Registration Fee Be Registered(1) Registered Price Per Share Offering Price(2) ========================================================================================================================= Deferred Compensation $2,000,000 100% $2,000,000 $528 Obligations =========================================================================================================================
(1) The deferred compensation obligations are unsecured obligations of the Registrant to pay deferred compensation in the future in accordance with the terms of the OfficeMax, Inc. Executive Savings Deferral Plan (the "Plan"). (2) Estimated in accordance with Rule 457(h) solely for the purpose of determining the registration fee. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The documents listed in (a) through (c) below are incorporated by reference in to this Registration Statement. All documents filed by OfficeMax, Inc. (the "Registrant") with the Securities and Exchange Commission (the "Commission") pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") subsequent to the date of the filing of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities registered hereunder have been sold, or that de-registers all securities then remaining unsold, shall be deemed to be incorporated by reference in the Registration Statement and to be a part hereof from the date of the filing of such documents. (a) The Registrant's Annual Report on Form 10-K (the "1999 Form 10-K") for the fiscal year ended January 23, 1999; (b) All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since January 23, 1999, including the Form 10-Qs for the quarters ended April 24, 1999, July 24, 1999 and October 23, 1999; and (c) The description of the Registrant's Common Shares contained in the Form 8-A Registration Statement filed with the Commission on October 4, 1994 under the Exchange Act, including any amendment or report filed for the purpose of updating such description. ITEM 4. DESCRIPTION OF SECURITIES. The following description of the Deferred Compensation Obligations registered hereunder is qualified by reference to the OfficeMax, Inc. Executive Savings Deferral Plan (the "Plan"). A copy of the Plan is filed as Exhibit 4 to this Registration Statement. The Plan provides eligible employees the opportunity to elect to defer certain compensation. The Deferred Compensation Obligations will be unsecured general obligations of the Registrant to pay deferred compensation and matching contributions to participants in the future in accordance with the terms of the Plan. As such, these obligations will in all events remain subject to the claims of the Registrant's general creditors. The Deferred Compensation Obligations will be payable from the general assets of the Registrant; provided, however, that if the Registrant has established a trust to fund all or any part of the benefits under the Plan, payments by the trust will be made only to the extent there are assets in the trust and any payment due under the Plan that is not paid by the trust will be paid by the Registrant from its general assets. The Registrant is not required to establish a trust. The compensation deferred under the Plan will accrue earnings as if held in the funds that the participant has selected under the OfficeMax, Inc. 401(k) Savings Plan (the "Basic Plan"). One of the investment options under the Basic Plan is the OfficeMax Common Shares fund. The amount of compensation to be deferred by each participant will be determined based II-1 3 on elections made by the participant in accordance with the terms of the Plan. The Deferred Compensation Obligations will be payable on the date or dates, and in the manner, selected by each participant in accordance with the terms of the Plan. The Registrant will credit to the participant's account an amount equal to the Registrant's matching contribution as determined in accordance with the terms of the Plan. A participant will be vested in the Registrant's matching contributions in varying percentages over a three-year period in accordance with the terms of the Plan. A participant is always one hundred percent vested in all amounts of deferred compensation credited to his or her account. The compensation deferred by a participant and the Registrant's matching contributions will be credited quarterly, or more frequently as determined by the committee designated by the board of directors to administer the Plan, to reflect the investment return on the deferred compensation and matching contributions based on the participant's elections under the Basic Plan. The Deferred Compensation Obligations are not subject to redemption by the Registrant, in whole or in part, prior to the applicable payment date or dates elected by the participant either at the option of the Registrant or through operation of a mandatory or optional sinking fund or analogous provision. The Deferred Compensation Obligations are not convertible into any security of the Registrant. The Deferred Compensation Obligations will not have the benefit of a negative pledge or any other affirmative or negative covenant on the part of the Registrant. No trustee has been appointed having the authority to take action with respect to the Deferred Compensation Obligations, and each participant will be responsible for acting independently with respect to, among other things, the making of elections and giving of notices. No amounts payable under the Plan may be assigned, pledged, mortgaged, or hypothecated, and, to the extent permitted by law, no such amounts are subject to legal process or attachment for the payment of any claims against any person entitled to receive the payments. The Registrant's board of directors has the right to amend or terminate the Plan at any time. However, a participant's accrued benefits at the time of any amendment, suspension or termination of the Plan cannot be reduced. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Article V of the Code of Regulations of the Registrant provides for indemnification of a director, officer or employee in certain instances, as permitted under Section 1701.13(E) of the Ohio Revised Code, against expenses, judgments, fines, and amounts paid in settlement in connection with the defense of any action, suit or proceeding, whether civil, criminal, administrative or investigative, to which he was, is or is threatened to be made a party by reason of his status as an officer, director or employee. II-2 4 A director, officer or employee is entitled to indemnification only if a determination is made (i) by the directors of the Registrant acting at a meeting at which a quorum consisting of directors who neither were nor are parties to or threatened with any such action, suit or proceeding is present, (ii) if such a quorum is not obtainable or if a majority vote of a quorum of disinterested directors so directs, in a written opinion by independent legal counsel, (iii) by the shareholders or (iv) by the Court of Common Pleas or the court in which such action, suit or proceeding was brought, that such director, officer or employee (a) was not, and has not been adjudicated to have been, negligent or guilty of misconduct in the performance of his duty to the Registrant, (b) acted in good faith and in a manner he reasonably believed to be in the best interest of the Registrant and (c) in any matter the subject of a criminal action, suit or proceeding, had no reasonably cause to believe that his conduct was unlawful. Additionally, Section 1701.13(E)(5)(a) of the Ohio Revised Code provides that, unless prohibited by specific reference in a corporation's articles of incorporation or code of regulations, a corporation shall pay a directors expenses, including attorneys' fees, incurred in defending an action, suit or proceeding brought against a director in such capacity, whether such action, suit or proceeding is brought by a third party or by or in the right of the corporation, provided the director delivers to the corporation an undertaking to (a) repay such amount if it is proved in a court of competent jurisdiction that his action or failure to act was undertaken with deliberate intent to injure the corporation or with reckless disregard for the best interests of the corporation and (b) reasonably cooperate with the corporation in such action, suit or proceeding. Section 1701.13(E)(7) of the Ohio Revised Code provides that a corporation may purchase insurance or furnish similar protection for any director, officer or employee against any liability asserted against him in any such capacity, whether or not the corporation would have the power to indemnify him under Ohio law. The Registrant maintains a directors' and officers' insurance policy which insures officers and directors of the Registrant from any claim arising out of an alleged wrongful act by such persons in their respective capacities as officers and directors of the Registrant. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. II-3 5 ITEM 8. EXHIBITS. Exhibit Number Description of Exhibit - -------------- ---------------------- 4 OfficeMax, Inc. Executive Savings Deferral Plan 5 Opinion of Ross Pollock, Senior Vice President, General Counsel of the Registrant 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Ross Pollock, Senior Vice President, General Counsel of the Registrant (included in Opinion filed as Exhibit 5 hereto) 24 Powers of Attorney (included at page II-6) ITEM 9. UNDERTAKINGS. The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended (the "Securities Act"), each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. The undersigned Registrant further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described under Item 6 above or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy, as expressed in the Securities Act, and is therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by II-4 6 a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy, as expressed in the Securities Act, and will be governed by the final adjudication of such issue. [INTENTIONALLY BLANK] II-5 7 SIGNATURES THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Shaker Heights, State of Ohio, on this 29th day of December, 1999. OFFICEMAX, INC. /s/ Michael Feuer By: --------------------------------------- Michael Feuer Chairman and Chief Executive Officer KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael Feuer, Jeffrey L. Rutherford and Ross H. Pollock, or any one of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all post-effective amendments to this Registration Statement, and to file the same with all exhibits hereto, and other documents in connection herewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on December 29, 1999 by the following persons in the capacities indicated below. Signature Title --------- ----- /s/ Michael Feuer - ------------------------------- Chairman and Chief Executive Officer Michael Feuer (Principal Executive Officer) /s/ Jeffrey L. Rutherford - ------------------------------- Executive Vice President, Chief Financial Jeffrey L. Rutherford Officer (Principal Financial and Accounting Officer) /s/ Raymond L. Bank - ------------------------------- Director Raymond L. Bank /s/ Burnett W. Donoho - ------------------------------- Director Burnett W. Donoho II-6 8 /s/ Carl D. Clickman - ------------------------------- Director Carl D. Glickman /s/ James F. McCann - ------------------------------- Director James F. McCann /s/ Sydell L. Miller - ------------------------------- Director Sydell L. Miller /s/ Ivan J. Winfield - ------------------------------- Director Ivan J. Winfield II-7 9 EXHIBIT INDEX ------------- Exhibit Number Description of Exhibit - -------------- ---------------------- 4 OfficeMax, Inc. Executive Savings Deferral Plan 5 Opinion of Ross Pollock, Senior Vice President, General Counsel of the Registrant 23.1 Consent of PricewaterhouseCoopers LLP 23.2 Consent of Ross Pollock, Senior Vice President, General Counsel of the Registrant (included in Opinion filed as Exhibit 5 hereto) 24 Powers of Attorney (included at page II-6) EX-4 2 EXHIBIT 4 1 EXHIBIT 4 OFFICEMAX, INC. EXECUTIVE SAVINGS DEFERRAL PLAN EFFECTIVE JANUARY 1, 2000 2 TABLE OF CONTENTS FORWARD......................................................................1 ARTICLE I DEFINITIONS.........................................................2 ARTICLE II ELIGIBILITY AND PARTICIPATION.......................................4 2.1 REQUIREMENTS...............................................4 2.2 CHANGE OF EMPLOYMENT CATEGORY..............................5 ARTICLE III PARTICIPANT SUPPLEMENTAL SALARY DEFERRAL CONTRIBUTIONS..............5 3.1 IRREVOCABLE ELECTION.......................................5 3.2 CHOICE OF CONTRIBUTION RATES...............................5 ARTICLE IV SUPPLEMENTAL COMPANY MATCHING CONTRIBUTIONS.........................6 4.1 AMOUNT.....................................................6 ARTICLE V VESTING ...........................................................6 5.1 VESTING OF ACCOUNTS........................................6 ARTICLE VI ACCOUNTS ...........................................................7 6.1 ACCOUNTS...................................................7 6.2 ADJUSTMENTS................................................7 6.3 ACCOUNTING FOR DISTRIBUTIONS...............................7 ARTICLE VII ENTITLEMENT TO BENEFITS.............................................7 7.1 TERMINATION OF EMPLOYMENT..................................7 3 7.2 CHANGE IN CONTROL..........................................8 7.3 OTHER DISTRIBUTION COMMENCEMENT DATE.......................8 7.4 SOURCE OF PAYMENTS.........................................8 ARTICLE VIII PAYMENT OF BENEFITS.................................................8 8.1 CASH PAYMENTS..............................................8 8.2 PAYMENT OPTIONS............................................8 8.3 PAYMENT UPON DEATH.........................................9 8.4 SMALL BALANCES.............................................9 ARTICLE IX BENEFICIARIES; PARTICIPANT DATA.....................................9 9.1 DESIGNATION OF BENEFICIARIES...............................9 9.2 INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE PARTICIPANTS OR BENEFICIARIES..........................................10 ARTICLE X THE TRUST..........................................................10 10.1 ESTABLISHMENT OF TRUST....................................10 10.2 BENEFIT PAYMENTS IN ABSENCE OF TRUST......................11 ARTICLE XI ADMINISTRATION.....................................................11 11.1 COMMITTEE.................................................11 11.2 CLAIMS PROCEDURE..........................................11 ARTICLE XII MISCELLANEOUS PROVISIONS...........................................12 12.1 LIMITATION OF RIGHTS......................................12 12.2 NONALIENATION OF BENEFITS.................................13 12.3 AMENDMENT OR TERMINATION OF PLAN..........................13 12.4 CONSTRUCTION OF PLAN......................................13 12.5 GENDER AND NUMBER.........................................13 12.6 LAW GOVERNING.............................................13 4 FOREWORD -------- Effective as of January 1, 2000, OfficeMax, Inc. ("OfficeMax") has adopted this OfficeMax, Inc. Executive Savings Deferral Plan (the "Plan") for the benefit of certain of its key executives. This Plan is intended to provide certain key executives of OfficeMax and its affiliates who are covered under the OfficeMax, Inc. 401(k) Savings Plan (the "Basic Plan") the opportunity to accumulate deferred compensation that cannot be accumulated under the Basic Plan because of certain legal restrictions that are imposed upon the permissible amounts of contributions that may be made to the Basic Plan. This Plan is an unfunded deferred compensation plan for "a select group of management or highly compensated employees," within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended. 5 ARTICLE I DEFINITIONS Except to the extent otherwise inappropriate in the context, the following terms shall have the following meanings when used in this document. 1.1 ACCOUNT means the balance credited to a Participant's or Beneficiary's Plan bookkeeping account, including contribution credits and deemed income, gains and losses credited thereto. A Participant's or Beneficiary's Account shall consist of a Supplemental Salary Deferral Contributions Subaccount(s) and a Supplemental Company Matching Contributions Subaccount(s). 1.2 BASIC COMPENSATION means, for a given Plan Year, Compensation not in excess of the applicable limit prescribed by Code Section 401(a)(17) for such Year. 1.3 BASIC PLAN means The OfficeMax, Inc. 401(k) Savings Plan, as in effect from time to time. 1.4 BENEFICIARY means any person or persons so designated in accordance with the provisions of Article IX. 1.5 BOARD means the Board of Directors of OfficeMax, Inc. or such person(s) to whom said Board of Directors may delegate its rights and responsibilities under this Plan. 1.6 CHANGE IN CONTROL means, with respect to any Company, the occurrence of either of the following events: (i) Acquisition by any "person" (as defined in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended) of beneficial ownership, directly or indirectly, of securities of the Company representing 25% or more of the outstanding securities of the Company having the right under ordinary circumstances to vote at an election of the Company's board of directors; or (ii) Change in the composition of a majority of the Company's board of directors within a three year period which occurs without being approved by a majority of the Company's board of directors as constituted immediately prior to the commencement of such period. 1.7 CODE means the Internal Revenue Code of 1986, as amended. 1.8 COMMITTEE means the person(s) designated by the Board to administer this Plan, which person(s) shall serve at the pleasure of the Board. 1.9 COMPANY means OfficeMax, Inc. and any of its affiliates which may be a participating employer under the Basic Plan, together with their successors and assigns, or any other entity which, with the foregoing's consent, assumes the Company's obligations under this Plan. 1.10 COMPENSATION means, for a given Plan Year, a Participant's W-2 earnings from the Company for federal income tax purposes, including any amounts that would be treated Page 2 6 as W-2 earnings except for the fact that payment of such amounts is being deferred or otherwise withheld pursuant to an election by the Participant, but excluding any amounts allocable or attributable to stock acquired under the Company's Management Share Purchase Plan. 1.11 EFFECTIVE DATE means January 1, 2000. 1.12 ELIGIBLE EMPLOYEE means, for any Plan Year (or applicable portion thereof), a person employed by the Company who meets the following requirements with respect to such Plan Year: (i) he/she is a participant in the Basic Plan; (ii) he/she is a "Highly Compensated Employee" as defined in the Basic Plan; and (iii) he/she is contributing to the Basic Plan the maximum percentage of Compensation which OfficeMax, Inc. determines, in its sole and best judgment, prior to the beginning of such Plan Year, may be contributed to the Basic Plan without violating the nondiscrimination requirements of Code Sections 401(k) & (m). 1.13 ENTRY DATE with respect to an Eligible Employee means the first day of each Plan Year, or the first date that the Eligible Employee otherwise is entitled to commence participation in the Basic Plan. 1.14 EXCESS COMPENSATION means, for a given Plan Year, Compensation in excess of the applicable limit prescribed by Code Section 401(a)(17) for such Year. 1.15 PARTICIPANT means any person so designated in accordance with the provisions of Article II, including, where appropriate according to the context of the Plan, any former Eligible Employee who is or may become (or whose Beneficiary may become) eligible to receive a benefit under the Plan. 1.16 PARTICIPANT ENROLLMENT AND ELECTION FORM means the form on which a Participant elects to defer compensation hereunder and on which the Participant makes certain other designations as required thereon. 1.17 PLAN means the OfficeMax, Inc. Executive Savings Deferral Plan as set forth herein and as from time to time in effect. 1.18 PLAN YEAR means the twelve (12) month period ending each December 31 during which the Plan is in effect. 1.19 SUPPLEMENTAL COMPANY MATCHING CONTRIBUTIONS means the contributions made or deemed made by the Company pursuant to Article IV. 1.20 SUPPLEMENTAL COMPANY MATCHING CONTRIBUTIONS SUBACCOUNT means the account(s) on the books of the Company to which a Participant's Supplemental Company Matching Contributions under Article IV, plus earnings and losses thereon, are credited. Page 3 7 1.21 SUPPLEMENTAL SALARY DEFERRAL CONTRIBUTIONS means the contributions made or deemed made by a Participant pursuant to Article III. 1.22 SUPPLEMENTAL SALARY DEFERRAL CONTRIBUTIONS SUBACCOUNT means the account(s) on the books of the Company to which a Participant's Supplemental Salary Deferral Contributions under Article III, plus earnings and losses thereon, are credited. 1.23 TRUST means the trust fund, if any, established pursuant to the Plan. 1.24 TRUSTEE means the trustee named in the agreement establishing the Trust, if any, and such successor and/or additional trustees as may be named pursuant to the terms of the agreement establishing the Trust. 1.25 VALUATION DATE means December 31 of each Plan Year and such other date or dates that the Committee, in its sole discretion, designates as a Valuation Date. Valuations shall occur at least quarterly within a given Plan Year and may occur more frequently at the sole discretion of the Committee. ARTICLE II ELIGIBILITY AND PARTICIPATION 2.1 REQUIREMENTS. (a) Every Eligible Employee on the Effective Date shall be eligible to become a Participant on the Effective Date. Each other person who becomes an Eligible Employee after the Effective Date shall be eligible to become a Participant on the first Entry Date occurring on or after the date on which he or she becomes an Eligible Employee. No individual shall become a Participant, however, if he or she is not an Eligible Employee on the date his or her participation is to begin. (b) In order to participate as of the specified Entry Date above, an otherwise Eligible Employee must make written application by filing with the Committee, within such time period as the Committee shall specify, a Participant Enrollment and Election Form on which the Eligible Employee shall: (i) Elect to become a Plan Participant; (ii) Elect a rate of Supplemental Salary Deferral Contributions as provided in Section 3.1; (iii) Designate a Beneficiary as provided in Section 9.1; (iv) Specify a distribution commencement date for Plan benefits and a form of distribution of Plan benefits (from among those options enumerated in Section 8.2); and Page 4 8 (v) Agree to the terms of the Plan. (c) Within such time period before any subsequent Entry Date as the Committee shall specify, an Eligible Employee who previously elected to participate may, as of such Entry Date, elect to: (i) Change his or her rate of Supplemental Salary Deferral Contributions as provided in Section 3.1 with respect to subsequent Plan Years; (ii) Designate a new distribution commencement date for Plan benefits and/or a new form of distribution of Plan benefits (from among those options enumerated in Section 8.2), but only with respect to benefits attributable to deferrals for subsequent Plan Years; and/or (iii) Change his or her Beneficiary designation as provided in Article IX. (d) As provided in Sections 2.1(b)(iv) and 2.1(c)(ii), an Eligible Employee may elect a different distribution commencement date for Plan benefits and/or a different form of distribution of Plan benefits with respect to deferrals for each separate Plan Year. However, the election made for each Plan Year is irrevocable after that Plan Year has begun, and may not be subsequently modified, except as otherwise provided in Article VIII. 2.2 CHANGE OF EMPLOYMENT CATEGORY. During any period in which a Participant remains in the employ of the Company, but ceases to be an Eligible Employee, he/she shall not be eligible to make Supplemental Salary Deferral Contributions hereunder, or have Supplemental Company Matching Contributions made on his/her behalf. However, his/her Account shall continue to be revalued in accordance with Article VI. ARTICLE III PARTICIPANT SUPPLEMENTAL SALARY DEFERRAL CONTRIBUTIONS 3.1 IRREVOCABLE ELECTION. A Participant may elect, pursuant to a salary reduction agreement as hereinafter provided, to reduce the amount of Compensation that he/she would otherwise receive as taxable pay for the Plan Year with respect to which the salary reduction agreement relates and have the Company credit an equivalent amount to such Participant's Supplemental Salary Deferral Contributions Subaccount. Elections to defer Compensation with respect to a given Plan Year shall be made only by Eligible Employees and shall be effectuated by filing with the Committee a Participant Enrollment and Election Form within such period before the beginning of such Plan Year as the Committee shall specify. A Supplemental Salary Deferral Contribution election shall apply only with respect to Basic and Excess Compensation for the particular Plan Year specified on the election form. Once the particular Plan Year specified on the Page 5 9 election form has begun, the salary reduction election with respect to such Plan Year shall become irrevocable. 3.2 CHOICE OF CONTRIBUTION RATES. (a) Unless the Committee otherwise specifies, a Participant may choose to make Supplemental Salary Deferral Contributions for a specified Plan Year at any rate(s) of his Basic Compensation and Excess Compensation for said Plan Year. A different rate also may be specified for a Participant's cash bonus payments. The deferral rate for cash bonus payments may not exceed 100%, and the deferral rate for other compensation may not exceed 50%. (b) Supplemental Salary Deferral Contributions shall be deducted by the Company from the pay of a deferring Participant and an equivalent amount shall be credited to the Supplemental Salary Deferral Contributions Subaccount of the Participant within a reasonable period of time (not to exceed 30 days except under extraordinary circumstances) after such amounts would have been paid to the Participant if the Participant had not made an election to defer. ARTICLE IV SUPPLEMENTAL COMPANY MATCHING CONTRIBUTIONS 4.1 AMOUNT. In addition to the Participant Supplemental Salary Deferral Contributions made pursuant to Article III above, the Company shall credit to the Supplemental Company Matching Contributions Subaccount of each Participant an amount equal to one-half of the Supplemental Salary Deferral Contributions that the Participant has elected to make with respect to Basic Compensation in accordance with Section 3.2, but disregarding for this purpose any Supplemental Salary Deferral Contributions in excess of three percent (3%) of Basic Compensation, and reduced by the amount of "Employer Contributions," as defined in the Basic Plan, made by the Company on behalf of such individual with respect to such period under the Basic Plan. Supplemental Company Matching Contributions shall be credited to a Participant's Supplemental Company Matching Contributions Subaccount at or about the same time (except under extraordinary circumstances) as the Participant's corresponding Supplemental Salary Deferral Contributions are credited to his/her Supplemental Salary Deferral Contributions Subaccount. ARTICLE V VESTING 5.1 VESTING OF ACCOUNTS. An Eligible Employee shall always be one hundred percent (100%) vested in all amounts credited to his/her Supplemental Salary Deferral Contributions Subaccount. He/she shall be vested in his/her Supplemental Company Page 6 10 Matching Contributions Subaccount in accordance with the following schedule, based on his/her "Years of Service" as defined in the Basic Plan: Years of Service Vested Percentage ---------------- ----------------- Less than 2 years 0% 2 but less than 3 years 50% 3 or more years 100% A Participant's Supplemental Company Matching Contributions Subaccount also will become 100% vested if, while still employed by the Company, he/she attains age 65 or dies or a Change In Control occurs. ARTICLE VI ACCOUNTS 6.1 ACCOUNTS. The Company will maintain on its books a Supplemental Salary Deferral Contributions Subaccount(s) and a Supplemental Company Matching Contributions Subaccount(s) for each Participant to which shall be credited, as appropriate, Supplemental Salary Deferral Contributions under Article III, Supplemental Company Matching Contributions under Article IV, and deemed investment earnings and/or losses as provided in Section 6.2. Appropriate records will be maintained for each Participant, as necessary, to account separately for Plan benefits that are attributable to deferrals for different Plan Years to the extent such deferrals are subject to different payment option elections under Section 8.2(a). All Accounts shall be bookkeeping accounts only, and all such amounts referred to therein shall, prior to being distributed, in all events remain subject to the claims of the Company's general creditors. 6.2 ADJUSTMENTS. As of each Valuation Date, each Account will be adjusted, with either an increase or a decrease, to reflect the deemed investment experience of the Account since the preceding Valuation Date. For this purpose, the Account will be adjusted to reflect the investment return under the Eligible Employee's investment elections under the Basic Plan. 6.3 ACCOUNTING FOR DISTRIBUTIONS. As of the date of any distribution hereunder, the distribution to a Participant or his/her Beneficiary shall be charged to such Participant's Account. ARTICLE VII ENTITLEMENT TO BENEFITS 7.1 TERMINATION OF EMPLOYMENT. If a Participant terminates employment with the Company for any reason, the value of the Participant's Plan Account as of the Valuation Page 7 11 Date coincident with or next following the date of termination shall be valued and the vested portion thereof shall be payable according to the provisions of Article VIII, unless the Participant has elected a later distribution commencement date in his/her Participant Enrollment and Election Form. 7.2 CHANGE IN CONTROL. If a Change In Control of the Company occurs, the Participant's Account as of the date of the Change In Control shall in all events be valued and payable in a lump sum in cash as soon as practicable thereafter. 7.3 OTHER DISTRIBUTION COMMENCEMENT DATE. As provided in Sections 2.1(b)(iv), 2.1(c)(ii) and 8.2(a), a Participant may elect, in his/her Participant Enrollment and Election Form, to receive the vested portion of his/her Plan Account at a date other than as described in Sections 7.1 and 7.2. Such distribution commencement date may be any specified date before or after termination of employment. 7.4 SOURCE OF PAYMENTS. Any payment due hereunder shall be payable from general assets of the Company; provided, however, that if the Company has established a Trust to fund benefit payments hereunder, such payments by the Trust shall be made only to the extent there are assets in the Trust and any payment due under the Plan that is not paid by the Trust will be paid by the Company from its general assets. ARTICLE VIII PAYMENT OF BENEFITS 8.1 CASH PAYMENTS. All payments under the Plan shall be made in cash. 8.2 PAYMENT OPTIONS. (a) As provided in Section 2.1(d), an Eligible Employee may elect a different payment option for Plan benefits attributable to deferrals for each separate Plan Year. Each payment option must be selected by the Eligible Employee, prior to the deferral, pursuant to Sections 2.1(b)(iv) and 2.1(c)(ii). Each payment option shall provide for payment to the Participant of the vested value of the Participant's Account attributable to such deferral as set forth below: (i) TIME OF DISTRIBUTION. As soon as administratively feasible pursuant to Article XI after the Participant's employment terminates with the Company other than by reason of death, or at a later or earlier fixed date, as specified by the Participant in his/her Participant Enrollment and Election Form at the time of making his/her deferral election under the Plan. (ii) FORM OF DISTRIBUTION. In a single lump sum, or in approximately equal installments over a period not exceeding fifteen (15) years, as elected by Page 8 12 the Eligible Employee in his/her Participant Enrollment and Election Form at the time of making his/her deferral election under the Plan. (b) Notwithstanding the foregoing, if a Participant shall have failed to designate properly the manner of payment of the Participant's benefit under the Plan, such payment will be made in a lump sum as soon as practicable after the date of the Participant's termination of employment. 8.3 PAYMENT UPON DEATH. (a) If a Participant dies before terminating his/her employment with the Company and before the commencement of payments to the Participant hereunder, the entire value of the Participant's Account shall be paid to the Participant's Beneficiary in a lump sum as soon as practicable thereafter. (b) Upon the death of a Participant after payments hereunder have begun but before he/she has received all payments to which he/she is entitled under the Plan, the remaining benefit payments shall be paid to the Participant's Beneficiary in a lump sum as soon as practicable thereafter. 8.4 SMALL BALANCES. Any other provision of the Plan to the contrary notwithstanding, if at the time of a Participant's termination of employment with the Company the value of his/her vested Account is not in excess of $10,000, an amount equal to such value shall be distributed in a cash lump sum as soon as practicable after the date of the Participant's termination, regardless of any elections made by the Participant to the contrary. ARTICLE IX BENEFICIARIES; PARTICIPANT DATA 9.1 DESIGNATION OF BENEFICIARIES. (a) Each Participant from time to time may designate any person or persons (who may be named contingently or successively) to receive such benefits as may be payable under the Plan upon or after the Participant's death, and such designation may be changed from time to time by the Participant by filing a new designation. However, if the Participant is legally married at the time of his/her death, any designation of a Beneficiary other than the person who is his/her legal spouse at the time of his/her death shall be void, and such legal spouse will be the sole Beneficiary, unless such legal spouse has consented to the designation of such other person as Beneficiary in a written, signed and notarized statement. Each designation will revoke all prior designations by the same Participant, shall be in a form prescribed by the Committee, and will be effective only when filed in writing with the Committee during the Participant's lifetime. Page 9 13 (b) In the absence of a valid Beneficiary designation, or if, at the time any benefit payment is due to a Beneficiary, there is no living Beneficiary validly named by the Participant, the Committee shall cause any such benefit payment to be paid to the Participant's spouse, if then living, but otherwise to the person or persons designated as Beneficiary under the Basic Plan, or, if such person(s) is not then living, to the Participant's then living descendants, if any, per stirpes, but, if none, to the Participant's estate. In determining the existence or identity of anyone entitled to a benefit payment, the Committee may rely conclusively upon information supplied by the Participant's personal representative, executor, or administrator. If a question arises as to the existence or identity of anyone entitled to receive a benefit payment as aforesaid, or if a dispute arises with respect to any such payment, then, notwithstanding the foregoing, the Committee, in its sole discretion, may cause such payment to be distributed to the Participant's estate without liability for any tax or other consequences that might flow therefrom or may take such other action as the Committee deems to be appropriate. 9.2 INFORMATION TO BE FURNISHED BY PARTICIPANTS AND BENEFICIARIES; INABILITY TO LOCATE PARTICIPANTS OR BENEFICIARIES. Any communication, statement, or notice addressed to a Participant or to a Beneficiary at his/her last post office address as shown on the Company's records shall be binding on the Participant or Beneficiary for all purposes of the Plan. The Committee shall not be obliged to search for any Participant or Beneficiary beyond the sending of a registered letter to such last known address. If the Committee notifies any Participant or Beneficiary that he/she is entitled to an amount under the Plan and the Participant or Beneficiary fails to claim such amount or make his/her location known to the Committee within three (3) years thereafter, then, except as otherwise required by law, if the location of one or more of the next of kin of the Participant is known to the Committee, the Committee may direct distribution of such amount to any one or more or all of such next of kin, and in such proportions as the Committee determines. If the location of none of the foregoing persons can be determined, the Committee shall have the right to direct that the amount payable shall be deemed to be a forfeiture, except that the dollar amount of the forfeiture, unadjusted for deemed gains or losses in the interim, shall be paid by the Company if a claim for the benefit subsequently is made by the Participant or the Beneficiary to whom it was payable. If a benefit payable to an unlocated Participant or Beneficiary is subject to escheat pursuant to applicable state law, the Company shall not be liable to any person for any payment made in accordance with such law. ARTICLE X THE TRUST 10.1 ESTABLISHMENT OF TRUST. The Company may, but is not required to, establish a Trust to fund all or part of any benefits hereunder. Any such Trust shall be established with the Trustee pursuant to such terms and conditions as are set forth in a trust agreement to be entered into between the Company and the Trustee. Any such Trust is Page 10 14 intended to be treated as a grantor trust under the Code, and the establishment of the Trust is not intended to cause Participants to realize current income on amounts contributed thereto, and the Trust shall be so interpreted. 10.2 BENEFIT PAYMENTS IN ABSENCE OF TRUST. To the extent the Company does not establish a Trust, benefit payments shall be made from the general assets of the Company (i.e., the general assets of the employer of the respective Participant). ARTICLE XI ADMINISTRATION 11.1 COMMITTEE. The Committee shall administer, construe, and interpret this Plan and shall determine, subject to the provisions of this Plan in a manner consistent with the administration of the Basic Plan, the Eligible Employees who shall participate in the Plan from time to time and the amount, if any, due a Participant (or his/her Beneficiary) under this Plan. No member of the Committee shall be liable for any act done or determination made in good faith. No member of the Committee who is a Participant in this Plan may vote on matters affecting his/her personal benefit under this Plan, but any such member shall otherwise be fully entitled to act in matters arising out of or affecting this Plan notwithstanding his/her participation herein. In carrying out its duties herein, the Committee shall have sole discretionary authority to exercise all powers and to make all determinations, consistent with the terms of the Plan, in all matters entrusted to it, and its determinations shall be given deference and shall be final and binding on all interested parties. 11.2 CLAIMS PROCEDURE. (a) NOTICE OF CLAIM. Any Participant or Beneficiary, or the duly authorized representative of a Participant or Beneficiary, may file with the Committee a claim for a Plan benefit. Such a claim must be in writing on a form provided by the Committee and must be delivered to the Committee, in person or by mail, postage prepaid. Within ninety (90) days after the receipt of such a claim, the Committee shall send to the claimant, by mail, postage prepaid, a notice of the granting or the denying, in whole or in part, of such claim, unless special circumstances require an extension of time for processing the claim. In no event may the extension exceed ninety (90) days from the end of the initial period. If such an extension is necessary, the claimant will be given a written notice to this effect prior to the expiration of the initial ninety (90) day period. The Committee shall have full discretion to deny or grant a claim in whole or in part in accordance with the terms of the Plan. If notice of the denial of a claim is not furnished in accordance with this Section, the claim shall be deemed denied and the claimant shall be permitted to exercise his/her right to review pursuant to Sections 11.2(c) and 11.2(d) of the Plan, as applicable. Page 11 15 (b) ACTION ON CLAIM. The Committee shall provide to every claimant who is denied a claim for benefits a written notice setting forth, in a manner calculated to be understood by the claimant: (i) The specific reason or reasons for the denial; (ii) A specific reference to the pertinent Plan provisions on which the denial is based; (iii) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and (iv) An explanation of the Plan's claim review procedure. (c) REVIEW OF DENIAL. Within sixty (60) days after the receipt by a claimant of written notification of the denial (in whole or in part) of a claim, the claimant or the claimant's duly authorized representative, upon written application to the Committee, delivered in person or by certified mail, postage prepaid, may review pertinent documents and may submit to the Committee, in writing, issues and comments concerning the claim. (d) DECISION ON REVIEW. Upon the Committee's receipt of a notice of a request for review, the Committee shall make a prompt decision on the review and shall communicate the decision on review in writing to the claimant. The decision on review shall be written in a manner calculated to be understood by the claimant and shall include specific reasons for the decision and specific references to the pertinent Plan provisions on which the decision is based. The decision on review shall be made no later than sixty (60) days after the Committee's receipt of a request for a review, unless special circumstances require an extension of time for processing, in which case a decision shall be rendered not later than one hundred twenty (120) days after receipt of the request for review. If an extension is necessary, the claimant shall be given written notice of the extension by the Committee prior to the expiration of the initial sixty (60) day period. If notice of the decision on review is not furnished in accordance with this Section, the claim shall be deemed denied on review. ARTICLE XII MISCELLANEOUS PROVISIONS 12.1 LIMITATION OF RIGHTS. Nothing contained in this Plan shall be construed to: (a) Limit in any way the right of the Company to terminate an Eligible Employee's employment at any time; or Page 12 16 (b) Be evidence of any agreement or understanding, express or implied, that the Company will employ an Eligible Employee in any particular position or at any particular rate of remuneration. 12.2 NONALIENATION OF BENEFITS. No amounts payable hereunder may be assigned, pledged, mortgaged, or hypothecated, and, to the extent permitted by law, no such amounts shall be subject to legal process or attachment for the payment of any claims against any person entitled to receive the same. 12.3 AMENDMENT OR TERMINATION OF PLAN. Although it is expected that this Plan shall continue indefinitely, the Board may amend this Plan from time to time in any respect, and may at any time terminate the Plan in its entirety; provided, however, that a Participant's Account as of the date of any such amendment or termination may not be reduced nor may any such amendment or termination adversely affect a Participant's entitlement to his/her Account as of such date. This Plan shall terminate automatically if the Basic Plan terminates, in which event (i) no additional Eligible Employees shall become Participants in this Plan and (ii) benefits under this Plan shall be paid in such manner and at such time as the Board, in its discretion, determinates, without regard to when benefits under the Basic Plan are paid. 12.4 CONSTRUCTION OF PLAN. This Plan shall be construed so that it will be "unfunded" and maintained "primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees," within the meaning of Sections 201(2), 301(a)(3), and 401(a)(1) of the Employee Retirement Income Security Act of 1974, as amended. 12.5 GENDER AND NUMBER. Wherever used in this Plan, the masculine shall be deemed to include the feminine, and the singular shall be deemed to include the plural, unless the context clearly indicates otherwise. 12.6 LAW GOVERNING. This Plan shall be construed in accordance with, and shall be governed by, the laws of the State of Ohio to the extent such laws are not preempted by federal law. OFFICEMAX, INC. By: /s/Ross H. Pollock ---------------------------------- Print Name: Ross H. Pollock, Secretary -------------------------- Date: 12/15/99 -------------------------------- Page 13 EX-5 3 EXHIBIT 5 1 EXHIBIT 5 [OFFICEMAX LETTERHEAD] December 30, 1999 OfficeMax, Inc. 3605 Warrensville Center Road Shaker Heights, Ohio 44122 Ladies and Gentlemen: I am the duly elected Senior Vice President, General Counsel of OfficeMax, Inc., an Ohio corporation (the "Company"), and am familiar with its corporate affairs. This opinion is being delivered in connection with the Company's Registration Statement on Form S-8 (the "Registration Statement") being filed under the Securities Act of 1933 (the "Act") relating to the registration of Deferred Compensation Obligations (the "Obligations") of the Company for issuance under the OfficeMax, Inc. Executive Savings Deferral Plan (the "Plan"). In connection with the foregoing, I have examined and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of such documents as I have deemed necessary or appropriate as the basis for the opinions set forth herein, including the Registration Statement and the Plan. I am admitted to the Bar of the State of Ohio and this opinion is limited to matters of Ohio law and federal law. Accordingly, I express no opinion as to the law of any other jurisdiction. Please be advised that I own 4,727 restricted common shares of the Company and options to acquire an additional 150,000 common shares. Based on such examination, I am of the opinion that the Obligations, when issued in accordance with the Plan, will be valid and binding obligations of the Company, except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equity principles. I hereby consent to the use of this opinion as Exhibit 5 to the Registration Statement. In giving such consent, I do not thereby admit that I am an expert with respect to any part of the Registration Statement within the meaning of the term "expert" as used in the Act or the rules and regulations issued thereunder. Very truly yours, /s/ Ross H. Pollock Ross H. Pollock Senior Vice President, General Counsel EX-23.1 4 EXHIBIT 23.1 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 4, 1999 relating to the financial statements of OfficeMax, Inc., which appears on page F-2 of OfficeMax, Inc.'s Annual Report on Form 10-K for the year ended January 23, 1999. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Cleveland, Ohio December 30, 1999 -----END PRIVACY-ENHANCED MESSAGE-----