<PAGE> 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
<TABLE>
<CAPTION>
=========================================================================================================================
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)
=========================================================================================================================
<S> <C> <C> <C> <C>
Deferred Compensation $2,000,000 100% $2,000,000 $528
Obligations
=========================================================================================================================
</TABLE>
(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.
<PAGE> 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
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<PAGE> 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.
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<PAGE> 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.
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<PAGE> 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
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<PAGE> 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]
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<PAGE> 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
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/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
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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)
<PAGE> 1
EXHIBIT 4
OFFICEMAX, INC. EXECUTIVE SAVINGS DEFERRAL PLAN
EFFECTIVE JANUARY 1, 2000
<PAGE> 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
<PAGE> 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
<PAGE> 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.
<PAGE> 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
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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.
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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
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(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
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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
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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
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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
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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.
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(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
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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.
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(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
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(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
--------------------------------
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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
<PAGE> 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
