Exhibit 2
CERTIFICATE OF AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
OFFICEMAX,INC.
Michael Feuer, Chairman of the Board of Directors, and Ross H.
Pollock, Secretary, of OfficeMax, Inc., an Ohio corporation (the "Corporation"),
do hereby certify that at a meeting of the Board of Directors of the Corporation
held on March 17, 2000, the following resolutions to amend the Second Amended
and Restated Articles of Incorporation, as amended, of the Corporation were
adopted pursuant to the authority granted by Section 1701.70(B)(1) of the Ohio
Revised Code:
RESOLVED, that the Second Amended and Restated Articles of
Incorporation, as amended, of the Corporation be, and they hereby are, amended
by adding at the end of Division A of Article Fourth a new Section 7 that reads
as follows:
Section 7. Series A Participating Cumulative Serial Preferred Shares.
(a) Designation and Amount. Of the 100,000,000 authorized Serial
Preferred Shares, 1,500,000 are designated as a series designated as "Series A
Participating Cumulative Serial Preferred Shares" (the "Series A Preferred
Shares"). The Series A Preferred Shares have the express terms set forth in this
Division as being applicable to all Serial Preferred Shares as a class and, in
addition, the following express terms applicable to all Series A Preferred
Shares as a series of Serial Preferred Shares. The number of Series A Preferred
Shares may be increased (subject to paragraph (i) of this Section 7) or
decreased by resolution of the Board of Directors and by the filing of a
certificate of amendment pursuant to the provisions of the General Corporation
Law of the State of Ohio stating that such increase or reduction has been so
authorized; however, no decrease shall reduce the number of Series A Preferred
Shares to a number less than that of the Series A Preferred Shares then
outstanding plus the number of Series A Preferred Shares issuable upon exercise
of outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Corporation.
(b) Dividends or Distributions. (1) Subject to the rights of the
holders of shares of any other class of capital stock of the Corporation ranking
prior to the Series A Preferred Shares with respect to dividends, the holders of
the
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Series A Preferred Shares shall be entitled to receive, when, as and if declared
by the Board of Directors, out of the assets of the Corporation legally
available therefor, (A) quarterly dividends payable in cash on the last day of
each fiscal quarter in each year, or such other dates as the Board of Directors
of the Corporation shall approve (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a Series A Preferred Share or a
fraction of a Series A Preferred Share, in the amount of $0.05 per whole Series
A Preferred Share (rounded to the nearest cent) less the amount of all cash
dividends declared on the Series A Preferred Shares pursuant to the following
clause (B) since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any Series A Preferred Share or fraction of a Series A Preferred
Share (the total of which shall not, in any event, be less than zero) and (B)
dividends payable in cash on the payment date for each cash dividend declared on
the Common Shares in an amount per whole Series A Preferred Share (rounded to
the nearest cent) equal to the Formula Number (as hereinafter defined) then in
effect times the cash dividends then to be paid on each Common Share. In
addition, if the Corporation shall pay any dividend or make any distribution on
the Common Shares payable in assets, securities or other forms of noncash
consideration (other than dividends or distributions payable solely in Common
Shares), then, in each such case, the Corporation shall simultaneously pay or
make on each outstanding whole Series A Preferred Share a dividend or
distribution in like kind equal to the Formula Number then in effect times such
dividend or distribution on each Common Share. As used herein, the "Formula
Number" shall be 1,000; provided, however, that, if at any time after March 17,
2000, the Corporation shall (i) declare or pay any dividend on the Common Shares
payable in Common Shares or make any distribution on the Common Shares in Common
Shares, (ii) subdivide (by a stock split or otherwise) the outstanding Common
Shares into a larger number of Common Shares or (iii) combine (by a reverse
stock split or otherwise) the outstanding Common Shares into a smaller number of
Common Shares, then in each such event the Formula Number shall be adjusted to a
number determined by multiplying the Formula Number in effect immediately prior
to such event by a fraction, the numerator of which is the number of Common
Shares that are outstanding immediately after such event and the denominator of
which is the number of Common Shares that are outstanding immediately prior to
such event (and rounding the result to the nearest whole number); and provided
further that, if at any time after March 17, 2000, the Corporation shall issue
any shares of its capital stock in a merger, reclassification, or change of the
outstanding Common Shares,
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then in each such event the Formula Number shall be appropriately adjusted to
reflect such merger, reclassification or change so that each Series A Preferred
Share continues to be the economic equivalent of a Formula Number of Common
Shares prior to such merger, reclassification or change.
(2) The Corporation shall declare a dividend or distribution on the
Series A Preferred Shares as provided in subparagraph (b)(1) immediately prior
to or at the same time it declares a dividend or distribution on the Common
Shares (other than a dividend or distribution payable solely in Common Shares);
provided, however, that, in the event no dividend or distribution (other than a
dividend or distribution payable solely in Common Shares) shall have been
declared on the Common Shares during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date, a dividend
of $0.05 per share on the Series A Preferred Shares shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date. The Board of
Directors may fix a record date for the determination of holders of Series A
Preferred Shares entitled to receive a dividend or distribution declared
thereon, which record date shall be the same as the record date for any
corresponding dividend or distribution on the Common Shares.
(3) Dividends shall begin to accrue and be cumulative on outstanding
Series A Preferred Shares from and after the Quarterly Dividend Payment Date
next preceding the date of original issue of such Series A Preferred Shares;
provided, however, that dividends on such shares which are originally issued
after the record date for the determination of holders of Series A Preferred
Shares entitled to receive a quarterly dividend and on or prior to the next
succeeding Quarterly Dividend Payment Date shall begin to accrue and be
cumulative from and after such Quarterly Dividend Payment Date. Notwithstanding
the foregoing, dividends on Series A Preferred Shares which are originally
issued prior to the record date for the determination of holders of Series A
Preferred Shares entitled to receive a quarterly dividend on the first Quarterly
Dividend Payment Date shall be calculated as if cumulative from and after the
last day of the fiscal quarter next preceding the date of original issuance of
such shares. Accrued but unpaid dividends shall not bear interest. Dividends
paid on Series A Preferred Shares in an amount less than the total amount of
such dividends at the time accrued and payable on such shares shall be allocated
pro rata on a share-by-share basis among all such shares at the time
outstanding.
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(4) So long as any Series A Preferred Shares are outstanding, no
dividends or other distributions shall be declared, paid or distributed, or set
aside for payment or distribution, on the Common Shares unless, in each case,
the dividend required by this paragraph (b) of this Section 7 to be declared on
the Series A Preferred Shares shall have been declared.
(5) The holders of the Series A Preferred Shares shall not be entitled
to receive any dividends or other distributions except as provided herein.
(c) Voting Rights. (1) The holders of Series A Preferred Shares shall
have the voting rights set forth in Article Fourth, Division A, Section 5 of
these Articles.
(2) Except as provided in Article Fourth, Division A, Section 5 of
these Articles, in paragraph (i) of this Section 7 or by applicable law, holders
of Series A Preferred Shares shall have no voting rights and their consent shall
not be required for authorizing or taking any corporate action.
(d) Liquidation Rights. Upon the liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, no distribution shall
be made (1) to the holders of shares ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Preferred Shares
unless, prior thereto, the holders of Series A Preferred Shares shall have
received an amount equal to the accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment, plus an amount
equal to the greater of (x) $1,000 per whole share or (y) an aggregate amount
per share equal to the Formula Number then in effect times the aggregate amount
to be distributed per share to holders of Common Shares or (2) to the holders of
shares ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Shares, except
distributions made ratably on the Series A Preferred Shares and all other such
parity shares in proportion to the total amounts to which the holders of all
such shares are entitled upon such liquidation, dissolution or winding up.
(e) Consolidation, Merger, etc. In case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which Common
Shares are exchanged for or changed into other shares or securities, cash or any
other property, then in any such case the then outstanding Series A Preferred
Shares shall at the same time be similarly exchanged or changed into an amount
per share
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equal to the Formula Number then in effect times the aggregate amount of shares,
securities, cash or any other property (payable in kind), as the case may be,
into which or for which each Common Share is exchanged or changed. In the event
both this paragraph (e) of this Section 7 and paragraph (b) of this Section 7
appear to apply to a transaction, this paragraph (e) of this Section 7 will
control.
(f) No Redemption; No Sinking Fund. (1) The Series A Preferred Shares
shall not be subject to redemption by the Corporation or at the option of any
holder of Series A Preferred Shares; provided, however, that, subject to Article
Fourth, Division A the Corporation may purchase or otherwise acquire outstanding
Series A Preferred Shares in the open market or by offer to any holder or
holders of Series A Preferred Shares.
(2) The Series A Preferred Shares shall not be subject to or entitled
to the operation of a retirement or sinking fund.
(g) Fractional Shares. The Series A Preferred Shares shall be issuable
in whole shares or in any fraction of a share that is one one-thousandth of a
share or any integral multiple of such fraction which shall entitle the holder,
in proportion to such holder's fractional shares, to receive dividends, exercise
voting rights, participate in distributions and to have the benefit of all other
rights of holders of Series A Preferred Shares. In lieu of fractional shares,
the Corporation, prior to the first issuance of a Series A Preferred Share or a
fraction of a Series A Preferred Share, may elect (1) to make a cash payment for
fractions of a share other than one one-thousandths of a share or any integral
multiple thereof or (2) to issue depository receipts evidencing such authorized
fraction of a Series A Preferred Share pursuant to an appropriate agreement
between the Corporation and a depository selected by the Corporation; provided,
however, that such agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and preferences to which they are
entitled as holders of the Series A Preferred Shares.
(h) Reacquired Shares. Any Series A Preferred Shares purchased or
otherwise acquired by the Corporation in any manner whatsoever shall be retired
and canceled promptly after the acquisition thereof. All such shares shall upon
their cancelation become authorized but unissued Serial Preferred Shares,
without designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the provisions
of these Articles.
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(i) Additional Serial Preferred Shares. If any Series A Preferred
Shares are outstanding, the Corporation shall not, with the purpose or effect of
diluting the voting power of the outstanding Series A Preferred Shares, increase
the number of authorized Series A Preferred Shares (except as may be required by
the Rights Agreement dated as of March 17, 2000 between the Corporation and
First Chicago Trust Company of New York, as Rights Agent) or issue shares of any
other series of the Serial Preferred Shares without the affirmative vote of the
holders of at least two-thirds of the outstanding Series A Preferred Shares.
(j) Severability. If any term or other provision of this Section 7 is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Section 7 shall nevertheless
remain in full force and effect.
RESOLVED FURTHER, that, any officer of the Corporation is hereby
authorized to sign and file with the Secretary of State of the State of Ohio one
or more certificates in the form required by Section 1701.73(A) of the General
Corporation Law of the State of Ohio setting forth a copy of these resolutions.
IN WITNESS WHEREOF, the undersigned have duly executed this
Certificate of Amendment on this 17th day of March, 2000.
MICHAEL FEUER,
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Title: Chairman of the Board of
Directors
ROSS H. POLLOCK,
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Title: Secretary