View:
April 13, 2005
Postal Code 20549-0303
Via Facsimile (312) 827-8048 and U.S. mail
John H. Bitner, Esq.
Bell, Boyd & Lloyd LLC
70 West Madison Street Suite 3100
Chicago, IL 60602
Re: OfficeMax Incorporated
Schedule TO-I
Filed March 30, 2005
Schedule TO-I/A
Filed April 11, 2005
File No. 005-33834
Dear Mr. Bitner:
We have the following comments on your filings. All defined terms
have the same meaning as in your offer materials.
Summary Term Sheet, page 1
What will the purchase price for the shares be and what will be
the form of payment? page 2
1. Disclose here that the lower end of OfficeMax`s price range for
the shares falls below the current market price for the shares.
Prominently disclose current market quotes. For guidance regarding
this disclosure, see Part II. B. of SEC Release No. 34-43069,
available on our website at www.sec.gov.
The Offer, page 10
Number of Shares; Price; Priority of Purchase, page 10
2. In light of your offer to purchase the securities of those
holders who "check the box" indicating that they will tender their
shares at any price at or above the minimum, include disclosure
which explains that this feature may have the effect of decreasing
the offer price because shares tendered "at the offer price" will
effectively be considered available for purchase at the minimum price
within the range you have set.
Procedures for Tendering Shares, page 14
3. We note that holders of shares through the 401(k) program will
be required to tender their shares three days before the previous
expiration date. Please tell us why you believe that this
requirement comports with Rule 13e-4(f)(1), or revise your
document.
4. Now that the offer expiration date has been extended, advise
us, with a view toward disclosure, what consideration has been given
to amending the Schedule TO to reflect the new deadline by which plan
participants must execute a Trustee Direction Form in order to
have their plan shares purchased by OfficeMax.
Conditions of the Offer, page 24
5. If OfficeMax believes that an offer condition has been
"triggered" by events that occur while this offer is pending, we
expect the company to immediately address this fact and how it
intends to proceed. In our view, it is not appropriate to wait until
the expiration date of the offer to announce the failure of the offer
due to an event that occurred on day two of the offer. Please confirm
your understanding supplementally.
Certain Information Concerning Us, page 28
6. Financial information has been incorporated by reference in
response to Item 10 of Schedule TO. Please provide complete
summarized financial information as required by Instruction 6 to
Item 10 of Schedule TO. Refer to telephone interpretation H.7 in
the July 2001 supplement to our "Manual of Publicly Available
Telephone Interpretations" that is available on the Commission`s
website at http://www.sec.gov for additional guidance.
Extension of the Offer; Termination; Amendment, page 38
7. We note that that OfficeMax has reserved the right to terminate
the exchange offer in its discretion for any reason. This
statement, however, appears to be made in addition to the stated
conditions on page 24. Revise the disclosure to affirmatively
indicate OfficeMax does not retain the right to terminate the offer
for any reason other than what has been expressed in the conditions
section. The staff believes that if an offeror can terminate an offer
for any reason, the offer is illusory.
Closing Comments
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be certain that they have provided all information investors require.
Since the company and its management are in possession of all facts
relating to a company`s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
In connection with responding to our comments, please
provide, in writing, a statement from the company acknowledging that
* the company is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the company may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of Enforcement
has access to all information you provide to the staff of the
Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
Respond to our comments promptly. Please furnish a response
letter, keying your response to our comment letter. You should
transmit the letter via EDGAR under the label "CORRESP." In the
even that you believe that compliance with any of the above comments
is inappropriate; provide a basis for such belief to the staff in the
response letter. Depending upon your response to these comments,
a supplement may need to be sent to security holders. Please
contact me at (202) 942-1762 if you have any questions.
Sincerely,
Julia E. Griffith
Special Counsel
Office of Mergers and
Acquisitions