<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 25, 1994
REGISTRATION NO. 33-52383
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 3
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CONTAINER CORPORATION OF AMERICA
(EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 36-2659288
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
JEFFERSON SMURFIT CENTRE JOHN R. FUNKE
8182 MARYLAND AVENUE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ST. LOUIS, MISSOURI 63105 8182 MARYLAND AVENUE
(314) 746-1100 ST. LOUIS, MISSOURI 63105
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA (314) 746-1100
CODE, OF CO-REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
------------------------
JEFFERSON SMURFIT CORPORATION
(TO BE RENAMED JEFFERSON SMURFIT CORPORATION (U.S.))
(EXACT NAME OF CO-REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 36-2931273
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
JEFFERSON SMURFIT CENTRE JOHN R. FUNKE
8182 MARYLAND AVENUE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ST. LOUIS, MISSOURI 63105 8182 MARYLAND AVENUE
(314) 746-1100 ST. LOUIS, MISSOURI 63105
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA (314) 746-1100
CODE, OF CO-REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
------------------------
COPIES TO:
<TABLE>
<S> <C>
LOU R. KLING, ESQ. JERRY V. ELLIOTT, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM SHEARMAN & STERLING
919 THIRD AVENUE 599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10022
(212) 735-3000 (212) 848-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 of the Securities Act of 1933
check the following box. [x]
If either of the co-registrants elects to deliver its latest annual report
to security holders, or a complete and legible facsimile thereof, pursuant to
Item 11(a)(1) of this Form, check the following box. [ ]
------------------------
THE CO-REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE CO-REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
________________________________________________________________________________
<PAGE>
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains a Prospectus relating to the offering
by Container Corporation of America (the 'Debt Offerings') of its % Series
A Senior Notes due 2004 and its % Series B Senior Notes due 2002
(collectively, the 'Senior Notes'), guaranteed on a senior basis by Jefferson
Smurfit Corporation, together with separate Prospectus pages relating to certain
market-making transactions in the Senior Notes. The complete Prospectus for the
Debt Offerings follows immediately after this Explanatory Note. Following such
Prospectus are certain pages of the Prospectus relating to the market-making
transactions (each labeled 'Alternate'), which include an alternate cover page,
alternate pages 2 and 3, a new paragraph captioned 'Trading Market for the
Senior Notes' to be inserted in the section captioned 'Risk Factors', in lieu of
the paragraph captioned 'Absence of Public Market', a section entitled
'Market-Making Activities of MS&Co.' to be inserted in lieu of the 'The
Underwriter' section and an alternate 'Legal Matters' section. All other
sections of the Prospectus for the initial sale of the Senior Notes other than
the section entitled 'Use of Proceeds' (including in the Summary) are to be used
in the Prospectus relating to the market-making transactions.
Prior to the date on which this Registration Statement is declared
effective by the Securities and Exchange Commission, one of the Co-Registrants,
Jefferson Smurfit Corporation, intends to change its name to 'Jefferson Smurfit
Corporation (U.S.)' and its parent, SIBV/MS Holdings, Inc., intends to change
its name to 'Jefferson Smurfit Corporation'. All references in the Prospectus to
the 'Company' refer to the corporation currently named Jefferson Smurfit
Corporation and, when the context requires, its consolidated subsidiaries,
including CCA; all references in the Prospectus to 'Holdings' refer to the
corporation currently named SIBV/MS Holdings, Inc.
<PAGE>
<PAGE>
CONTAINER CORPORATION OF AMERICA
JEFFERSON SMURFIT CORPORATION (U.S.)
CROSS REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
<TABLE>
<CAPTION>
FORM S-2 PART I ITEM PROSPECTUS LOCATION OR CAPTION
- --------------------------------------------------------------------- ------------------------------------------
<S> <C> <C>
1. Forepart of the Registration Statement and Outside Front Cover
Page of Prospectus........................................... Outside Front Cover Page
2. Inside Front and Outside Back Cover Pages of Prospectus........ Inside Front Cover Page; Additional
Information
3. Summary Information, Risk Factors and Ratio of Earnings to
Fixed Charges................................................ Prospectus Summary; Risk Factors; Selected
Historical Financial Data; Pro Forma
Financial Data
4. Use of Proceeds................................................ Recapitalization Plan; Use of Proceeds
5. Determination of Offering Price................................ *
6. Dilution....................................................... *
7. Selling Security Holders....................................... *
8. Plan of Distribution........................................... Cover Page; The Underwriter
9. Description of Securities to be Registered..................... Prospectus Summary; Description of the
Senior Notes
10. Interests of Named Experts and Counsel......................... Legal Matters; Experts
11. Information with Respect to the Co-Registrants................. Outside Front Cover Page; Prospectus
Summary; Risk Factors; Recapitalization
Plan; Use of Proceeds; Capitalization;
Selected Historical Financial Data; Pro
Forma Financial Data; Management's
Discussion and Analysis of Results of
Operations and Financial Condition;
Business; Management; Security Ownership
of Certain Beneficial Owners; Certain
Transactions; Description of Certain
Indebtedness; Description of the Senior
Notes; Index to Financial Statements
12. Incorporation of Certain Information by Reference.............. Incorporation of Certain Documents by
Reference; Additional Information
13. Disclosure of Commission Position on Indemnification for
Securities Act Liabilities................................... *
</TABLE>
- ------------
* Not applicable.
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all fees and expenses payable by CCA in
connection with the offering of the securities being registered hereby, other
than underwriting discounts and commissions. All of such expenses, except the
Securities and Exchange Commission registration fee and the National Association
of Securities Dealers, Inc. filing fees, are estimated.
<TABLE>
<CAPTION>
EXPENSES AMOUNT
- ---------------------------------------------------------------------------------------------------- ----------
<S> <C>
Securities and Exchange Commission registration fee................................................. $ 206,897
National Association of Securities Dealers, Inc. filing fee......................................... 30,500
Blue Sky fees and expenses.......................................................................... 20,000
Printing and engraving expenses.....................................................................
Legal fees and expenses.............................................................................
Accounting fees and expenses........................................................................
Miscellaneous.......................................................................................
----------
Total..................................................................................... $
----------
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Co-Registrants provide, and following the consummation
of the Offerings will continue to provide, the Co-Registrants with the authority
to indemnify their directors, officers, employees and agents to the full extent
allowed by Delaware law. It is anticipated that Holdings will enter into
indemnification agreements with each of its directors which will provide such
persons, in their capacities (among others) as directors and/or officers of
Holdings, the Co-Registrants and each of their respective subsidiaries, with
indemnification, and advancements for expenses, in connection with certain
events, whether occurring before or after the consummation of the Offerings. In
addition, Holdings maintains, and following the consummation of the Offerings
will continue to maintain, an insurance policy which provides directors and
officers of the Co-Registrants with coverage in connection with certain events,
whether occurring before or after the consummation of the Offerings. In
addition, the Co-Registrants have indemnified SIBV and MSLEF II and certain
related parties with respect to matters relating to their business, pursuant to
an organization agreement among such parties.
See Item 17 for the Co-Registrants' undertaking with respect to
indemnification.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<S> <C>
1.1 Form of Underwriting Agreement.
2.1 Agreements, dated April 4, 1994, between CCA and A.G. Edwards & Sons, Inc., the qualified
independent underwriter.
3.1* Form of Restated Certificate of Incorporation of JSC.
3.2* Form of Restated Certificate of Incorporation of CCA.
3.3 Form of By-laws of JSC.
3.4 Form of By-laws of CCA.
4.1 Form of Indenture for the Series A Senior Notes (incorporated by reference to Exhibit 4.2
to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.2 Form of Indenture for the Series B Senior Notes (incorporated by reference to Exhibit 4.3
to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.3 Indenture for the 1993 Notes (incorporated by reference to Exhibit 4.4 to Holdings'
Registration Statement on Form S-1 (File No. 33-75520)).
</TABLE>
II-1
<PAGE>
<PAGE>
<TABLE>
<S> <C>
4.4 First Supplemental Indenture to the 1993 Note Indenture (incorporated by reference to
Exhibit 4.5 to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.5 Indenture for the Senior Subordinated Notes (incorporated by reference to Exhibit 4.6 to
Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.6 Indenture for the Subordinated Debentures (incorporated by reference to Exhibit 4.7 to
Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.7 Indenture for the Junior Accrual Debentures (incorporated by reference to Exhibit 4.8 to
Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
5.1* Opinion of Skadden, Arps, Slate, Meagher & Flom.
10.1 Second Amended and Restated Organization Agreement, as of August 26, 1992, among JSC, CCA,
MSLEF II, Inc., SIBV, Holdings and MSLEF II (incorporated by reference to Exhibit 10.1(d)
to JSC's quarterly report on Form 10-Q for the quarter ended September 30, 1992).
10.2 Form of Stockholders Agreement among Holdings, SIBV, MSLEF II and certain related entities
(incorporated by reference to Exhibit 10.2 to Holdings' Registration Statement on Form S-1
(File No. 33-75520)).
10.3 Form of Registration Rights Agreement among Holdings, MSLEF II and SIBV (incorporated by
reference to Exhibit 10.3 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.4 Form of Stock Subscription Agreement among Holdings, JSC, CCA and SIBV (incorporated by
reference to Exhibit 10.4 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.5(a) Shareholders Agreement, dated as of February 21, 1986, between JSC and Times Mirror
(incorporated by reference to Exhibit 4.2 to JSC's Current Report on Form 8-K, dated
February 21, 1986).
10.5(b) Amendment No. 1 to the Shareholders Agreement (incorporated by reference to Exhibit
10.5(b) to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
10.6(a) Restated Newsprint Agreement, dated January 1, 1990, by and between SNC and The Times
Mirror Company (incorporated by reference to Exhibit 10.39 to JSC's Annual Report on Form
10-K for the fiscal year ended December 31, 1990). Portions of this exhibit have been
excluded pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
10.6(b) Amendment No. 1 to the Restated Newsprint Agreement (incorporated by reference to Exhibit
10.6(b) to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
10.7 Operating Agreement, dated as of April 30, 1992, by and between CCA and Smurfit
Paperboard, Inc. (incorporated by reference to Exhibit 10.42 to JSC's quarterly report on
Form 10-Q for the quarter ended March 31, 1992).
10.8(a) Financial Advisory Services Agreement, dated September 12, 1989, among MS&Co., the Company
and SIBV (incorporated by reference to Exhibit 10.8(a) to JSC/CCA's Registration Statement
on Form S-1 (File No. 33-31212)).
10.8(b) Financial Advisory Services Agreement Amendment, dated as of October 19, 1989, among
MS&Co., the Company and SIBV (incorporated by reference to Exhibit 10.8(b) to JSC/CCA's
Registration Statement on Form S-1 (File No. 33-31212)).
10.9 Deferred Compensation Agreement, dated January 1, 1979, between JSC and James B. Malloy,
as amended and effective November 10, 1983 (incorporated by reference to Exhibit 10(m) to
JSC's Registration Statement on Form S-1 (File No. 2-86554)).
10.10(a) JSC Deferred Compensation Capital Enhancement Plan (incorporated by reference to Exhibit
10(r) to JSC's quarterly report on Form 10-Q for the quarter ended September 30, 1985).
10.10(b) Amendment No. 1 to the Deferred Compensation Capital Enhancement Plan (incorporated by
reference to Exhibit 10.37 to JSC/CCA's Annual Report on Form 10-K for the fiscal year
ended December 31, 1989).
</TABLE>
II-2
<PAGE>
<PAGE>
<TABLE>
<S> <C>
10.11 Letter Agreement, dated November 24, 1982, between C. Larry Bradford and Alton Packaging
Corporation, as amended and effective November 10, 1983 (incorporated by reference to
Exhibit 10(g) to JSC's Registration Statement on Form S-1 (File No. 2-86554)).
10.12 Form of Agreement for Indemnification of Directors and Officers of JSC and CCA
(incorporated by reference to Exhibit 10(v) to JSC's Annual Report on Form 10-K for the
fiscal year ended December 31, 1986).
10.13(a) JSC Deferred Director's Fee Plan (incorporated by reference to Exhibit 10.33 to JSC/CCA's
Annual Report on Form 10-K for the fiscal year ended December 31, 1989).
10.13(b) Amendment No. 1 to JSC Deferred Director's Fee Plan (incorporated by reference to Exhibit
10.34 to JSC/CCA's Annual Report on Form 10-K for the fiscal year ended December 31,
1989).
10.14 Jefferson Smurfit Corporation Management Incentive Plan 1994 (incorporated by reference to
Exhibit 10.14 to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
10.15 Jefferson Smurfit Corporation (U.S.) 1994 Long-Term Incentive Plan (incorporated by
reference to Exhibit 10.13 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.16 Rights Agreement, dated as of April 30, 1992, among CCA, Smurfit Paperboard, Inc. and
Bankers Trust Company, as collateral trustee (incorporated by reference to Exhibit 10.43
to JSC's quarterly report on Form 10-Q for the quarter ended March 31, 1992).
10.17(a) 1992 SIBV/MS Holdings, Inc. Stock Option Plan (incorporated by reference to Exhibit 10.48
to JSC's quarterly report on Form 10-Q for the quarter ended September 30, 1992).
10.17(b) Amendment No. 1 to 1992 SIBV/MS Holdings, Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.16(b) to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.18 Amended and Restated Commitment Letter, dated February 10, 1994, among JSC, CCA, Chemical,
Bankers Trust, CSI and BTSC (incorporated by reference to Exhibit 10.17 to Holdings'
Registration Statement on Form S-1 (File No. 33-75520)).
10.19 Form of Credit Agreement, among JSC, CCA and the banks parties thereto (incorporated by
reference to Exhibit 10.18 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
12.1* Calculation of Historical Ratios of Earnings to Fixed Charges.
23.1* Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5.1).
23.2* Consent of Ernst & Young.
24.1* Powers of Attorney.
25.1* Statement on Form T-1 of the eligibility of NationsBank of Georgia, National Association,
as Trustee under the Series A Senior Note Indenture and the Series B Senior Note
Indenture.
</TABLE>
(b) ** Financial Statement Schedules:
<TABLE>
<S> <C>
Schedule II*: Amounts Receivable From Related Parties and Underwriters, Promoters and Employees
Other than Related Parties
Schedule V*: Property, Plant and Equipment
Schedule VI*: Accumulated Depreciation, Depletion and Amortization of Property, Plant and
Equipment
Schedule VIII*: Valuation and Qualifying Accounts
Schedule X*: Supplementary Income Statement Information
</TABLE>
* Previously filed.
** All other schedules specified under Regulation S-X for the Registrant have
been omitted because they are either not applicable, not required or because
the information required is included in the Financial Statements of the
Registrant or notes thereto.
II-3
<PAGE>
<PAGE>
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 ('Securities Act') may be permitted to directors, officers and
controlling persons of the Co-Registrants pursuant to the foregoing provisions,
or otherwise, the Co-Registrants have been advised that in the opinion of the
Securities and Exchange 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 Co-Registrants of expenses incurred or paid by a director,
officer or controlling person of the Co-Registrants 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
Co-Registrants will, unless in the opinion of their counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by them is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
The Co-Registrants hereby undertake:
(1) That for purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Co-Registrants pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective.
(2) That for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus 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.
(3) (a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement;
(iii) 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.
(b) That, for the purpose of determining any liability under 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.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(d) If the Co-Registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the
start of any delayed offering or throughout a continuous offering.
II-4
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-2 and has duly caused this
Amendment No. 3 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, on April 25, 1994.
CONTAINER CORPORATION OF AMERICA
By /s/ JOHN R. FUNKE
...................................
John R. Funke
Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ---------------------------------------------- ------------------
<S> <C> <C>
* Director, Chairman of the Board
.........................................
MICHAEL W.J. SMURFIT
* Director, President and Chief Executive
......................................... Officer (Principal Executive Officer)
JAMES E. TERRILL
/s/ JOHN R. FUNKE Vice President and Chief Financial Officer April 25, 1994
......................................... (Principal Financial and
JOHN R. FUNKE Accounting Officer)
* Director
.........................................
HOWARD E. KILROY
* Director
.........................................
DONALD P. BRENNAN
* Director
.........................................
ALAN E. GOLDBERG
* Director
.........................................
DAVID R. RAMSAY
</TABLE>
*By /s/ JOHN R. FUNKE
..................................
JOHN R. FUNKE
ATTORNEY-IN-FACT
APRIL 25, 1994
II-5
<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Co-Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-2 and has duly caused this
Amendment No. 3 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, on April 25, 1994.
JEFFERSON SMURFIT CORPORATION
By /s/ JOHN R. FUNKE
...................................
John R. Funke
Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to the Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------ ---------------------------------------------- ------------------
<S> <C> <C>
* Director, Chairman of the Board
.........................................
MICHAEL W.J. SMURFIT
* Director, President and Chief Executive
......................................... Officer (Principal Executive Officer)
JAMES E. TERRILL
/s/ JOHN R. FUNKE Vice President and Chief Financial Officer April 25, 1994
......................................... (Principal Financial and
JOHN R. FUNKE Accounting Officer)
* Director
.........................................
HOWARD E. KILROY
* Director
.........................................
DONALD P. BRENNAN
* Director
.........................................
ALAN E. GOLDBERG
* Director
.........................................
DAVID R. RAMSAY
</TABLE>
*By /s/ JOHN R. FUNKE
..................................
JOHN R. FUNKE
ATTORNEY-IN-FACT
APRIL 25, 1994
II-6
<PAGE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
--------- ------------------------------------------------------------------------------------------ ----
<S> <C> <C>
1.1 Form of Underwriting Agreement.
2.1 Agreements, dated April 4, 1994, between CCA and A.G. Edwards & Sons, Inc., the qualified
independent underwriter.
3.1* Form of Restated Certificate of Incorporation of JSC.
3.2* Form of Restated Certificate of Incorporation of CCA.
3.3 Form of By-laws of JSC.
3.4 Form of By-laws of CCA.
4.1 Form of Indenture for the Series A Senior Notes (incorporated by reference to Exhibit 4.2
to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.2 Form of Indenture for the Series B Senior Notes (incorporated by reference to Exhibit 4.3
to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.3 Indenture for the 1993 Notes (incorporated by reference to Exhibit 4.4 to Holdings'
Registration Statement on Form S-1 (File No. 33-75520)).
4.4 First Supplemental Indenture to the 1993 Note Indenture (incorporated by reference to
Exhibit 4.5 to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.5 Indenture for the Senior Subordinated Notes (incorporated by reference to Exhibit 4.6 to
Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.6 Indenture for the Subordinated Debentures (incorporated by reference to Exhibit 4.7 to
Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
4.7 Indenture for the Junior Accrual Debentures (incorporated by reference to Exhibit 4.8 to
Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
5.1* Opinion of Skadden, Arps, Slate, Meagher & Flom.
10.1 Second Amended and Restated Organization Agreement, as of August 26, 1992, among JSC, CCA,
MSLEF II, Inc., SIBV, Holdings and MSLEF II (incorporated by reference to Exhibit 10.1(d)
to JSC's quarterly report on Form 10-Q for the quarter ended September 30, 1992).
10.2 Form of Stockholders Agreement among Holdings, SIBV, MSLEF II and certain related entities
(incorporated by reference to Exhibit 10.2 to Holdings' Registration Statement on Form S-1
(File No. 33-75520)).
10.3 Form of Registration Rights Agreement among Holdings, MSLEF II and SIBV (incorporated by
reference to Exhibit 10.3 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.4 Form of Stock Subscription Agreement among Holdings, JSC, CCA and SIBV (incorporated by
reference to Exhibit 10.4 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.5(a) Shareholders Agreement, dated as of February 21, 1986, between JSC and Times Mirror
(incorporated by reference to Exhibit 4.2 to JSC's Current Report on Form 8-K, dated
February 21, 1986).
10.5(b) Amendment No. 1 to the Shareholders Agreement (incorporated by reference to Exhibit
10.5(b) to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
10.6(a) Restated Newsprint Agreement, dated January 1, 1990, by and between SNC and The Times
Mirror Company (incorporated by reference to Exhibit 10.39 to JSC's Annual Report on Form
10-K for the fiscal year ended December 31, 1990). Portions of this exhibit have been
excluded pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
10.6(b) Amendment No. 1 to the Restated Newsprint Agreement (incorporated by reference to Exhibit
10.6(b) to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
10.7 Operating Agreement, dated as of April 30, 1992, by and between CCA and Smurfit
Paperboard, Inc. (incorporated by reference to Exhibit 10.42 to JSC's quarterly report on
Form 10-Q for the quarter ended March 31, 1992).
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
--------- ------------------------------------------------------------------------------------------ ----
<S> <C> <C>
10.8(a) Financial Advisory Services Agreement, dated September 12, 1989, among MS&Co., the Company
and SIBV (incorporated by reference to Exhibit 10.8(a) to JSC/CCA's Registration Statement
on Form S-1 (File No. 33-31212)).
10.8(b) Financial Advisory Services Agreement Amendment, dated as of October 19, 1989, among
MS&Co., the Company and SIBV (incorporated by reference to Exhibit 10.8(b) to JSC/CCA's
Registration Statement on Form S-1 (File No. 33-31212)).
10.9 Deferred Compensation Agreement, dated January 1, 1979, between JSC and James B. Malloy,
as amended and effective November 10, 1983 (incorporated by reference to Exhibit 10(m) to
JSC's Registration Statement on Form S-1 (File No. 2-86554)).
10.10(a) JSC Deferred Compensation Capital Enhancement Plan (incorporated by reference to Exhibit
10(r) to JSC's quarterly report on Form 10-Q for the quarter ended September 30, 1985).
10.10(b) Amendment No. 1 to the Deferred Compensation Capital Enhancement Plan (incorporated by
reference to Exhibit 10.37 to JSC/CCA's Annual Report on Form 10-K for the fiscal year
ended December 31, 1989).
10.11 Letter Agreement, dated November 24, 1982, between C. Larry Bradford and Alton Packaging
Corporation, as amended and effective November 10, 1983 (incorporated by reference to
Exhibit 10(g) to JSC's Registration Statement on Form S-1 (File No. 2-86554)).
10.12 Form of Agreement for Indemnification of Directors and Officers of JSC and CCA
(incorporated by reference to Exhibit 10(v) to JSC's Annual Report on Form 10-K for the
fiscal year ended December 31, 1986).
10.13(a) JSC Deferred Director's Fee Plan (incorporated by reference to Exhibit 10.33 to JSC/CCA's
Annual Report on Form 10-K for the fiscal year ended December 31, 1989).
10.13(b) Amendment No. 1 to JSC Deferred Director's Fee Plan (incorporated by reference to Exhibit
10.34 to JSC/CCA's Annual Report on Form 10-K for the fiscal year ended December 31,
1989).
10.14 Jefferson Smurfit Corporation Management Incentive Plan 1994 (incorporated by reference to
Exhibit 10.14 to Holdings' Registration Statement on Form S-1 (File No. 33-75520)).
10.15 Jefferson Smurfit Corporation (U.S.) 1994 Long-Term Incentive Plan (incorporated by
reference to Exhibit 10.13 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.16 Rights Agreement, dated as of April 30, 1992, among CCA, Smurfit Paperboard, Inc. and
Bankers Trust Company, as collateral trustee (incorporated by reference to Exhibit 10.43
to JSC's quarterly report on Form 10-Q for the quarter ended March 31, 1992).
10.17(a) 1992 SIBV/MS Holdings, Inc. Stock Option Plan (incorporated by reference to Exhibit 10.48
to JSC's quarterly report on Form 10-Q for the quarter ended September 30, 1992).
10.17(b) Amendment No. 1 to 1992 SIBV/MS Holdings, Inc. Stock Option Plan (incorporated by
reference to Exhibit 10.16(b) to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
10.18 Amended and Restated Commitment Letter, dated February 10, 1994, among JSC, CCA, Chemical,
Bankers Trust, CSI and BTSC (incorporated by reference to Exhibit 10.17 to Holdings'
Registration Statement on Form S-1 (File No. 33-75520)).
10.19 Form of Credit Agreement, among JSC, CCA and the banks parties thereto (incorporated by
reference to Exhibit 10.18 to Holdings' Registration Statement on Form S-1 (File No.
33-75520)).
12.1* Calculation of Historical Ratios of Earnings to Fixed Charges.
23.1* Consent of Skadden, Arps, Slate, Meagher & Flom (included in Exhibit 5.1).
23.2* Consent of Ernst & Young.
24.1* Powers of Attorney.
25.1* Statement on Form T-1 of the eligibility of NationsBank of Georgia, National Association,
as Trustee under the Series A Senior Note Indenture and the Series B Senior Note
Indenture.
</TABLE>
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
--------- ------------------------------------------------------------------------------------------ ----
<S> <C> <C>
(b) ** Financial Statement Schedules:
Schedule Amounts Receivable From Related Parties and Underwriters, Promoters and Employees Other
II*: than Related Parties
Schedule V*: Property, Plant and Equipment
Schedule VI*: Accumulated Depreciation, Depletion and Amortization of Property, Plant and
Equipment
Schedule VIII*: Valuation and Qualifying Accounts
Schedule X*: Supplementary Income Statement Information
</TABLE>
* Previously filed.
** All other schedules specified under Regulation S-X for the Registrant have
been omitted because they are either not applicable, not required or because
the information required is included in the Financial Statements of the
Registrant or notes thereto.
<PAGE>
================================================================================
$300,000,000
CONTAINER CORPORATION OF AMERICA
__% SERIES A SENIOR NOTES DUE 2004
UNCONDITIONALLY GUARANTEED ON A SENIOR BASIS BY
JEFFERSON SMURFIT CORPORATION
(To be renamed JEFFERSON SMURFIT CORPORATION (U.S.))
and
$100,000,000
CONTAINER CORPORATION OF AMERICA
__% SERIES B SENIOR NOTES DUE 2002
UNCONDITIONALLY GUARANTEED ON A SENIOR BASIS BY
JEFFERSON SMURFIT CORPORATION
(To be renamed JEFFERSON SMURFIT CORPORATION (U.S.))
UNDERWRITING AGREEMENT
_______, 1994
================================================================================
<PAGE>
_________________, 1994
Morgan Stanley & Co.
Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
Container Corporation of America, a Delaware
corporation (the "Company"), proposes to issue and sell to
Morgan Stanley & Co. Incorporated (the "Underwriter")
(i) $300,000,000 aggregate principal amount of its ____% Series
A Senior Notes Due 2004 (the "Series A Senior Notes") to be
issued pursuant to the provisions of an Indenture dated as of
______, 1994 (the "Series A Senior Note Indenture") among the
Company, Jefferson Smurfit Corporation (to be renamed
Jefferson Smurfit Corporation (U.S.)), a Delaware corporation
("JSC"), as guarantor and __________________, as Trustee (the
"Series A Senior Note Trustee"), and (ii) $100,000,000 aggregate
principal amount of its ____% Series B Senior Notes Due 2002
(the "Series B Senior Notes", and collectively with the Series A
Senior Notes, the "Securities") to be issued pursuant to the
provisions of an Indenture dated as of ______, 1994 (the "Series
B Senior Note Indenture", and collectively with the Series A
Senior Note Indenture, the "Indentures") among the Company,
JSC as guarantor and _________________________, as Trustee
(the "Series B Senior Note Trustee", and collectively with the
Series A Senior Note Trustee, the "Trustees").
The Company and JSC have filed with the
Securities and Exchange Commission (the "Commission") a
registration statement, including a prospectus relating to the
Securities and to JSC's unconditional guarantee of each of the
Series A Senior Notes (the "Series A Guarantee") and the Series
B Senior Notes (the "Series B Guarantee", and collectively with
the Series A Guarantee, the "Guarantees"). The registration
statement as amended at the time it becomes effective, including
the exhibits thereto, the documents incorporated by reference
therein and the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act of 1933, as amended (the
"Securities Act"), is hereinafter referred to as the "Registration
Statement"; and the prospectus in the form first used to confirm
sales of Securities, including the documents incorporated by
reference therein, is hereinafter referred to as the "Prospectus".
<PAGE>
2
I.
Each of the Company (other than as set forth in
paragraph (g)) and JSC (other than as set forth in paragraph (f))
represents and warrants to the Underwriter that:
(a) The Registration Statement has become
effective; no stop order suspending the effectiveness of
the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to
the Company's or JSC's knowledge, threatened by the
Commission.
(b) (i) Each part of the Registration Statement,
when such part became effective, did not contain and
each such part, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented,
if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of
the Commission thereunder and (iii) the Prospectus does
not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading, except that the representations and warranties
set forth in this paragraph 1(b) do not apply (A) to
statements or omissions in the Registration Statement or
the Prospectus based upon information relating to the
Underwriter furnished to the Company in writing by the
Underwriter expressly for use therein or (B) to that part
of the Registration Statement that constitutes the
Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), of each of the Trustees.
(c) Each of the Company, JSC, JSC
Enterprises, Inc. ("JSC Enterprises"), CCA Enterprises,
Inc. ("CCA Enterprises") and Smurfit Newsprint
Corporation ("SNC") has been duly incorporated, is
validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a
material adverse effect on the Company and JSC and
their respective subsidiaries, taken as a whole. Neither
the Company nor JSC has any "significant subsidiaries"
(as defined in Rule 1.02 of the Commission's Regulation
S-X) other than those referred to above.
<PAGE>
3
(d) This Agreement has been duly authorized,
executed and delivered by each of the Company and JSC.
(e) On the Closing Date, each of the
Indentures will have been duly qualified under the Trust
Indenture Act and will have been duly authorized,
executed and delivered by each of the Company and JSC
and will be a valid and binding agreement of each of the
Company and JSC, enforceable against each of the
Company and JSC in accordance with its terms except to
the extent that (a) enforcement thereof may be limited by
(1) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to
creditors' rights generally and (2) general principles of
equity (regardless of whether enforceability is considered
in a proceeding at law or in equity) and (b) the waiver
contained in Section 3.17 of each Indenture may be
deemed unenforceable.
(f) The Securities have been duly authorized
by the Company and, when executed and authenticated in
accordance with the provisions of the applicable
Indenture and delivered to and paid for by the
Underwriter in accordance with the terms of this
Agreement, will be entitled to the benefits of the
applicable Indenture, and will be valid and binding
obligations of the Company, enforceable in accordance
with their terms except to the extent that (a) the
enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors'
rights generally and (2) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) the waiver
contained in Section 3.17 of each Indenture may be
deemed unenforceable.
(g) Each of the Guarantees has been duly
authorized by JSC and, upon execution and delivery of
the applicable Indenture by JSC, and assuming due
execution and authentication of the Securities in
accordance with the applicable Indenture, will be entitled
to the benefits of the applicable Indenture and will be
valid and binding obligations of JSC, enforceable in
accordance with its terms except to the extent that (a) the
enforcement thereof may be limited by (1) bankruptcy,
insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors'
rights generally and (2) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity) and (b) the waiver
contained in Section 3.17 of each Indenture may be
deemed unenforceable.
(h) The execution and delivery by each of the
Company and JSC of, and the performance by each of
the Company and JSC of its obligations under, this
Agreement, the Indentures, the Securities and the
Guarantees will not contravene any provision of
applicable law or the certificate of incorporation or by-
laws of either the Company or
<PAGE>
4
JSC, or any agreement or other instrument binding upon the Company
or JSC or any of their respective subsidiaries that is material to the
Company and JSC and their respective subsidiaries, taken
as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction
over the Company or JSC or any of their respective
subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or
agency is required for the performance by the Company
or JSC of its respective obligations under this Agreement,
the Indentures, the Securities or the Guarantees, except
such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and
sale of the Securities and the Guarantees.
(i) There has not occurred any material
adverse change, or any development involving a
prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and JSC and their respective
subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental
proceedings pending or, to the Company's or JSC's
knowledge, threatened to which the Company or JSC or
any of their respective subsidiaries is a party or to which
any of the properties of the Company or JSC or any of
their respective subsidiaries is subject that are required to
be described in the Registration Statement or the
Prospectus and are not so described, or any statutes,
regulations, contracts or other documents that are required
to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(k) Each preliminary prospectus filed as part
of the Registration Statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all
material respects with the Securities Act and the rules
and regulations of the Commission thereunder.
(l) Neither the Company nor JSC is an
"investment company" or an entity "controlled" by a
company which is required to register as an "investment
company", as such terms are defined in the Investment
Company Act of 1940, as amended.
(m) Other than as described in the Prospectus,
each of the Company and JSC and their respective
subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants ("Environmental
Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable
Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where
such noncompliance
<PAGE>
5
with Environmental Laws, failure to receive
required permits, licenses or other
approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would
not, singly or in the aggregate, have a material adverse
effect on the Company and JSC and their respective
subsidiaries, taken as a whole.
(n) Each of the Company and JSC has
complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
II.
The Company hereby agrees to sell to the
Underwriter, and the Underwriter, upon the basis of the
representations and warranties herein contained, but subject to
the conditions hereinafter stated, agrees to purchase from the
Company (i) the Series A Senior Notes at _____% of their
principal amount -- the purchase price -- plus accrued interest, if
any, from __________, 1994 to the date of payment and delivery
and (ii) the Series B Senior Notes at _____% of their principal
amount -- the purchase price -- plus accrued interest, if any,
from __________, 1994 to the date of payment and delivery.
III.
The Company is advised by you that you propose
to make a public offering of the Securities as soon after the
Registration Statement and this Agreement have become
effective as in your judgment is advisable. The Company is
further advised by you that (i) the Series A Senior Notes are to
be offered to the public initially at ___% of their principal
amount -- the public offering price -- plus accrued interest, if
any, and to certain dealers selected by you at a price that
represents a concession not in excess of ___% of their principal
amount under the public offering price, and that you may allow,
and such dealers may reallow, a concession, not in excess of
___% of their principal amount, to certain other dealers and (ii)
the Series B Senior Notes are to be offered to the public initially
at ___% of their principal amount -- the public offering price --
plus accrued interest, if any, and to certain dealers selected by
you at a price that represents a concession not in excess of ___%
of their principal amount under the public offering price, and
that you may allow, and such dealers may reallow, a concession,
not in excess of ___% of their principal amount, to certain other
dealers.
<PAGE>
6
IV.
Payment for the Securities shall be made (i) by
certified or official bank check or checks payable to the order of
the Company in New York Clearing House funds at the office of
Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New
York, New York, or (ii), upon three business days' notice to the
Underwriter, in same day funds by wire transfer to the
Company's account at a bank designated by the Company, at
10:00 A.M., local time, on __________, 1994, or at such other
time on the same or such other date, not later than __________,
1994, as shall be designated in writing by you. The time and
date of such payment are hereinafter referred to as the "Closing
Date". If payment is to be made in same day funds, the
Company agrees to pay to the Underwriter on the Closing Date
interest on the purchase price payable pursuant to Section II
hereof, for a period of one day, calculated at a rate equal to the
cost of funds of the Underwriter.
Payment for the Securities shall be made against
delivery to you of the Securities registered in such names and in
such denominations as you shall request in writing not later than
two full business days prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the
Securities to the Underwriter duly paid.
V.
The obligations of the Company and JSC and the
obligations of the Underwriter hereunder are subject to the
condition that the Registration Statement shall have become
effective not later than the date hereof.
The obligations of the Underwriter hereunder are
subject to the following further conditions:
(a) Subsequent to the execution and delivery
of this Agreement and prior to the Closing Date,
(i) there shall not have occurred any
downgrading, nor shall any notice have been
given of any intended or potential downgrading or
of any review for a possible change that does not
indicate the direction of the possible change, in
the rating accorded any of the Company's or
JSC's securities by any "nationally recognized
statistical rating organization", as such term is
defined for purposes of Rule 436(g)(2) under the
Securities Act; and
<PAGE>
7
(ii) there shall not have occurred any
change, or any development involving a
prospective change, in the condition, financial or
otherwise, or in the earnings, business or
operations, of the Company and JSC and their
respective subsidiaries, taken as a whole, from that
set forth in the Registration Statement that, in
your judgment, is material and adverse and that
makes it, in your judgment, impracticable to
market the Securities on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriter shall have received on the
Closing Date a certificate from each of the Company and
JSC, each dated the Closing Date and signed by an
executive officer of the Company and JSC, as the case
may be, to the effect set forth in clause (a)(i) above and
to the effect that the representations and warranties of the
Company and JSC contained in this Agreement are true
and correct as of the Closing Date and that each of the
Company and JSC has complied with all of the
agreements and satisfied all of the conditions on its part
to be performed or satisfied on or before the Closing
Date.
Each of the officers signing and delivering
such certificate may rely upon the best of his knowledge
as to proceedings threatened.
(c) You shall have received on the Closing
Date an opinion, dated the Closing Date, of Skadden,
Arps, Slate, Meagher & Flom, special counsel for the
Company and JSC, substantially to the effect that
(i) each of the Company and JSC has
been duly organized, and is subsisting and in good
standing, as a corporation under the laws of the
State of Delaware, and has the corporate power
and authority to own its property and to conduct
its business as described in the Prospectus;
(ii) this Agreement has been duly
authorized, executed and delivered by each of the
Company and JSC;
(iii) each of the Indentures has been
duly authorized, executed and delivered by each
of the Company and JSC and is a valid and
binding agreement of each of the Company and
JSC, enforceable against each of the Company and
JSC in accordance with its terms except to the
extent that (a) enforcement thereof may be limited
by (1) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and
(2) general principles of equity (regardless of
whether enforceability is considered in a
proceeding at law or in equity) and (b) the waiver
contained in Section 3.17 of each Indenture may
be deemed unenforceable;
<PAGE>
8
(iv) each of the Indentures has been
duly qualified under the Trust Indenture Act of
1939;
(v) the Securities have been duly
authorized by the Company and, when executed
and authenticated in accordance with the
provisions of the applicable Indenture and
delivered to and paid for by the Underwriter in
accordance with the terms of this Agreement, will
be entitled to the benefits of the applicable
Indenture and will be valid and binding
obligations of the Company, enforceable against
the Company in accordance with their terms
except to the extent that (a) enforcement thereof
may be limited by (1) bankruptcy, insolvency,
reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors'
rights generally and (2) general principles of
equity (regardless of whether enforceability is
considered in a proceeding at law or in equity)
and (b) the waiver contained in Section 3.17 of
each Indenture may be deemed unenforceable;
(vi) each of the Guarantees has been
duly authorized by JSC and, upon execution and
delivery of the applicable Indenture by JSC and
when the Securities have been authenticated in
accordance with the provisions of the applicable
Indenture, will be entitled to the benefits of the
applicable Indenture and will be a valid and
binding obligation of JSC, enforceable against JSC
in accordance with its terms except to the extent
that (a) enforcement thereof may be limited by (1)
bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and
(2) general principles of equity (regardless of
whether enforceability is considered in a
proceeding at law or in equity) and (b) the waiver
contained in Section 3.17 of each Indenture may
be deemed unenforceable;
(vii) the execution and delivery by each
of the Company and JSC of, and the performance
by each of the Company and JSC of its
obligations under, this Agreement, the Indentures,
the Securities (in the case of the Company) and
the Guarantees (in the case of JSC) will not (a)
violate or result in a breach of any term of the
certificate of incorporation or by-laws of either the
Company or JSC, (b) based upon a review of
those laws, rules and regulations which, in such
counsel's experience, are normally applicable to
transactions of the type provided for in or by this
Agreement, the Securities, the Guarantees and the
Indentures, violate any provision of any federal or
New York State law or the General Corporation
Law of the State of Delaware, (c) conflict with
any of the agreements or instruments listed on
Schedule I thereto (except that such counsel need
not express an opinion as to any ratio or financial
or statistical covenant contained or incorporated in
any of the agreements or instruments listed on
Schedule I thereto), (d) to the best of such counsel's
<PAGE>
9
knowledge, violate any judgment, order
or decree of any New York or Delaware
governmental body, agency or court having
jurisdiction over the Company or JSC and (e)
based upon a review of those laws, rules and
regulations which, in such counsel's experience,
are normally applicable to transactions of the type
provided for in or by this Agreement, the
Securities, the Guarantees and the Indentures, no
consent, approval, authorization or order of, or
qualification with, any governmental body or
agency of the State of New York, the State of
Delaware or the United States is required for the
performance by the Company or JSC of its
respective obligations under this Agreement, the
Indentures, the Securities and the Guarantees,
except such as may be (1) required and have been
obtained under the Securities Act and the Trust
Indenture Act and (2) required by the securities or
Blue Sky laws of the various states in connection
with the offer and sale of the Securities and the
Guarantees;
(viii) the statements contained (1) in the
Prospectus under the caption "Description of the
Senior Notes" and "Risk Factors - Tax Net
Operating Loss Carryforwards" and (2) in the
Registration Statement under Item 15 of Form S-2
under the Securities Act, in each case insofar as
such statements constitute matters of law or legal
conclusions, have been reviewed by such counsel
and fairly present the information disclosed therein
in all material respects, and the provisions of the
contracts, agreements and instruments summarized
under the aforementioned caption and item
conform in all material respects to the descriptions
thereof in the Prospectus and the Registration
Statement;
(ix) to such counsel's knowledge, there
are no legal or governmental proceedings pending
or threatened to which the Company or JSC is a
party or to which any of their properties is subject
that are required to be described in the
Registration Statement or the Prospectus and are
not so described, and there are no statutes,
regulations, contracts or other documents that are
required to be described in the Registration
Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not
described or filed or incorporated by reference as
an exhibit thereto as required;
(x) the Registration Statement, as of its
effective date, and the Prospectus, as of its date,
complied as to form in all material respects with
the requirements of the Securities Act, the Trust
Indenture Act and the rules and regulations of the
Commission thereunder, except that, in each case,
such counsel need not express any opinion as to
the financial statements, schedules and other
financial or statistical information included in the
Registration Statement or the Prospectus or
excluded therefrom, or the exhibits to the
<PAGE>
10
Registration Statement, including each Statement
of Eligibility of the Trustee on Form T-1 (the
"Forms T-1"); and
(xi) neither the Company, JSC nor
SIBV/MS Holdings, Inc. (to be renamed Jefferson
Smurfit Corporation), a Delaware corporation, is
an "investment company", as such term is defined
in the Investment Company Act of 1940, as
amended.
In addition, such opinion shall state that such
counsel has participated in the preparation of the
Registration Statement and in conferences with officers
and other representatives of the Company and JSC, the
General Counsel of the Company and JSC,
representatives of the independent public accountants for
the Company and JSC, and with your representatives at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed and,
although such counsel need not pass upon or assume any
responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement
or the Prospectus and need not make any independent
check or verification thereof (other than to the extent set
forth in subparagraph (viii) above), on the basis of the
foregoing, no facts have come to the attention of such
counsel which have led such counsel to believe that either
the Registration Statement, as of the date it became
effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Prospectus, as of its date or as of
the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they
were made, not misleading; except that such counsel need
not express any opinion or belief with respect to the
financial statements, schedules and other financial or
statistical information included in the Registration
Statement or the Prospectus or excluded therefrom, or the
exhibits to the Registration Statement, including the
Forms T-1.
(d) You shall have received on the Closing
Date an opinion, dated the Closing Date, of Michael E.
Tierney, Vice President, General Counsel and Secretary
of the Company and JSC, substantially to the effect that
(i) each of the Company and JSC is
duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of
property requires such qualification, except to the
extent that the failure to be so qualified or be in
good standing would not have a material adverse
effect on the Company and JSC and their
respective subsidiaries, taken as a whole;
<PAGE>
11
(ii) each of JSC Enterprises, CCA
Enterprises and SNC has been duly organized, and
is subsisting in good standing as a corporation,
under the laws of the State of Delaware, and has
the corporate power and authority to own its
property and to conduct its business as described
in the Prospectus, and is duly qualified to transact
business and is in good standing in each
jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification, except to the extent that the failure
to be so qualified or be in good standing would
not have a material adverse effect on the
Company and JSC and their respective
subsidiaries, taken as a whole, and neither the
Company nor JSC has any "significant
subsidiaries" (as defined in Rule 1.02 of the
Commission's Regulation S-X) other than those
referred to above;
(iii) this Agreement has been duly
authorized, executed and delivered by each of the
Company and JSC;
(iv) each of the Indentures has been
duly authorized, executed and delivered by each
of the Company and JSC;
(v) the Securities have been duly
authorized and executed by the Company;
(vi) each of the Guarantees has been
duly authorized by JSC;
(vii) the execution and delivery by each
of the Company and JSC of, and the performance
by each of the Company and JSC of its
obligations under, this Agreement, the Indentures,
the Securities (in the case of the Company) and
the Guarantees (in the case of JSC) will not (a)
violate or result in a breach of any term of the
certificate of incorporation or by-laws of either the
Company or JSC, (b) conflict with any agreement
or other instrument binding upon the Company or
JSC or any of their respective subsidiaries that is
material to the Company and JSC and their
respective subsidiaries, taken as a whole (except
that such counsel need not express an opinion
with respect to the compliance by the Company
and JSC and their respective subsidiaries with any
ratio or financial or statistical covenant contained
or incorporated in any such agreement or
instrument), (c) to the best of such counsel's
knowledge, violate any judgment, order or decree
of any governmental body, agency or court having
jurisdiction over the Company or JSC or any of
their respective subsidiaries, and (d) no consent,
approval, authorization or order of, or qualification
with, any governmental body or agency is
required for the performance by the Company or
JSC of its respective obligations under this
Agreement, the Indentures, the Securities or the
Guarantees, except such as
<PAGE>
12
may be (1) required and have been obtained under the
Securities Act and the Trust Indenture Act and (2) required by
the securities or Blue Sky laws of the various
states in connection with the offer and sale of the
Securities and the Guarantees; and
(viii) to the best of such counsel's
knowledge, each of the Company and JSC (i) is in
compliance with any and all applicable federal,
state and local laws and regulations relating to the
protection of human health, the environment or
hazardous or toxic substances or wastes, pollutants
or contaminations ("Environmental Laws"), (ii)
has received all permits, licenses or other
approvals required of it under applicable
Environmental Laws to conduct its business and
(iii) is in compliance with all terms and conditions
of any such permit, license or approval, except
where such noncompliance with Environmental
Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the
terms and conditions of such permits, licenses or
approvals would not, individually or in the
aggregate, have a material adverse effect on the
Company and JSC and their respective
subsidiaries, taken as a whole.
(e) You shall have received on the Closing
Date an opinion, dated the
Closing Date, of Shearman & Sterling, counsel for the
Underwriter, covering the matters referred to in
subparagraphs (ii), (iii), (iv), (v), (vi), (viii) (but only as
to the statements in the Prospectus under "Description of
the Senior Notes" and "The Underwriter") and (x), as
well as the last subparagraph, of paragraph (c) above.
The opinion of Skadden, Arps, Slate, Meagher &
Flom and of Michael E. Tierney described in paragraphs
(c) and (d) above shall be rendered to you at the request
of the Company and JSC, and shall so state therein.
(f) You shall have received, on each of the
date hereof and the Closing Date, a letter dated the date
hereof or the Closing Date, as the case may be, in form
and substance satisfactory to you, from Ernst & Young,
independent public accountants for the Company,
containing statements and information of the type
ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and
certain financial information contained in the Registration
Statement and the Prospectus.
(g) JSC and the Company shall have (i)
entered into a loan agreement (the "New Bank Facilities")
with a syndicate of banks with Chemical Bank as
administrative agent providing for term loans in the
aggregate amount of $1.2 billion and a revolving credit
facility in the amount of $450 million to be available to
JSC and the Company and (ii) borrowed under the New
Bank Facilities at least an amount
<PAGE>
13
equal to the amount that, together with the net proceeds from the
sale of the Securities, the SIBV Investment and the Equity Offerings
(each as described in the Prospectus), is sufficient to
repay all amounts outstanding under the 1989 Credit
Agreement, the Secured Notes and the 1992 Credit
Agreement, all as described in the Prospectus. The New
Bank Facilities shall contain terms and conditions no less
favorable in any material respect to the Company, JSC
and SIBV/MS Holdings, Inc. (to be renamed Jefferson
Smurfit Corporation) (the "Parent") than the description
thereof set forth in the Registration Statement when it
was declared effective. The Company shall have
provided to you and your counsel copies of all closing
documents delivered to the parties to the New Bank
Facilities as you or your counsel shall have reasonably
requested.
(h) A supplemental indenture reflecting the
Proposed 1993 Note Amendment (as described in the
Prospectus) to the Indenture relating to the Company's
9 3/4% Senior Notes due 2003 shall have been executed
and become operative according to its terms.
(i) In each case as described in the
Prospectus, (i) the Reclassification shall have been
completed, (ii) the Parent, Smurfit International B.V.
("SIBV") and The Morgan Stanley Leveraged Equity
Fund II, L.P. shall have entered into the Stockholders
Agreement, (iii) the certificates of incorporation and
bylaws of each of the Company, JSC and the Parent shall
have been amended as described in the Prospectus and
(iv) the Company, JSC and the Parent shall have received
all consents or waivers in writing with respect to all
material agreements under which consents or waivers are
required to permit consummation of the Recapitalization
Plan.
The obligations of the Underwriter hereunder are also
subject to the concurrent closing of (i) the sale of ___ shares of
the Parent's Common Stock to SIBV for a purchase price of
$100 million (the "SIBV Investment") and (ii) the sale of ____
shares of the Parent's Common Stock pursuant to the
Underwriting Agreement between the Parent and Morgan Stanley
& Co. Incorporated, Kidder, Peabody & Co. Incorporated and
Salomon Brothers Inc, as representatives of the U.S.
Underwriters thereunder, and Morgan Stanley & Co.
International Limited, Kidder, Peabody International Limited,
Salomon Brothers International Limited and S.G. Warburg
Securities, as representatives of the International Underwriters
thereunder, of even date herewith (the "Equity Offerings").
VI.
In further consideration of the agreements of the
Underwriter herein contained, each of the Company and JSC
covenants as follows:
<PAGE>
14
(a) To furnish to you, without charge, two
signed copies of the Registration Statement (including
exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus
and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.
(b) Before amending or supplementing the
Registration Statement or the Prospectus, to furnish to
you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment
or supplement to which you reasonably object, unless, in
the reasonable judgment of the Company, JSC and their
counsel, such amendment or supplement is necessary to
comply with law, in which case, before amending or
supplementing the Registration Statement or Prospectus,
the Company or JSC will furnish you a copy of such
proposed amendment or supplement and permit you a
reasonable opportunity to comment thereon.
(c) If, during such period after the first date of
the public offering of the Securities as in the opinion of
your counsel the Prospectus is required by law to be
delivered in connection with sales by the Underwriter or
a dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if, in the
opinion of your counsel, it is necessary to amend or
supplement the Prospectus to comply with law, forthwith
to prepare, file with the Commission and furnish, at its
own expense, to the Underwriter and to the dealers
(whose names and addresses you will furnish to the
Company and JSC) to which Securities may have been
sold by you and to any other dealers upon request, either
amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Securities for
offer and sale under the securities or Blue Sky laws of
such jurisdictions as you shall reasonably request and to
pay all expenses (including reasonable fees and
disbursements of counsel) in connection with such
qualification and in connection with (i) the determination
of the eligibility of the Securities for investment under
the laws of such jurisdictions as you may designate and
(ii) any review of the offering of the Securities by the
National Association of Securities Dealers, Inc.; provided
that neither the Company nor JSC shall be obligated to so
qualify the Securities if such qualification requires it to
file any general consent to service of process or to
register or qualify as a foreign corporation in any
jurisdiction in which it is not so registered or qualified.
<PAGE>
15
(e) To make generally available to the
Company's security holders and to you as soon as
practicable an earnings statement covering the twelve-
month period ending June 30, 1995 that satisfies the
provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(f) During the period beginning on the date
hereof and continuing to and including the Closing Date,
not to offer, sell, contract to sell or otherwise dispose of
any debt securities of the Company or warrants to
purchase debt securities of the Company substantially
similar to the Securities (other than the Securities)
without your prior written consent.
(g) To use the net proceeds received (i) by the
Company and JSC from the sale of the Securities
hereunder and (ii) from the Parent's sales of Common
Stock pursuant to the Equity Offerings and the SIBV
Investment, in the manner specified in the Prospectus
under the captions "Use of Proceeds" and
"Recapitalization Plan".
(h) To pay all document production charges
and expenses of Shearman & Sterling, counsel for the
Underwriter (but not including their fees for professional
services), in connection with the preparation of this
Agreement.
VII.
The Company and JSC agree jointly and severally
to indemnify and hold harmless the Underwriter and each
person, if any, who controls the Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other
expenses reasonably incurred by the Underwriter or any such
controlling person in connection with defending or investigating
any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or
supplemented if the Company or JSC shall have furnished any
amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information
relating to the Underwriter furnished to the Company and JSC in
writing by the Underwriter expressly for use therein; provided
that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of the
Underwriter or any person controlling the Underwriter, if a copy
of the Prospectus (as then amended or supplemented if the
Company shall have furnished to the
<PAGE>
16
Underwriter any amendments or supplements thereto) was not sent or given by or
on behalf of the Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation
of the sale of the Securities to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
The Underwriter agrees to indemnify and hold
harmless the Company and JSC, their directors, their officers
who sign the Registration Statement and each person, if any,
who controls the Company or JSC within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the
Company and JSC to the Underwriter, but only with reference to
information relating to the Underwriter furnished to the
Company and JSC in writing by the Underwriter expressly for
use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any
governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party")
in writing, and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any
others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they
are incurred. Such firm shall be designated in writing by
Morgan Stanley & Co. Incorporated, in the case of parties
indemnified pursuant to the second preceding paragraph, and by
the Company or JSC, as the case may be, in the case of parties
indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled
with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment, but only to the extent
provided by the first and second paragraphs of this Article VII.
Notwithstanding the
<PAGE>
17
foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first or
second paragraph of this Article VII is unavailable to an
indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company and JSC on the one hand and the Underwriter on the
other hand from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also
the relative fault of the Company or JSC on the one hand and of
the Underwriter on the other hand in connection with the
statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company
and JSC on the one hand and the Underwriter on the other hand
from the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the
offering of the Securities (before deducting expenses) received
by the Company and the total underwriting discounts and
commissions received by the Underwriter, in each case as set
forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative
fault of the Company or JSC on the one hand and of the
Underwriter on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the
Company or JSC or by the Underwriter and the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, JSC and the Underwriter agree that
it would not be just or equitable if contribution pursuant to this
Article VII were determined by pro rata allocation or by any
other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or
<PAGE>
18
payable by an indemnified party
as a result of the losses, claims, damages and liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Article VII, the
Underwriter shall not be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that
the Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The remedies provided for
in this Article VII are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution provisions
contained in this Article VII and the representations and
warranties of the Company and JSC contained in this Agreement
shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation
made by or on behalf of the Underwriter or any person
controlling the Underwriter or by or on behalf of the Company
or JSC, their officers or directors or any person controlling the
Company or JSC and (iii) acceptance of and payment for any of
the Securities.
VIII.
This Agreement shall be subject to termination by
notice given by you to the Company and JSC, if (a) after the
execution and delivery of this Agreement and prior to the
Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange
or the Chicago Board of Trade, (ii) trading of any securities of
the Company or JSC shall have been suspended on any exchange
or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been
declared by either federal or New York State authorities or (iv)
there shall have occurred any outbreak or escalation of hostilities
or any change in financial markets or any calamity or crisis that,
in your judgment, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iv), such
event singly or together with any other such event makes it, in
your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Prospectus.
<PAGE>
19
IX.
This Agreement shall become effective upon the
later of (x) execution and delivery hereof by the parties hereto
and (y) release of notification of the effectiveness of the
Registration Statement by the Commission.
If this Agreement shall be terminated by the
Underwriter because of any failure or refusal on the part of the
Company or JSC to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the
Company or JSC shall be unable to perform its obligations under
this Agreement or if this Agreement is terminated pursuant to
Article VIII hereof, the Company and JSC will reimburse the
Underwriter for all out-of-pocket expenses (including the fees
and disbursements of its counsel) reasonably incurred by the
Underwriter in connection with this Agreement or the offering
contemplated hereunder. The Company shall not in any event be
liable to the Underwriter for loss of anticipated profits from the
transactions contemplated by this Agreement.
This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same
instrument.
<PAGE>
20
<PAGE>
This Agreement shall be governed by and
construed in accordance with the internal laws of the State of
New York.
Very truly yours,
CONTAINER CORPORATION OF AMERICA
By ..............................
Name:
Title:
JEFFERSON SMURFIT CORPORATION
By .............................
Name:
Title:
Accepted, __________, 1994
MORGAN STANLEY & CO.
INCORPORATED
By ..............................
Name:
Title:
<PAGE>
[LETTERHEAD OF A.G. EDWARDS & SONS, INC.]
Container Corporation of America
Jefferson Smurfit Centre
8182 Maryland Avenue
St. Louis, MO 63105
Dear Sirs:
This letter will confirm that Container Corporation of America ('CCA') has
engaged A.G. Edwards & Sons, Inc. ('Edwards') to serve as the 'qualified
independent underwriter' (as such term is defined in Section 2(1) of Schedule E
of the By-Laws of the National Association of Securities Dealers, Inc. (the
'NASD'), with respect to the Registration Statement on Form S-2 (the
'Registration Statement') of CCA covering the sale of % Series A Senior Notes
due 2004 and % Series B Senior Notes due 2002.
As CCA has requested, we will perform the functions of a qualified
independent underwriter, including participation in the preparation of the
Registration Statement, performance of due diligence and recommendation of the
minimum yield at which the Securities can be offered to the public. Upon
completion of our assignment, we will be prepared to issue a certificate and a
pricing opinion, substantially in the forms attached hereto.
The fee for our services as qualified independent underwriter will be an
amount agreed upon among us. We understand that CCA will pay our fee and our out
of pocket expenses. We also understand that you will request that the services
of Sherman & Sterling be available to us in our capacity as qualified
independent underwriter without charge to us.
We will require indemnification from CCA. A copy of our standard form of
indemnification is enclosed for your review and signature.
We look forward to working with you on this assignment, and if the terms of
this agreement are satisfactory to you, please sign the enclosed copy of this
letter and return it to me.
Sincerely,
/s/ DOUGLAS E. REYNOLDS
Douglas E. Reynolds
Vice President
Agreed to and Accepted
CONTAINER CORPORATION OF AMERICA
By: /s/ PATRICK J. MOORE
Date: April 7, 1994
<PAGE>
<PAGE>
April 4, 1994
A.G. Edwards & Sons, Inc.
One North Jefferson Avenue
St. Louis, MO 63103
Container Corporation of America
% Series A Senior Notes Due 2004
% Series B Senior Notes Due 2002
Gentlemen:
A.G. Edwards & Sons, Inc. ('Edwards') is being engaged by Container
Corporation of America ('CCA') to act in accordance with the letter agreement
dated April 4, 1994 attached hereto (the 'Letter Agreement').
In connection with said engagement, CCA agrees to indemnify, defend and
hold harmless Edwards, its directors, officers, employees, representatives or
agents and each person, if any, who controls Edwards within the meaning of
either Section 15 of the Securities Act of 1933, as amended (the 'Act'), or
Section 20 of the Securities Exchange Act of 1934, as amended (the 'Exchange
Act'; each of Edwards and such persons being, individually, an 'Indemnified
Party' and, collectively, the 'Indemnified Parties'), from and against any loss,
expense, liability or claim (including any reasonable investigation, legal or
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted) arising out of or
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (as defined below) or the
Prospectus (as defined below), as amended or supplemented, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as any such loss, expense, liability or claim is caused by any such
untrue statement or omission based upon information furnished to CCA or Morgan
Stanley & Co. Incorporated in writing by Edwards expressly for use therein,
or (ii) Edwards' activities under the Letter Agreement, except insofar as any
such loss, expense, liability or claim is found in final judgment in a court
of competent jurisdiction to have arisen solely out of willful misconduct
or gross negligence of Edwards. In connection with the foregoing clause (i),
CCA hereby acknowledges that the statements set forth under the heading
'The Underwriter' in the Prospectus insofar as such statements relate to Edwards
constitute the only information furnished in writing by Edwards for use in the
Prospectus. As used in this letter, the term 'Registration Statement' means
the registration statement on Form S-2 (including the related preliminary
prospectuses, financial statements, exhibits and all other documents filed or to
be filed as part thereof or incorporated therein) for the registration of the
offer and sale of certain % Series A Senior Notes due 2004 and % Series
B Senior Notes due 2002 of CCA under the Act filed with the Securities and
Exchange Commission, as amended (including information (if any) deemed to be
part of the Registration Statement at the time of effectiveness pursuant to Rule
430A under the Act); the term 'Prospectus' means the prospectus in the form
first used to confirm sales of the Securities.
If any proceeding for which indemnification is available under the
preceding paragraph (including any governmental investigation) is brought
against any Indemnified Party, such Indemnified Party shall promptly notify CCA
in writing of the institution of such proceeding and CCA, upon request of the
Indemnified Party, shall assume the defense of such proceeding including the
employment of counsel and payment of expenses. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (i) CCA and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) CCA shall not have employed counsel to have
charge of the defense of such proceeding or (iii) the named parties to any such
proceeding (including any impleaded parties) include both CCA and the
Indemnified Party and representation of both parties by the same counsel would,
in the reasonable opinion of CCA's counsel, be inappropriate due to actual or
potential differing interests between them (in which case CCA shall not have
the right to direct the defense of such proceeding on behalf of the Indemnified
Party or Parties), in any of which events such reasonable fees and expenses
shall be borne by CCA (it being understood, however, that CCA shall not be
liable for the expenses of more than one separate counsel in any one proceeding
or series of related proceedings in the same jurisdiction representing the
Indemnified Parties who are parties to such proceeding). Anything in this letter
to the contrary notwithstanding, CCA shall not be liable for any settlement
of any such proceeding effected without its written consent, which consent shall
not be unreasonably withheld.
<PAGE>
<PAGE>
If the indemnification provided for in this letter is unavailable to an
Indemnified Party in respect of any losses, expenses, liabilities or claims
referred to herein, then CCA, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by CCA on the one hand
and Edwards on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also, if applicable, the relative fault of
CCA on the one hand and Edwards on the other in connection with the statements
or omissions in the Registration Statement or the Prospectus (as amended or
supplemented) which resulted in such losses, expenses, liabilities or claims as
well as any other relevant equitable considerations. The relative benefits
received by CCA on the one hand and Edwards on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering of the
Securities (net of underwriting discounts and commissions but before deducting
expenses) received by CCA bear to the fee paid to Edwards by CCA pursuant to the
Letter Agreement. The relative fault of CCA on the one hand and of Edwards on
the other shall be determined by reference to, if applicable and among other
things, whether the untrue or alleged untrue statement of a material fact in the
Registration Statement or the Prospectus (as amended or supplemented), or the
omission or alleged omission to state therein a material fact, relates to
information supplied by CCA or by Edwards and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
CCA and Edwards agree that it would not be just and equitable if
contribution pursuant to this letter were determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this letter, Edwards shall not be
required to contribute any amount in excess of the amount of the fee it
receives, as set forth in the Letter Agreement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. CCA agrees that all reasonable expenses incurred by an
Indemnified Party which are payable by CCA pursuant to the indemnification or
contribution provisions of this letter will be reimbursed by CCA to such
Indemnified Party as they are billed to CCA.
The indemnity and contribution agreements contained in this letter and the
representations, warranties and covenants of CCA contained in the Letter
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of Edwards, or any person who controls Edwards within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of CCA, its directors and officers or any person who controls CCA within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Letter Agreement or the issuance and
delivery of the Securities. Each of CCA and Edwards agrees promptly to notify
the other party hereto of the commencement of any litigation, or proceeding
against it and, in the case of CCA, against any of CCA's officers and directors,
in connection with (i) the offering and sale of the Securities or (ii) the
Registration Statement or the Prospectus.
Please confirm your agreement hereto by signing and returning the attached
copy of this letter.
Sincerely,
CONTAINER CORPORATION OF AMERICA
/s/ PATRICK J. MOORE
By: .................................
Name: Patrick J. Moore
Title: Vice President and Treasurer
Confirmed and agreed to as of
the date first above written:
A.G. EDWARDS & SONS, INC.
By: /s/ DOUGLAS E. REYNOLDS
..................................
Name: Douglas E. Reynolds
Title: Vice President
<PAGE>
[LETTERHEAD OF A.G. EDWARDS & SONS, INC.]
<PAGE>
April 4, 1994
Container Corporation of America
Jefferson Smurfit Centre
8182 Maryland Avenue
St. Louis, MO 63105
Dear Sirs:
This is to confirm that the amount we have agreed upon between us for our
services as the qualified independent underwriter with respect to the
Registration Statement on Form S-2 of Container Corporation of America ('CCA')
covering the sale of % Series A Senior Notes due 2004 and % Series B Senior
Notes due 2002 (collectively with the % Series A Senior Notes due 2004,
the 'Senior Notes') by CCA will be $175,000. Additionally, our out-of-pocket
expenses will be reimbursed by CCA.
It is our understanding that the aggregate principal amount of the Senior Notes
to be issued is not expected to exceed $400 million.
The engagement letter dated April 4, 1994 contains the other provisions of our
agreement. If the above is satisfactory to you, would you please sign the copy
of this letter and return it to me.
Sincerely,
/s/ DOUGLAS E. REYNOLDS
Douglas E. Reynolds
Vice President
Agreed to and Accepted
CONTAINER CORPORATION OF AMERICA
By: /s/ PATRICK J. MOORE
Date: April 7, 1994
<PAGE>
BY-LAWS
OF
JEFFERSON SMURFIT CORPORATION (U.S.)
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places both within and
without the State of Delaware as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any
other purpose shall be held at such time and place,
either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meet-
ings of stockholders shall be held on such date and at
such time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meet-
ing, at which meetings the stockholders shall elect
directors by a plurality vote, and transact such other
business as may properly be brought before the meeting.
Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the
date of the meeting.
<PAGE>
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the Certificate of Incorporation
as it may be amended from time to time (the "Certificate
of Incorporation"), special meetings of stockholders, for
any purpose or purposes, may be called by any of (i) the
Chairman of the Board of Directors, (ii) the President,
(iii) any Vice President, or (iv) the Secretary, and
shall be called by any such officer at the request in
writing of a majority of the entire Board of Directors.
Such request shall state the purpose or purposes of the
proposed meeting. Written notice of a special meeting of
stockholders stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting
is called shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise pro-
vided by law or by the Certificate of Incorporation, the
holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction
of business. If, however, such quorum shall not be
present or represented at any meeting of the stockhold-
ers, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represent-
ed, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at
the meeting.
Section 5. Voting. Unless otherwise required
by law, the Certificate of Incorporation or these By-
Laws, any question brought before any meeting of stock-
holders shall be decided by the vote of the holders of a
majority of the capital stock represented and entitled to
vote thereat. Each stockholder represented at a meeting
of stockholders shall be entitled to cast one vote for
each share of the capital stock entitled to vote thereat
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<PAGE>
held by such stockholder or such other vote as set forth
in the Certificate of Incorporation. Such votes may be
cast in person or by proxy but no proxy shall be voted on
or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in
its discretion, or the officer of the Corporation presid-
ing at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast
by written ballot.
Section 6. Consent of Stockholders in Lieu of
Meeting. Unless otherwise provided in the Certificate of
Incorporation or these By-Laws, any action required or
permitted to be taken at any annual or special meeting of
stockholders of the Corporation, may be taken without a
meeting, without prior notice and without a vote, if a
consent in writing setting forth the action so taken,
shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that
would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who
have not consented.
Section 7. List of Stockholders Entitled to
Vote. The officer of the Corporation who has charge of
the stock ledger of the Corporation shall prepare and
make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders enti-
tled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and
the number of shares registered in the name of each
stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meet-
ing, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting of stockholders,
either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be pro-
duced and kept at the time and place of the meeting of
stockholders during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is
present.
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Section 8. Stock Ledger. The stock ledger of
the Corporation shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger,
the list required by Section 7 of this Article II or the
books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 9. Nomination of Directors. Only
persons who are nominated in accordance with the follow-
ing procedures shall be eligible for election as direc-
tors of the Corporation, except as may be otherwise
provided in the Certificate of Incorporation of the
Corporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect
a specified number of directors in certain circumstances.
Nominations of persons for election to the Board of
Directors may be made at any annual meeting of stockhold-
ers (a) by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice provid-
ed for in this Section 8 and on the record date for the
determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice
procedures set forth in this Section 9.
In addition to any other applicable require-
ments, for a nomination to be made by a stockholder, such
stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preced-
ing annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
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<PAGE>
To be in proper written form, a stockholder's
notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business ad-
dress and residence address of the person, (ii) the
principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
record by the person and (iv) any other information
relating to the person that would be required to be
disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended from time to
time (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder
giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and
any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stock-
holder intends to appear in person or by proxy at the
annual meeting to nominate the persons named in its
notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a
director of the Corporation unless nominated in accor-
dance with the procedures set forth in this Section 9. If
the officer presiding at an annual meeting of stockhold-
ers determines that a nomination was not made in accor-
dance with the foregoing procedures, such officer shall
declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
5
<PAGE>
Section 10. Business at Annual Meetings. No
business may be transacted at an annual meeting of stock-
holders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly autho-
rized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of
the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this
Section 10 and on the record date for the determination
of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set
forth in this Section 10.
In addition to any other applicable require-
ments, for business to be properly brought before an
annual meeting by a stockholder, such stockholder must
have given timely notice thereof in proper written form
to the Secretary of the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preced-
ing annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii)
the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
6
<PAGE>
record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder
and any other person or persons (including their names)
in connection with the proposal of such business by such
stockholder and any material interest of such stockholder
in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual
meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set
forth in this Section 10; provided, however, that, once
business has been properly brought before the annual
meeting in accordance with such procedures, nothing in
this Section 10 shall be deemed to preclude discussion by
any stockholder of any such business. If the officer
presiding at an annual meeting of stockholders determines
that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, such
officer shall declare to the meeting that the business
was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The Board of Directors shall consist of not less than
three (3) nor more than fifteen (15) members, the exact
number of which shall initially upon the adoption of these
By-Laws be eight (8) (consisting of the Corporation's six (6)
directors who are holding office at such time and two (2)
vacancies) and, thereafter, shall be fixed from time to time by
resolution of the Board of Directors adopted in accor-
dance with Section 5 of this Article III; provided,
however, that until such time, if any, as the Board of
Directors adopts such resolution, the Board of Directors
shall consist of eight members. Except as provided in
Section 2 of this Article III, directors shall be elected
by a plurality of the votes cast at annual meetings of
stockholders, and each director so elected shall hold
office until the next such annual meeting and until his
successor is duly elected and qualified, or until his
earlier death or incapacity, resignation, retirement,
disqualification or removal from office. Any director
7
<PAGE>
may resign at any time upon notice to the Corporation.
Directors need not be stockholders.
Section 2. Vacancies. Subject to the terms of
any one or more classes or series of preferred stock of
the Corporation, newly created directorships resulting
from any increase in the number of directors (including the
two vacancies in the Board of Directors existing as of the
adoption of these By-Laws) and any vacancies in the Board of
Directors resulting from death or incapacity, resignation,
retirement, disqualification or removal from office may be filled
only by the affirmative vote of a majority of the directors then
in office, though less than a quorum, or by a sole remaining director,
in a manner consistent with the terms of the Stock-
holders Agreement, and directors so elected shall hold
office until the next annual meeting of stockholders and
until their successors are duly elected and qualified, or
until their earlier death or incapacity, resignation,
retirement, disqualification or removal from office.
Section 3. Duties and Powers. The business of
the Corporation shall be managed by or under the direc-
tion of the Board of Directors which may exercise all
such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certifi-
cate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders. The
aforesaid powers of the Board of Directors shall include,
but shall in no way be limited to, the power to authorize
any of the specific actions set forth on Schedule I
attached to these By-Laws in accordance with the provi-
sions of Section 5 of this Article III, and such specific
actions shall be within the exclusive province of the
Board of Directors, as prescribed by law, the Certificate
of Incorporation or these By-Laws, and shall not be
delegated to any officer, employee or agent of the Corpo-
ration.
Section 4. Meetings. The Board of Directors of
the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from
time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called
by the Chairman of the Board of Directors, if there be
one, the President, or any director. Notice thereof
stating the place, date and hour of the meeting and the
matters to be acted on at such meeting shall be
8
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given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting
(and, if such notice is given by mail within seven (7)
days prior to the date of the meeting, concurrently by
telephone, telegram, facsimile, telex or cable), by tele-
phone, telegram on twenty-four (24) hours' notice, or on
such shorter notice as the person or persons calling such
meeting may deem necessary or appropriate in the circum-
stances.
Section 5. Quorum; Actions by Board. Except as may
be otherwise specifically provided by law, the Certificate of Incorpo-
ration or these By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of
the Board of Directors; provided, however, that, notwithstanding
anything to the contrary contained in these By-Laws, until the
Trigger Event, the approval of (i) the Required Majority
at any meeting at which there is a quorum present and
(ii) two directors who are SIBV Nominees and two direc-
tors who are MSLEF II Nominees, shall be required to
authorize the actions set forth in Schedule I attached to
these By-Laws. Without limiting the foregoing, unless
the MS Holders' collective ownership of Holdings Common
Stock shall be in Tier 5, during any period when the
Board of Directors does not consist of eight (or more)
members then serving, all actions of the Board of Direc-
tors shall require the approval of at least one director
who is a SIBV Nominee and one director who is a MSLEF II
Nominee. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum
shall be present.
For purposes of these By-Laws, the following
terms shall have the respective meanings set forth below:
"Holdings Common Stock" shall mean the Common
Stock (as defined in the Stockholders Agreement) of
Holdings.
"MS Holders" shall have the meaning set forth
in the Stockholders Agreement.
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"MSLEF II Nominees" shall have the meaning set
forth in the Stockholders Agreement.
"Required Majority" shall mean a number of
directors equal to the sum of (i) a majority of the
entire Board of Directors and (i) one. In the event that
the Board of Directors consists of eight members, the Re-
quired Majority shall be six directors.
"SIBV Nominees" shall have the meaning set
forth in the Stockholders Agreement.
"Stockholders Agreement" shall mean the stock-
holders agreement, dated as of April __, 1994, among
SIBV/MS Holdings, Inc. (to be renamed Jefferson Smurfit
Corporation), a Delaware corporation and the parent of
the Corporation ("Holdings"), Smurfit International B.V.,
a corporation organized under the laws of The Netherlands
("SIBV"), The Morgan Stanley Leveraged Equity Fund II,
L.P., a Delaware limited partnership ("MSLEF II"), and
the other parties thereto, as it may be amended from time
to time.
"Tier 1", "Tier 2" and "Tier 5" shall have the
respective meanings set forth in the Stockholders Agree-
ment.
"Trigger Event" shall mean the MS Holders'
collective ownership of Holdings Common Stock not being
in Tier 1 or Tier 2.
Section 6. Action by Written Consent. Unless otherwise
provided by the Certificate of Incorporation or these By-
Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all the mem-
bers of the Board of Directors or any committee thereof,
as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of pro-
ceedings of the Board of Directors or such committee.
Section 7. Meetings by Means of Conference
Telephone. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, members of the Board
of Directors of the Corporation, or any committee desig-
nated by the Board of Directors, may participate in a
meeting of the Board of Directors or such committee by
10
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means of a conference telephone or similar communications
equipment by means of which all persons participating in
the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
Section 8. Committees. The Board of Directors
may, by resolution passed by the Required Majority (or,
after the Trigger Event, by a majority of the entire
Board of Directors), designate one or more committees,
each committee to consist of one or more of the directors
of the Corporation who shall be appointed to such committee
by the Board of Directors. The Board of Directors may designate
one or more directors as alternate members of any commit-
tee, who may replace any absent or disqualified member at
any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the
absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified
member, another director may be designated to act at the
meeting in the place of any absent or disqualified member
by the Required Majority (or, after the Trigger Event, by
a majority of the entire Board of Directors). Any com-
mittee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and
may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs
of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when re-
quired.
Section 9. Compensation. The directors may be
paid their expenses, if any, of attendance at each meet-
ing of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors
and/or a stated salary as director. No such payment
shall preclude any director from serving the Corporation
in any other capacity and receiving compensation there-
for. Members of special or standing committees may be
allowed like compensation for attending committee meet-
ings.
Section 10. Interested Directors. No contract
or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and
any other corporation, partnership, association, or other
organization in which one or more of its directors or
officers are directors or officers, or have a financial
11
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interest, shall be void or voidable solely for this
reason, or solely because the director or officer is
present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or
interest and as to the contract or transaction are dis-
closed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may
be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the
Corporation shall be chosen by the Board of Directors (or
by a duly appointed committee thereof (the "Appointment
Committee")) and shall be a Chairman of the Board of
Directors (who must be a director), a President, a Secre-
tary, a Chief Financial Officer and a Treasurer. The
Board of Directors (or, if there be one, the Appointment
Committee), in its discretion, may also choose one or
more Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may
be held by the same person, unless otherwise prohibited
by law, the Certificate of Incorporation or these By-
Laws. The officers of the Corporation need not be stock-
holders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be
directors of the Corporation.
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Section 2. Election. The Board of Directors
(or, if there be one, the Appointment Committee) at its
first annual meeting held after each annual meeting of
stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors
(or, if there be one, the Appointment Committee); and all
officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their
earlier death or incapacity, resignation, retirement,
disqualification or removal from office. Any officer
elected by the Board of Directors (or, if there be one,
the Appointment Committee) may be removed at any time by
the affirmative vote of a majority of the directors pres-
ent at any meeting of the Board of Directors at which
there is a quorum (or, if there be an Appointment Commit-
tee, a majority of its members). Any vacancy occurring
in any office of the Corporation shall be filled by the
Board of Directors (or, if there be one, the Appointment
Committee). Notwithstanding anything to the contrary in
these By-Laws, the compensation of all officers of the Corpora-
tion shall be determined in the manner provided in the By-Laws of Holdings.
Section 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relat-
ing to securities owned by the Corporation may be execut-
ed in the name of and on behalf of the Corporation by the
President or any Vice President and any such officer may,
in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security
holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and
may exercise any and all rights and powers incident to
the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and pos-
sessed if present. The Board of Directors may, by reso-
lution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors.
The Chairman of the Board of Directors shall preside at
all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the
President is required, the Chairman of the Board of
Directors shall possess the same power as the President
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to sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board
of Directors (or, if there be one, the Appointment Com-
mittee). During the absence or disability of the Presi-
dent, the Chairman of the Board of Directors shall exer-
cise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors shall
also perform such other duties and may exercise such
other powers as from time to time may be assigned to him
by these By-Laws or by the Board of Directors (or, if
there be one, the Appointment Committee).
Section 5. President. The President shall,
subject to the control of the Board of Directors and, if
there be one, the Chairman of the Board of Directors,
have general supervisory powers of the business of the
Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect. He
shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under
the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may
sign and execute documents when so authorized by these
By-Laws, the Board of Directors (or, if there be one, the
Appointment Committee) or the President. In the absence
or disability of the Chairman of the Board of Directors,
or if there be none, the President shall preside at all
meetings of the stockholders and of the Board of Direc-
tors. The President may be the Chief Executive Officer
of the Corporation. The President shall also perform
such other duties and may exercise such other powers as
from time to time may be assigned to him by these By-Laws
or by the Board of Directors (or, if there be one, the
Appointment Committee).
Section 6. Vice Presidents. At the request of
the President or in his absence or in the event of his
inability or refusal to act (and if there be no Chairman
of the Board of Directors), the Vice President or the
Vice Presidents if there is more than one (in the order
designated by the Board of Directors or, if there be one,
the Appointment Committee) shall perform the duties of
the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the
President. Each Vice President shall perform such other
duties and have such other powers as the Board of Direc-
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<PAGE>
tors (or, if there be one, the Appointment Committee)
from time to time may prescribe. If there be no Chairman
of the Board of Directors and no Vice President, the
Board of Directors (or, if there be one, the Appointment
Committee) shall designate the officer of the Corporation
who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall
attend all meetings of the Board of Directors and all
meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose;
the Secretary shall also perform like duties for the
standing committees of the Board of Directors when re-
quired. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of
Directors (or, if there be one, the Appointment Commit-
tee) or President, under whose supervision he shall be.
If the Secretary shall be unable or shall refuse to cause
to be given notice of all meetings of the stockholders
and special meetings of the Board of Directors, and if
there be no Assistant Secretary, then either the Board of
Directors (or, if there be one, the Appointment Commit-
tee) or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody
of the seal of the Corporation and the Secretary or any
Assistant Secretary, if there be one, shall have authori-
ty to affix the same to any instrument requiring it and
when so affixed, it may be attested by the signature of
the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors (or, if there be one,
the Appointment Committee) may give general authority to
any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secre-
tary shall see that all books, reports, statements,
certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as
the case may be.
Section 8. Chief Financial Officer. The Chief
Financial Officer shall exercise general supervision over
the finances of the Corporation and shall supervise and
15
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be responsible for all matters pertaining to the raising
of debt and equity capital and cash management functions
of the Corporation. He shall render periodically such
balance sheets and other financial statements or reports
relating to the business of the Corporation as may be
required pursuant to the Stockholders Agreement, by the
Board of Directors, the Chairman of the Board of Direc-
tors, the President or any other authorized officer of
the Corporation. The Chief Financial Officer shall be a Vice President.
Section 9. Treasurer. The Treasurer shall
have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Direc-
tors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties
of his office and for the restoration to the Corporation,
in case of his death or incapacity, resignation, retire-
ment, disqualification or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in his possession or under his control
belonging to the Corporation.
Section 10. Assistant Secretaries. Except as
may be otherwise provided in these By-Laws, Assistant
Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors (or, if there be one,
the Appointment Committee), the President, any Vice
President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of his disabili-
ty or refusal to act, shall perform the duties of the
Secretary, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Secre-
tary.
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Section 11. Assistant Treasurers. Assistant
Treasurers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors (or, if there be one,
the Appointment Committee), the President, any Vice
President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disabili-
ty or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Trea-
surer. If required by the Board of Directors, an Assis-
tant Treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satis-
factory to the Board of Directors for the faithful per-
formance of the duties of his office and for the restora-
tion to the Corporation, in case of his death or incapac-
ity, resignation, retirement, disqualification or removal
from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or
under his control belonging to the Corporation.
Section 12. Other Officers. Such other offi-
cers as the Board of Directors (or, if there be one, the
Appointment Committee) may choose shall perform such
duties and have such powers as from time to time may be
assigned to them by the Board of Directors (or, if there
be one, the Appointment Committee). The Board of Direc-
tors (or, if there be one, the Appointment Committee) may
delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe
their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder
of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation (i) by
the Chairman of the Board of Directors, the President or
a Vice President and (ii) by the Treasurer or an Assis-
tant Treasurer, or the Secretary or an Assistant Secre-
tary of the Corporation, certifying the number of shares
owned by him in the Corporation.
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Section 2. Signatures. Any or all of the
signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, trans-
fer agent or registrar before such certificate is issued,
it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar
at the date of issue.
Section 3. Lost Certificates. The Board of
Directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the Corpo-
ration alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost,
stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its dis-
cretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or de-
stroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of Direc-
tors shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with
respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corpora-
tion shall be transferable in the manner prescribed by
law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person
named in the certificate or by his attorney lawfully
constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a
new certificate shall be issued.
Section 5. Record Date. In order that the
Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent
to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in ad-
18
<PAGE>
vance, a record date, which shall not be more than sixty
(60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stock-
holders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation
shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares of
capital stock to receive dividends, and to vote as such
owner, and to hold liable for calls and assessments a
person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the
part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise
provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice
is required by law, the Certificate of Incorporation or
these By-Laws to be given to any director, member of a
committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee
or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States
mail. Written notice may also be given personally or by
telegram, facsimile, telex or cable.
Section 2. Waivers of Notice. Whenever any
notice is required by law, the Certificate of Incorpora-
tion or these By-Laws to be given to any director, member
of a committee or stockholder, a waiver thereof in writ-
ing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the
capital stock of the Corporation, if any, may, subject to
the provisions of the Certificate of Incorporation, be
declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or
in shares of the capital stock. Before payment of any
dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for re-
pairing or maintaining any property of the Corporation,
or for any proper purpose, and the Board of Directors may
modify or abolish any such reserve.
Section 2. Disbursements. All checks or de-
mands for money and notes of the Corporation shall be
signed by such officer or officers or such other person
or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of
the Corporation shall be fixed by resolution of the Board
of Directors.
Section 4. Corporate Seal. The corporate seal
shall have inscribed thereon the name of the Corporation,
and may have inscribed thereon the year of its organiza-
tion and the words "Corporate Seal, Delaware". The seal
may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions,
Suits or Proceedings other than those by or in the Right
of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceed-
20
<PAGE>
ing, whether civil, criminal, administrative or investi-
gative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a
director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the
request of the Corporation as a director, officer, trust-
ee, administrator, employee or agent of another corpora-
tion, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably be-
lieved to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions,
Suits or Proceedings by or in the Right of the Corpora-
tion. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threat-
ened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director
or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the
Corporation as a director, officer, trustee, administra-
tor, employee or agent of another corporation, partner-
ship, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connec-
tion with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reason-
ably believed to be in or not opposed to the best inter-
ests of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be
21
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liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such
action or suit was brought shall determine upon applica-
tion that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification.
Any indemnification under this Article VIII (unless
ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination
that indemnification of the director or officer is proper
in the circumstances because he has met the applicable
standard of conduct set forth in Section 1 or Section 2
of this Article VIII, as the case may be. Such determi-
nation shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or
(ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so di-
rects, by independent legal counsel in a written opinion,
or (iii) by the stockholders. To the extent, however,
that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense
of any claim, issue or matter therein, he shall be indem-
nified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes
of any determination under Section 3 of this Article
VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books
of account of the Corporation or another enterprise, or
on information supplied to him by the officers of the
Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corpo-
ration or another enterprise or on information or records
given or reports made to the Corporation or another
22
<PAGE>
enterprise by an independent certified public accountant
or by an appraiser or other expert selected with reason-
able care by the Corporation or another enterprise. The
term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise
of which such person is or was serving at the request of
the Corporation as a director, officer, trustee, adminis-
trator, employee or agent. The provisions of this Sec-
tion 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed
to have met the applicable standard of conduct set forth
in Sections 1 or 2 of this Article VIII, as the case may
be.
Section 5. Indemnification by a Court. Not-
withstanding any contrary determination in the specific
case under Section 3 of this Article VIII, and notwith-
standing the absence of any determination thereunder, any
director or officer may apply to any court of competent
jurisdiction in the State of Delaware for indemnification
to the extent otherwise permissible under Sections 1 and
2 of this Article VIII. The basis of such indemnifica-
tion by a court shall be a determination by such court
that indemnification of the director or officer is proper
in the circumstances because he has met the applicable
standards of conduct set forth in Sections 1 or 2 of this
Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of
this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or
create a presumption that the director or officer seeking
indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corpora-
tion promptly upon the filing of such application. If
successful, in whole or in part, the director or officer
seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.
Section 6. Expenses Payable in Advance.
Expenses (including, without limitation, attorneys fees)
actually and reasonably incurred by a director or officer
in defending or investigating a threatened or pending ac-
tion, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on
23
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behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as autho-
rized in this Article VIII.
Section 7. Nonexclusivity of Indemnification
and Advancement of Expenses. The indemnification and ad-
vancement of expenses provided by or granted pursuant to
this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law,
agreement, contract, vote of stockholders or disinterest-
ed directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and
as to action in another capacity while holding such
office, it being the policy of the Corporation that
indemnification of, and advances of expenses to, the per-
sons specified in Sections 1 and 2 of this Article VIII
shall be made to the fullest extent permitted by law.
The provisions of this Article VIII shall not be deemed
to preclude the indemnification of, and advancement of
expenses to, any person who is not specified in Sections
1 or 2 of this Article VIII but whom the Corporation has
the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware,
or otherwise.
Section 8. Insurance. The Corporation may
purchase and maintain insurance on behalf of any person
who is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director,
officer, trustee, administrator, employee or agent of
another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or
the obligation to indemnify him against such liability
under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes
of this Article VIII, references to "the Corporation"
shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger
24
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which, if its separate existence had continued, would
have had power and authority to indemnify its directors
or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was
a director or officer of such constituent corporation
serving at the request of such constituent corporation as
a director, officer, trustee, administrator, employee or
agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such con-
stituent corporation if its separate existence had con-
tinued. For purposes of this Article VIII, references to
"fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation"
shall include any service as a director, officer, trust-
ee, administrator, employee or agent of the Corporation
which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit
plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably be-
lieved to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best inter-
ests of the Corporation" as referred to in this Article
VIII.
Section 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and ad-
vancement of expenses obligations set forth in this
Article VIII shall inure to the benefit of the heirs,
executors, administrators and personal representatives of
those persons entitled thereto and shall be binding upon
any successor to the Corporation to the fullest extent
permitted by law. Neither any amendment or repeal of the
provisions of this Article VIII nor adoption of any
provision of the Certificate of Incorporation or of these
By-Laws which is inconsistent with the provisions of this
Article VIII shall adversely affect any right or protec-
tion of a person existing at the time of such amendment,
repeal or adoption with respect to actions, suits or
proceedings relating to acts or omissions of such person
occurring prior to such amendment, repeal or adoption.
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<PAGE>
Section 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VIII
to the contrary, except for proceedings to enforce rights
to indemnification and rights to advancement of expenses
(which shall be governed by Section 5 hereof), the Corpo-
ration shall not be obligated to indemnify, or advance
expenses to, any director or officer in connection with a
proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized
or consented to by the Board of Directors of the Corpora-
tion.
Section 12. Indemnification of Employees and
Agents. The Corporation may, to the extent authorized
from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation simi-
lar to those conferred in this Article VIII to directors
and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may not be altered,
amended or repealed, in whole or in part, nor may new By-
Laws be adopted, except by the Required Majority (or,
after the Trigger Event, a majority of the entire Board
of Directors) or by the affirmative vote of the stock-
holders holding at least two-thirds of the voting power
of the Corporation's then outstanding capital stock
entitled to vote thereon; provided, that notice of such
alteration, amendment, repeal or adoption of new By-Laws
be contained in the notice of such meeting of stockhold-
ers or Board of Directors, as the case may be.
Section 2. Entire Board of Directors. As used
in these By-Laws generally, the term "entire Board of
Directors" means the total number of directors which the
Corporation would have if there were no vacancies.
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Schedule I
1. Amendment of the Certificate of Incorpora-
tion or By-Laws of the Corporation or any of its subsid-
iaries.
2. Issuance, sale, purchase, redemption,
conversion or exchange of any capital stock, warrants,
options or other securities of the Corporation or any of
its subsidiaries (other than, in the case of any issuance
or sale, to the Corporation or Holdings or any direct or
indirect wholly owned subsidiary of Holdings) except as
may be otherwise provided in these By-Laws.
3. Establishment of and appointments to any
audit committee.
4. Sale of assets to or from the Corporation
or any of its subsidiaries in excess of $20 million in
one or a series of transactions or in any number of
transactions within a six month period (other than trans-
actions among Holdings and any of its direct or indirect
wholly owned subsidiaries or among any of Holdings'
direct or indirect wholly owned subsidiaries).
5. Sale of assets between the Corporation or
any of its subsidiaries and Jefferson Smurfit Group plc,
a company organized under the laws and purchases of the Republic of
Ireland ("JSG"), or any of JSG's Affiliates (as defined
below), in excess of $5 million in one or a series of
transactions or in any number of transactions within a
six month period (other than sales and purchases of inventory in the
normal course of the Corporation's business consistent
with the requirements of its business).
6. Merger, consolidation, dissolution or
liquidation of the Corporation or any of its subsidiar-
ies, except for mergers or consolidations of subsidiaries
of Holdings, the Corporation or Container Corporation of
America, a Delaware corporation ("CCA"), with other sub-
sidiaries of Holdings, the Corporation or CCA (other than
a merger or consolidation involving Holdings, the Corpo-
ration or CCA, except as contemplated by the
Corporation's Registration Statement (File no. 33-52383)
relating to its debt offering).
<PAGE>
7. Filing of any petition by or on behalf of
the Corporation seeking relief under the federal bank-
ruptcy act or similar relief under any law or statute of
the United States or any state thereof.
8. Setting aside, declaration or making of any
payment or distribution by way of dividend or otherwise
to the stockholders of the Corporation or any of its
subsidiaries (or setting dividend policy with respect
thereto), except for any such payments or distributions
made or to be made to Holdings or any of its direct or
indirect wholly owned subsidiaries.
9. Incurrence of new indebtedness (including
capitalized leases) in excess of $10 million.
10. Creation or incurrence of a lien or encum-
brance on the property of the Corporation or any of its
subsidiaries, except for liens related to the Refinancing
(as defined in the Stockholders Agreement), liens related
to any indebtedness incurred pursuant to paragraph 9 of
this Schedule I or other minor liens, including liens for
taxes or those arising by operation of law, permitted to
exist under the terms of the Refinancing (or any other
material amount of indebtedness for borrowed money).
11. Guarantees in excess of $10 million of
payment by or performance of obligations of third parties
other than in the ordinary course of business.
12. The Corporation's or any of its
subsidiaries' institution, termination or settlement of
material litigation or litigation not in the ordinary
course of the Corporation's business (in each case where
such litigation represents a case or controversy in
excess of $10 million).
13. Surrendering or abandoning any property,
tangible or intangible, or any rights having a book value
in excess of $10 million.
14. Any commitment or action of the Corpora-
tion or any of its subsidiaries (other than in the ordi-
nary course of its business) which creates a liability or
commitment (fixed or contingent) in excess of $15 mil-
lion.
<PAGE>
15. Capital expenditures in excess of accumu-
lated depreciation allowance of the Corporation or any of
its subsidiaries (including all accumulated depreciation
allowances to date) (calculated in accordance with gener-
ally accepted accounting principles).
16. Donations of money or property in a given
fiscal year significantly in excess of the amounts his-
torically donated by the Corporation in such period
subject to an annual 5% increase.
17. Any investment of the Corporation or any
of its subsidiaries in JSG or any of its Affiliates.
18. Any investment of the Corporation or any
of its subsidiaries in another corporation, partnership
or joint venture in excess of $15 million (in one or a
series of related transactions or in any number of trans-
actions within six months), other than an investment in
the Corporation or any of its direct or indirect wholly
owned subsidiaries.
19. Entering into any lease (other than a
capitalized lease) of any assets of the Corporation
located in any one place having a book value in excess of
$20 million or in excess of $10 million, if the lease has
a term of more than five years.
20. Entering into agreements or material
transactions between the Corporation and a (or adopting
any incentive, compensation or other benefit plan cover-
ing any) director or officer of any of the following
entities or their Affiliates: Holdings, the Corporation,
CCA, JSG, SIBV, and MSLEF II.
21. Replacement of independent accountants for
the Corporation or any of its subsidiaries.
22. Modification of significant accounting
methods, practices, procedures and policies except as
required by generally accepted accounting principles.
23. The increase or decrease of the number of
directors comprising the Corporation's Board of Direc-
tors.
<PAGE>
24. Any decision registration of any securi-
ties.
For purposes of this Schedule I, "Affiliate"
shall have the meaning ascribed to such term in Rule 12b-
2 of the General Rules and Regulations under the Exchange
Act or any successor provision.
Capitalized terms used in this Schedule I and
not otherwise defined herein shall have the respective
meanings set forth in the By-Laws to which this Schedule
I is attached.
<PAGE>
BY-LAWS
OF
CONTAINER CORPORATION OF AMERICA
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places both within and
without the State of Delaware as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any
other purpose shall be held at such time and place,
either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meet-
ings of stockholders shall be held on such date and at
such time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meet-
ing, at which meetings the stockholders shall elect
directors by a plurality vote, and transact such other
business as may properly be brought before the meeting.
Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the
date of the meeting.
<PAGE>
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the Certificate of Incorporation
as it may be amended from time to time (the "Certificate
of Incorporation"), special meetings of stockholders, for
any purpose or purposes, may be called by any of (i) the
Chairman of the Board of Directors, (ii) the President,
(iii) any Vice President, or (iv) the Secretary, and
shall be called by any such officer at the request in
writing of a majority of the entire Board of Directors.
Such request shall state the purpose or purposes of the
proposed meeting. Written notice of a special meeting of
stockholders stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting
is called shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise pro-
vided by law or by the Certificate of Incorporation, the
holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction
of business. If, however, such quorum shall not be
present or represented at any meeting of the stockhold-
ers, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represent-
ed, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at
the meeting.
Section 5. Voting. Unless otherwise required
by law, the Certificate of Incorporation or these By-
Laws, any question brought before any meeting of stock-
holders shall be decided by the vote of the holders of a
majority of the capital stock represented and entitled to
vote thereat. Each stockholder represented at a meeting
of stockholders shall be entitled to cast one vote for
each share of the capital stock entitled to vote thereat
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<PAGE>
held by such stockholder or such other vote as set forth
in the Certificate of Incorporation. Such votes may be
cast in person or by proxy but no proxy shall be voted on
or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in
its discretion, or the officer of the Corporation presid-
ing at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast
by written ballot.
Section 6. Consent of Stockholders in Lieu of
Meeting. Unless otherwise provided in the Certificate of
Incorporation or these By-Laws, any action required or
permitted to be taken at any annual or special meeting of
stockholders of the Corporation, may be taken without a
meeting, without prior notice and without a vote, if a
consent in writing setting forth the action so taken,
shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that
would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who
have not consented.
Section 7. List of Stockholders Entitled to
Vote. The officer of the Corporation who has charge of
the stock ledger of the Corporation shall prepare and
make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders enti-
tled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and
the number of shares registered in the name of each
stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meet-
ing, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting of stockholders,
either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be pro-
duced and kept at the time and place of the meeting of
stockholders during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is
present.
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Section 8. Stock Ledger. The stock ledger of
the Corporation shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger,
the list required by Section 7 of this Article II or the
books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 9. Nomination of Directors. Only
persons who are nominated in accordance with the follow-
ing procedures shall be eligible for election as direc-
tors of the Corporation, except as may be otherwise
provided in the Certificate of Incorporation of the
Corporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect
a specified number of directors in certain circumstances.
Nominations of persons for election to the Board of
Directors may be made at any annual meeting of stockhold-
ers (a) by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice provid-
ed for in this Section 8 and on the record date for the
determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice
procedures set forth in this Section 9.
In addition to any other applicable require-
ments, for a nomination to be made by a stockholder, such
stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preced-
ing annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
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<PAGE>
To be in proper written form, a stockholder's
notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business ad-
dress and residence address of the person, (ii) the
principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
record by the person and (iv) any other information
relating to the person that would be required to be
disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended from time to
time (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder
giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and
any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stock-
holder intends to appear in person or by proxy at the
annual meeting to nominate the persons named in its
notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a
director of the Corporation unless nominated in accor-
dance with the procedures set forth in this Section 9. If
the officer presiding at an annual meeting of stockhold-
ers determines that a nomination was not made in accor-
dance with the foregoing procedures, such officer shall
declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
5
<PAGE>
Section 10. Business at Annual Meetings. No
business may be transacted at an annual meeting of stock-
holders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly autho-
rized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of
the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this
Section 10 and on the record date for the determination
of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set
forth in this Section 10.
In addition to any other applicable require-
ments, for business to be properly brought before an
annual meeting by a stockholder, such stockholder must
have given timely notice thereof in proper written form
to the Secretary of the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preced-
ing annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii)
the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
6
<PAGE>
record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder
and any other person or persons (including their names)
in connection with the proposal of such business by such
stockholder and any material interest of such stockholder
in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual
meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set
forth in this Section 10; provided, however, that, once
business has been properly brought before the annual
meeting in accordance with such procedures, nothing in
this Section 10 shall be deemed to preclude discussion by
any stockholder of any such business. If the officer
presiding at an annual meeting of stockholders determines
that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, such
officer shall declare to the meeting that the business
was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The Board of Directors shall consist of not less than
three (3) nor more than fifteen (15) members, the exact
number of which shall initially upon the adoption of
these By-Laws be eight (8) (consisting of the Corporation's
six (6) directors who are holding office at such time and
two (2) vacancies) and, thereafter, shall be fixed from
time to time by
resolution of the Board of Directors adopted in accor-
dance with Section 5 of this Article III; provided,
however, that until such time, if any, as the Board of
Directors adopts such resolution, the Board of Directors
shall consist of eight members. Except as provided in
Section 2 of this Article III, directors shall be elected
by a plurality of the votes cast at annual meetings of
stockholders, and each director so elected shall hold
office until the next such annual meeting and until his
successor is duly elected and qualified, or until his
earlier death or incapacity, resignation, retirement,
disqualification or removal from office. Any director
7
<PAGE>
may resign at any time upon notice to the Corporation.
Directors need not be stockholders.
Section 2. Vacancies. Subject to the terms of
any one or more classes or series of preferred stock of
the Corporation, newly created directorships resulting
from any increase in the number of directors (including
the two vacancies in the Board of Directors existing as
of the adoption of these By-Laws) and any
vacancies in the Board of Directors resulting from death
or incapacity, resignation, retirement, disqualification
or removal from office may be filled only by the affirma-
tive vote of a majority of the directors then in office,
though less than a quorum, or by a sole remaining direc-
tor, in a manner consistent with the terms of the Stock-
holders Agreement, and directors so elected shall hold
office until the next annual meeting of stockholders and
until their successors are duly elected and qualified, or
until their earlier death or incapacity, resignation,
retirement, disqualification or removal from office.
Section 3. Duties and Powers. The business of
the Corporation shall be managed by or under the direc-
tion of the Board of Directors which may exercise all
such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certifi-
cate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders. The
aforesaid powers of the Board of Directors shall include,
but shall in no way be limited to, the power to authorize
any of the specific actions set forth on Schedule I
attached to these By-Laws in accordance with the provi-
sions of Section 5 of this Article III, and such specific
actions shall be within the exclusive province of the
Board of Directors, as prescribed by law, the Certificate
of Incorporation or these By-Laws, and shall not be
delegated to any officer, employee or agent of the Corpo-
ration.
Section 4. Meetings. The Board of Directors of
the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from
time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called
by the Chairman of the Board of Directors, if there be
one, the President, or any director. Notice thereof
stating the place, date and hour of the meeting and the
matters to be acted on at such meeting shall be
8
<PAGE>
given to each director either by mail not less than
forty-eight (48) hours before the date of the meeting
(and, if such notice is given by mail within seven (7)
days prior to the date of the meeting, concurrently by
telephone, telegram, facsimile, telex or cable), by tele-
phone, telegram, facsimile, telex or cable on twenty-four
(24) hours' notice, or on such shorter notice as the
person or persons calling such meeting may deem necessary
or appropriate in the circumstances.
Section 5. Quorum; Actions by Board. Except
as may be otherwise
specifically provided by law, the Certificate of Incorpo-
ration or these By-Laws, at all meetings of the Board of
Directors, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any
meeting at which there is a quorum shall be the act of
the Board of Directors; provided, however, that,
notwithstanding anything to the contrary contained in these
By-Laws, until the
Trigger Event, the approval of (i) the Required Majority
at any meeting at which there is a quorum present and
(ii) two directors who are SIBV Nominees and two direc-
tors who are MSLEF II Nominees, shall be required to
authorize the actions set forth in Schedule I attached to
these By-Laws. Without limiting the foregoing, unless
the MS Holders' collective ownership of Holdings Common
Stock shall be in Tier 5, during any period when the
Board of Directors does not consist of eight (or more)
members then serving, all actions of the Board of Direc-
tors shall require the approval of at least one director
who is a SIBV Nominee and one director who is a MSLEF II
Nominee. If a quorum shall not be present at any meeting
of the Board of Directors, the directors present thereat
may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum
shall be present.
For purposes of these By-Laws, the following
terms shall have the respective meanings set forth below:
"Holdings Common Stock" shall mean the Common
Stock (as defined in the Stockholders Agreement) of
Holdings.
"MS Holders" shall have the meaning set forth
in the Stockholders Agreement.
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"MSLEF II Nominees" shall have the meaning set
forth in the Stockholders Agreement.
"Required Majority" shall mean a number of
directors equal to the sum of (i) a majority of the
entire Board of Directors and (i) one. In the event that
the Board of Directors consists of eight members, the Re-
quired Majority shall be six directors.
"SIBV Nominees" shall have the meaning set
forth in the Stockholders Agreement.
"Stockholders Agreement" shall mean the stock-
holders agreement, dated as of April __, 1994, among
SIBV/MS Holdings, Inc. (to be renamed Jefferson Smurfit
Corporation), a Delaware corporation and the parent of
the Corporation ("Holdings"), Smurfit International B.V.,
a corporation organized under the laws of The Netherlands
("SIBV"), The Morgan Stanley Leveraged Equity Fund II,
L.P., a Delaware limited partnership ("MSLEF II"), and
the other parties thereto, as it may be amended from time
to time.
"Tier 1", "Tier 2" and "Tier 5" shall have the
respective meanings set forth in the Stockholders Agree-
ment.
"Trigger Event" shall mean the MS Holders'
collective ownership of Holdings Common Stock not being
in Tier 1 or Tier 2.
Section 6. Action by Written Consent. Unless otherwise
provided by the Certificate of Incorporation or these By-
Laws, any action required or permitted to be taken at any
meeting of the Board of Directors or of any committee
thereof may be taken without a meeting, if all the mem-
bers of the Board of Directors or any committee thereof,
as the case may be, consent thereto in writing, and the
writing or writings are filed with the minutes of pro-
ceedings of the Board of Directors or such committee.
Section 7. Meetings by Means of Conference
Telephone. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, members of the Board
of Directors of the Corporation, or any committee desig-
nated by the Board of Directors, may participate in a
meeting of the Board of Directors or such committee by
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means of a conference telephone or similar communications
equipment by means of which all persons participating in
the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
Section 8. Committees. The Board of Directors
may, by resolution passed by the Required Majority (or,
after the Trigger Event, by a majority of the entire
Board of Directors), designate one or more committees,
each committee to consist of one or more of the directors
of the Corporation who shall be appointed to such committee
by the Board of Directors. The Board of Directors may designate
one or more directors as alternate members of any commit-
tee, who may replace any absent or disqualified member at
any meeting of any such committee. In the absence or
disqualification of a member of a committee, and in the
absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified
member, another director may be designated to act at the
meeting in the place of any absent or disqualified member
by the Required Majority (or, after the Trigger Event, by
a majority of the entire Board of Directors). Any com-
mittee, to the extent allowed by law and provided in the
resolution establishing such committee, shall have and
may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs
of the Corporation. Each committee shall keep regular
minutes and report to the Board of Directors when re-
quired.
Section 9. Compensation. The directors may be
paid their expenses, if any, of attendance at each meet-
ing of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors
and/or a stated salary as director. No such payment
shall preclude any director from serving the Corporation
in any other capacity and receiving compensation there-
for. Members of special or standing committees may be
allowed like compensation for attending committee meet-
ings.
Section 10. Interested Directors. No contract
or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and
any other corporation, partnership, association, or other
organization in which one or more of its directors or
officers are directors or officers, or have a financial
11
<PAGE>
interest, shall be void or voidable solely for this
reason, or solely because the director or officer is
present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or
interest and as to the contract or transaction are dis-
closed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may
be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the
Corporation shall be chosen by the Board of Directors (or
by a duly appointed committee thereof (the "Appointment
Committee")) and shall be a Chairman of the Board of
Directors (who must be a director), a President, a Secre-
tary, a Chief Financial Officer and a Treasurer. The
Board of Directors (or, if there be one, the Appointment
Committee), in its discretion, may also choose one or
more Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may
be held by the same person, unless otherwise prohibited
by law, the Certificate of Incorporation or these By-
Laws. The officers of the Corporation need not be stock-
holders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be
directors of the Corporation.
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Section 2. Election. The Board of Directors
(or, if there be one, the Appointment Committee) at its
first annual meeting held after each annual meeting of
stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors
(or, if there be one, the Appointment Committee); and all
officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their
earlier death or incapacity, resignation, retirement,
disqualification or removal from office. Any officer
elected by the Board of Directors (or, if there be one,
the Appointment Committee) may be removed at any time by
the affirmative vote of a majority of the directors pres-
ent at any meeting of the Board of Directors at which
there is a quorum (or, if there be an Appointment Commit-
tee, a majority of its members). Any vacancy occurring
in any office of the Corporation shall be filled by the
Board of Directors (or, if there be one, the Appointment
Committee). Notwithstanding anything to the contrary in
these By-Laws, the compensation of all officers of the Corpora-
tion shall be determined in the manner provided in the By-Laws
of Holdings.
Section 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relat-
ing to securities owned by the Corporation may be execut-
ed in the name of and on behalf of the Corporation by the
President or any Vice President and any such officer may,
in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security
holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and
may exercise any and all rights and powers incident to
the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and pos-
sessed if present. The Board of Directors may, by reso-
lution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors.
The Chairman of the Board of Directors shall preside at
all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the
President is required, the Chairman of the Board of
Directors shall possess the same power as the President
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to sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board
of Directors (or, if there be one, the Appointment Com-
mittee). During the absence or disability of the Presi-
dent, the Chairman of the Board of Directors shall exer-
cise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors shall
also perform such other duties and may exercise such
other powers as from time to time may be assigned to him
by these By-Laws or by the Board of Directors (or, if
there be one, the Appointment Committee).
Section 5. President. The President shall,
subject to the control of the Board of Directors and, if
there be one, the Chairman of the Board of Directors,
have general supervisory powers of the business of the
Corporation and shall see that all orders and resolutions
of the Board of Directors are carried into effect. He
shall execute all bonds, mortgages, contracts and other
instruments of the Corporation requiring a seal, under
the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may
sign and execute documents when so authorized by these
By-Laws, the Board of Directors (or, if there be one, the
Appointment Committee) or the President. In the absence
or disability of the Chairman of the Board of Directors,
or if there be none, the President shall preside at all
meetings of the stockholders and of the Board of Direc-
tors. The President may be the Chief Executive Officer
of the Corporation. The President shall also perform
such other duties and may exercise such other powers as
from time to time may be assigned to him by these By-Laws
or by the Board of Directors (or, if there be one, the
Appointment Committee).
Section 6. Vice Presidents. At the request of
the President or in his absence or in the event of his
inability or refusal to act (and if there be no Chairman
of the Board of Directors), the Vice President or the
Vice Presidents if there is more than one (in the order
designated by the Board of Directors or, if there be one,
the Appointment Committee) shall perform the duties of
the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the
President. Each Vice President shall perform such other
duties and have such other powers as the Board of Direc-
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tors (or, if there be one, the Appointment Committee)
from time to time may prescribe. If there be no Chairman
of the Board of Directors and no Vice President, the
Board of Directors (or, if there be one, the Appointment
Committee) shall designate the officer of the Corporation
who, in the absence of the President or in the event of
the inability or refusal of the President to act, shall
perform the duties of the President, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the President.
Section 7. Secretary. The Secretary shall
attend all meetings of the Board of Directors and all
meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose;
the Secretary shall also perform like duties for the
standing committees of the Board of Directors when re-
quired. The Secretary shall give, or cause to be given,
notice of all meetings of the stockholders and special
meetings of the Board of Directors, and shall perform
such other duties as may be prescribed by the Board of
Directors (or, if there be one, the Appointment Commit-
tee) or President, under whose supervision he shall be.
If the Secretary shall be unable or shall refuse to cause
to be given notice of all meetings of the stockholders
and special meetings of the Board of Directors, and if
there be no Assistant Secretary, then either the Board of
Directors (or, if there be one, the Appointment Commit-
tee) or the President may choose another officer to cause
such notice to be given. The Secretary shall have custody
of the seal of the Corporation and the Secretary or any
Assistant Secretary, if there be one, shall have authori-
ty to affix the same to any instrument requiring it and
when so affixed, it may be attested by the signature of
the Secretary or by the signature of any such Assistant
Secretary. The Board of Directors (or, if there be one,
the Appointment Committee) may give general authority to
any other officer to affix the seal of the Corporation
and to attest the affixing by his signature. The Secre-
tary shall see that all books, reports, statements,
certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as
the case may be.
Section 8. Chief Financial Officer. The Chief
Financial Officer shall exercise general supervision over
the finances of the Corporation and shall supervise and
15
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be responsible for all matters pertaining to the raising
of debt and equity capital and cash management functions
of the Corporation. He shall render periodically such
balance sheets and other financial statements or reports
relating to the business of the Corporation as may be
required pursuant to the Stockholders Agreement, by the
Board of Directors, the Chairman of the Board of Direc-
tors, the President or any other authorized officer of
the Corporation. The Chief Financial Officer shall be a
Vice President.
Section 9. Treasurer. The Treasurer shall
have the custody of the corporate funds and securities
and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and
shall deposit all moneys and other valuable effects in
the name and to the credit of the Corporation in such
depositories as may be designated by the Board of Direc-
tors. The Treasurer shall disburse the funds of the
Corporation as may be ordered by the Board of Directors,
taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so
requires, an account of all his transactions as Treasurer
and of the financial condition of the Corporation. If
required by the Board of Directors, the Treasurer shall
give the Corporation a bond in such sum and with such
surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties
of his office and for the restoration to the Corporation,
in case of his death or incapacity, resignation, retire-
ment, disqualification or removal from office, of all
books, papers, vouchers, money and other property of
whatever kind in his possession or under his control
belonging to the Corporation.
Section 10. Assistant Secretaries. Except as
may be otherwise provided in these By-Laws, Assistant
Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors (or, if there be one,
the Appointment Committee), the President, any Vice
President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of his disabili-
ty or refusal to act, shall perform the duties of the
Secretary, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Secre-
tary.
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Section 11. Assistant Treasurers. Assistant
Treasurers, if there be any, shall perform such duties
and have such powers as from time to time may be assigned
to them by the Board of Directors (or, if there be one,
the Appointment Committee), the President, any Vice
President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disabili-
ty or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers
of and be subject to all the restrictions upon the Trea-
surer. If required by the Board of Directors, an Assis-
tant Treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satis-
factory to the Board of Directors for the faithful per-
formance of the duties of his office and for the restora-
tion to the Corporation, in case of his death or incapac-
ity, resignation, retirement, disqualification or removal
from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or
under his control belonging to the Corporation.
Section 12. Other Officers. Such other offi-
cers as the Board of Directors (or, if there be one, the
Appointment Committee) may choose shall perform such
duties and have such powers as from time to time may be
assigned to them by the Board of Directors (or, if there
be one, the Appointment Committee). The Board of Direc-
tors (or, if there be one, the Appointment Committee) may
delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe
their respective duties and powers.
ARTICLE V
STOCK
Section 1. Form of Certificates. Every holder
of stock in the Corporation shall be entitled to have a
certificate signed, in the name of the Corporation (i) by
the Chairman of the Board of Directors, the President or
a Vice President and (ii) by the Treasurer or an Assis-
tant Treasurer, or the Secretary or an Assistant Secre-
tary of the Corporation, certifying the number of shares
owned by him in the Corporation.
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Section 2. Signatures. Any or all of the
signatures on a certificate may be a facsimile. In case
any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, trans-
fer agent or registrar before such certificate is issued,
it may be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar
at the date of issue.
Section 3. Lost Certificates. The Board of
Directors may direct a new certificate to be issued in
place of any certificate theretofore issued by the Corpo-
ration alleged to have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost,
stolen or destroyed. When authorizing such issue of a
new certificate, the Board of Directors may, in its dis-
cretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or de-
stroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of Direc-
tors shall require and/or to give the Corporation a bond
in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with
respect to the certificate alleged to have been lost,
stolen or destroyed.
Section 4. Transfers. Stock of the Corpora-
tion shall be transferable in the manner prescribed by
law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person
named in the certificate or by his attorney lawfully
constituted in writing and upon the surrender of the
certificate therefor, which shall be cancelled before a
new certificate shall be issued.
Section 5. Record Date. In order that the
Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent
to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in ad-
18
<PAGE>
vance, a record date, which shall not be more than sixty
(60) days nor less than ten (10) days before the date of
such meeting, nor more than sixty (60) days prior to any
other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stock-
holders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a
new record date for the adjourned meeting.
Section 6. Beneficial Owners. The Corporation
shall be entitled to recognize the exclusive right of a
person registered on its books as the owner of shares of
capital stock to receive dividends, and to vote as such
owner, and to hold liable for calls and assessments a
person registered on its books as the owner of shares,
and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the
part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise
provided by law.
ARTICLE VI
NOTICES
Section 1. Notices. Whenever written notice
is required by law, the Certificate of Incorporation or
these By-Laws to be given to any director, member of a
committee or stockholder, such notice may be given by
mail, addressed to such director, member of a committee
or stockholder, at his address as it appears on the
records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time
when the same shall be deposited in the United States
mail. Written notice may also be given personally or by
telegram, facsimile, telex or cable.
Section 2. Waivers of Notice. Whenever any
notice is required by law, the Certificate of Incorpora-
tion or these By-Laws to be given to any director, member
of a committee or stockholder, a waiver thereof in writ-
ing, signed by the person or persons entitled to said
notice, whether before or after the time stated therein,
shall be deemed equivalent thereto.
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ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the
capital stock of the Corporation, if any, may, subject to
the provisions of the Certificate of Incorporation, be
declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or
in shares of the capital stock. Before payment of any
dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for re-
pairing or maintaining any property of the Corporation,
or for any proper purpose, and the Board of Directors may
modify or abolish any such reserve.
Section 2. Disbursements. All checks or de-
mands for money and notes of the Corporation shall be
signed by such officer or officers or such other person
or persons as the Board of Directors may from time to
time designate.
Section 3. Fiscal Year. The fiscal year of
the Corporation shall be fixed by resolution of the Board
of Directors.
Section 4. Corporate Seal. The corporate seal
shall have inscribed thereon the name of the Corporation,
and may have inscribed thereon the year of its organiza-
tion and the words "Corporate Seal, Delaware". The seal
may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions,
Suits or Proceedings other than those by or in the Right
of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceed-
20
<PAGE>
ing, whether civil, criminal, administrative or investi-
gative (other than an action by or in the right of the
Corporation) by reason of the fact that he is or was a
director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the
request of the Corporation as a director, officer, trust-
ee, administrator, employee or agent of another corpora-
tion, partnership, joint venture, trust, employee benefit
plan or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably be-
lieved to be in or not opposed to the best interests of
the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction,
or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the
person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
Section 2. Power to Indemnify in Actions,
Suits or Proceedings by or in the Right of the Corpora-
tion. Subject to Section 3 of this Article VIII, the
Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threat-
ened, pending or completed action or suit by or in the
right of the Corporation to procure a judgment in its
favor by reason of the fact that he is or was a director
or officer of the Corporation, or is or was a director or
officer of the Corporation serving at the request of the
Corporation as a director, officer, trustee, administra-
tor, employee or agent of another corporation, partner-
ship, joint venture, trust, employee benefit plan or
other enterprise against expenses (including attorneys'
fees) actually and reasonably incurred by him in connec-
tion with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reason-
ably believed to be in or not opposed to the best inter-
ests of the Corporation; except that no indemnification
shall be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be
21
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liable to the Corporation unless and only to the extent
that the Court of Chancery or the court in which such
action or suit was brought shall determine upon applica-
tion that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court
shall deem proper.
Section 3. Authorization of Indemnification.
Any indemnification under this Article VIII (unless
ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination
that indemnification of the director or officer is proper
in the circumstances because he has met the applicable
standard of conduct set forth in Section 1 or Section 2
of this Article VIII, as the case may be. Such determi-
nation shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who
were not parties to such action, suit or proceeding, or
(ii) if such a quorum is not obtainable, or, even if
obtainable, a quorum of disinterested directors so di-
rects, by independent legal counsel in a written opinion,
or (iii) by the stockholders. To the extent, however,
that a director or officer of the Corporation has been
successful on the merits or otherwise in defense of any
action, suit or proceeding described above, or in defense
of any claim, issue or matter therein, he shall be indem-
nified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the
specific case.
Section 4. Good Faith Defined. For purposes
of any determination under Section 3 of this Article
VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books
of account of the Corporation or another enterprise, or
on information supplied to him by the officers of the
Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corpo-
ration or another enterprise or on information or records
given or reports made to the Corporation or another
22
<PAGE>
enterprise by an independent certified public accountant
or by an appraiser or other expert selected with reason-
able care by the Corporation or another enterprise. The
term "another enterprise" as used in this Section 4 shall
mean any other corporation or any partnership, joint
venture, trust, employee benefit plan or other enterprise
of which such person is or was serving at the request of
the Corporation as a director, officer, trustee, adminis-
trator, employee or agent. The provisions of this Sec-
tion 4 shall not be deemed to be exclusive or to limit in
any way the circumstances in which a person may be deemed
to have met the applicable standard of conduct set forth
in Sections 1 or 2 of this Article VIII, as the case may
be.
Section 5. Indemnification by a Court. Not-
withstanding any contrary determination in the specific
case under Section 3 of this Article VIII, and notwith-
standing the absence of any determination thereunder, any
director or officer may apply to any court of competent
jurisdiction in the State of Delaware for indemnification
to the extent otherwise permissible under Sections 1 and
2 of this Article VIII. The basis of such indemnifica-
tion by a court shall be a determination by such court
that indemnification of the director or officer is proper
in the circumstances because he has met the applicable
standards of conduct set forth in Sections 1 or 2 of this
Article VIII, as the case may be. Neither a contrary
determination in the specific case under Section 3 of
this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or
create a presumption that the director or officer seeking
indemnification has not met any applicable standard of
conduct. Notice of any application for indemnification
pursuant to this Section 5 shall be given to the Corpora-
tion promptly upon the filing of such application. If
successful, in whole or in part, the director or officer
seeking indemnification shall also be entitled to be paid
the expense of prosecuting such application.
Section 6. Expenses Payable in Advance.
Expenses (including, without limitation, attorneys fees)
actually and reasonably incurred by a director or officer
in defending or investigating a threatened or pending ac-
tion, suit or proceeding shall be paid by the Corporation
in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on
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<PAGE>
behalf of such director or officer to repay such amount
if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as autho-
rized in this Article VIII.
Section 7. Nonexclusivity of Indemnification
and Advancement of Expenses. The indemnification and ad-
vancement of expenses provided by or granted pursuant to
this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or
advancement of expenses may be entitled under any By-Law,
agreement, contract, vote of stockholders or disinterest-
ed directors or pursuant to the direction (howsoever
embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and
as to action in another capacity while holding such
office, it being the policy of the Corporation that
indemnification of, and advances of expenses to, the per-
sons specified in Sections 1 and 2 of this Article VIII
shall be made to the fullest extent permitted by law.
The provisions of this Article VIII shall not be deemed
to preclude the indemnification of, and advancement of
expenses to, any person who is not specified in Sections
1 or 2 of this Article VIII but whom the Corporation has
the power or obligation to indemnify under the provisions
of the General Corporation Law of the State of Delaware,
or otherwise.
Section 8. Insurance. The Corporation may
purchase and maintain insurance on behalf of any person
who is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director,
officer, trustee, administrator, employee or agent of
another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or
the obligation to indemnify him against such liability
under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes
of this Article VIII, references to "the Corporation"
shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger
24
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which, if its separate existence had continued, would
have had power and authority to indemnify its directors
or officers, so that any person who is or was a director
or officer of such constituent corporation, or is or was
a director or officer of such constituent corporation
serving at the request of such constituent corporation as
a director, officer, trustee, administrator, employee or
agent of another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise, shall
stand in the same position under the provisions of this
Article VIII with respect to the resulting or surviving
corporation as he would have with respect to such con-
stituent corporation if its separate existence had con-
tinued. For purposes of this Article VIII, references to
"fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation"
shall include any service as a director, officer, trust-
ee, administrator, employee or agent of the Corporation
which imposes duties on, or involves services by, such
director or officer with respect to an employee benefit
plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably be-
lieved to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed
to have acted in a manner "not opposed to the best inter-
ests of the Corporation" as referred to in this Article
VIII.
Section 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and ad-
vancement of expenses obligations set forth in this
Article VIII shall inure to the benefit of the heirs,
executors, administrators and personal representatives of
those persons entitled thereto and shall be binding upon
any successor to the Corporation to the fullest extent
permitted by law. Neither any amendment or repeal of the
provisions of this Article VIII nor adoption of any
provision of the Certificate of Incorporation or of these
By-Laws which is inconsistent with the provisions of this
Article VIII shall adversely affect any right or protec-
tion of a person existing at the time of such amendment,
repeal or adoption with respect to actions, suits or
proceedings relating to acts or omissions of such person
occurring prior to such amendment, repeal or adoption.
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<PAGE>
Section 11. Limitation on Indemnification.
Notwithstanding anything contained in this Article VIII
to the contrary, except for proceedings to enforce rights
to indemnification and rights to advancement of expenses
(which shall be governed by Section 5 hereof), the Corpo-
ration shall not be obligated to indemnify, or advance
expenses to, any director or officer in connection with a
proceeding (or part thereof) initiated by such person
unless such proceeding (or part thereof) was authorized
or consented to by the Board of Directors of the Corpora-
tion.
Section 12. Indemnification of Employees and
Agents. The Corporation may, to the extent authorized
from time to time by the Board of Directors, provide
rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation simi-
lar to those conferred in this Article VIII to directors
and officers of the Corporation.
ARTICLE IX
AMENDMENTS
Section 1. These By-Laws may not be altered,
amended or repealed, in whole or in part, nor may new By-
Laws be adopted, except by the Required Majority (or,
after the Trigger Event, a majority of the entire Board
of Directors) or by the affirmative vote of the stock-
holders holding at least two-thirds of the voting power
of the Corporation's then outstanding capital stock
entitled to vote thereon; provided, that notice of such
alteration, amendment, repeal or adoption of new By-Laws
be contained in the notice of such meeting of stockhold-
ers or Board of Directors, as the case may be.
Section 2. Entire Board of Directors. As used
in these By-Laws generally, the term "entire Board of
Directors" means the total number of directors which the
Corporation would have if there were no vacancies.
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Schedule I
1. Amendment of the Certificate of Incorpora-
tion or By-Laws of the Corporation or any of its subsid-
iaries.
2. Issuance, sale, purchase, redemption,
conversion or exchange of any capital stock, warrants,
options or other securities of the Corporation or any of
its subsidiaries (other than, in the case of any issuance
or sale, to the Corporation or Holdings or any direct or
indirect wholly owned subsidiary of Holdings) except as
may be otherwise provided in these By-Laws.
3. Establishment of and appointments to any
audit committee.
4. Sale of assets to or from the Corporation
or any of its subsidiaries in excess of $20 million in
one or a series of transactions or in any number of
transactions within a six month period (other than trans-
actions among Holdings and any of its direct or indirect
wholly owned subsidiaries or among any of Holdings'
direct or indirect wholly owned subsidiaries).
5. Sale of assets between the Corporation or
any of its subsidiaries and Jefferson Smurfit Group plc,
a company organized under the laws of the Republic of
Ireland ("JSG"), or any of JSG's Affiliates (as defined
below), in excess of $5 million in one or a series of
transactions or in any number of transactions within a
six month period (other than sales and purchases of
inventory in the
normal course of the Corporation's business consistent
with the requirements of its business).
6. Merger, consolidation, dissolution or
liquidation of the Corporation or any of its subsidiar-
ies, except for mergers or consolidations of subsidiaries
of Holdings, Jefferson Smurfit Corporation (U.S.), a
Delaware corporation and the parent of the Corporation
("JSC"), or the Corporation with other subsidiaries of
Holdings, JSC or the Corporation (other than a merger or
consolidation involving Holdings, JSC or the Corporation,
except as contemplated by the Corporation's Registration
Statement (File no. 33-52383) relating to its debt offer-
ing).
<PAGE>
7. Filing of any petition by or on behalf of
the Corporation seeking relief under the federal bank-
ruptcy act or similar relief under any law or statute of
the United States or any state thereof.
8. Setting aside, declaration or making of any
payment or distribution by way of dividend or otherwise
to the stockholders of the Corporation or any of its
subsidiaries (or setting dividend policy with respect
thereto), except for any such payments or distributions
made or to be made to Holdings or any of its direct or
indirect wholly owned subsidiaries.
9. Incurrence of new indebtedness (including
capitalized leases) in excess of $10 million.
10. Creation or incurrence of a lien or encum-
brance on the property of the Corporation or any of its
subsidiaries, except for liens related to the Refinancing
(as defined in the Stockholders Agreement), liens related
to any indebtedness incurred pursuant to paragraph 9 of
this Schedule I or other minor liens, including liens for
taxes or those arising by operation of law, permitted to
exist under the terms of the Refinancing (or any other
material amount of indebtedness for borrowed money).
11. Guarantees in excess of $10 million of
payment by or performance of obligations of third parties
other than in the ordinary course of business.
12. The Corporation's or any of its
subsidiaries' institution, termination or settlement of
material litigation or litigation not in the ordinary
course of the Corporation's business (in each case where
such litigation represents a case or controversy in
excess of $10 million).
13. Surrendering or abandoning any property,
tangible or intangible, or any rights having a book value
in excess of $10 million.
14. Any commitment or action of the Corpora-
tion or any of its subsidiaries (other than in the ordi-
nary course of its business) which creates a liability or
commitment (fixed or contingent) in excess of $15 mil-
lion.
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15. Capital expenditures in excess of accumu-
lated depreciation allowance of the Corporation or any of
its subsidiaries (including all accumulated depreciation
allowances to date) (calculated in accordance with gener-
ally accepted accounting principles).
16. Donations of money or property in a given
fiscal year significantly in excess of the amounts his-
torically donated by the Corporation in such period
subject to an annual 5% increase.
17. Any investment of the Corporation or any
of its subsidiaries in JSG or any of its Affiliates.
18. Any investment of the Corporation or any
of its subsidiaries in another corporation, partnership
or joint venture in excess of $15 million (in one or a
series of related transactions or in any number of trans-
actions within six months), other than an investment in
the Corporation or any of its direct or indirect wholly
owned subsidiaries.
19. Entering into any lease (other than a
capitalized lease) of any assets of the Corporation
located in any one place having a book value in excess of
$20 million or in excess of $10 million, if the lease has
a term of more than five years.
20. Entering into agreements or material
transactions between the Corporation and a (or adopting
any incentive, compensation or other benefit plan cover-
ing any) director or officer of any of the following
entities or their Affiliates: Holdings, JSC, the Corpora-
tion, JSG, SIBV, and MSLEF II.
21. Replacement of independent accountants for
the Corporation or any of its subsidiaries.
22. Modification of significant accounting
methods, practices, procedures and policies except as
required by generally accepted accounting principles.
23. The increase or decrease of the number of
directors comprising the Corporation's Board of Direc-
tors.
<PAGE>
24. Any decision regarding registration of any
securities.
For purposes of this Schedule I, "Affiliate"
shall have the meaning ascribed to such term in Rule 12b-
2 of the General Rules and Regulations under the Exchange
Act or any successor provision.
Capitalized terms used in this Schedule I and
not otherwise defined herein shall have the respective
meanings set forth in the By-Laws to which this Schedule
I is attached.
