<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 6, 1994
REGISTRATION NO. 33-58348
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST-EFFECTIVE AMENDMENT NO. 1 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 (314) 746-1100
AREA 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 (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 (314) 746-1100
AREA CODE, OF CO-REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
</TABLE>
------------------------
COPY TO:
LOU R. KLING, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
------------------------
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>
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
- --------------------------------------------------------------------- ------------------------------------------
<C> <S> <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; Certain Risk Factors;
Selected Historical Financial Data; Pro
Forma Financial Data
4. Use of Proceeds................................................ *
5. Determination of Offering Price................................ *
6. Dilution....................................................... *
7. Selling Security Holders....................................... *
8. Plan of Distribution........................................... *
9. Description of Securities to be Registered..................... Prospectus Summary; Description of the
Senior Notes; Certain Federal Income Tax
Considerations
10. Interests of Named Experts and Counsel......................... Legal Matters; Experts
11. Information with Respect to the Co-Registrants................. Outside Front Cover Page; Prospectus
Summary; Certain Risk Factors;
Recapitalization Plan; 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; Certain Federal Income Tax
Considerations; 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>
PROSPECTUS
$500,000,000
[LOGO]
CONTAINER CORPORATION OF AMERICA
9 3/4% SENIOR NOTES DUE 2003
---------------------------------
Unconditionally guaranteed on a senior basis by
JEFFERSON SMURFIT CORPORATION (U.S.)
---------------------------------
Interest payable April 1 and October 1
--------------------------------
THE SENIOR NOTES WILL NOT BE REDEEMABLE PRIOR TO MATURITY. THE SENIOR NOTES ARE
UNSECURED OBLIGATIONS OF CCA AND THE GUARANTEES OF THE SENIOR NOTES ARE
UNSECURED OBLIGATIONS OF JSC (U.S.).
----------------------------------
SEE 'CERTAIN RISK FACTORS' FOR INFORMATION THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------------------
This Prospectus is to be used by Morgan Stanley & Co. Incorporated in
connection with offers and sales in market-making transactions at negotiated
prices related to prevailing market prices at the time of sale. Morgan Stanley &
Co. Incorporated may act as principal or agent in such transactions.
September , 1994
<PAGE>
ADDITIONAL INFORMATION
Container Corporation of America ('CCA') and Jefferson Smurfit Corporation
(U.S.) (formerly Jefferson Smurfit Corporation) ('JSC') have filed with the
Securities and Exchange Commission (the 'Commission') a Registration Statement
(which term shall encompass any amendment thereto) on Form S-2 under the
Securities Act of 1933 (the 'Securities Act'), with respect to the Senior Notes
and JSC's guarantees thereof. This Prospectus does not contain all the
information set forth in the Registration Statement and the exhibits and
schedules thereto, to which reference is hereby made. Statements made in this
Prospectus as to the contents of any contract, agreement or other document
referred to are not necessarily complete. With respect to each such contract,
agreement or other document filed as an exhibit to the Registration Statement,
reference is made to the exhibit for a more complete description of the matter
involved, and each such statement shall be deemed qualified in its entirety by
such reference.
JSC is subject to the informational requirements of the Securities Exchange
Act of 1934 (the 'Exchange Act'), and in accordance therewith is required to
file reports and other information with the Commission. The Registration
Statement and the exhibits thereto filed by CCA and JSC with the Commission, as
well as such reports and other information filed by JSC with the Commission, may
be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and
should also be available for inspection and copying at the regional offices of
the Commission located in the Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661 and Seven World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can also be obtained by
mail from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549 at prescribed rates. Such reports and other
information may also be inspected at the offices of the Pacific Stock Exchange,
301 Pine Street, Suite 1104, San Francisco, California 94104, until consummation
of the Subordinated Debt Refinancing (as defined below).
The indenture pursuant to which the Senior Notes were issued (the
'Indenture') requires JSC to file with the Commission annual reports containing
consolidated financial statements and the related report of independent public
accountants and quarterly reports containing unaudited condensed consolidated
financial statements for the first three quarters of each fiscal year so long as
any Senior Notes are outstanding.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents which have been filed with the Commission by JSC
are hereby incorporated by reference in this Prospectus:
(1) JSC's Annual Report on Form 10-K for the fiscal year ended
December 31, 1993, filed with the Commission on March 31, 1994;
(2) JSC's Quarterly Reports on Form 10-Q for the quarters ended March
31, 1994 and June 30, 1994, as filed with the Commission on May 16, 1994
and August 5, 1994, respectively;
(3) JSC's Current Reports on Form 8-K, filed with the Commission on
March, 3, 1994 and April 25, 1994; and
(4) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 31, 1993.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Prospectus to
the extent that a statement contained herein or in any other subsequently filed
document which also is incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
Copies of all documents which are incorporated herein by reference (not
including the exhibits to such information, unless such exhibits are
specifically incorporated by reference in such information) will be provided
without charge to each person, including any beneficial owner, to whom this
Prospectus is delivered, upon written or oral request. Copies of this
Prospectus, as amended or supplemented from time to time, and any other
documents (or parts of documents) that constitute part of the Prospectus under
Section 10(a) of the Securities Act will also be provided without charge to each
such person, upon written or oral request. Requests should be directed to JSC,
Attention: Patrick J. Moore, 8182 Maryland Avenue, St. Louis, Missouri 63105;
telephone (314) 746-1100.
2
<PAGE>
No action has been or will be taken in any jurisdiction by CCA, JSC or by
the Underwriter that would permit a public offering of the Senior Notes or
possession or distribution of this Prospectus in any jurisdiction where action
for that purpose is required, other than in the United States. Persons into
whose possession this Prospectus comes are required by CCA, JSC and the
Underwriter to inform themselves about and to observe any restrictions as to the
offering of the Senior Notes and the distribution of the Prospectus.
In this Prospectus, references to 'dollar' and '$' are to United States
dollars, and the terms 'United States' and 'U.S.' mean the United States of
America, its states, its territories, its possessions and all areas subject to
its jurisdiction. All tons referenced are short tons.
- ----------------------------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Additional Information........................... 2
Incorporation of Certain Documents by
Reference...................................... 2
Prospectus Summary............................... 4
Certain Risk Factors............................. 13
Recapitalization Plan............................ 20
Capitalization................................... 25
Selected Historical Financial Data............... 26
Pro Forma Financial Data......................... 28
Management's Discussion and Analysis of Results
of Operations and Financial Condition.......... 34
Business......................................... 42
Management....................................... 59
Security Ownership of Certain Beneficial
Owners......................................... 70
Certain Transactions............................. 71
Description of Certain Indebtedness.............. 77
Description of the Senior Notes.................. 84
Certain Federal Income Tax Considerations........ 111
Market-Making Activities of MS&Co................ 111
Legal Matters.................................... 111
Experts.......................................... 112
Index to Financial Statements.................... F-1
</TABLE>
3
<PAGE>
PROSPECTUS SUMMARY
The following information is qualified in its entirety by the more detailed
information and the financial statements and notes thereto that appear elsewhere
in this Prospectus. The 9 3/4% Senior Notes due 2003 (the 'Senior Notes') are
obligations of CCA, unconditionally guaranteed on a senior basis by JSC. As used
in this Prospectus, references to the 'Company' refer to JSC and its
consolidated subsidiaries, including CCA and references to 'Holdings' refer to
Jefferson Smurfit Corporation, the parent of JSC. Capitalized terms not defined
in this Summary are defined elsewhere in this Prospectus.
THE COMPANY
The Company believes it is one of the nation's largest producers of
paperboard and packaging products and is the largest producer of recycled
paperboard and recycled packaging products. The Company's system of 16
paperboard mills produces virgin and recycled containerboard, solid bleached
sulfate ('SBS') and recycled boxboard, and recycled cylinderboard, which are
sold to the Company's own converting operations or to third parties. The
Company's converting operations consist of 52 corrugated container plants, 18
folding carton plants, and 16 industrial packaging plants located across the
country, with three plants located outside the U.S. In 1993, the Company's
container plants converted an amount of containerboard equal to approximately
105.5% of the amount the Company produced, its folding carton plants converted
an amount of SBS, recycled boxboard and coated natural kraft equal to
approximately 65.4% of the amount the Company produced, and its industrial
packaging plants converted an amount of recycled cylinderboard equal to
approximately 59.7% of the amount the Company produced. The Company's
Paperboard/Packaging Products segment contributed 91.6% of the Company's net
sales in 1993. The Company's paperboard operations are supported by its
reclamation division and by its timber operations which manage approximately one
million acres of owned or leased timberland located in close proximity to its
virgin fibre mills.
In addition, the Company believes it is one of the nation's largest
producers of recycled newsprint. The Company's Newsprint Segment includes two
newsprint mills in Oregon and two facilities that produce Cladwood'r', a
construction material produced from newsprint and wood by-products.
The predecessor to the Company was founded in 1974 when Jefferson Smurfit
Group plc ('JS Group'), a worldwide leader in the packaging products industry,
commenced operations in the United States by acquiring 40% of a small paperboard
and packaging products company. The remaining 60% of that company was acquired
in 1977, and in 1978 net sales were $42.9 million. The Company implemented a
strategy to build a fully integrated, broadly based, national packaging
business, primarily through acquisitions, including Alton Box Board Company in
1979, the paperboard and packaging divisions of Diamond International
Corporation in 1982, 80% of Smurfit Newsprint Corporation ('SNC') in 1986, and
50% of CCA in 1986. The Company financed its acquisitions by using leverage, and
in several cases, utilized joint venture financing whereby the Company
eventually obtained control of the acquired company. While no major acquisition
has been made since 1986, the Company has made 18 smaller acquisitions and
started up five new facilities which had combined sales in 1993 of $280.3
million. JSC was formed in 1983 to consolidate the operations of the Company,
and today the Company ranks among the industry leaders in its two business
segments, Paperboard/Packaging Products and Newsprint. In 1993, the Company had
net sales of $2.9 billion, achieving a compound annual sales growth rate of
32.6% for the period since 1978 (although net sales decreased 1.7% from 1992
levels due primarily to lower prices and changes in product mix).
The principal components of the Company's business strategy include the
following:
Maintain Focus on Recycled Products. The Company believes that it is
the largest processor of wastepaper, the largest producer of coated
recycled paperboard, the largest producer of recycled medium and one
of the largest producers of recycled newsprint in the United States.
The Company has historically utilized a significant amount of
recycled fibre in its products and has maintained a strategy to allow
it to supply all of the Company's recycled fibre needs for its paper
producing operations.
Focus on Cost Reduction. The Company is implementing a company-wide
cost reduction program designed to improve the cost competitiveness
of all the Company's operating
4
<PAGE>
facilities and staff functions. Additionally, in 1993 the Company
began a restructuring program to improve the Company's long-term
competitive position by, among other things, realigning and
consolidating various manufacturing operations over the next two to
three years. In September 1993, the Company recorded pre-tax charges
of $96 million to implement its restructuring program.
Continue to Pursue Vertical Integration. The Company's integration
reduces the volatility of pricing for the Company's containerboard
products, allows the Company to run its mills at higher operating
rates during industry downturns and protects the Company from
potential regional supply and demand imbalances for recycled fibre
grades.
Continue Growth in Core Businesses. The Company intends to continue
its strategy of building its core Paperboard/Packaging Products
segment primarily by pursuing acquisitions and through capital
improvement programs.
Maintain Leading Market Positions. The Company's prominence in the
United States packaging industry provides the Company certain
advantages in marketing its products, including excellent customer
visibility and recognition as a quality producer, which has enabled
the Company to enter into strategic alliances with select large
national account customers. The Company's broad range of packaging
products provides a single source option to supply all of a
customer's packaging needs.
Improve Financial Profile. The Recapitalization Plan (as defined
below) will improve the Company's operating and financial flexibility
by reducing the level and overall cost of its debt, extending
maturities of indebtedness, increasing stockholders' equity and
increasing its access to capital markets.
All of the outstanding shares of capital stock of JSC are owned by
Holdings. Prior to the consummation of the Recapitalization Plan (other than the
Subordinated Debt Refinancing), 50% of the common stock of Holdings was owned
directly and by an indirect subsidiary of Smurfit International B.V. ('SIBV'),
an indirect wholly-owned subsidiary of JS Group, a public corporation organized
under the laws of the Republic of Ireland, 39.7% was beneficially owned by The
Morgan Stanley Leveraged Equity Fund II, L.P., a Delaware limited partnership
investment fund formed to make investments in industrial and other companies
('MSLEF II'), and the other MSLEF II Associated Entities (as defined below), and
10.3% was beneficially owned by certain other investors. MSLEF II is an
affiliate of Morgan Stanley & Co. Incorporated ('MS&Co.'), the Underwriter.
Immediately after the consummation of the Recapitalization Plan (other than
the Subordinated Debt Refinancing), SIBV beneficially owned approximately 46.5%,
MSLEF II and the other MSLEF II Associated Entities beneficially owned in the
aggregate approximately 28.7%, and all other stockholders (including public
stockholders) beneficially owned approximately 24.8% of the outstanding shares
of common stock of Holdings (after giving effect to the Reclassification (as
defined below), the 'Holdings Common Stock'). See 'Security Ownership of Certain
Beneficial Owners' and 'Certain Transactions'.
5
<PAGE>
The following chart illustrates the corporate structure of Holdings, JSC
and CCA, and the indebtedness of such corporations following the consummation of
the Recapitalization Plan.
[GRAPHIC MATERIAL-SEE APPENDIX]
- ------------
* Prior to May 1994, Holdings had been named 'SIBV/MS Holdings, Inc.' and JSC
had been named 'Jefferson Smurfit Corporation'.
** Includes those obligations (other than intercompany indebtedness) that are
senior with respect to all subordinated obligations listed and rank equally
with each other senior obligation listed (except that certain of such
obligations, but not all, are secured).
*** Prior to the consummation of the Subordinated Debt Refinancing (as defined
below), CCA will have outstanding, and JSC will guarantee on a subordinated
basis, subordinated obligations consisting of the Senior Subordinated
Notes, the Subordinated Debentures and the Junior Accrual Debentures (each
as defined below). On approximately December 1, 1994, the Company intends
to use available proceeds of the Debt Offerings (as defined below),
remaining borrowings under the Delayed Term Loan (as defined below) and, to
the extent required, borrowings under the New Revolving Credit Facility (as
defined below) or available cash to refinance such subordinated debt as
contemplated by the Subordinated Debt Refinancing.
**** A limited-purpose subsidiary of the Company has certain borrowings pursuant
to the Company's accounts receivable securitization program. See
'Description of Certain Indebtedness -- Securitization' and 'Management's
Discussion and Analysis of Results of Operations and Financial
Condition -- Liquidity and Capital Resources'.
6
<PAGE>
RECAPITALIZATION PLAN
Holdings and the Company are implementing a recapitalization plan (the
'Recapitalization Plan') to repay or refinance a substantial portion of their
indebtedness in order to improve operating and financial flexibility by reducing
the level and overall cost of their debt, extending maturities of indebtedness,
increasing stockholders' equity and increasing their access to capital markets.
In May 1994, Holdings and the Company completed the Recapitalization Plan (other
than the Subordinated Debt Refinancing). For the six months ended June 30, 1994,
the Recapitalization Plan would, on a pro forma basis, have resulted in $29.4
million of aggregate savings in interest expense, of which $22.6 million
represents cash interest expense savings (in each case on a pre-tax basis). See
'Pro Forma Financial Data'.
The Recapitalization Plan includes the following primary components:
(i) (a) The offering (the 'Debt Offerings') by CCA of $300
million aggregate principal amount of 11 1/4% Series A Senior
Notes due 2004 (the 'Series A Senior Notes') and $100 million
aggregate principal amount of 10 3/4% Series B Senior Notes due
2002 (the 'Series B Senior Notes' and, together with the Series A
Senior Notes, the '1994 Notes');
(b) The offering by Holdings of 19,250,000 shares of Holdings
Common Stock through an offering within the United States and
Canada and an offering outside the United States and Canada (the
'Equity Offerings'). The Equity Offerings and the Debt Offerings
are collectively referred to herein as the '1994 Offerings';
(c) The purchase by SIBV (or a corporate affiliate of SIBV)
of shares of Holdings Common Stock for an aggregate purchase price
of $150 million (the 'SIBV Investment');
(d) The entering into of a new credit agreement by CCA and
JSC (the 'New Credit Agreement') consisting of a $450 million
revolving credit facility (the 'New Revolving Credit Facility'), a
$300 million term loan (the 'Initial Term Loan') and a $900
million delayed term loan (the 'Delayed Term Loan' and, together
with the Initial Term Loan, the 'New Term Loans').
(ii) The application of the net proceeds of the Equity Offerings and
the SIBV Investment and a portion of the net proceeds of the Debt
Offerings, together with borrowings under the New Credit Agreement, to
refinance (the 'Bank Debt Refinancing') all of the Company's indebtedness
outstanding under (a) the Second Amended and Restated Credit Agreement,
dated as of November 9, 1989, among Holdings, JSC, CCA, the lenders which
are parties thereto, Bankers Trust Company as agent and Chemical Bank and
Bank of America National Trust and Savings Association as co-agents (the
'1989 Credit Agreement'); (b) the Amended and Restated Note Purchase
Agreement, dated as of December 14, 1989, among Holdings, JSC, CCA and the
purchasers of the senior secured notes (the 'Secured Notes') issued
thereunder (the 'Secured Note Purchase Agreement'), and (c) the Loan and
Note Purchase Agreement, dated as of August 26, 1992, among Holdings, JSC,
CCA, the lenders which are parties thereto, Chemical Bank as agent and the
managing agents and collateral trustee which are parties thereto (the '1992
Credit Agreement' and, together with the 1989 Credit Agreement, the 'Old
Bank Facilities').
(iii) The application, on approximately December 1, 1994, of
borrowings, including borrowings under the New Credit Agreement, to redeem
CCA's (a) 13 1/2% Senior Subordinated Notes due 1999 (the 'Senior
Subordinated Notes'), (b) 14% Subordinated Debentures due 2001 (the
'Subordinated Debentures') and (c) 15 1/2% Junior Subordinated Accrual
Debentures due 2004 (the 'Junior Accrual Debentures' and, together with the
Senior Subordinated Notes and the Subordinated Debentures, the
'Subordinated Debt'). Such redemption, including the payment of accrued and
unpaid interest on the Junior Accrual Debentures as of December 1, 1994, is
herein referred to as the 'Subordinated Debt Refinancing'. The earliest
date the Subordinated Debt may be redeemed is December 1, 1994. Borrowings
under the Delayed Term Loan will be subject to the satisfaction of certain
limited conditions.
7
<PAGE>
SOURCES AND USES
The following table sets forth the sources and uses of funds which were or
are anticipated to be used to effect the Recapitalization Plan:
<TABLE>
<CAPTION>
($ MILLIONS)
------------
<S> <C>
Sources of Funds
The Debt Offerings(a)................................................................. $ 400
The Equity Offerings(a)............................................................... 250
SIBV Investment....................................................................... 150
New Revolving Credit Facility(b)...................................................... 30
New Term Loans........................................................................ 1,200
------------
Total............................................................................ $2,030
------------
------------
Uses of Funds
Prepayment of debt under Old Bank Facilities.......................................... $ 810
Prepayment of Secured Notes........................................................... 271
Redemption of Subordinated Debt(c).................................................... 844
Fees and expenses(d).................................................................. 105
------------
Total............................................................................ $2,030
------------
------------
</TABLE>
- ------------
(a) Without deducting estimated underwriting discounts and commissions and
expenses. To the extent proceeds of the Debt Offerings are used to fund a
portion of the Company's 1994 capital expenditures, the Company will use
available cash or borrow under the New Revolving Credit Facility (or, to
the extent proceeds are available, under the Delayed Term Loan) to pay
interest due on the Junior Accrual Debentures as of December 1, 1994.
(b) The amount shown is net of available cash. The maximum amount available
under such facility is $450 million, with up to $150 million of such amount
being available for letters of credit. Immediately following the 1994
Offerings, borrowings of $65 million and letters of credit of approximately
$90 million were outstanding under such facility. See also footnotes (a)
and (c).
(c) Represents the outstanding principal amount and redemption premiums
required to be paid on the Senior Subordinated Notes and the Subordinated
Debentures, and the estimated accreted value, including accrued and unpaid
interest, of the Junior Accrual Debentures as of December 1, 1994. The
Company expects that accrued and unpaid interest at December 1, 1994 on the
Senior Subordinated Notes and the Subordinated Debentures will be paid
through internal cash flow or with additional borrowings under the New
Revolving Credit Facility.
(d) Expenses include estimated fees and expenses relating to the Bank Debt
Refinancing, estimated commissions and underwriting discounts relating to
the Debt Offerings and the Equity Offerings, respectively, and
reimbursement of certain fees and expenses of SIBV incurred in connection
with the Recapitalization Plan. See 'Certain Transactions -- Other
Transactions'. There are no underwriting discounts or commissions on the
sale of Holdings Common Stock pursuant to the SIBV Investment.
The Company has obtained certain consents and waivers which were necessary
for it to consummate the Recapitalization Plan, consisting, among others, of the
consent of (i) the holders of a majority in aggregate principal amount of the
Senior Notes outstanding, (ii) 60% of the holders of the outstanding aggregate
principal amount of Secured Notes and (iii) certain parties under JSC's and
CCA's trade receivables securitization (the 'Securitization') (collectively, the
'Consents and Waivers'). For more information concerning the Consents and
Waivers, see 'Recapitalization Plan -- Consents and Waivers'.
For more information concerning the Recapitalization Plan, see
'Recapitalization Plan'.
8
<PAGE>
THE SENIOR NOTES
<TABLE>
<S> <C>
Issuer.................................... Container Corporation of America
Securities Offered........................ $500,000,000 aggregate principal amount of Senior Notes due 2003.
Interest Rate............................. 9.75% per annum.
Interest Payment Dates.................... April 1 and October 1.
Maturity.................................. April 1, 2003.
Redemption................................ The Senior Notes will not be redeemable prior to maturity.
Ranking................................... The Senior Notes are senior unsecured obligations of CCA, which rank
pari passu with the other senior indebtedness of CCA, including,
without limitation, CCA's obligations under the New Credit Agreement
and the 1994 Notes, and are senior in right to payment to the
Subordinated Debt. CCA's obligations under the New Credit Agreement,
but not the Senior Notes or the 1994 Notes, are secured by liens on
substantially all the assets of CCA and its subsidiaries with the
exception of cash and cash equivalents and trade receivables. The
secured indebtedness will have priority over the Senior Notes and the
1994 Notes with respect to the assets securing such indebtedness. As
of June 30, 1994, CCA had outstanding approximately $1,388.0 million
of senior indebtedness (excluding intercompany indebtedness), of
which approximately $475.6 million was senior secured indebtedness.
The secured indebtedness will have priority over the Senior Notes and
the 1994 Notes with respect to the assets securing such indebtedness.
See 'Certain Risk Factors -- Effect of Secured Indebtedness on the
Senior Notes; Ranking'.
Covenants................................. The indenture pursuant to which the Senior Notes were issued (the
'Indenture') contains certain covenants that, among other things,
limits the ability of JSC and its subsidiaries (including CCA) to
incur indebtedness, pay dividends, engage in transactions with
stockholders and affiliates, issue capital stock, create liens, sell
assets, engage in mergers and consolidations and make investments in
unrestricted subsidiaries. The limitations imposed by the covenants
on JSC and its subsidiaries (including CCA) are subject to certain
exceptions. See 'Certain Risk Factors -- Terms of the Senior Notes'
and 'Description of the Senior Notes -- Covenants'.
Put Option................................ Upon a Change of Control, CCA will make an offer to purchase the
Senior Notes at a purchase price equal to 101% of the principal
amount thereof, plus accrued interest. Certain transactions with
affiliates of the Company may not constitute a Change of Control. See
'Description of the Senior Notes -- Covenants -- Repurchase of Senior
Notes upon Change of Control'.
Guarantees................................ The payment of principal and interest on the Senior Notes is
unconditionally guaranteed on a senior basis by JSC. Such guarantee
ranks pari passu with the other senior indebtedness of JSC,
including, without limitation, JSC's obligations under the New Credit
Agreement (including its guarantees of CCA's obligations thereunder)
and JSC's guarantee of CCA's obligations under the 1994 Notes, and is
senior in right of payment to JSC's guarantees of the Subordinated
Debt. JSC's obligations under the New Credit Agreement, but not its
guarantees of the Senior Notes or the 1994 Notes, will be secured by
liens on substantially all the assets of JSC and its subsidiaries
with the exception of cash and cash equivalents and trade
receivables, and guaranteed by CCA and certain subsidiaries of JSC
and CCA. As of June 30, 1994, JSC had
</TABLE>
9
<PAGE>
<TABLE>
<S> <C>
outstanding approximately $1,653.4 million of senior indebtedness
(including indebtedness of CCA and JSC's other consolidated
subsidiaries but excluding intercompany indebtedness), of which
approximately $736.9 million was senior secured indebtedness. The
secured indebtedness will have priority over JSC's guarantees of the
Senior Notes and the 1994 Notes with respect to the assets securing
such indebtedness. See 'Certain Risk Factors -- Effect of Secured
Indebtedness on the Senior Notes; Ranking'. In the event that (i) a
purchaser of capital stock of CCA acquires a majority of the voting
rights thereunder or (ii) there occurs a merger or consolidation of
CCA that results in CCA having a parent other than JSC and, at the
time of and after giving effect to such transaction, such purchaser
or parent satisfies certain minimum net worth and cash flow
requirements, JSC will be released from its guarantee of the Senior
Notes. Such sale, merger or consolidation will be prohibited unless
certain other requirements are met, including that the purchaser or
the entity surviving such a merger or consolidation expressly assumes
JSC's or CCA's obligations, as the case may be, and that no Event of
Default (as defined below) occur or be continuing. See 'Description
of the Senior Notes -- Consolidation, Merger and Sale of Assets'.
</TABLE>
For more complete information regarding the Senior Notes, see 'Description of
the Senior Notes'.
CERTAIN RISK FACTORS
For a discussion of certain factors that should be considered in evaluating
an investment in the Senior Notes, see 'Certain Risk Factors'.
10
<PAGE>
SUMMARY FINANCIAL DATA
The summary historical and pro forma financial data presented below were
derived from the consolidated financial statements and the pro forma financial
statements of the Company included elsewhere herein and should be read in
conjunction with 'Selected Historical Financial Data', 'Pro Forma Financial
Data', 'Management's Discussion and Analysis of Results of Operations and
Financial Condition' and the consolidated financial statements and the pro forma
financial statements of the Company included elsewhere in this Prospectus. The
summary pro forma financial data presented below give effect to the offering of
the Senior Notes in April 1993 (the 'Senior Note Offering') and the
Recapitalization Plan as if such transactions had occurred as of January 1,
1993, in the case of operating results for the year ended December 31, 1993, and
give effect to the Recapitalization Plan as if such transaction had occurred as
of January 1, 1994, in the case of operating results for the six months ended
June 30, 1994. The pro forma balance sheet data is as if the Recapitalization
Plan occurred at December 31, 1993 and June 30, 1994.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED ENDED
HISTORICAL DECEMBER 31, 1993 JUNE 30, 1994
-------------------------------------------------------------- -------------------- ----------------
SIX MONTHS AS ADJUSTED FOR AS ADJUSTED
YEAR ENDED DECEMBER 31, ENDED JUNE 30, THE RECAPITALIZATION FOR THE
-------------------------------- -------------------------- PLAN AND SENIOR RECAPITALIZATION
1991 1992 1993 1993 1994 NOTE OFFERING(a) PLAN(a)
-------- -------- -------- ----------- ----------- -------------------- ----------------
(IN MILLIONS, EXCEPT RATIOS (UNAUDITED) (UNAUDITED)
AND STATISTICAL DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS:
Net sales....... $2,940.1 $2,998.4 $2,947.6 $ 1,470.8 $ 1,493.6 $2,947.6 $1,493.6
Restructuring
and
environmental
and other
charges....... 150.0 -- -- 150.0 --
Income (loss)
from
operations.... 305.5 267.7 (14.7) 82.3 102.4 (14.7) 102.4
Interest
expense....... (335.2) (300.1) (254.2) (127.7) (134.1) (200.7) (104.7)
Loss before
extraordinary
item and
cumulative
effect of
accounting
changes(b).... (77.1) (34.0) (174.6) (30.1) (20.2) (139.8) (2.0)
Extraordinary
item -- (loss)
from early
extinguishment
of debt, net
of income tax
benefit....... (49.8) (37.8) (37.8) (51.6) (98.1) (53.1)
Cumulative
effect of
accounting
changes....... (16.5) (16.5) -- (16.5) --
Net loss........ (77.1) (83.8) (228.9) (84.4) (71.8) (254.4) (55.1)
Ratio of
earnings to
fixed charges
(c)........... (d) (d) (d) (d) (d) (d) (d)
OTHER DATA:
Gross profit
margin(e)..... 18.1% 16.6% 12.7% 13.7% 14.0% 12.7% 14.0%
Selling and
administrative
expenses as a
percent of net
sales......... 7.7 7.7 8.1 8.1 7.2 8.1 7.2
EBITDA(f)....... $ 440.9 $ 407.8 $ 274.2 $ 147.7 $ 171.1 $ 274.2 $ 171.1
Ratio of EBITDA
to interest
expense....... 1.32x 1.36x 1.08x 1.16x 1.28x 1.37x 1.63x
Property and
timberland
additions..... $ 118.9 $ 97.9 $ 117.4 $ 55.7 $ 65.0 $ 117.4 $ 65.0
Depreciation,
depletion and
amortization... 130.0 134.9 130.8 63.1 65.6 130.8 65.6
BALANCE SHEET DATA
(AT END OF
PERIOD):
Working
capital....... $ 76.9 $ 105.7 $ 40.0 $ 95.7 $ 44.1 $ 41.3 $ 44.1
Total assets.... 2,460.1 2,436.4 2,597.1 2,659.6 2,720.0 2,639.6 2,720.0
Long-term debt
(excluding
current
maturities)... 2,650.4 2,503.0 2,619.1 2,573.7 2,434.9 2,378.3 2,434.9
Stockholders'
deficit....... (976.9) (828.9) (1,057.8) (913.2) (743.0) (743.2) (743.0)
STATISTICAL DATA:
Containerboard
production
(thousand
tons)......... 1,830 1,918 1,840 928 951
Boxboard
production
(thousand
tons)......... 826 832 829 422 371
Newsprint
production
(thousand
tons)......... 614 615 615 303 307
Corrugated
shipping
containers
sold (thousand
tons)......... 1,768 1,871 1,936 946 1,000
Folding cartons
sold (thousand
tons)......... 482 487 475 235 235
Fibre reclaimed
and brokered
(thousand
tons)......... 3,666 3,846 3,907 1,917 1,957
Timberland owned
or leased
(thousand
acres)........ 978 978 984 979 984
</TABLE>
11
<PAGE>
- ------------
(a) The pro forma financial data above includes the Subordinated Debt
Refinancing which is expected to occur on approximately December 1, 1994.
See 'Pro Forma Financial Data' for certain pro forma financial data giving
effect to the Recapitalization Plan (excluding the Subordinated Debt
Refinancing).
(b) The loss before extraordinary item for the year ended December 31, 1991
includes after-tax charges of $29.3 million and $6.7 million for the
write-off of the Company's equity investments in Temboard, Inc., formerly
Temboard and Company Limited Partnership ('Temboard'), and PCL Industries
Limited ('PCL'), respectively. See Note 3 to the Company's consolidated
financial statements at and for the year ended December 31, 1993.
(c) For purposes of these calculations, earnings consist of income (loss)
before income taxes, equity in earnings (loss) of affiliates, minority
interests, extraordinary item and cumulative effect of accounting changes,
plus fixed charges. Fixed charges consist of interest on indebtedness,
amortization of deferred debt issuance costs and that portion of lease
rental expense considered to be representative of the interest factor
therein (deemed to be one-fourth of lease rental expense).
(d) For the six months ended June 30, 1994 and 1993 and for the years ended
December 31, 1991, 1992 and 1993, earnings were inadequate to cover fixed
charges by $30.1 million, $24.3 million, $26.7 million, $31.4 million and
$264.2 million, respectively. On a pro forma basis for 1993, earnings were
inadequate to cover fixed charges by $195.9 million as adjusted for the
Senior Note Offering and the Recapitalization Plan. On a pro forma basis,
earnings were inadequate to cover fixed charges for the six months ended
June 30, 1994 by $.7 million as adjusted for the Recapitalization Plan.
(e) Gross profit margin represents the excess of net sales over cost of goods
sold divided by net sales.
(f) EBITDA represents net income before interest expense, income taxes,
depreciation, depletion and amortization, equity in earnings (loss) of
affiliates, minority interests and extraordinary items and cumulative
effect of accounting changes and in 1993, restructuring and environmental
and other charges. The restructuring and environmental and other charges
include $43 million of asset writedowns and $107 million of future cash
expenditures. EBITDA is presented here, not as a measure of operating
results, but rather as a measure of the Company's debt service ability.
12
<PAGE>
CERTAIN RISK FACTORS
In addition to the other information contained in this Prospectus, the
following factors should be considered carefully in evaluating an investment in
the securities offered by this Prospectus.
SUBSTANTIAL LEVERAGE
The Company has, on a consolidated basis, a substantial amount of debt. The
Company's long-term debt at June 30, 1994 was $2,434.9 million and, on a pro
forma basis after giving effect to the Recapitalization Plan (including the
Subordinated Debt Refinancing), the Company's long-term debt as of such date
would have been $2,434.9 million. The amount of long-term indebtedness at such
date on a historical basis is substantial relative to the Company's
stockholders' equity, which has been negative in recent years due to the
accounting treatment of the 1989 Transaction (as defined below) and recent net
losses. See ' -- Recent Losses; Negative Stockholders' Equity'. Although the
consummation of the Recapitalization Plan will reduce the Company's consolidated
interest expense over the next several years, JSC and CCA will remain obligated
to make substantial interest payments on their indebtedness. See 'Description of
Certain Indebtedness'. For the six months ended June 30, 1994, the Company's
earnings were inadequate to cover fixed charges by $30.1 million and, on a pro
forma basis, after giving effect to the Recapitalization Plan, would have been
inadequate to cover fixed charges by $.7 million. See 'Capitalization' and 'Pro
Forma Financial Data'.
ABILITY TO SERVICE DEBT
The Company generally expects to fund its and its subsidiaries' debt
service obligations, capital expenditures and working capital requirements
through funds generated from operations and additional borrowings under the New
Revolving Credit Facility. As of the closing of the 1994 Offerings and the
consummation of the other transactions contemplated by the Recapitalization Plan
(other than the Subordinated Debt Refinancing), the Company had in the aggregate
approximately $295 million in unused borrowing capacity under the New Revolving
Credit Facility. See 'Capitalization'. The Securitization matures in April 1996,
at which time the Company expects to refinance it. Although the Company believes
that it will be able to do so, no assurances can be given in this regard. See
'Management's Discussion and Analysis of Results of Operations and Financial
Condition -- Liquidity and Capital Resources'.
The ability of the Company to meet its obligations and to comply with the
financial covenants contained in its indebtedness is largely dependent upon the
future performance of the Company, which will be subject to financial, business
and other factors affecting it. Many of these factors are beyond the Company's
control, such as the state of the economy, demand for and selling prices of its
products, costs of its raw materials and legislative factors and other factors
relating to its industry generally or to specific competitors. There can be no
assurance that the Company will generate sufficient cash flow to meet its
obligations under its indebtedness, which includes repayment obligations,
assuming consummation of the Subordinated Debt Refinancing, of $92 million
during the second year, $142 million during the third year and $162 million in
each of the fourth and fifth years following consummation of the 1994 Offerings
(and increasing thereafter). If the Company were unable to generate sufficient
cash flow or otherwise obtain funds necessary to make required payments on its
indebtedness, or if the Company fails to comply with the various covenants in
such indebtedness, it would be in default under the terms thereof, which would
permit the lenders thereunder to accelerate the maturity of such indebtedness
and could cause defaults under other indebtedness of the Company or result in a
bankruptcy of the Company. See 'Management's Discussion and Analysis of Results
of Operations and Financial Condition -- Liquidity and Capital Resources' and
'Description of Certain Indebtedness'. In addition, if a 'Change of Control' as
defined in the New Credit Agreement, the Senior Notes, the 1994 Notes or the
Subordinated Debt is deemed to have occurred, then the holders of such
indebtedness shall have the right to be repaid 101% of the principal amount of
such indebtedness plus accrued and unpaid interest thereon. See 'Description of
Certain Indebtedness'. The occurrence of a 'Change of Control' as so defined
could also result in The Times Mirror Company having certain rights under the
shareholders agreement between the Company and The Times Mirror Company. See
'Certain
13
<PAGE>
Transactions -- Other Transactions'. Similarly, the exercises of such rights
could also trigger cross-default or cross-acceleration provisions, and lead to
the bankruptcy of the Company.
RESTRICTIVE COVENANTS
The limitations contained in the agreements relating to the Company's
indebtedness, together with its highly leveraged position, as well as various
provisions in the agreements relating to the governance of Holdings and the
Company, including the Stockholders Agreement and the Registration Rights
Agreement (each as defined below), could limit the ability of the Company to
effect future debt or equity financings and may otherwise restrict corporate
activities, including its ability to avoid defaults and to respond to market
conditions, to provide for capital expenditures beyond those permitted or to
take advantage of business opportunities. If the Company cannot generate
sufficient cash flow from operations to meet its obligations, then its
indebtedness might have to be refinanced. There can be no assurance that any
such refinancing could be effected successfully or on terms that are acceptable
to the Company. In the absence of such refinancing, the Company could be forced
to dispose of assets in order to make up for any shortfall in the payments due
on its indebtedness under circumstances that might not be favorable to realizing
the best price for such assets. Moreover, the lenders under the New Credit
Agreement generally have a prior right to the proceeds of asset sales and
certain sales of securities by the Company. Further, there can be no assurance
that any assets could be sold quickly enough, or for amounts sufficient, to
enable the Company to make any such payments.
RECENT LOSSES; NEGATIVE STOCKHOLDER'S EQUITY
Although the Company has consistently generated substantial income from
operations, it has experienced, primarily as a result of interest expense
resulting from high leverage (see ' -- Substantial Leverage'), net losses for
the fiscal years ended December 31, 1993, 1992 and 1991. See 'Selected
Historical Financial Data' and 'Pro Forma Financial Data'. Improvements in the
Company's consolidated results of operations depend largely upon its ability to
increase prices of its products; accordingly, there can be no assurances as to
its ability to generate net income in future periods. See ' -- Pricing' and
'Management's Discussion and Analysis of Results of Operations and Financial
Condition'.
The Company has had a deficit in stockholder's equity since 1989 when
Holdings was organized to effect the acquisition of the publicly held shares of
JSC and the shares of CCA not then owned by JSC, and the recapitalization of
such companies (the '1989 Transaction'), since such transaction was treated as a
recapitalization for financial accounting purposes. On a historical basis, at
June 30, 1994, the Company's stockholder's deficit was $743.0 million. See
'Capitalization' and 'Pro Forma Financial Data'.
SUBORDINATED DEBT REFINANCING
The Subordinated Debt Refinancing is an integral part of the
Recapitalization Plan and a significant portion of the benefits intended to be
achieved as a result of the Recapitalization Plan is derived from it. The
availability of the financing under the Delayed Term Loan necessary to effect
the Subordinated Debt Refinancing is subject to the satisfaction of certain
conditions, although the failure to satisfy such conditions will in almost all
instances indicate that a significant and adverse change in the Company's
financial condition has occurred. The Company expects to be able to satisfy such
conditions, although, in any event, it reserves the right not to consummate the
Subordinated Debt Refinancing for any reason. See 'Recapitalization
Plan -- Subordinated Debt Refinancing'. In addition, the Company believes that,
even if the Subordinated Debt Refinancing is not consummated, it will realize
substantial benefits from the consummation of the other components of the
Recapitalization Plan, including a decrease in leverage and a resulting increase
in stockholder's equity. See 'Pro Forma Financial Data'.
EFFECT OF SECURED INDEBTEDNESS ON THE SENIOR NOTES; RANKING
The secured indebtedness will have priority over the Senior Notes with
respect to the assets securing such indebtedness. Although the Senior Notes (and
JSC's guarantees thereof) rank pari passu with indebtedness outstanding under
the New Credit Agreement (and the 1994 Notes), such bank debt
14
<PAGE>
(including all guarantee obligations of JSC and CCA in respect thereof) is
secured by (i) a security interest in substantially all of the assets, with the
exception of cash and cash equivalents and trade receivables, of JSC, CCA and
their material subsidiaries, (ii) a pledge of all of the capital stock of
material subsidiaries of JSC and CCA and (iii) a pledge of all intercompany
notes (including the notes of JSC and CCA) held by CCA Enterprises Inc., a
wholly-owned subsidiary of CCA ('CCA Enterprises'). See 'Description of Certain
Indebtedness -- The New Credit Agreement'. The Senior Notes and JSC's guarantees
thereof are unsecured and therefore do not have the benefit of such collateral;
that is, if an event of default occurs under the New Credit Agreement, the banks
party thereto will have a prior right to the Company's assets and may foreclose
upon such collateral to the exclusion of the holders of the Senior Notes,
notwithstanding the existence of an event of default with respect thereto.
Accordingly, in such an event the Company's assets would first be used to repay
in full amounts outstanding under the New Credit Agreement, resulting in a
portion of the Company's assets being unavailable to satisfy the claims of
holders of Senior Notes and other pari passu, unsecured indebtedness (including
the 1994 Notes). After giving pro forma effect to the Recapitalization Plan, as
of June 30, 1994, the Company would have had outstanding approximately $736.9
million of secured indebtedness, including indebtedness under the New Credit
Agreement.
In addition, CCA Enterprises, JSC Enterprises Inc., a wholly-owned
subsidiary of JSC ('JSC Enterprises'), and SNC, an 80% owned subsidiary of JSC,
will guarantee amounts owing under the New Credit Agreement but not the Senior
Notes. Additional subsidiaries of JSC or CCA may also in the future own assets,
incur indebtedness and liabilities or guarantee senior indebtedness other than
the Senior Notes provided that, if the aggregate amount of indebtedness
guaranteed by any Restricted Subsidiary (as defined in the Indenture) of JSC
(other than CCA, CCA Enterprises, JSC Enterprises and SNC) exceeds $50 million,
then the indentures relating to the Senior Notes and the 1994 Notes require such
subsidiaries to also guarantee the Senior Notes and the 1994 Notes. Such
guarantees will, however, be unsecured, whereas the guarantees of the
indebtedness under the New Credit Agreement will be secured. Consequently, the
Senior Notes to the extent not so guaranteed will be effectively subordinated to
claims of creditors of such subsidiaries, including, in the case of CCA
Enterprises, JSC Enterprises and SNC and, subject to the foregoing proviso,
other subsidiary guarantors, the banks that are parties to the New Credit
Agreement. As a result of the foregoing, in an event of default, holders of
Senior Notes may recover less, ratably, than the banks that are parties to the
New Credit Agreement and other secured creditors of CCA or JSC or their
respective subsidiaries.
PAYMENTS DUE ON COMPANY INDEBTEDNESS PRIOR TO MATURITY OF SENIOR NOTES;
REFINANCING RISKS
The Securitization matures in April 1996, at which time the Company expects
to refinance it. After giving effect to the Subordinated Debt Refinancing, an
aggregate of approximately $2,101.7 million of senior indebtedness (excluding
intercompany indebtedness) matures prior to the Senior Notes. Without giving
effect to the Subordinated Debt Refinancing, an aggregate of approximately
$1,312.1 million of senior indebtedness (excluding intercompany indebtedness)
matures prior to the Senior Notes and an aggregate of $727.7 million of
Subordinated Debt matures prior to the Senior Notes. Accordingly, the Company
will have to refinance or otherwise generate sufficient cash to repay a
substantial amount of indebtedness prior to the time the Senior Notes mature.
The Company's ability to do this will depend, in part, on the Company's
financial condition at the time and the covenants and other provisions in its
debt agreements. In this regard, it should be noted that the Company's ability
to incur new indebtedness will be quite limited by the terms of its outstanding
indebtedness and, in particular, unless and until the Subordinated Debt
Refinancing is consummated, the indentures governing the Subordinated Debt.
PRICING
General. Most markets in which the Company competes are subject to
significant price fluctuations. The Company's sales and profitability have
historically been more sensitive to price changes than changes in volume, and
reductions in prices during 1991 through 1993 have had an adverse impact on the
Company's results of operations. Future decreases in prices (or the inability to
achieve price increases) for the Company's products would adversely affect its
operating results. These factors, coupled with the highly leveraged financial
position of the Company, may adversely impact the
15
<PAGE>
Company's ability to respond to competition and to other market conditions or to
otherwise take advantage of business opportunities.
Containerboard. Operating rates in the industry during 1991 and 1992 were
at high levels relative to demand, which was lower due to the sluggish U.S.
economy and a decline in export markets. This imbalance resulted in excess
inventories in the industry and lower prices for the Company's containerboard
and corrugated shipping container products, which began early in 1991 and has
continued throughout 1992 and most of 1993. During 1993, industry operating
rates were lower as many containerboard producers, including the Company, took
downtime at containerboard mills to reduce the excess inventories. By the end of
the third quarter of 1993, inventory levels had decreased significantly. The
lower level of inventories and the stronger U.S. economy provided what the
Company believes were improved market conditions late in 1993, enabling the
Company and other producers to implement a $25 per ton price increase for
linerboard. Further improvements in market conditions have led to linerboard
increases of $30 and $40 per ton being implemented by all major integrated
containerboard producers, including the Company, effective March 1, 1994, and
July 1, 1994, respectively. See 'Business -- Industry Overview -- Paperboard'.
Newsprint. Newsprint prices have fallen substantially since 1990 due to
supply and demand imbalances. During 1991 and 1992, new capacity of
approximately two million tons annually came on line, representing an
approximate 12% increase in supply. At the same time, U.S. consumption of
newsprint fell due to declines in readership and ad linage. As prices fell,
certain high cost, virgin paper machines, primarily in Canada, representing
approximately 1.2 million tons of annual production capacity, were shut down and
remained idle during 1993. While supply was diminished, a price increase
announced for 1993 was unsuccessful. However, due to strengthening demand,
successful price increases were implemented in May and August of 1994. See
'Business -- Industry Overview -- Newsprint'.
COMPETITION
The paperboard and packaging products industries are highly competitive,
and no single company is dominant. The Company's competitors include large,
vertically integrated paperboard and packaging products companies and numerous
smaller companies. In recent years, there has been a trend toward consolidation
within the paperboard and packaging products industries, and the Company
believes that this trend is likely to continue. See 'Business -- Industry
Overview'. The primary competitive factors in the paperboard and packaging
products industries are price, design, quality and service, with varying
emphasis on these factors depending on the product line. To the extent that one
or more of the Company's competitors becomes more successful with respect to any
key competitive factor, the Company's business could be materially, adversely
affected. The market for the Newsprint segment is also highly competitive. See
'Business -- Competition'.
ENVIRONMENTAL MATTERS
Federal, state and local environmental requirements, particularly relating
to air and water quality, are a significant factor in the Company's business.
The Company faces potential environmental liability as a result of violations of
permit terms and similar authorizations that have occurred from time to time at
its facilities. In addition, the Company faces potential liability for 'response
costs' at various sites with respect to which the Company has received notice
that it may be a 'potentially responsible party' as well as for contamination of
certain Company-owned properties, under the Comprehensive Environmental
Response, Compensation and Liability Act, analogous state laws and other laws
concerning hazardous substance contamination. In 1993, the Company recorded a
pre-tax charge which included approximately $39 million related to environmental
matters, representing primarily asbestos and PCB removal, solid waste cleanup at
existing and former operating sites, and expenses for response costs at various
sites where the Company has received notice that it is a potentially responsible
party. While the Company believes that such charges are adequate, there can be
no assurance that actual expenditures relating to such matters will not exceed
such charges over the period covered thereby. Similarly, while the Company
believes it is currently in compliance with all applicable environmental laws in
all material respects and has budgeted for future expenditures required to
maintain such compliance, unforeseen significant expenditures in connection with
such compliance could have an
16
<PAGE>
adverse effect on the Company's financial condition. See 'Management's
Discussion and Analysis of Results of Operations and Financial
Condition -- General -- Environmental Matters and 'Business -- Environmental
Matters'.
POTENTIAL FRAUDULENT CONVEYANCE LIABILITY
Various laws enacted for the protection of creditors may have applied to
the Company's incurrence of indebtedness and the making of certain payments in
connection with the 1989 Transaction, including the issuance of the Subordinated
Debt, debt under the 1989 Credit Agreement and the Secured Notes, and JSC's
guarantees thereof. Such state and federal fraudulent transfer laws may also
apply to refinancings of such debt, including the issuance by CCA of the Senior
Notes and the 1994 Notes, the entering into and incurrence of debt under the New
Credit Agreement, guarantees by JSC and its subsidiaries thereof and the
application of the proceeds thereof. If a court in a lawsuit by an unpaid
creditor or representative of creditors of Holdings, JSC or CCA, such as a
trustee in bankruptcy or Holdings, JSC or CCA as debtor in possession, were to
find that, at the time of the 1989 Transaction, Holdings, JSC or CCA (a) was
insolvent or was rendered insolvent by reason of the 1989 Transaction or the
indebtedness incurred and payments made in connection therewith, (b) was engaged
in a business or transaction for which the assets remaining with Holdings, JSC
or CCA constituted unreasonably small capital, (c) intended to, or believed that
it would, incur debts beyond its ability to pay as such debts matured or (d)
intended to hinder, delay or defraud its creditors, such court could, under
state or federal fraudulent transfer law, avoid the Senior Notes or such other
indebtedness (including under the 1994 Notes and the New Credit Agreement) and
order that all payments made by Holdings, JSC or CCA with respect thereto be
returned to it or to a fund for the benefit of its creditors. Such court could
also subordinate the Senior Notes or such other indebtedness (including under
the 1994 Notes and the New Credit Agreement) or the guarantees thereof to all
existing and future indebtedness of JSC or CCA. Such avoidance or subordination
would result in an event of default under the New Credit Agreement.
The measure of insolvency for purposes of the foregoing would vary
depending upon the law of the jurisdiction being applied. Generally, however, a
company would be considered insolvent if the sum of such company's debts were
greater than all of such company's property at a fair valuation or if the
present fair saleable value of such company's assets were less than the amount
that would be required to pay its probable liability on its existing debts
(including contingent liabilities) as they become absolute and matured.
Accordingly, the Company does not believe that the fact that the liabilities of
it or Holdings exceed the book value of such corporation's assets, as reflected
on its balance sheet (which is not based on fair saleable value or fair value),
would be a significant factor in any fraudulent conveyance analysis.
The Company believed at the time of the 1989 Transaction and continues to
believe today, that at the time of the 1989 Transaction, and after giving effect
thereto, none of Holdings, JSC or CCA came within any of the clauses (a) through
(d) above and that therefore the incurrence of indebtedness under the Senior
Notes or such other indebtedness (including under the 1994 Notes and the New
Credit Agreement) will not constitute fraudulent transfers. These beliefs were
(and are) based on management's analysis of, among other things, (i) internal
cash flow projections, (ii) the Company's historical financial information and
(iii) valuations of assets and liabilities of the Company. There can be no
assurance, however, that a court passing on such questions would agree with the
Company's analysis.
CONTROL BY PRINCIPAL STOCKHOLDERS
General. Since the completion of the Equity Offerings, SIBV and MSLEF II
and certain related entities described below (the 'MSLEF II Associated
Entities'), acting together have been, by reason of their ownership of Holdings
Common Stock, able to control the vote on all matters submitted to a vote of
holders of Holdings Common Stock. In this regard, Holdings, SIBV, the MSLEF II
Associated Entities and certain other entities have entered into a Stockholders
Agreement (the 'Stockholders Agreement'), which became effective as of the
completion of the Equity Offerings and which contains, among other things,
provisions for various corporate governance matters, including the election as
directors and the appointment as officers of certain designees of SIBV or MSLEF
II. Pursuant to the
17
<PAGE>
Stockholders Agreement, each of SIBV and MSLEF II have the right to elect
one-half of the Company's Board of Directors. See 'Management -- Provisions of
Stockholders Agreement Pertaining to Management' and 'Certain
Transactions -- Stockholders Agreement'. The presence of SIBV and, until they
dispose of their shares (see below), the MSLEF II Associated Entities, as
controlling stockholders, is also likely to deter a potential acquirer from
making a tender offer or otherwise attempting to obtain control of Holdings,
even if such events might be favorable to Holdings' stockholders.
SIBV. SIBV, which owns its Holdings Common Stock directly and through an
indirect wholly-owned subsidiary, is itself an indirect wholly-owned subsidiary
of JS Group, an international paperboard and packaging corporation organized
under the laws of the Republic of Ireland. JS Group is listed on the London and
Dublin Stock Exchanges and is the largest industrial corporation in Ireland. JS
Group and its subsidiaries have a number of operations similar to those of the
Company, although for the most part outside the United States other than their
newsprint operations. Accordingly, JS Group's interests with respect to various
business decisions of Holdings and the Company may conflict with the interests
of Holdings and the Company. See 'Certain Transactions -- Stockholders
Agreement -- Transactions with Affiliates; Other Businesses'.
MSLEF II Associated Entities. The intention of the MSLEF II Associated
Entities is to dispose of the shares of Holdings Common Stock owned by them. The
timing of such sales or other dispositions by them (which could include
distributions to the partners of MSLEF II) will depend on market and other
conditions, but could occur or commence relatively soon after the 180 day hold
back period imposed by the underwriters in the Equity Offerings, including
pursuant to the exercise of registration rights granted to them. MSLEF II is
unable to predict the timing of sales by any of its limited partners in the
event of a distribution to them.
Under the Stockholders Agreement, sales or other dispositions by the MS
Holders (as defined in the Stockholders Agreement and which term includes the
MSLEF II Associated Entities) (including distributions to the partners of MSLEF
II) could result in SIBV no longer being limited by such agreement to electing
only one-half of Holdings' Board of Directors. In addition, such sales or other
dispositions could result in Holdings and SIBV no longer being required to
obtain the approval of two directors who are designees of MSLEF II for Holdings
and the Company to engage in certain activities, for which such approval is
otherwise required by the Stockholders Agreement. See 'Management -- Provisions
of Stockholders Agreement Pertaining to Management'. Furthermore, MSLEF II has
the right at any time to waive any of the provisions of the Stockholders
Agreement, to agree to the early termination thereof or to fail to exercise any
of its rights thereunder.
No Obligation to Invest. Although SIBV and the MSLEF II Associated Entities
have in the past made additional investments in Holdings and the Company, they
are not obligated to do so in the future. Investors should not assume or expect
that either or both of such stockholders or their affiliates will invest
additional capital, whether in the form of debt or equity, in the future,
particularly in light of the intention of the MSLEF II Associated Entities to
dispose of their shares of Holdings Common Stock and the fact that SIBV's
ability to make such investments is subject to limitations contained in
agreements relating to indebtedness of SIBV and its affiliates.
TAX NET OPERATING LOSS CARRYFORWARDS
As of December 31, 1993, the Company and the other members of its
consolidated group had aggregate net operating loss ('NOL') carryforwards of
approximately $309 million for federal income tax purposes. These carryforwards,
if not utilized to offset taxable income in future periods, will expire at
various times in 2005 through 2008.
If Holdings experiences an 'ownership change' within the meaning of Section
382 of the Internal Revenue Code of 1986, as amended (the 'Code'), the Company's
ability to use NOL carryforwards existing at such time to offset its taxable
income, if any, generated in taxable periods after the ownership change would be
subject to an annual limitation (the 'Section 382 Limitation'). The amount of
NOL carryforwards which may be utilized on an annual basis following an
ownership change generally would be equal to the product of the value of the
outstanding stock of Holdings immediately prior to the
18
<PAGE>
ownership change (reduced by certain contributions to Holdings' capital made in
the two years prior to the ownership change) multiplied by the 'long-term
tax-exempt rate', which is determined monthly and is 6.05% for September 1994.
Although the Company does not believe that Holdings experienced an
ownership change upon or following consummation of the Equity Offerings, it is
possible that future events which are beyond the control of the Company and
Holdings (such as transfers of Holdings Common Stock by certain stockholders) or
certain stock issuances or other actions by Holdings or the Company, could cause
Holdings to experience an ownership change. By way of example and without
limitation, a sale by MSLEF II of a substantial amount of Holdings Common Stock,
when combined with prior owner shifts in the three years preceding the sale by
MSLEF II, would likely result in an ownership change. As indicated under
' -- Control by Principal Stockholders', MSLEF II currently intends to dispose
of its Holdings Common Stock, and sales or other dispositions by it could occur
relatively soon after the 180 day hold back period for the Equity Offerings.
If Holdings experienced an ownership change at a time at which the value of
the Holdings Common Stock was equal to $20.25 per share (the closing price on
September 1, 1994, as reported on the NASDAQ National Market), the Section 382
Limitation would be approximately $98 million using a 'long-term tax exempt
rate' of 6.05%. Depending on the circumstances, such an ownership change could
significantly restrict the Company's ability to utilize NOLs existing at such
time to offset subsequent taxable income. Accordingly, due to uncertainty as to
whether an ownership change will occur in the future, prospective purchasers of
Senior Notes should not assume the unrestricted availability of currently
existing or future NOL carryforwards in making their investment decisions.
TERMS OF THE SENIOR NOTES
The Indenture contains covenants that restrict, among other things, the
ability of JSC and its subsidiaries to incur indebtedness, pay dividends, engage
in transactions with stockholders and affiliates, issue capital stock, create
liens, sell assets, engage in mergers and consolidations and make investments in
unrestricted subsidiaries. The covenants are the result of negotiation among the
Company and the Underwriter, and although the covenants are generally designed
to protect the Senior Noteholders from actions that could result in significant
credit deterioration, the covenants (like covenants in other similar
indebtedness) are subject to various exceptions which are generally designed to
allow the Company to continue to operate its business without undue restraint
and, therefore, are not total prohibitions with respect to the proscribed
activities. For example, the Company could incur additional indebtedness that is
secured or that is pari passu with the Senior Notes in the future if it were
able to satisfy the financial ratios required by the covenant restricting debt
issuance. For a description of such exceptions, See 'Description of the Senior
Notes'.
The terms of the Senior Notes generally can be amended or modified with the
consent of the holders of a majority in aggregate principal amount of Senior
Notes then outstanding. While certain provisions related primarily to payment
cannot be modified absent the consent of each holder affected thereby, such
majority approval extends to many significant matters, including, for example,
the waiver of an Event of Default.
TRADING MARKET FOR THE SENIOR NOTES
The Senior Notes are not listed for trading on any securities exchange or
on any automated dealer quotation system. MS&Co. currently makes a market in the
Senior Notes. However, MS&Co. is not obligated to make a market for the Senior
Notes and may discontinue or suspend such market-making at any time without
notice. Accordingly, no assurance can be given as to the liquidity of, or the
trading market for, the Senior Notes. Further, the liquidity of, and trading
market for, the Senior Notes may be adversely affected by declines and
volatility in the market for high yield securities generally as well as any
changes in the Company's financial performance or prospects.
19
<PAGE>
RECAPITALIZATION PLAN
Holdings and the Company are implementing the Recapitalization Plan to
repay or refinance a substantial portion of their indebtedness in order to
improve operating and financial flexibility by reducing the level and overall
cost of their debt, extending maturities of indebtedness, increasing
stockholders' equity and increasing their access to capital markets. The Company
is implementing the Recapitalization Plan at this time to take advantage of
favorable conditions in the capital markets and in anticipation of refinancing
its Subordinated Debt with lower cost indebtedness in December 1994 (when such
Subordinated Debt first becomes redeemable). The Recapitalization Plan includes
the following primary components in addition to others described below: (i) the
Debt Offerings, (ii) the Equity Offerings, (iii) the SIBV Investment, (iv) the
Bank Debt Refinancing and (v) the Subordinated Debt Refinancing, which is
anticipated to occur on approximately December 1, 1994.
For the six months ended June 30, 1994, the Recapitalization Plan would, on
a pro forma basis, have resulted in $29.4 million of aggregate savings in
interest expense, of which $22.6 million represents cash interest expense
savings (in each case on a pre-tax basis). See 'Pro Forma Financial Data'.
SOURCES AND USES
The following table sets forth the anticipated sources and uses of funds to
be used to effect the Recapitalization Plan:
<TABLE>
<CAPTION>
($ MILLIONS)
<S> <C>
Sources of Funds
The Debt Offerings(a)............................................................. $ 400
The Equity Offerings(a)........................................................... 250
SIBV Investment................................................................... 150
New Revolving Credit Facility(b).................................................. 30
Initial Term Loan................................................................. 300
Delayed Term Loan(c).............................................................. 900
-------
Total........................................................................ $2,030
-------
-------
Uses of Funds
Prepayment of debt under 1989 Credit Agreement.................................... $ 609
Prepayment of debt under 1992 Credit Agreement.................................... 201
Prepayment of Secured Notes....................................................... 271
Redemption of Senior Subordinated Notes(d)........................................ 374
Redemption of Subordinated Debentures(d).......................................... 321
Redemption of Junior Accrual Debentures(e)........................................ 149
Fees and expenses(f).............................................................. 105
-------
Total........................................................................ $2,030
-------
-------
</TABLE>
- ------------
(a) Without deducting estimated underwriting discounts and commissions and
expenses. To the extent proceeds of the Debt Offerings are used to fund a
portion of the Company's 1994 capital expenditures, the Company will use
available cash or borrow under the New Revolving Credit Facility (or, to
the extent proceeds are available, under the Delayed Term Loan) to pay
interest due on the Junior Accrual Debentures as of December 1, 1994.
(b) The amount shown is net of available cash. The maximum amount available
under such facility is $450 million, with up to $150 million of such amount
being available for letters of credit. Immediately following the 1994
Offerings, borrowings of $65 million and letters of credit of approximately
$90 million were outstanding under such facility. See also footnotes (a)
and (d).
(c) Immediately following the 1994 Offerings, borrowings of $100 million were
outstanding under the Delayed Term Loan.
(d) Represents the outstanding principal amount and redemption premiums
required to be paid on such securities. Aggregate redemption premiums for
the Senior Subordinated Notes and the Subordinated Debentures are estimated
to be $24 million and $21 million, respectively. Accrued and unpaid
interest on the Senior Subordinated Notes and the Subordinated Debentures
was paid on June 1, 1994, and the Company expects that such accrued and
unpaid interest will be paid on December 1, 1994, through internal cash
flow or with additional borrowings under the New Revolving Credit Facility.
(e) Represents the estimated accreted value of the Junior Accrual Debentures as
of December 1, 1994, and includes accrued and unpaid interest payable as of
such date.
(f) Expenses include estimated fees and expenses relating to the Bank Debt
Refinancing, commissions and underwriting discounts relating to the Debt
Offerings and the Equity Offerings, respectively, and reimbursement of
certain fees and expenses of SIBV incurred in connection with the
Recapitalization Plan. See 'Certain Transactions -- Other Transactions'.
There were no underwriting discounts or commissions on the sale of Holdings
Common Stock pursuant to the SIBV Investment.
20
<PAGE>
DEBT OFFERINGS
Concurrently with the Equity Offerings, CCA offered the 1994 Notes in the
Debt Offerings. The 1994 Notes are general unsecured obligations of CCA,
guaranteed by JSC, and rank pari passu in right of payment with all other senior
indebtedness of CCA. For a description of certain terms of the 1994 Notes see
'Description of Certain Indebtedness_--_Terms of the 1994 Notes'.
EQUITY OFFERINGS
Concurrently with the Debt Offerings, Holdings offered 15,400,000 shares of
Holdings Common Stock initially in the United States and Canada and 3,850,000
shares of Holdings Common Stock initially outside the United States and Canada.
The closings of the Equity Offerings and the Debt Offerings were conditioned on
one another as well as on the substantially concurrent consummation of the other
components of the Recapitalization Plan (other than the Subordinated Debt
Refinancing) and on the satisfaction of certain other closing conditions
contained in the respective underwriting agreements related thereto.
SALE OF STOCK TO SIBV
SIBV purchased from Holdings pursuant to the SIBV Investment 11,538,462
shares of Holdings Common Stock for an aggregate purchase price of $150 million.
Holdings and SIBV entered into a subscription agreement (the 'Subscription
Agreement') which, among other things, provides for the SIBV Investment.
Following the consummation of the Equity Offerings and the SIBV Investment,
SIBV, directly and indirectly through a wholly owned subsidiary, beneficially
owned 46.5% of the outstanding shares of Holdings Common Stock. See 'Security
Ownership of Certain Beneficial Owners'. In addition, the Subscription Agreement
provides that SIBV shall have certain contractual preemptive rights which
generally allow SIBV to maintain its percentage ownership of Holdings Common
Stock.
BANK DEBT REFINANCING
As part of the Recapitalization Plan, CCA and JSC have entered into the New
Credit Agreement. Substantially concurrently with the consummation of the 1994
Offerings, CCA used borrowings under the New Credit Agreement, the net proceeds
of the Equity Offerings and the SIBV Investment and a portion of the net
proceeds of the Debt Offerings contributed to it by Holdings, to refinance its
indebtedness outstanding under the Old Bank Facilities and Secured Notes. See
'Description of Certain Indebtedness -- The New Credit Agreement'.
RECLASSIFICATION AND RELATED TRANSACTIONS
Prior to the consummation of the Equity Offerings, the capital stock of
Holdings consisted of four classes of outstanding common stock (Class A, Class
B, Class C and Class D) and a fifth class of common stock (Class E) reserved for
issuance upon the exercise of outstanding options. Prior to the consummation of
the Equity Offerings, the only outstanding shares of voting stock of Holdings
were the shares of Class A common stock (all outstanding shares of which were
directly and indirectly owned by SIBV) and Class B common stock (all outstanding
shares of which were owned by MSLEF II). Immediately prior to the consummation
of the Equity Offerings, the Reclassification occurred, pursuant to which
Holdings' five classes of common stock were converted into one class, on a basis
of ten shares of Holdings Common Stock for each share of stock outstanding of
each of the old classes. Following the Reclassification, Holdings' only class of
common stock was the Holdings Common Stock, 80,200,000 shares of which were
outstanding immediately prior to the Equity Offerings and the SIBV Investment.
The Company intends, pursuant to the Substitution Transaction (as defined
below), to (i) merge CCA Enterprises into CCA, (ii) merge JSC Enterprises into
JSC and (iii) merge JSC into CCA. This will result in the elimination of the
intercompany notes held by CCA Enterprises and JSC Enterprises which are their
only assets (other than, in the case of JSC Enterprises, stock of subsidiaries,
including CCA and SNC). Prior to the merger of JSC into CCA, Holdings also
intends to interpose a wholly-
21
<PAGE>
owned subsidiary between it and JSC, which would own all of the capital stock of
JSC prior to such merger, and all of the capital stock of CCA after such merger.
See 'Description of Certain Indebtedness -- Substitution Transaction'. The
Company reserves the right to abandon any or all of such transactions.
STOCKHOLDERS AGREEMENT; CHARTER AND BY-LAW AMENDMENTS
Subsequent to the 1989 Transaction and prior to the Equity Offerings,
Holdings, JSC and CCA had been operated pursuant to the terms of an organization
agreement (the 'Organization Agreement'), which, among other things, provided
for the election of directors, the selection of officers and the day-to-day
management of Holdings and the Company. In connection with the Recapitalization
Plan, (i) the Organization Agreement was terminated upon the closing of the
Equity Offerings and, at such time, the Stockholders Agreement among Holdings,
SIBV, the MSLEF II Associated Entities and certain other entities, became
effective and (ii) the certificates of incorporation and by-laws of each of
Holdings, JSC and CCA were amended. See 'Management -- Directors',
'Management -- Provisions of Stockholders Agreement Pertaining to Management'
and 'Certain Transactions -- Stockholders Agreement' for a description of the
Stockholders Agreement. In addition, a prior commitment, subject to certain
conditions, of SIBV to purchase subordinated debt of CCA guaranteed by JSC in
order to fund purchases by CCA of its Subordinated Debt, was terminated upon
consummation of the 1994 Offerings. See 'Certain Transactions -- Other
Transactions'.
SUBORDINATED DEBT REFINANCING
On approximately December 1, 1994, CCA intends to use available proceeds of
the Debt Offerings, remaining borrowings under the Delayed Term Loan and, to the
extent required, borrowings under the New Revolving Credit Facility or available
cash to effect the Subordinated Debt Refinancing, which consists of the
redemption of the Senior Subordinated Notes, the Subordinated Debentures and the
Junior Accrual Debentures and the payment of accrued and unpaid interest on the
Junior Accrual Debentures as of December 1, 1994 (and, to the extent necessary,
to use borrowings under the New Revolving Credit Facility to pay accrued but
unpaid interest on the Senior Subordinated Notes and the Subordinated
Debentures). The earliest date such securities may be redeemed is December 1,
1994. CCA reserves the right, however, to acquire the Subordinated Debt in open
market or privately negotiated transactions prior to such date. Such
acquisitions of Subordinated Debt are expected to be financed with borrowings
under the New Credit Agreement, subject to the limitation that the indentures
governing each of the classes of the Subordinated Debt prohibit borrowings under
the New Credit Agreement to be used to acquire Subordinated Debt junior to such
class. See 'Description of Certain Indebtedness -- Terms of New Credit
Agreement' and ' -- Terms of Subordinated Debt'. This is likely to result in
only Senior Subordinated Notes being acquired prior to December 1, 1994. The
amount of Subordinated Debt so acquired, if any, will depend on market
conditions and availability of such securities at acceptable prices. JSC and CCA
also reserve the right to determine not to consummate the Subordinated Debt
Refinancing for any reason, even if they are able to do so.
Borrowings under the Delayed Term Loan, which are necessary to effect the
Subordinated Debt Refinancing, are subject to the following and only the
following conditions: (a) no order, judgment or decree shall purport to enjoin
or restrain (i) borrowings under the Delayed Term Loan or (ii) CCA from
redeeming the Subordinated Debt, (b) certain events of bankruptcy, insolvency or
reorganization with respect to Holdings, JSC or CCA shall not have occurred, (c)
there shall not have occurred and be continuing a payment default under the New
Credit Agreement, the Senior Notes, the 1994 Notes or under any subordinated
debt (in each case, other than under the New Credit Agreement, after the
expiration of any applicable grace period), (d) the lenders under the New Credit
Agreement shall not have accelerated all or any of the loans under the New
Credit Agreement, (e) there shall not have occurred and be continuing any event
of default under the New Credit Agreement relating to cross-acceleration of
certain other debt and (f) in the event of any borrowing under the Delayed Term
Loan prior to December 15, 1994, the Subordinated Debt repurchased with the
proceeds thereof shall have been repurchased pursuant to open-market or
negotiated transactions for a price not in excess of 113% of the aggregate
principal amount of the Subordinated Debt to be so repurchased.
22
<PAGE>
CONSENTS AND WAIVERS
As described below, the Company was required to obtain the Consents and
Waivers under, among other things, the Senior Notes, the Secured Notes and the
Securitization in order to consummate the Recapitalization Plan. The Company
obtained the Consents and Waivers.
The Senior Notes. The prior terms of the Senior Notes prohibited the
Subordinated Debt Refinancing because the indebtedness incurred to effect such
refinancing would be unsubordinated secured debt under the New Credit Agreement.
The Company obtained the consent of the holders of the Senior Notes to amend the
Indenture, among other things, in order to allow the Subordinated Debt
Refinancing to be consummated without any violation thereof. In connection with
such solicitation, CCA made certain consent payments, in cash, for each $1,000
principal amount of such securities for which consents were validly tendered
(and not revoked) on or before the date a supplemental indenture, dated April 8,
1994 (the 'First Supplemental Indenture') was executed.
Pursuant to the First Supplemental Indenture (i) the covenant contained in
the Indenture which limited debt incurrence by JSC and CCA was modified, among
other things, to allow Holdings, JSC or CCA to refinance the existing
Subordinated Debt (or any portion thereof) with indebtedness for borrowed money
or with an exchange for indebtedness of any such company, so long as, at or
prior to the time such indebtedness is incurred but in no event later than April
30, 1995, Holdings, JSC or CCA shall have consummated one or more public or
private sales of its capital stock and applied not less than $300 million of the
proceeds therefrom to the repayment of indebtedness of JSC or CCA which is not
by its terms expressly subordinated in right of payment to the Senior Notes,
(ii) the covenant contained in the Indenture which limited certain payments by
JSC and CCA was modified to allow the payment of dividends on the capital stock
of JSC or CCA, following any initial public offering of capital stock of
Holdings, JSC or CCA (including the Equity Offerings) of up to 6% per annum of
the net proceeds received by JSC or CCA, as the case may be, out of proceeds of,
or from Holdings out of the proceeds of, (a) such public offering and (b) the
SIBV Investment or any other sale of capital stock of JSC, CCA or Holdings which
is substantially concurrent with the public offering referred to in clause (a)
above (in each case, net of underwriting discounts and commissions, if any, but
without deducting other fees and expenses therefrom), (iii) the definition of
'change of control' was amended to delete therefrom a change in a majority of
the outstanding directors, (iv) the Substitution Transaction (as defined under
'Description of Certain Indebtedness -- Substitution Transaction') will be
permitted to occur and (v) certain other technical amendments were made to the
Indenture.
Secured Notes. Under the terms of the Secured Notes, the Bank Debt
Refinancing (which involves a prepayment of the Secured Notes) would have
required that the holders of the Secured Notes be given a 30 day notice of
prepayment. The holders of the Secured Notes waived such 30 day notice of
prepayment.
Securitization. In 1991, JSC and CCA entered into the Securitization. The
Securitization involved the sale of JSC's and CCA's trade receivables (the
'Receivables') to Jefferson Smurfit Finance Corporation ('JSFC'), a special
purpose subsidiary of JSC. Under the Securitization, JSFC has borrowings of
$201.5 million outstanding at June 30, 1994 from Emerald Funding Corporation
('EFC'), a third-party owned corporation not affiliated with JSC, and has
pledged its interest in such Receivables to EFC. EFC issued commercial paper
notes ('CP Notes') and term notes ('Term Notes'). EFC also entered into a
liquidity facility with a group of banks, for whom Dresdner Bank AG acted as
agent (the 'Liquidity Banks'), and a subordinated loan agreement with Bank
Brussels Lambert (the 'Subordinated Lender') to provide additional sources of
funding. EFC pledged its interest in the Receivables assigned to it by JSFC to
secure EFC's obligations to the Liquidity Banks, the Subordinated Lender, and
the holders of the CP Notes and the Term Notes.
Under the prior terms of the Master Agreement relating to the
Securitization, the completion of the Equity Offerings would have resulted in
the occurrence of a 'Liquidation Event' because JS Group and its affiliates
would have ceased to own or control at least 50% of the issued and outstanding
shares of capital stock of Holdings entitled to vote for the election of members
of the Holdings' Board of Directors. In addition, the consummation of a merger
of JSC into CCA (see 'Description of Certain Indebtedness -- Substitution
Transaction') would have constituted a 'Liquidation Event.' The effect of the
occurrence of a Liquidation Event which is not waived is that collections on
receivables are no
23
<PAGE>
longer applied to purchase new receivables, but are used to pay down the amount
of outstanding debt owed to the Liquidity Banks, the Subordinated Lender and the
holders of the CP Notes and the Term Notes.
The Securitization documents were amended so that the consummation of the
Equity Offerings and of a subsequent merger of JSC into CCA would not result in
the occurrence of a Liquidation Event.
Other. The consent of The Times Mirror Company was required under the
shareholders agreement between JSC and The Times Mirror Company in order to
consummate the Recapitalization Plan. Certain transactions related to the
Recapitalization Plan may have needed to be approved by the Company's creditors
under the Old Bank Facilities and the Secured Note Purchase Agreement prior to
the Bank Debt Refinancing. All of such consents were obtained.
24
<PAGE>
CAPITALIZATION
The following table sets forth the historical consolidated capitalization
of the Company as of June 30, 1994 and as of June 30, 1994 as adjusted for the
Recapitalization Plan. This table should be read in conjunction with the
historical consolidated statements of operations and balance sheet of the
Company and 'Pro Forma Financial Data' included elsewhere in this Prospectus.
<TABLE>
<CAPTION>
JUNE 30, 1994
------------------------------
AS ADJUSTED FOR
THE
RECAPITALIZATION
PLAN (INCLUDING
THE
SUBORDINATED
DEBT
ACTUAL REFINANCING)
-------- ---------------
(IN MILLIONS)
<S> <C> <C>
Short-term debt (represents current maturities of long-term debt)............... $ 8.1 $ 8.1
-------- ---------------
Long-term debt:
New Revolving Credit Facility(a)(b)........................................ $ 69.0 $ 58.6
Initial Term Loan(a)....................................................... 300.0 300.0
Delayed Term Loan(a)....................................................... 100.0 900.0
Revolving Credit Facility(b)............................................... -- --
1989 Term Loan Facility....................................................
----
1992 Term Loan Facility.................................................... -- --
Secured Notes.............................................................. -- --
Senior Notes(c)............................................................ 500.0 500.0
1994 Notes(d).............................................................. 400.0 400.0
Securitization Loans....................................................... 201.5 201.5
Other senior indebtedness (excluding current maturities)................... 74.8 74.8
Senior Subordinated Notes(e)............................................... 350.0 --
Subordinated Debentures(e)................................................. 300.0 --
Junior Accrual Debentures(e)(f)............................................ 139.6 --
-------- ---------------
Total long-term debt....................................................... 2,434.9 2,434.9
-------- ---------------
Minority interest in subsidiary................................................. 17.3 17.3
-------- ---------------
Stockholder's deficit:
Additional paid-in capital and common stock................................ 1,118.3 1,118.3
Retained deficit........................................................... (1,861.3) (1,861.3)
-------- ---------------
Total stockholder's deficit................................................ (743.0) (743.0)
-------- ---------------
Total capitalization.................................................. $1,709.2 $ 1,709.2
-------- ---------------
-------- ---------------
</TABLE>
- ------------
(a) For further information about the New Revolving Credit Facility, the
Initial Term Loan and the Delayed Term Loan, see 'Description of Certain
Indebtedness -- Terms of New Credit Agreement'. Immediately following the
1994 Offerings, borrowings of $100 million were outstanding under the
Delayed Term Loan.
(b) The amount shown for the New Revolving Credit Facility is net of available
cash. Represents funds utilized under such revolving credit facilities.
The maximum amount available under each of the New Revolving Credit
Facility (including the amount which was drawn down upon consummation of
the Recapitalization Plan) and the Revolving Credit Facility is $450
million (with up to $150 million of such amount being available for
letters of credit) and $400 million (with up to $125 million of such
amount being available for letters of credit), respectively. Immediately
following the 1994 Offerings, borrowings of $65 million and letters of
credit of approximately $90 million were outstanding under the New
Revolving Credit Facility. The Company paid accrued and unpaid interest on
June 1, 1994 on the Senior Subordinated Notes and the Subordinated
Debentures, and the Company expects that such interest will be paid on
December 1, 1994, through internal cash flow or with additional borrowings
under the New Revolving Credit Facility. See also footnote (d) below.
(c) For further information about the Senior Notes, see 'Description of Senior
Notes'.
(d) For further information about the 1994 Notes, see 'Description of Certain
Indebtedness_--_Terms of the 1994 Notes'. To the extent proceeds of the
Debt Offerings are used to fund a portion of the Company's 1994 capital
expenditures, the Company will use available cash or borrow under the New
Revolving Credit Facility (or, to the extent proceeds are available, under
the Delayed Term Loan) to pay interest due on the Junior Accrual
Debentures as of December 1, 1994.
(e) For further information about the Subordinated Debt, see 'Description of
Certain Indebtedness -- Terms of Subordinated Debt'.
(f) The Junior Accrual Debentures accrete in value at the rate of 15 1/2%
compounded semi-annually. The aggregate accreted value, including accrued
interest, of the Junior Accrual Debentures was approximately $139.6
million at June 30, 1994 and will be approximately $148.7 million at
December 1, 1994.
25
<PAGE>
SELECTED HISTORICAL FINANCIAL DATA
The following table sets forth selected consolidated financial data of the
Company as of and for each of the six months ended June 30, 1993 and 1994 and
the years ended December 31, 1989, 1990, 1991, 1992 and 1993. This data should
be read in conjunction with 'Management's Discussion and Analysis of Results of
Operations and Financial Condition' and the consolidated financial statements of
the Company and the related notes included elsewhere in this Prospectus. The
selected consolidated financial data of the Company as of and for the years
ended December 31, 1989, 1990, 1991, 1992 and 1993 presented under the captions
Operating Results and Balance Sheet Data, with the exception of the ratio of
earnings to fixed charges, were derived from the consolidated financial
statements of the Company, which were audited by independent auditors. The
information presented for the interim periods is unaudited but, in the opinion
of management, such information reflects all adjustments (consisting of only
normal recurring accruals) necessary for a fair presentation of the financial
data for the interim periods. The results for the interim periods are not
necessarily indicative of the results for a full year.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
----------------------------------------------------------------- --------------------------
1989 1990 1991 1992 1993 1993 1994
--------- -------- -------- -------- -------- ----------- -----------
(IN MILLIONS, EXCEPT RATIOS AND STATISTICAL DATA) (UNAUDITED) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
OPERATING RESULTS:
Net sales.............. $2,936.3 $2,910.9 $2,940.1 $2,998.4 $2,947.6 $1,470.8 $1,493.6
Cost of goods sold..... 2,275.9 2,296.1 2,409.4 2,499.3 2,573.1 1,268.8 1,284.1
Selling and
administrative
expenses............. 254.9 218.8 225.2 231.4 239.2 119.7 107.1
Restructuring charge... 96.0
Environmental and other
charges.............. 54.0
--------- -------- -------- -------- -------- ----------- -----------
Income (loss) from
operations........... 405.5 396.0 305.5 267.7 (14.7) 82.3 102.4
Recapitalization
expenses............. (139.2)
Interest expense....... (119.1) (337.8) (335.2) (300.1) (254.2) (127.7) (134.1)
Other, net............. 8.4 6.5 5.4 5.2 8.1 2.3 3.1
--------- -------- -------- -------- -------- ----------- -----------
Income (loss) before
income taxes, equity
in earnings (loss) of
affiliates, minority
interests,
extraordinary item
and cumulative effect
of accounting
changes.............. 155.6 64.7 (24.3) (27.2) (260.8) (43.1) (28.6)
Provision for (benefit
from) income taxes... 74.0 35.4 10.0 10.0 (83.0) (13.0) (8.4)
Equity in earnings
(loss) of
affiliates(a)........ 11.9 (2.2) (39.9) 0.5
Minority interest share
of income (loss) in:
Smurfit Newsprint
Corporation........ 3.6 5.3 2.9 (2.7) (3.2)
CCA, prior to
acquisition........ 24.4
--------- -------- -------- -------- -------- ----------- -----------
Income (loss) before
extraordinary item
and cumulative effect
of accounting
changes.............. 65.5 21.8 (77.1) (34.0) (174.6) (30.1) (20.2)
Extraordinary item:
Loss from early
extinguishment of
debt, net of income
tax benefit........ (29.7) (49.8) (37.8) (37.8) (51.6)
Cumulative effect of
accounting changes:
Postretirement
benefits........... (37.0) (37.0)
Income taxes......... 20.5 20.5
--------- -------- -------- -------- -------- ----------- -----------
Net income (loss)...... $ 35.8 $ 21.8 $ (77.1) $ (83.8) $ (228.9) $ (84.4) (71.8)
--------- -------- -------- -------- -------- ----------- -----------
--------- -------- -------- -------- -------- ----------- -----------
Ratio of earnings to
fixed charges(b)..... 2.24 1.17 (c) (c) (c) (c) (c)
--------- -------- -------- -------- -------- ----------- -----------
--------- -------- -------- -------- -------- ----------- -----------
OTHER DATA:
Gross profit
margin(d)............ 22.5% 21.1% 18.1% 16.6% 12.7% 13.7% 14.0%
Selling and
administrative
expenses as a percent
of net sales......... 8.7 7.5 7.7 7.7 8.1 8.1 7.2
EBITDA(e).............. $ 508.8 $ 525.1 $ 440.9 $ 407.8 $ 274.2 $ 147.7 $ 171.1
Ratio of EBITDA to
interest expense..... 4.27x 1.55x 1.32x 1.36x 1.08x 1.16x 1.28x
Property and timberland
additions............ $ 201.3 $ 192.0 $ 118.9 $ 97.9 $ 117.4 $ 55.7 $ 65.0
Depreciation, depletion
and amortization..... 94.9 122.6 130.0 134.9 130.8 63.1 65.6
BALANCE SHEET DATA (AT
END OF PERIOD):
Working capital........ $ 156.9 $ 60.7 $ 76.9 $ 105.7 $ 40.0 $ 95.7 $ 44.1
Property, plant and
equipment and
timberland, net...... 1,422.3 1,527.3 1,525.9 1,496.5 1,636.0 1,686.3 1,641.6
Total assets........... 2,436.7 2,447.9 2,460.1 2,436.4 2,597.1 2,659.6 2,720.0
Long-term debt
(excluding current
maturities).......... 2,684.4 2,636.7 2,650.4 2,503.0 2,619.1 2,573.7 2,434.9
Deferred income taxes
(excluding current
portion)............. 145.5 168.6 158.3 159.8 232.2 307.5 190.2
Stockholders'
deficit.............. (921.6) (899.4) (976.9) (828.9) (1,057.8) (913.2) (743.0)
STATISTICAL DATA:
Containerboard
production (thousand
tons)................ 1,792 1,797 1,830 1,918 1,840 928 951
Boxboard production
(thousand tons)...... 816 809 826 832 829 422 371
Newsprint production
(thousand tons)...... 582 623 614 615 615 303 307
Corrugated shipping
containers sold
(thousand tons)...... 1,581 1,655 1,768 1,871 1,936 946 1,000
Folding cartons sold
(thousand tons)...... 444 455 482 487 475 235 235
Fibre reclaimed and
brokered (thousand
tons)................ 3,549 3,547 3,666 3,846 3,907 1,917 1,957
Timberland owned or
leased (thousand
acres)............... 992 968 978 978 984 979 984
</TABLE>
(footnotes on next page)
26
<PAGE>
(footnotes from previous page)
(a) Equity in earnings (loss) of affiliates in 1991 includes after-tax charges
of $29.3 million and $6.7 million for the write-off of the Company's equity
investments in Temboard and PCL, respectively.
(b) For purposes of these calculations, earnings consist of income (loss) before
income taxes, equity in earnings (loss) of affiliates, minority interests
and extraordinary item and cumulative effect of accounting changes, plus
fixed charges. Fixed charges consist of interest on indebtedness,
amortization of deferred debt issuance costs and that portion of lease
rental expense considered to be representative of the interest factor
therein (deemed to be one-fourth of lease rental expense).
(c) For the six months ended June 30, 1993 and 1994 and for years ended December
31, 1991, 1992 and 1993, earnings were inadequate to cover fixed charges by
$24.3 million, $30.1 million, $26.7 million, $31.4 million and $264.2
million, respectively.
(d) Gross profit margin represents the excess of net sales over cost of goods
sold divided by net sales.
(e) EBITDA represents net income before interest expense, income taxes,
depreciation, depletion and amortization, equity in earnings (loss) of
affiliates, minority interests, recapitalization expense, extraordinary
items and cumulative effect of accounting changes and in 1993, a
restructuring charge and environmental and other charges. The restructuring
and environmental and other charges include $43 million of asset writedowns
and $107 million of future cash expenditures. EBITDA is presented here, not
as a measure of operating results, but rather as a measure of the Company's
debt service ability.
27
<PAGE>
PRO FORMA FINANCIAL DATA
The following unaudited pro forma condensed consolidated statement of
operations for the six months ended June 30, 1994 and the year ended December
31, 1993 have been prepared to reflect the following: (i) the Recapitalization
Plan (excluding the Subordinated Debt Refinancing) and (ii) the Recapitalization
Plan (including the Subordinated Debt Refinancing). The statement of operations
for the year ended December 31, 1993 also includes the pro forma effect of the
Senior Notes. The pro forma effects of such transactions have been presented
assuming that they occurred as of the beginning of the period presented in the
unaudited pro forma condensed consolidated statement of operations. The
unaudited pro forma condensed consolidated balance sheet as of June 30, 1994 was
prepared as if the Subordinated Debt Refinancing occurred as of June 30, 1994.
The pro forma financial data are provided for informational purposes only
and do not purport to be indicative of the Company's financial position or
results which would actually have been obtained had such transactions been
completed as of the date or for the periods presented, or which may be obtained
in the future.
The pro forma financial data should be read in conjunction with the
historical financial statements of the Company and related notes thereto
appearing elsewhere in this Prospectus.
28
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET
JUNE 30 1994
<TABLE>
<CAPTION>
AS ADJUSTED FOR THE
SUBORDINATED DEBT
JEFFERSON REFINANCING
SMURFIT ---------------------------
CORPORATION JSC
(U.S.) PRO FORMA (U.S.)
HISTORICAL ADJUSTMENTS PRO FORMA
----------- ----------- ---------
(IN MILLIONS)
<S> <C> <C> <C>
ASSETS
Current assets
Cash and cash equivalents.............................................. $ 80.9 $ $ 80.9
Receivables............................................................ 289.9 289.9
Inventories............................................................ 218.0 218.0
Refundable income taxes................................................ 0.2 0.2
Deferred income taxes.................................................. 41.8 41.8
Prepaid expenses and other current assets.............................. 3.3 3.3
----------- ----------- ---------
Total current assets............................................... 634.1 0.0 634.1
Property, plant and equipment, net......................................... 1,381.8 1,381.8
Timberland, net............................................................ 259.8 259.8
Deferred debt issuance costs............................................... 87.4 87.4
Goodwill, less accumulated amortization.................................... 258.6 258.6
Other assets............................................................... 98.3 98.3
----------- ----------- ---------
Total assets............................................................... $2,720.0 $ 0.0 $2,720.0
----------- ----------- ---------
----------- ----------- ---------
LIABILITIES AND STOCKHOLDER'S DEFICIT
Current liabilities
Current maturities of long-term debt................................... $ 8.1 $ $ 8.1
Accounts payable....................................................... 324.4 324.4
Accrued compensation and payroll taxes................................. 118.8 118.8
Interest payable....................................................... 45.2 45.2
Other accrued liabilities.............................................. 93.5 93.5
----------- ----------- ---------
Total current liabilities.......................................... 590.0 0.0 590.0
Existing long-term debt, less current maturities:
Nonsubordinated........................................................ 776.3 776.3
Subordinated........................................................... 789.6 (789.6)(a)
New Revolving Credit Facility.............................................. 69.0 (10.4)(a) 58.6
Initial Term Loan.......................................................... 300.0 300.0
Delayed Term Loan.......................................................... 100.0 800.0 (a) 900.0
Debt Offerings............................................................. 400.0 400.0
Other long-term liabilities................................................ 230.6 230.6
Deferred income taxes...................................................... 190.2 190.2
Minority interests......................................................... 17.3 17.3
Stockholder's deficit
Common stock and additional paid-in capital............................ 1,118.3 1,118.3
Retained deficit....................................................... (1,861.3) (1,861.3)
----------- ----------- ---------
Total stockholder's deficit........................................ (743.0) 0.0 (743.0)
----------- ----------- ---------
Total liabilities and stockholder's deficit................................ $2,720.0 $ 0.0 $2,720.0
----------- ----------- ---------
----------- ----------- ---------
</TABLE>
- ------------
(a) Represents repayment of existing subordinated indebtedness and issuance of
new indebtedness under the Delayed Term Loan.
29
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
AS ADJUSTED FOR THE AS ADJUSTED FOR THE
RECAPITALIZATION PLAN RECAPITALIZATION PLAN
(EXCLUDING THE (INCLUDING THE
SUBORDINATED DEBT SUBORDINATED DEBT
JEFFERSON REFINANCING) REFINANCING)
SMURFIT ------------------------ ------------------------
CORPORATION JSC JSC
(U.S.) PRO FORMA (U.S.) PRO FORMA (U.S.)
HISTORICAL ADJUSTMENTS PRO FORMA ADJUSTMENTS PRO FORMA
----------- ----------- --------- ----------- ---------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Six months ended June 30, 1994:
Net sales................................. $1,493.6 $ $1,493.6 $ $1,493.6
Cost of goods sold........................ 1,284.1 1,284.1 1,284.1
Selling and administrative expenses....... 107.1 107.1 107.1
----------- ----- --------- ----------- ---------
Income from operations.................... 102.4 0.0 102.4 0.0 102.4
Interest expense(a)....................... (134.1) 0.7 (133.4) 29.4 (104.7)
Other -- net.............................. 3.1 3.1 3.1
----------- ----- --------- ----------- ---------
Loss before income taxes....................... (28.6) 0.7 (27.9) 29.4 0.8
Provision for (benefit from) income taxes(b)... (8.4) 0.3 (8.1) 11.2 2.8
----------- ----- --------- ----------- ---------
Loss before extraordinary item(c).............. $ (20.2) $0.4 $ (19.8) $18.2 $ (2.0)
----------- ----- --------- ----------- ---------
----------- ----- --------- ----------- ---------
</TABLE>
<TABLE>
<CAPTION>
AS ADJUSTED FOR THE AS ADJUSTED FOR THE
RECAPITALIZATION PLAN RECAPITALIZATION PLAN
(EXCLUDING THE (INCLUDING THE
SUBORDINATED DEBT SUBORDINATED DEBT
JEFFERSON REFINANCING) REFINANCING)
SMURFIT ------------------------ ------------------------
CORPORATION JSC JSC
(U.S.) PRO FORMA (U.S.) PRO FORMA (U.S.)
HISTORICAL ADJUSTMENTS PRO FORMA ADJUSTMENTS PRO FORMA
----------- ----------- --------- ----------- ---------
(IN MILLIONS)
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1993:
Net sales................................. $2,947.6 $ $2,947.6 $ $2,947.6
Cost of goods sold........................ 2,573.1 2,573.1 2,573.1
Selling and administrative expenses....... 239.2 239.2 239.2
Restructuring and other charges........... 150.0 150.0 150.0
----------- ----------- --------- ----------- ---------
Loss from operations...................... (14.7) (14.7) (14.7)
Interest expense(a)....................... (254.2) (7.1) (261.3) 53.5 (200.7)
Other -- net.............................. 8.1 8.1 8.1
----------- ----------- --------- ----------- ---------
Loss before income taxes, minority interest,
extraordinary item, and cumulative effect of
accounting changes........................... (260.8) (7.1) (267.9) 53.5 (207.3)
Provision for (benefit) from income taxes(b)... (83.0) (2.5) (85.5) 18.7 (64.3)
----------- ----------- --------- ----------- ---------
(177.8) (4.6) (182.4) 34.8 (143.0)
Minority interest share of loss................ 3.2 0.0 3.2 0.0 3.2
----------- ----------- --------- ----------- ---------
Loss before extraordinary item (c) and
cumulative effect of accounting changes...... $ (174.6) $(4.6) $ (179.2) $34.8 $ (139.8)
----------- ----------- --------- ----------- ---------
----------- ----------- --------- ----------- ---------
</TABLE>
30
<PAGE>
NOTES TO PRO FORMA CONDENSED CONSOLIDATED
STATEMENTS OF OPERATIONS
(a) Interest expense is based upon pro forma consolidated indebtedness
following consummation of the Senior Notes, the Recapitalization Plan
(excluding the Subordinated Debt Refinancing), and the Recapitalization
Plan (including the Subordinated Debt Refinancing) as if the transactions
had been consummated as of the beginning of the period presented, as
follows:
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENTS
-------------------------------------------------------------------------------------------------
SIX MONTHS ENDED JUNE 30, 1994 YEAR ENDED DECEMBER 31, 1993
----------------------------------------------- -----------------------------------------------
PRO FORMA ADJUSTMENTS PRO FORMA ADJUSTMENTS PRO FORMA ADJUSTMENTS PRO FORMA ADJUSTMENTS
AS ADJUSTED FOR THE AS ADJUSTED FOR THE AS ADJUSTED FOR THE AS ADJUSTED FOR THE
RECAPITALIZATION PLAN RECAPITALIZATION PLAN RECAPITALIZATION PLAN RECAPITALIZATION PLAN
(EXCLUDING THE (INCLUDING THE (EXCLUDING THE (INCLUDING THE
SUBORDINATED DEBT SUBORDINATED DEBT SUBORDINATED DEBT SUBORDINATED DEBT
REFINANCING) REFINANCING) REFINANCING) REFINANCING)
---------------------- ---------------------- ---------------------- ----------------------
(IN MILLIONS)
<S> <C> <C> <C> <C>
Senior Notes:
Net increase of
interest expense,
interest rate swap
payments,
mark-to-market
adjustment and
amortization of
related deferred
debt issuance costs
in connection with
the issuance of the
Senior Notes and
repayment of
existing
indebtedness(1)..... $ $ $ 5.3 $ 5.3
------ -------
5.3 5.3
Recapitalization Plan:
Interest expense
related to New
Revolving Credit
Facility, Initial
Term Loan, Delayed
Term Loan and Debt
Offerings(2)(5)..... 27.8 27.8 72.5 72.5
Net reduction of
interest expense,
interest rate swap
payments and
amortization of
related deferred
debt issuance costs
on indebtedness
assumed to be
retired(3).......... (30.6) (30.6) (76.7) (76.7)
Amortization of
deferred debt
issuance costs
associated with the
above debt(4)....... 2.1 2.1 6.0 6.0
------ ------ ------ -------
(0.7) (0.7) 1.8 1.8
Subordinated Debt
Refinancing:
Interest expense
related to Delayed
Term Loan(5)........ 24.1 45.7
Net reduction of
interest expense and
amortization of
related deferred
debt issuance costs
on indebtedness
assumed to be
retired(6).......... (55.4) (110.6)
Amortization of
deferred debt
issuance costs
associated with the
above debt(4)....... 2.6 4.3
------ -------
(28.7) (60.6)
------ ------ ------ -------
Net increase (decrease) of
interest expense........ $ (0.7) $(29.4) $ 7.1 $ (53.5)
------ ------ ------ -------
------ ------ ------ -------
</TABLE>
- ------------
(1) Represents the actual interest expense incurred, amortization of related
deferred debt issuance costs, cash payments and the mark-to-market
adjustment of the related interest rate swap agreements during the year
ended December 31, 1993 on indebtedness assumed to be retired in the
refinancing of the term loan under the 1989 Credit Agreement in connection
with the Senior Notes. The pro forma condensed consolidated statement of
operations assumes that the interest rate swap agreements on debt assumed to
be retired were marked-to-market as of the beginning of the period
presented. The loss associated with marking these agreements to market was
treated as an extraordinary charge and therefore does not appear in the pro
forma statement of operations for the year ended December 31, 1993. See Note
(c) to the pro forma condensed consolidated statement of operations.
(footnotes continued on next page)
31
<PAGE>
(footnotes continued from previous page)
(2) Interest expense on the New Revolving Credit Facility is at the Adjusted
LIBOR Rate (as defined below) plus 2.5% and on the Initial Term Loan at the
Adjusted LIBOR Rate plus 3.00%. A change in the interest rate of .25% would
change interest expense on the New Revolving Credit Facility and the Initial
Term Loan by approximately $.5 million and $.9 million for the six months
ended June 30, 1994 and for the year ended December 31, 1993, respectively.
(3) Represents the actual interest expense incurred, amortization of related
deferred debt issuance costs, and cash payments under swap agreements during
the six months ended June 30, 1994 and the year ended December 31, 1993 on
indebtedness assumed to be repaid with proceeds from the Equity Offerings,
Debt Offerings and the Initial Term Loan. Assumes that the interest rate
swap agreements on debt assumed to be repaid were marked-to-market as of the
beginning of the period presented. The loss associated with marking these
agreements to market was treated as an extraordinary charge and therefore
does not appear in the pro forma statements of operations. See Note (c) to
the pro forma condensed consolidated statements of operations.
(4) Deferred debt costs will be amortized over the term of the related debt.
(5) Interest expense on the Delayed Term Loan is at the Adjusted LIBOR Rate plus
2.50%. A change in the interest rate of .25% would change interest expense
on the Delayed Term Loan by approximately $1.1 million and $2.3 million for
the six months ended June 30, 1994 and for the year ended December 31, 1993,
respectively.
(6) Represents the actual interest expense incurred and amortization of related
deferred debt issuance costs during the six months ended June 30, 1994 and
the year ended December 31, 1993 on indebtedness assumed to be retired by
the Subordinated Debt Refinancing.
(b) Tax expense related to reduction in the interest expense at an effective tax
rate of 38.0% and 35.0% for the six months ended June 30, 1994 and the year
ended December 31, 1993, respectively.
32
<PAGE>
(c) The preceding historical statement of operations for the six months ended
June 30, 1994 and for the year ended December 31, 1993 excludes an after tax
extraordinary loss of $51.6 million and $37.8 million, respectively,
resulting from the early extinguishment of debt as a result of the
Recapitalization Plan and the issuance of the Senior Notes. The following
details the non-recurring charges resulting from the Recapitalization Plan
including and excluding the Subordinated Debt Refinancing. For the six
months ended June 30, 1994 the extraordinary item on a pro forma basis is
greater than the historical because the transaction is assumed to have
occurred on January 1, 1994. These charges would be treated as an
extraordinary loss from early extinguishment of debt and consequently are
not included on the pro forma statements of operations for the six months
ended June 30, 1994 and for the year ended December 31, 1993.
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENTS
-------------------------------------------------------------------------------------------------
SIX MONTHS ENDED JUNE 30, 1994 YEAR ENDED DECEMBER 31, 1993
----------------------------------------------- -----------------------------------------------
PRO FORMA ADJUSTMENTS PRO FORMA ADJUSTMENTS PRO FORMA ADJUSTMENTS PRO FORMA ADJUSTMENTS
AS ADJUSTED FOR THE AS ADJUSTED FOR THE AS ADJUSTED FOR THE AS ADJUSTED FOR THE
RECAPITALIZATION PLAN RECAPITALIZATION PLAN RECAPITALIZATION PLAN RECAPITALIZATION PLAN
(EXCLUDING THE (INCLUDING THE (EXCLUDING THE (INCLUDING THE
SUBORDINATED DEBT SUBORDINATED DEBT SUBORDINATED DEBT SUBORDINATED DEBT
REFINANCING) REFINANCING) REFINANCING) REFINANCING)
---------------------- ---------------------- ---------------------- ----------------------
(IN MILLIONS)
<S> <C> <C> <C> <C>
Senior Notes:
Write-off of existing
deferred debt
issuance costs
related to long-term
debt repaid......... $ $ $ 2.6 $ 2.6
Impact of
marking-to-market
the interest rate
swap agreements
related to the
Senior Notes........ (2.4) (2.4)
------ -------
0.2 0.2
Recapitalization Plan:
Write-off of existing
deferred debt
issuance costs
related to
indebtedness assumed
to be retired,
consent fees and
premiums............ (0.9) (0.9) 8.7 8.7
Impact of
marking-to-market
the interest rate
swap agreements..... 2.3 2.3 12.5 12.5
------ ------ ------ -------
1.4 1.4 21.2 21.2
Subordinated Debt
Refinancing:
Write-off of deferred
debt issuance costs
related to
subordinated debt
repaid or retired... 1.1 26.7
Premiums paid on debt
retired............. 0.0 44.6
------ ------ ------ -------
1.1 71.3
------ ------ ------ -------
1.4 2.5 21.4 92.7
Assumed tax benefit........... 0.6 1.0 7.5 32.4
------ ------ ------ -------
Pro forma adjustment to
extraordinary item.......... 0.8 1.5 13.9 60.3
Extraordinary item, net of
income tax benefit of $6.2
million and $31.6 million
for the six months ended
June 30, 1994 excluding the
Subordinated Debt
Refinancing and including
the Subordinated Debt
Refinancing, respectively,
and $21.7 million for the
year ended December 31,
1993........................ 10.2 51.6 37.8 37.8
------ ------ ------ -------
Pro forma extraordinary item,
net of tax benefit.......... $ 11.0 $ 53.1 $ 51.7 $ 98.1
------ ------ ------ -------
------ ------ ------ -------
</TABLE>
33
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
The following discussion and analysis should be read in conjunction with
the selected historical financial data and the historical consolidated financial
statements of the Company. Except as otherwise indicated, the following
discussion relates solely to historical results and does not consider the
potential impact from the Recapitalization Plan.
GENERAL
INDUSTRY CONDITIONS
Sales of containerboard and corrugated shipping containers, two of the
Company's most important products, are generally subject to changes in industry
capacity and cyclical changes in the economy, both of which can significantly
impact selling prices and the Company's profitability. Operating rates in the
industry during 1992 and 1991 were at high levels relative to demand, which was
lower due to the sluggish U.S. economy and a decline in export markets. This
imbalance resulted in excess inventories in the industry and lower prices for
the Company's containerboard and corrugated shipping container products, which
began early in 1991 and continued throughout 1992 and most of 1993. From the
first quarter of 1991 through the third quarter of 1993 industry linerboard
prices fell from $350 per ton to $295 per ton. During 1993, industry operating
rates were lower as many containerboard producers, including the Company, took
downtime at containerboard mills to reduce the excess inventories. By the end of
the third quarter of 1993, inventory levels had decreased significantly. The
lower level of inventories and the stronger U.S. economy provided what the
Company believes were improved market conditions late in 1993, enabling the
Company and other producers to implement a $25 per ton price increase for
linerboard. Further improvements in market conditions have led to linerboard
increases of $30 and $40 per ton being implemented by all major integrated
containerboard producers, including the Company, effective March 1, 1994 and
July 1, 1994, respectively.
Newsprint prices have fallen substantially since 1990 due to supply and
demand imbalances. During 1991 and 1992, new capacity of approximately 2.0
million tons annually came on line, representing an approximate 12% increase in
supply. At the same time, U.S. consumption of newsprint fell, due to declines in
readership and ad linage. As prices fell, certain high cost, virgin paper
machines, primarily in Canada, representing approximately 1.2 million tons of
annual production capacity, were shut down and remained idle during 1993. While
supply was diminished, a price increase announced for 1993 was unsuccessful.
However, due to strengthening demand, successful price increases were
implemented in May and August of 1994.
Price movements of reclaimed fibre can have a significant effect on the
Company's profitability. In weakening markets when reclaimed fibre prices are
lower, the effect is unfavorable to the reclamation products division, but is
favorable to the Company overall because of the reduction in fibre cost to be
absorbed by the Company's paper mills that use reclaimed fibre. In a tightening
market the opposite is normally true. Generally, the tightness of supply in the
reclaimed fibre market matches increased demand for recycled paperboard, and
paperboard price increases may offset the higher cost of reclaimed fibre. During
the period 1990 to 1993, the demand for reclaimed fibre weakened and the higher
levels of supply in the market resulted in decreases in the price of reclaimed
fibre. However, increasing demand for recycled paperboard in the latter part of
1993 and in the first half of 1994 has resulted in dislocations in the supply of
reclaimed fibre, which has driven the price of reclaimed fibre, particularly in
the last half of the second quarter of 1994, to new high levels. While unable to
predict how long this unusual demand will last, the Company does not anticipate
a problem satisfying its need for this material in the foreseeable future.
In addition, prices for many of the Company's other products (including
solid bleached sulfate, recycled boxboard and folding cartons), which weakened
in 1993 and 1992, have now begun to improve. The Company has taken various steps
to extend its business into less cyclical product lines, such as industrial
packaging and consumer packaging.
34
<PAGE>
As a result of these industry conditions, the Company's gross margin
declined from 18.1% in 1991 to 16.6% in 1992 and 12.7% in 1993. However, the
Company's gross margin increased from 13.7% for the first six months of 1993 to
14.0% for the first six months of 1994.
The Company's sales and profitability have historically been more sensitive
to price changes than changes in volume. There can be no assurance that
announced price increases for the Company's products can be implemented, or that
prices for the Company's products will not decline from current levels.
COST REDUCTION INITIATIVES
The recent cyclical downturn in the Paperboard/Packaging Products segment
has led management to undertake several major cost reduction initiatives. In
1991, the Company implemented an austerity program to freeze staff levels, defer
certain discretionary spending programs and more aggressively manage capital
expenditures and working capital in order to conserve cash and reduce interest
expense. While these measures successfully reduced expenses and increased cash
flow, the length and extent of the industry downturn led the Company, in 1993,
to initiate a new six year plan to reduce costs, increase volume and improve
product mix (the 'Cost-Reduction Plan').
The Cost-Reduction Plan is a systematic Company-wide effort designed to
improve the cost competitiveness of all the Company's operating facilities and
staff functions. In addition to increases in volume and improvements in product
mix resulting from a focus on less commodity oriented business at its converting
operations, the Cost-Reduction Plan will focus on opportunities to reduce costs
and other measures, including (i) productivity improvements, (ii) capital
projects which provide high returns and quick paybacks, (iii) reductions in
fibre cost, (iv) reductions in the purchase cost of materials, (v) reductions in
personnel costs and (vi) reductions in waste cost. See 'Business -- Business
Strategy'.
RESTRUCTURING PROGRAM
To further counteract the downturn in the industries in which the Company
operates, management examined its cost and operating structure and developed a
restructuring program (the 'Restructuring Program') to improve its long-term
competitive position. As a result of management's review, in September 1993, the
Company recorded a pre-tax charge of $96 million including a provision for
direct expenses associated with (i) plant closures (consisting primarily of
employee severance and termination benefits, lease termination costs, and
environmental costs); (ii) asset write-downs (consisting primarily of write-off
of machinery no longer used in production and nonperforming machine upgrades);
(iii) employee severance and termination benefits for the elimination of
salaried and hourly personnel in operating and management realignment; and (iv)
relocation of employees and consolidation of plant operations. Management
anticipates that it will take approximately two to three years to complete the
Restructuring Program due to ongoing customer demands. The Restructuring Program
is expected to reduce production costs, employee expenses and depreciation
charges. As part of the Restructuring Program, the Company closed certain high
cost operating facilities, including a coated recycled boxboard mill and five
converting plants, in January 1994. While future benefits of the Restructuring
Program are uncertain, the operating losses in 1993 for the plants shut down in
January 1994 and those contemplated in the future were $31 million. While the
Company believes that it would have realized financial benefits in 1993 had
these plants been shut down at the beginning of the year, and that it will
realize such benefits in future periods, no assurances can be given in this
regard and, in particular, no assurances can be given as to what portion of such
loss would not have been realized in 1993 had such plants been shut down for the
entire year.
The $96 million charge consists of approximately $43 million for the
write-down of assets at closed facilities and certain other nonproductive assets
and $53 million of future cash expenditures. The Company anticipates that the
cash expenditures will be funded through operations. Significant anticipated
cash expenditures reflected in the above amount include $33 million of plant
closure costs, $5 million of employee severance and termination benefits and $7
million of consolidation and relocation of plant employees and equipment, a
substantial portion of which will be paid in 1994, 1995 and 1996.
35
<PAGE>
ENVIRONMENTAL MATTERS
In 1993, the Company recorded a provision of $54 million of which $39
million relates to environmental matters, representing asbestos and PCB removal,
solid waste cleanup at existing and former operating sites, and expenses for
response costs at various sites where the Company has received notice that it is
a potentially responsible party ('PRP'). As discussed under 'Risk Factors --
Environmental Matters' and 'Business -- Environmental Matters', the Company, as
well as other companies in the industry, faces potential environmental liability
related to various sites at which wastes have allegedly been deposited. The
Company has received notice that it is or may be a PRP at a number of federal
and state sites (the 'Sites') where remedial action may be required. Because the
laws that govern the clean up of waste disposal sites have been construed to
authorize joint and several liability, government agencies or other parties
could seek to recover all response costs for any Site from any one of the PRPs
for such Site, including the Company, despite the involvement of other PRPs.
Although the Company is unable to estimate the aggregate response costs in
connection with the remediation of all Sites, if the Company were held jointly
and severally liable for all response costs at some or all of the Sites, it
would have a material adverse effect on the financial condition and results of
operations of the Company. However, joint and several liability generally has
not in the past been imposed on PRPs, and, based on such past practice, the
Company's past experience and the financial conditions of other PRPs with
respect to the Sites, the Company does not expect to be held jointly and
severally liable for all response costs at any Site. Liability at waste disposal
sites is typically shared with other PRPs and costs generally are allocated
according to relative volumes of waste deposited. At most Sites, the waste
attributed to the Company is a very small portion of the total waste deposited
at the Site (generally significantly less than 1%). There are approximately ten
Sites where final settlement has not been reached and where the Company's
potential liability is expected to exceed de minimis levels. Accordingly, the
Company believes that its estimated total probable liability for response costs
at the Sites was adequately reserved at December 31, 1993. Furthermore, the
estimate takes into consideration the number of other PRPs at each site, the
identity, and financial position of such parties, in light of the joint and
several nature of the liability, but does not take into account possible
insurance coverage or other similar reimbursement.
RESULTS OF OPERATIONS
The following tables present net sales on a segment basis for the six
months ended June 30, 1994 and 1993 and for the years ended December 31, 1993,
1992 and 1991 and an analysis of period-to-period increases (decreases) in net
sales (in millions):
NET SALES BY SEGMENT
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
-------------------- --------------------------------
1994 1993 1993 1992 1991
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Paperboard/Packaging Products................. $1,369.7 $1,348.7 $2,699.5 $2,751.0 $2,653.9
Newsprint..................................... 123.9 122.1 248.1 247.4 286.2
-------- -------- -------- -------- --------
Total net sales.......................... $1,493.6 $1,470.8 $2,947.6 $2,998.4 $2,940.1
-------- -------- -------- -------- --------
-------- -------- -------- -------- --------
</TABLE>
36
<PAGE>
NET SALES ANALYSIS
<TABLE>
<CAPTION>
SIX MONTHS 1994 1993 1992
COMPARED TO COMPARED TO COMPARED TO
SIX MONTHS 1993 1992 1991
--------------- ----------- -----------
<S> <C> <C> <C>
Increase (decrease) due to:
Sales price and product mix
Paperboard/Packaging Products................................ $(21.2) $(91.2) $ .8
Newsprint.................................................... .2 (3.0) (39.4)
------- ----------- -----------
(21.0) (94.2) (38.6)
Sales volume
Paperboard/Packaging Products................................ 98.8 15.8 88.7
Newsprint.................................................... 1.5 3.7 .6
------- ----------- -----------
100.3 19.5 89.3
Acquisitions and new facilities
Paperboard/Packaging Products................................ 2.2 34.9 9.8
Plant closings and asset distributions
Paperboard/Packaging Products................................ (58.7) (11.0) (2.2)
------- ----------- -----------
Total net sales increase (decrease)..................... $ 22.8 $(50.8) $ 58.3
------- ----------- -----------
------- ----------- -----------
</TABLE>
SIX MONTHS ENDED JUNE 30, 1994 COMPARED TO SIX MONTHS ENDED JUNE 30, 1993
The Company's net sales for the six months ended June 30, 1994 increased
1.6% to $1,493.6 million, compared to $1,470.8 million for the same period in
1993. Net sales increased 1.6% in the Paperboard/Packaging Products segment and
1.5% in the Newsprint segment.
The increase in Paperboard/Packaging Products segment sales was due
primarily to higher sales volumes, particularly for corrugated shipping
containers which increased 6% during the period. Sales growth was mitigated by
lower average sales prices, the shutdown of several operating facilities
pursuant to the Company's Restructuring Program (as defined below), product mix
changes and severe weather conditions experienced in January and February.
Despite two price increases since November 1993, average prices for corrugated
shipping containers were lower during the first half of 1994, reflecting the
severe price deterioration which occurred in the second half of 1993. An
additional price increase was implemented at the beginning of the third quarter.
Cost of goods sold as a percent of net sales for the six months ended June
30, 1994 and 1993 were 84.6% and 85.0%, respectively, for the
Paperboard/Packaging Products segment and 101.5% and 102.0%, respectively, for
the Newsprint segment. The price of reclaimed fibre, a key element of the
Company's cost of sales, has escalated in recent months due to increased demand.
While unable to predict how long this upward demand will last, the Company does
not anticipate a problem satisfying its need for this material in the forseeable
future. Selling and administrative expenses decreased to $107.1 million (10.5%)
for the six months ended June 30, 1994 compared to $119.7 million for the same
period in 1993. The decline in cost of goods sold as a percent of net sales,
particularly in view of lower sales prices for corrugated containers, and the
reductions in selling and administrative expenses are due in large part to cost
reduction initiatives and the Restructuring Program.
The restructuring program, which was implemented late in 1993 (the
'Restructuring Program'), was developed by the Company as a means to improve its
long-term competitive position. The Restructuring Program provides for plant
closures, asset write-downs, reductions in workforce, and relocation of
employees and consolidation of certain plant operations, which are expected to
be completed over an approximate two to three year period. In accordance with
the Restructuring Program, the Company closed certain high cost operating
facilities, including a coated recycled boxboard mill, and five converting
plants in the first quarter of 1994 and two reclamation plants in the fourth
quarter of 1993. Approximately 40% of the $53 million of cash expenditures
anticipated under the Restructuring Program was paid in the six months ended
June 30, 1994. The Company believes that
37
<PAGE>
a substantial portion of the cash expenditures related to the Restructuring
Program will be funded through operations in 1994, 1995, and 1996, as originally
planned.
Income from operations increased 24.4% to $102.4 million for the six months
ended June 30, 1994 compared to $82.3 million for the same period in 1993 due
primarily to the cost reduction initiatives, the Restructuring Program and
higher sales volumes, as mentioned above.
Interest expense of $134.1 million for the six months ended June 30, 1994
was $6.4 million higher than the comparable period in 1993 due to higher
effective interest rates in the 1994 period.
The benefit from income taxes for the six months ended June 30, 1994 was
$8.4 million. The effective tax rate for the period was lower than the Federal
statutory tax rate due to several factors, the most significant of which was the
nondeductibility of goodwill amortization.
The Company had a loss before extraordinary item and cumulative effect of
accounting changes for the six months ended June 30, 1994 and 1993 of $20.2
million and $30.1 million, respectively. The Company recorded an extraordinary
loss from the early extinguishment of debt in the second quarter of each year,
bringing the net loss for the six months ended June 30, 1994 and 1993 to $71.8
million and $84.4 million, respectively. The Company refinanced a majority of
its debt in 1993 and 1994 in preparation for and in conjunction with its initial
public offering completed earlier this year. The net loss for the 1993 period
also included a loss of $16.5 million for the cumulative effects of accounting
changes related to the adoption of Statement of Financial Accounting Standards
('SFAS') No. 106, 'Employers' Accounting for Postretirement Benefits Other Than
Pensions' and SFAS No. 109, 'Accounting for Income Taxes'.
1993 COMPARED TO 1992
The Company's net sales for 1993 decreased 1.7% to $2.95 billion compared
to $3.0 billion in 1992. Net sales decreased 1.9% in the Paperboard/Packaging
Products segment and increased 0.3% in the Newsprint segment.
The decrease in Paperboard/Packaging Products segment sales for 1993 was
due primarily to lower prices and changes in product mix for containerboard,
corrugated shipping containers and folding cartons. This decrease was partially
offset by an increase in sales volume primarily of corrugated shipping
containers, which set a record in 1993. A newly constructed corrugated container
facility and several minor acquisitions in 1992 caused net sales to increase
$34.9 million for 1993.
The net sales increase in the Newsprint segment was a result of an increase
in sales volume in 1993 compared to 1992, partially offset by a decline in sales
prices.
Cost of goods sold as a percent of net sales for 1993 and 1992 were 85.9%
and 81.9%, respectively, for the Paperboard/Packaging Products segment and
102.8% and 99.0%, respectively, for the Newsprint segment. The increase in cost
of goods sold as a percent of net sales for the Paperboard/Packaging Products
segment was due primarily to the aforementioned changes in pricing and product
mix. The increase in the cost of goods sold as a percent of net sales for the
Newsprint segment was due primarily to the higher cost of energy and fibre and
decreases in sales price. In 1993, the Company changed the estimated depreciable
lives of its paper machines and major converting equipment. These changes were
made to better reflect the estimated periods during which the assets will remain
in service and were based upon the Company's historical experience and
comparable industry practice. These changes were made effective January 1, 1993
and had the effect of reducing depreciation expense by $17.8 million and
decreasing the 1993 net loss by $11.0 million.
Selling and administrative expenses increased to $239.2 million (3.4%) for
1993 compared to $231.4 million for 1992. The increase was due primarily to
higher provisions for retirement costs, acquisitions, new facilities and other
costs.
In order to minimize significant year-to-year fluctuations in pension cost
caused by financial market volatility, the Company changed, effective January 1,
1993, the method of accounting for the recognition of fluctuations in the market
value of pension assets. The effect of this change on 1993 results of
operations, including the cumulative effect of prior years, was not material.
See Note 8 to the Company's consolidated financial statements.
38
<PAGE>
The Company reduced its weighted average discount rate in measuring its
pension obligations from 8.75% to 7.6% and its rate of increase in compensation
levels from 5.5% to 4.0% at December 31, 1993. The net effect of changing these
assumptions was the primary reason for the increase in the projected benefit
obligations and the changes are expected to increase pension cost by
approximately $3.4 million in 1994.
As a result of the $96 million restructuring charge, the $54 million
environmental and other charges, and the lower margins, primarily for newsprint
and containerboard products, the Company had a loss from operations of $14.7
million for 1993, compared to $267.7 million income from operations for 1992.
Interest expense for 1993 declined $45.9 million due to lower effective
interest rates and the lower level of subordinated debt outstanding resulting
primarily from the 1992 Transaction (as defined below).
The benefit from income taxes for 1993 was $83.0 million compared to a tax
provision of $10.0 million in 1992. The significant difference in the income tax
provision from 1993 to 1992 results from the use of the liability method of
accounting which restored deferred income taxes and increased the related asset
values for tax effects previously recorded as a reduction of the carrying amount
of the related assets under prior business combinations. The Company's effective
tax rate for 1993 was lower than the Federal statutory tax rate due to the
nondeductibility of goodwill amortization and a $5.7 million provision to adjust
deferred tax assets and liabilities in 1993 due to the enacted Federal income
tax rate change from 34% to 35%.
Effective January 1, 1993, the Company adopted Statement of Financial
Accounting Standards ('SFAS') No. 109, 'Accounting for Income Taxes' and SFAS
No. 106, 'Employers' Accounting for Postretirement Benefits Other Than
Pensions'. The cumulative effect of adopting SFAS No. 109 was to increase net
income for 1993 by approximately $20.5 million. The cumulative effect of
adopting SFAS No. 106 was to decrease net income for 1993 by approximately $37
million. The Company will adopt SFAS No. 112 'Employers' Accounting for
Postemployment Benefits' in 1994, the effect of which is not expected to be
material.
The loss before extraordinary item and cumulative effect of accounting
changes for 1993 was $174.6 million, compared to $34.0 million for the
comparable period in 1992. The Company recorded an extraordinary loss of $37.8
million (net of income tax benefits of $21.7 million) for the early
extinguishment of debt associated with the issuance of the Senior Notes.
1992 COMPARED TO 1991
Net sales for 1992 increased to $3.0 billion (2.0%) compared to $2.94
billion in 1991. Net sales increased 3.7% in the Paperboard/Packaging Products
segment and decreased 13.6% in the Newsprint segment.
The increase in Paperboard/Packaging Products segment sales was due
primarily to a 5.6% increase in sales volume for corrugated shipping containers.
Segment sales were also positively affected by increases in sales volumes for
papertubes and partitions and to a lesser extent for folding cartons and
reclamation products. Prices of containerboard products improved over 1991 but
did not increase sufficiently to cover cost increases, causing margins to be
somewhat lower in 1992. Prices for most of the Company's other packaging
products have declined compared to 1991. A minor acquisition in 1992 and the
operation of new facilities in the Paperboard/Packaging Products segment
resulted in an increase in net sales of $9.8 million, while plant closings
caused net sales to decrease by $2.2 million.
The net sales decrease in the Newsprint segment was a result of the lower
sales prices as discussed above. Newsprint sales volume for 1992 was virtually
the same as 1991.
The Company continued to benefit from certain austerity measures first
implemented during 1991 to help offset the impact of the recession. These
measures had a positive effect on cost of goods sold and selling and
administrative expenses. Cost of goods sold as a percent of net sales for 1992
and 1991 were 81.9% and 81.8%, respectively, for the Paperboard/Packaging
Products segment and 99.0% and 83.1% respectively, for the Newsprint segment.
The increase in the Newsprint segment was due primarily to the aforementioned
decrease in sales price.
39
<PAGE>
Selling and administrative expense as a percent of net sales for 1992 was
7.7%, unchanged from 1991. The Company continues to benefit from certain cost
containment measures implemented in 1991 to reduce expenses to help offset the
impact of the recession and inflation.
Income from operations for 1992 decreased 12.4% to $267.7 million as a
result of the low average selling prices for newsprint and packaging products
discussed above.
Interest expense for 1992 was lower by $35.1 million, due to lower
effective interest rates and the lower level of debt outstanding as a result of
the 1992 Transaction (as defined in 'Certain Transactions'). During 1992, the
Company replaced $425.0 million of mature swaps with $400.0 million of the new
two-year fixed interest rate swaps at an annual savings of approximately 3.8% on
such amount (equivalent to an annual savings of approximately $15.1 million).
The Company recorded a $10.0 million income tax provision in both 1992 and
1991 on income before income taxes, equity in earnings (loss) of affiliates and
extraordinary item of $27.2 million and $24.3 million, respectively. The tax
provisions for 1992 and 1991 were higher than the Federal statutory tax rate due
to several factors, the most significant of which was the impact of permanent
differences from applying purchase accounting.
Equity in loss of affiliates for 1991 included a write-down of $36.0
million with respect to the Company's equity investments in Temboard and Company
Limited Partnership and PCL Industries Limited. See Note 3 to the Company's
consolidated financial statements. For 1992 the Company had an extraordinary
loss of $49.8 million (net of income tax benefits of $25.8 million) for the
early extinguishment of debt associated with the 1992 Transaction.
IMPACT OF INFLATION AND CHANGING PRICES
The Company uses the LIFO method of accounting for approximately 81% of its
inventories. Under this method, the cost of products sold reported in the
financial statements approximates current cost and thus reduces the distortion
in reported income due to increasing costs. In recent years, inflation has not
had a material effect on the financial position or results of operations of the
Company.
LIQUIDITY AND CAPITAL RESOURCES
The Company's primary uses of cash for the next several years will be
principal and interest payments on its indebtedness and capital expenditures.
In May 1994, the Company implemented the Recapitalization Plan to repay or
refinance a substantial portion of indebtedness in order to improve operating
and financial flexibility by reducing the level and overall cost of debt,
extending maturities of indebtedness, increasing stockholder's equity and
increasing access to capital markets. The Recapitalization Plan includes the
following: (i) the issuance and sale by CCA of $300 million aggregate principal
amount of $11.25% Series A Senior Notes due 2004 and $100 million aggregate
principal amount of $10.75% Series B Senior Notes due 2002; (ii) the issuance
and sale by Holdings of 19,250,000 shares of Holdings Common Stock for $13.00
per share; (iii) the purchase by SIBV of 11,538,462 shares of Holdings' Common
Stock for $13.00 per share; and (iv) the entering into of the New Credit
Agreement by CCA and JSC consisting of a $450 million revolving credit facility,
a $300 million initial term loan and a $900 million delayed term loan.
The first step of the Recapitalization Plan, pursuant to which the Company
applied the net proceeds of the Equity Offerings and the SIBV Investment and a
portion of the net proceeds of the Debt Offerings, together with borrowings
under the New Credit Agreement, to pay in full the Company's previously
outstanding bank debt, was completed in May 1994. The second step of the
Recapitalization Plan involves the application, on approximately December 1,
1994, of borrowings, including borrowings under the New Credit Agreement
(including under the Delayed Term Loan), to redeem CCA's (a) 13.5% Senior
Subordinated Notes due 1999, (b) 14.0% Subordinated Debentures due 2001 and (c)
15.5% Junior Subordinated Accrual Debentures due 2004. The earliest date the
Subordinated Debt may be redeemed is December 1, 1994. Approximately $78 million
of net proceeds of the Debt Offerings were segregated primarily to fund a
portion of the Company's 1994 capital expenditures or to pay accrued and unpaid
interest on the Junior Subordinated Accrual Debentures as
40
<PAGE>
of December 1, 1994. To the extent such proceeds of the Debt Offerings are used
to fund the Company's 1994 capital expenditures, the Company will use available
cash or borrow under the New Revolving Credit Facility (or, to the extent
available, under the Delayed Term Loan) to pay such interest.
The New Credit Agreement imposes an annual limit on future capital
expenditures of approximately $150.0 million. The capital spending limit is
subject to increase by an amount up to $75 million in any year if the prior
year's spending was less than the maximum amount allowed; for 1994, the Company
has a carryover of $75.0 million. Capital expenditures consist of property and
timberland additions and acquisitions of businesses. Capital expenditures for
the six months ended June 30, 1994 were $65.0 million. Because the Company has
invested heavily in its core businesses over the last several years, management
believes the annual limitation for capital expenditures should not impair its
plans for maintenance, expansion and continued modernization of its facilities.
The New Credit Agreement also prohibits the payment of any dividends by the
Company for the foreseeable future.
The Company has historically financed its operations through cash provided
by operations, borrowings under its credit agreement and debt and equity
financings. The Company expects that liquidity will be provided by its
operations and through the utilization of unused borrowing capacity under its
New Credit Agreement and the Securitization. At June 30, 1994, the Company had
$287.5 million in unused borrowing capacity under its New Credit Agreement and
borrowing capacity of $27.8 million under the Securitization subject to the
Company's level of eligible accounts receivable. There are no scheduled payments
due on bank debt until October 1995, at which time approximately $46.0 million
will be payable. The Securitization matures in April 1996, at which time the
Company expects it to be refinanced.
The Company's existing indebtedness imposes restrictions on its ability to
incur additional indebtedness. Such restrictions, together with the highly
leveraged position of the Company, could restrict corporate activities,
including the Company's ability to respond to market conditions, to provide for
unanticipated capital expenditures or to take advantage of business
opportunities. However, the Company believes that cash provided by operations
and available financing sources will be sufficient to meet the Company's cash
requirements for the next several years.
41
<PAGE>
BUSINESS
GENERAL
The predecessor to the Company was founded in 1974 when JS Group, a
worldwide leader in the packaging products industry, commenced operations in the
United States by acquiring 40% of a small paperboard and packaging products
company. The remaining 60% of that company was acquired by JS Group in 1977, and
in 1978 net sales were $42.9 million. The Company implemented a strategy to
build a fully integrated, broadly based, national packaging business, primarily
through acquisitions, including Alton Box Board Company in 1979, the paperboard
and packaging divisions of Diamond International Corporation in 1982, 80% of SNC
in 1986 and 50% of CCA in 1986. The Company financed its acquisitions by using
leverage and, in several cases, utilized joint venture financing whereby the
Company eventually obtained control of the acquired company. While no major
acquisition has been made since 1986, the Company has made 18 smaller
acquisitions and started up five new facilities which had combined sales in 1993
of $280.3 million. JSC was formed in 1983 to consolidate the operations of the
Company, and today the Company ranks among the industry leaders in its two
business segments, Paperboard/Packaging Products and Newsprint. In 1993, the
Company had net sales of $2.9 billion, achieving a compound annual sales growth
rate of 32.6% for the period since 1978.
The Company believes it is one of the nation's largest producers of
paperboard and packaging products and is the largest producer of recycled
paperboard and recycled packaging products. In 1993, the Company's system of 16
paperboard mills produced 1,840,000 tons of virgin and recycled containerboard,
829,000 tons of coated and uncoated recycled boxboard and SBS and 206,000 tons
of recycled cylinderboard, which were sold to the Company's own converting
operations or to third parties. The Company's converting operations consist of
52 corrugated container plants, 18 folding carton plants, and 16 industrial
packaging plants located across the country, with three plants located outside
the U.S. In 1993, the Company's container plants converted 1,942,000 tons of
containerboard, an amount equal to approximately 105.5% of the amount it
produced, its folding carton plants converted 542,000 tons of SBS, recycled
boxboard and coated natural kraft, an amount equal to approximately 65.4% of the
amount it produced, and its industrial packaging plants converted 123,000 tons
of recycled cylinderboard, an amount equal to approximately 59.7% of the amount
it produced. The Company's Paperboard/Packaging Products segment contributed
91.6% of the Company's net sales in 1993.
The Company's paperboard operations are supported by its reclamation
division, which processed or brokered 3.9 million tons of wastepaper in 1993,
and by its timber division which manages approximately one million acres of
owned or leased timberland located in close proximity to its virgin fibre mills.
The paperboard/packaging products operations also include 14 consumer packaging
plants.
In addition, the Company believes it is one of the nation's largest
producers of recycled newsprint. The Company's Newsprint segment includes two
newsprint mills in Oregon, which produced 615,000 tons of recycled newsprint in
1993, and two facilities that produce Cladwood'r', a construction material
produced from newsprint and wood by-products. The Company's newsprint mills are
also supported by the Company's reclamation division.
DEVELOPMENT OF BUSINESS
Since its founding in 1974, the Company has followed a strategy to build a
broadly based packaging business, primarily through acquisitions. The Company's
acquisitions were principally motivated by opportunities to expand productive
capacity, both geographically and into new product lines, further integrate its
operations and broaden its existing product lines and customer base. The Company
has sought to improve the productivity of plants and operations acquired by it.
The most significant acquisitions were:
1979 -- Acquired 51% of Alton Box Board Company; the remaining 49% was
acquired in 1981. Alton's containerboard and industrial packaging
businesses consisted of fully integrated containerboard and paperboard
operations. The Alton acquisition significantly enhanced the Company's
presence in the midwest and expanded its operations to the southeast. In
addition, the Alton acquisition expanded the Company's product lines to
include folding cartons and industrial packaging and provided a network of
reclamation facilities which supplied wastepaper
42
<PAGE>
to the Company's recycled mills. Alton owned a kraft linerboard mill and a
recycled medium mill, two recycled cylinderboard mills, 32 converting
facilities and nine recycled wastepaper plants. Alton's total annual
paperboard production at the date of acquisition was 471,775 tons, as
compared to 582,017 tons in 1993.
1982 -- Acquired 50% of the paperboard and packaging divisions of Diamond
International Corporation through a joint venture; the remaining 50% was
acquired in 1983. In addition to expanding the Company's existing product
lines and customer base, the Diamond acquisition added new product lines,
including labels and other consumer packaging, and a related business
which produced rotogravure cylinders for use on printing presses used
extensively by the folding carton industry. Diamond owned two coated
recyled boxboard mills, which provided the Company with an integrated
source of recycled boxboard for use in its folding carton plants, as well
as three folding carton plants, three shipping container plants and three
consumer packaging plants. Diamond's operations were located primarily in
the midwest. Diamond's annual coated recycled boxboard production,
exclusive of a mill recently shut down, at the date of acquisition was
74,494 tons, as compared to 113,006 tons in 1993.
1986 -- Acquired 80% of SNC, formerly Publishers Paper Company. The SNC
acquisition extended the Company's product line to include newsprint and
also expanded the Company's reclamation operations to the west coast. The
SNC acquisition consisted of two newsprint mills and two Cladwood'r'
manufacturing plants, all of which are located in Oregon. SNC's annual
newsprint production at the date of acquisition was 592,804 tons, as
compared to 615,151 tons in 1993.
1986 -- Acquired 50% of CCA through a joint venture with The Morgan
Stanley Leveraged Equity Fund, L.P.; the remaining 50% was acquired in
1989. The total CCA acquisition cost was $1,130 million, which was
financed with $1,060 million of debt and $70 million of preferred and
common equity. The CCA acquisition substantially enhanced the Company's
production capacity and further integrated the Company's operations. It
also expanded its paperboard and packaging operations to the west coast,
which enabled the Company to compete on a national level and broaden its
customer base. The CCA acquisition consisted primarily of nine paperboard
mills, 40 converting plants and five reclamation facilities as well as
approximately 1,000,000 acres of owned or leased timberlands. CCA's
operations are located throughout the United States. CCA's total annual
paperboard production at the date of acquisition was 1,760,039 tons, as
compared to 2,002,064 tons in 1993.
INDUSTRY OVERVIEW
PAPERBOARD
General
Paperboard is a general term used to describe certain heavyweight grades of
paper primarily used for packaging products. Paperboard is produced from four
basic types of pulp: (i) unbleached kraft; (ii) bleached kraft; (iii) recycled
and (iv) semi-chemical. Unbleached kraft, bleached kraft and semi-chemical
paperboards are produced primarily from wood pulp. Recycled paperboard is
produced primarily from wastepaper. Recycled paperboard demand has grown at a
more rapid rate than virgin grades based primarily on its increased quality and
rising environmental awareness by consumers.
Paperboard is classified by three major end-uses: (i) containerboard, (ii)
boxboard and (iii) other paperboard. Containerboard primarily includes
linerboard and corrugating medium, the components of corrugated boxes used in
the transportation of manufactured goods. Boxboard includes folding carton
stock, setup boxboard and food board. Folding cartons, the major segment of
boxboard, are used to package a wide range of consumer products such as health
and beauty products, dry cereals and soap powders. Folding cartons are often
clay-coated for better printability and consumer appeal. Other paperboard
includes paperboard used in a number of industrial applications: fibre drums,
composite cans, spiral tubes, cores, gypsum wallboard liner and box partitions.
43
<PAGE>
According to the American Forest & Paper Association (the 'AFPA'), the
following table represents 1993 containerboard and boxboard production in the
United States.
<TABLE>
<CAPTION>
%
--------------------------------------------------
UNBLEACHED BLEACHED
END-USE PRODUCTION(1) % OF TOTAL KRAFT KRAFT RECYCLED SEMICHEMICAL
- ----------------------------------- ------------- ---------- ---------- -------- -------- ------------
(TONS IN
THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
Containerboard..................... 26,175 77% 64 1 14 21
Boxboard........................... 7,718 23 16 45 39 --
------------- ---
33,893 100%
------------- ---
------------- ---
</TABLE>
- ------------
(1) Excludes approximately 3.0 million export containerboard tons and 1.1
million export boxboard tons.
Containerboard
Demand. Total containerboard production grew from 21.3 million tons in 1983
to 29.2 million tons in 1993 (consisting of 26.2 million tons of domestic
production and 3.0 million tons of exports) for a compound annual growth rate
('Rate') of 3.3%. From 1983-1993, containerboard produced from recycled
paperboard grew at a much faster rate than unbleached kraft, experiencing a 7.6%
Rate. Containerboard demand is highly cyclical and fluctuates with the general
level of economic activity.
GDP % CHANGE VS. CONTAINERBOARD PRODUCTION % CHANGE
[GRAPHIC MATERIAL-SEE APPENDIX]
Overall, containerboard demand is a function of the level of corrugated box
shipments from box converting plants and, to some extent, the level of
containerboard inventories on hand. Over the last six months of 1993, corrugated
box demand was very strong with shipments from August 1993 through December 1993
exceeding corresponding 1992 months by 9.1%, 6.6%, 5.7%, 12.3% and 10.1%,
respectively. Box plant containerboard inventory levels were at 2.16 million
tons on December 31, 1993, up slightly from 1.98 million tons on October 31,
1993, their lowest level on a tonnage basis since 1987. Containerboard demand
has also been assisted in recent months by an increase in exports. The Company
is currently experiencing strong demand and believes that it will continue as
the economy improves. Resource Information Systems, Inc. ('RISI'), a well known
industry consultant, projects domestic containerboard production to grow to 28.9
million tons by 1996, a 3.3% Rate from 1993. RISI projects exports to remain
relatively flat through 1996.
44
<PAGE>
Supply. U.S. containerboard capacity totaled 31.1 million tons in 1993, for
a 2.9% Rate from 1983 to 1993. From 1983 to 1993, capacity utilization reached a
high of 97.8% in 1987 and a low of 90.3% in 1985. Approximately, 4.0 million
tons of new capacity was added between year-end 1988 and year-end 1993,
decreasing operating rates from 1987 levels.
Operating rates in the industry during 1991 and 1992, however, ran at high
levels relative to demand, which was lower due to the sluggish U.S. economy and
a decline in export markets. This imbalance resulted in excess inventories in
the industry and lower prices for the Company's containerboard and corrugated
shipping container products, which continued throughout most of 1993. To reduce
rising inventories, many containerboard producers, including the Company, took
downtime at containerboard mills which resulted in lowering industry operating
rates to 93.7% for 1993. By the end of the third quarter of 1993, inventory
levels had decreased significantly.
According to the AFPA, producers plan to add only a modest 2.1 million tons
of containerboard capacity in 1994-1996. One million four hundred thousand tons,
or 67.0% of the added capacity, will be recycled linerboard and corrugating
medium. The following graph reflects the historical relationship between
containerboard capacity utilization and linerboard prices, the predominant grade
for containerboard products.
CAPACITY UTILIZATION VS. LINERBOARD PRICES
[GRAPHIC MATERIAL-SEE APPENDIX]
Pricing. Pricing historically has been correlated with the levels of
industry capacity utilization. Over the past business cycle, containerboard
prices peaked in 1989. Linerboard peaked at approximately $410 per ton and
reached a low of $290-$300 per ton in July 1993, owing to decreased demand and
increased inventories. Over the past several months, containerboard pricing has
strengthened as demand has increased, inventories have fallen, and corrugated
box producers have been successful in increasing prices to customers. For
example, a $25 per ton increase for linerboard was implemented in November 1993,
raising prices to $315-$325 per ton, and most of the major linerboard producers,
including the Company, implemented a $30 per ton increase effective March 1,
1994. Although there can be no assurance that this price increase will be
sustained, management believes that such price increase will hold.
45
<PAGE>
Boxboard
Demand. Total boxboard production (including exports) grew to 8.8 million
tons in 1993 from 6.8 million tons in 1983, representing a 2.5% Rate.
Traditionally, recycled and SBS have been by far the largest segments of
boxboard production, representing 40% and 49%, respectively. During 1983 to
1993, recycled boxboard grew at a 2.0% Rate, SBS boxboard grew at a 1.0% Rate
and unbleached kraft, starting from a much smaller base, grew at a 5.2% Rate.
Like containerboard, boxboard demand tends to fluctuate with the general level
of economic activity. During the late 1980s, the use of clay coated recycled
boxboard as a substitute for SBS boxboard increased based on its improved
quality, heightened environmental awareness by consumers and increased demand by
customers for less expensive packaging alternatives. RISI projects both recycled
boxboard production and SBS production to increase at a 2.2% Rate from 1993 to
1996.
Supply. From 1983 to 1993 total boxboard capacity grew from 7.6 million
tons to 9.3 million tons, a 2.0% Rate. SBS folding boxboard grew at a 1.7% Rate,
reaching 2.5 million tons by 1993, while recycled folding boxboard grew to 3.0
million tons by 1993, a 1.1% Rate.
BOXBOARD CAPACITY UTILIZATION
[GRAPHIC MATERIAL-SEE APPENDIX]
According to the AFPA, 1.2 million tons of boxboard capacity will be added
between 1993-1996. Recycled boxboard accounts for 16% and SBS for 56% of
announced capacity additions.
Pricing. While general boxboard pricing levels are dependent on the overall
balance of supply and demand, relative pricing of different grades of boxboard
is affected by the substitutability of one grade for another in various customer
applications. For example, although the clay coated recycled demand and supply
situation is positive for the upcoming years, clay coated recycled prices are
influenced by SBS prices. During the late 1980s, SBS prices were substantially
higher than clay coated recycled prices. In recent years, SBS prices have
declined at a greater percentage than clay coated recycled, so that on a yield
basis, there is not currently a significant price differential between the two.
Future price growth in some grades of SBS may be tempered by recent and
projected capacity increases.
NEWSPRINT
General. Newsprint is an uncoated paper used in newspaper production.
Virgin newsprint is manufactured primarily from mechanical or groundwood pulps.
The bulk of North American virgin newsprint capacity is located in Canada and
the majority of recycled newsprint capacity is located in the
46
<PAGE>
U.S. because of the close proximity of wastepaper collection sites. In recent
years, the majority of U.S. state legislatures have enacted recycled content
laws requiring newspaper publishers to use newsprint containing various
percentages of recycled fibre.
Demand. According to the AFPA, the total U.S. newsprint production in 1993
remained flat, compared to 1992, with 7.08 million tons being produced. Canadian
production is estimated to have been 10.39 million tons in 1993, compared to
9.84 million tons in 1992. From 1983 to 1993, North American newsprint
production grew at a 1.6% Rate. Newsprint demand is dependent on the general
level of newspaper advertising. RISI estimates North American newsprint
shipments will remain flat through 1995.
According to the AFPA, North American production is also influenced by the
export levels to major newsprint consuming regions such as Western Europe and
Asia. In 1992, U.S. and Canadian producers increased export shipments 17% over
1991. 1993 witnessed a significant decline in North American exports due to
unfavorable currency exchange rates and new capacity in Europe and Asia.
Supply. According to the AFPA, North American newsprint capacity was 18.2
million tons in 1993, reflecting a 1.2% Rate since 1983. During the period from
year end 1988 to year end 1991, 0.95 million tons of U.S. newsprint capacity and
0.37 million tons of Canadian newsprint capacity were added, severely depressing
utilization rates in the early 1990s. Capacity expansion in the newsprint
industry has been concentrated on recycling and, over the last three years,
eleven new deinking plants have been brought into operation with the capacity to
recycle 2.9 million tons of recovered paper.
Capacity utilization has been at relatively low levels during the early
1990s as a large growth in capacity has coincided with a decline in newsprint
demand, which has led to lower rates for North American mills overall. Capacity
utilization from 1983 to 1993 is shown in the table below:
NORTH AMERICAN NEWSPRINC CAPACITY UTILIZATION
[GRAPHIC MATERIAL-SEE APPENDIX]
According to the AFPA, North American newsprint capacity will remain flat
through 1996 because no new mills or machines are planned during this period and
capacity gains resulting from rebuilds of existing machines and miscellaneous
improvements will be offset by the reallocation of capacity in several mills to
produce groundwood and specialty papers rather than newsprint. Several new
recycled newsprint mills have been announced recently in Western Europe, and
such mills are expected to affect future exports by North American producers.
47
<PAGE>
Pricing. Newsprint is a commodity paper grade with pricing largely a
function of capacity utilization. West coast prices fell from a peak of
approximately $595 per metric ton (30-lb, delivered) in 1988 to a low of $420
per metric ton in the second quarter of 1992. In December, 1993 newsprint
producers, including the Company, announced price increases which were
unsuccessful. However, due to strengthening demand, successful price increases
were implemented in May and August of 1994.
BUSINESS STRATEGY
The principal components of the Company's business strategy include the
following:
MAINTAIN FOCUS ON RECYCLED PRODUCTS
The Company believes it is the largest processor of wastepaper, the largest
producer of coated recycled paperboard, the largest producer of recycled medium
and one of the largest producers of recycled newsprint in the U.S. The Company
has historically utilized a significant amount of recycled fibre in its products
and has maintained a strategy to allow it to supply all of the Company's
recycled fibre needs for its paper producing operations. There are several
advantages to this strategy. First, the Company's national operations allow it
to minimize costs of transporting wastepaper to its mills. Second, recycled
fibre has a lower cost base than virgin fibre and wastepaper supplies are
increasing. Third, recycled products are gaining in popularity with customers as
a result of increased environmental awareness and improved quality, making them
more competitive with products made from virgin fibre. The following chart
indicates the significant percentage of recycled paperboard produced and
consumed by the Company's operations.
<TABLE>
<CAPTION>
1991 1992 1993
----- ----- -----
(TONS IN THOUSANDS)
<S> <C> <C> <C>
Total paperboard produced by the Company............................. 2,852 2,963 2,875
Percent recycled................................................ 46.5% 46.1% 47.5%
Total paperboard consumed by the Company............................. 2,476 2,569 2,607
Percent recycled................................................ 34.5% 35.9% 36.6%
</TABLE>
FOCUS ON COST REDUCTION
The Company continuously strives to reduce operating costs on a system-wide
basis through the implementation of cost reduction programs. In 1991, the
Company implemented an austerity program to offset the impact of declining
prices. This austerity program froze staff levels, deferred certain
discretionary spending programs and more aggressively managed capital
expenditures and working capital to conserve cash and reduce interest expense.
For example, as a result of the austerity program the Company's average working
capital as a percentage of annual sales has averaged 2.8% over the last two
years.
While the austerity program succeeded in reducing expenses and improving
cash flow, the length and extent of the recession led the Company in 1993 to
initiate the Cost-Reduction Plan and the Restructuring Program.
The Cost-Reduction Plan is a systematic Company-wide effort designed to
improve the cost competitiveness of all the Company's operating facilities and
staff functions. The Cost-Reduction Plan focuses on reducing costs and other
measures, including:
Productivity improvements to reduce variable unit cost at production
facilities and to increase volume.
Identification of approximately $100 million of high return, quick payback
capital projects for which spending will be accelerated.
Reduction in fibre cost.
Reduction in cost of materials generated through a Company-wide council
which will negotiate large national purchasing activities.
48
<PAGE>
Reductions in personnel cost through a Company-wide freeze on compensation
for salaried employees in 1994 and reductions in workforce.
Reduction in waste cost in the manufacturing process.
Increased focus on specialty niche businesses which are less commodity
oriented and carry pricing premiums.
The Company is implementing the Restructuring Program to improve the
Company's long-term competitive position. The Restructuring Program includes
plant closures, reductions in workforce, and the realignment and consolidation
of various manufacturing operations over an approximately two to three year
period. The Restructuring Program is expected to reduce production cost,
employee expense and depreciation charges. While future benefits of the
Restructuring Program are uncertain, the operating losses in 1993 for the plants
shut down in January 1994 and those contemplated in the future were $31 million.
While the Company believes that it would have realized financial benefits in
1993 had these plants been shut down at the beginning of the year, and that it
will realize such benefits in future periods, no assurances can be given in this
regard and, in particular, no assurances can be given as to what portion of such
loss would not have been realized in 1993 had such plants been shut down for the
entire year. The Company closed certain high cost operating facilities,
including a coated recycled boxboard mill and five converting plants, in January
1994. For further information concerning the Restructuring Program, see
'Management's Discussion and Analysis of Financial Condition and Results of
Operations -- General'.
CONTINUE TO PURSUE VERTICAL INTEGRATION
The Company's operations are vertically integrated in that the Company uses
significant amounts of timber harvested from its timberlands and wastepaper
provided by its reclamation operations in the manufacture of paperboard and
newsprint, and converts its production of paperboard into shipping containers,
folding cartons, papertubes and other products. The Company also exchanges a
significant amount of containerboard with other major companies in the industry.
These exchanges are generally used when shipment from the Company's mills would
not be freight cost efficient or when container plants require a certain grade
of containerboard not manufactured by the Company.
The Company's integration reduces the volatility of pricing for its
containerboard products, allows it to run its mills at higher operating rates
during industry downturns and protects the Company from potential regional
supply and demand imbalances for recycled fibre grades.
The following table illustrates the balance between the Company's
production and consumption levels for its core businesses for the last three
years.
<TABLE>
<CAPTION>
1991 1992 1993
----- ----- -----
(TONS IN THOUSANDS)
<S> <C> <C> <C>
Wastepaper
Collected by reclamation division................................................... 3,666 3,846 3,907
Consumed by paperboard and newsprint mills.......................................... 1,822 1,910 1,905
Containerboard
Produced by containerboard mills.................................................... 1,830 1,918 1,840
Consumed by container plants........................................................ 1,813 1,898 1,942
SBS and Recycled Boxboard
Produced by SBS and recycled boxboard mills......................................... 826 832 829
Consumed by folding carton plants................................................... 561 551 542
</TABLE>
CONTINUE GROWTH IN CORE BUSINESSES
The Company has built its core businesses through selective acquisitions of
existing businesses and ongoing capital improvements.
Over the years, the Company's acquisition strategy has accomplished several
objectives, including (i) geographic expansion of its operations, (ii) growth of
its recycling capacity and expertise,
49
<PAGE>
(iii) expansion of its product lines in order to satisfy most of the packaging
needs of large national and multinational customers, (iv) expansion of its
operations into related products which can be successfully marketed to existing
customers as well as into related products to which the Company can apply its
papermaking expertise, and (v) integration of its operations. The Company
intends to continue its current strategy by exploring potential acquisitions and
pursuing those which meet its business objectives.
MAINTAIN LEADING MARKET POSITIONS
The Company believes it is one of the most broadly based paperboard
packaging producers in the United States. The Company has achieved this status
through its selective acquisitions and its ongoing capital improvements program.
The Company believes it maintains significant U.S. market positions including
the following:
largest producer of recycled paperboard
largest producer of folding cartons
largest producer of coated recycled boxboard
largest processor of wastepaper
largest producer of mottled white linerboard
one of the largest producers of recycled newsprint
third largest producer of corrugated shipping containers
largest producer of recycled medium
fifth largest producer of containerboard
The Company believes that its size, as evidenced by its leading U.S. market
positions, provides certain advantages in marketing its products. The Company's
prominence in the U.S. packaging industry gives it excellent customer
visibility. The Company is well recognized by its customers as a quality
producer and has recently entered into strategic alliances with select large,
national account customers to supply packaging. In addition, the Company's broad
range of packaging products provides a single source option, whereby all of the
customers' packaging needs can be satisfied by the Company.
IMPROVE FINANCIAL PROFILE TO GROW CORE BUSINESSES
Since the 1989 recapitalization of JSC, the Company has pursued a strategy
designed to reduce its financial risk profile. During this period, the Company
has accessed various capital markets through several transactions, resulting in
improved financial flexibility.
In 1991, the Company completed a $230 million accounts receivable
securitization. Initial proceeds of $168 million were raised by an A1/D1+
commercial paper issue and a AA- medium term note issue. The proceeds were used
to retire debt, while the transaction increased the liquidity of the Company by
$180 million.
In 1992, Holdings received cash equity capital from a subsidiary of JS
Group and MSLEF II (and certain of its limited partners who owned Junior Accrual
Debentures) of $33 million and $200 million, respectively, and in December 1993
a subsidiary of JS Group converted $167 million of preferred stock of Holdings
into common stock of Holdings. The Company also negotiated a $400 million senior
secured term loan. The equity and loan proceeds were used to repurchase $193.5
million of the Junior Accrual Debentures and to prepay a portion of certain
subordinated indebtedness and $400 million of the 1989 term loan. This
transaction reduced near term debt service requirements and also reduced annual
interest expense by $30 million.
In 1993, in order to improve operating and financial flexibility, CCA
issued $500 million aggregate principal amount of Senior Notes, the proceeds of
which were used to repay $100 million of revolving credit indebtedness and an
aggregate of $387.5 million of term loan indebtedness under its existing credit
agreements. As a result of such refinancing, the Company successfully extended
maturities of its indebtedness and improved its liquidity.
50
<PAGE>
The Company anticipates that the Recapitalization Plan will further improve
operating and financial flexibility by reducing the level and overall cost of
its debt, extending maturities of indebtedness, increasing stockholder's equity
and increasing its access to capital markets.
PRODUCTS
PAPERBOARD/PACKAGING PRODUCTS SEGMENT
Containerboard and Corrugated Shipping Containers. The Company's
containerboard operations are highly integrated and the Company believes this
integration enhances its ability to respond quickly and efficiently to customers
and to fill orders on short lead times. Tons of containerboard produced and
converted for the last three years were:
<TABLE>
<CAPTION>
1991 1992 1993
----- ----- -----
(TONS IN THOUSANDS)
<S> <C> <C> <C>
Containerboard
Production................................................................ 1,830 1,918 1,840
Consumption............................................................... 1,813 1,898 1,942
</TABLE>
The Company's mills produce a full line of containerboard, including
unbleached kraft linerboard, mottled white linerboard and recycled medium.
The Company believes it is the nation's largest producer of mottled white
linerboard, the largest producer of recycled medium and the fifth largest
producer of containerboard. Unbleached kraft linerboard is produced at the
Company's mills located in Fernandina Beach and Jacksonville, Florida and
mottled white linerboard is produced at its Brewton, Alabama mill. Recycled
medium is produced at the Company's mills located in Alton, Illinois, Carthage,
Indiana, Circleville, Ohio and Los Angeles, California. In 1993, the Company
produced 1,018,000, 315,000 and 507,000 tons of unbleached kraft linerboard,
mottled white linerboard and recycled medium, respectively.
Large capital investment is required to sustain the Company's
containerboard mills, which employ state of the art computer controlled
machinery in their manufacturing processes. During the last five years, the
Company has invested approximately $246 million to enhance product quality,
reduce costs, expand capacity and increase production efficiency, as well as
make required improvements to stay in compliance with environmental regulations.
Major capital projects completed in the last five years include (i) a rebuild of
Jacksonville's linerboard machine to produce high performance, lighter weight
grades now experiencing higher demand, (ii) modifications to Brewton's mottled
white machine to increase run speed by 100 tons per day and (iii) a project to
reduce sulfur emissions from the Fernandina Beach linerboard mill. A key
strategy for the next few years will be to reduce wood cost at its virgin fibre
mills by modifying methods of woodchip production and handling, utilizing random
length roundwood forms and continuing to pursue forest management practices
designed to enhance timberland productivity.
The Company's sales of containerboard in 1993 were $670.6 million
(including $384.1 million of intracompany sales). Sales of containerboard to its
52 container plants are reflected at prices based upon those published by
Official Board Markets which are generally higher than those paid by third
parties except in exchange contracts.
The Company believes it is the third largest producer of corrugated
shipping containers in the U.S. Corrugated shipping containers, manufactured
from containerboard in converting plants, are used to ship such diverse products
as home appliances, electric motors, small machinery, grocery products, produce,
books, tobacco and furniture, and for many other applications, including point
of purchase displays. The Company stresses the value added aspects of its
corrugated containers, such as labeling and multi-color graphics, to
differentiate its products and respond to customer requirements. The Company's
container plants serve local customers and large national accounts and are
located nationwide, generally in or near large metropolitan areas. The Company's
total sales of corrugated shipping containers in 1993 were $1,175.7 million
(including $81.1 million of intracompany sales).
51
<PAGE>
Corrugated shipping container sales volumes for 1991, 1992 and 1993 were 25,178,
26,593 and 27,268 million square feet, respectively.
Recycled Boxboard, SBS and Folding Cartons. The Company's recycled
boxboard, SBS and folding carton operations are also well integrated. Tons of
recycled boxboard and SBS produced and converted for the last three years were:
<TABLE>
<CAPTION>
1991 1992 1993
---- ---- ----
(TONS IN THOUSANDS)
<S> <C> <C> <C>
Recycled Boxboard and SBS
Production...................................................... 826 832 829
Consumption..................................................... 561 551 542
</TABLE>
The Company's mills produce recycled coated and uncoated boxboard and SBS.
The Company believes it is the nation's largest producer of coated recycled
boxboard, made from 100 percent recycled fibre, which offers comparable quality
to virgin boxboard for most applications. The Company also believes that its
premium-priced SBS offers a high quality product for packaging applications.
Coated recycled boxboard is produced at the Company's mills located in
Middletown, Ohio, Philadelphia, Pennsylvania, Santa Clara, California and
Wabash, Indiana. The Company produces uncoated recycled boxboard at its Los
Angeles, California mill and SBS at its Brewton, Alabama mill. The Company
believes its coated recycled boxboard, known as MASTERCOAT'r', is recognized in
the industry for its high quality and extensive range of grades and calipers.
The Brewton machine produces four basic grades of SBS including MASTERPRINT'r',
which is ideally suited for converting into folding cartons and related end
uses, MASTERSEAL'r' and MASTERVAC'r', which are used for visual carded packaging
that facilitates merchandising at the point of sale, and MASTERWITE'r', which is
designed for intricately printed and die-cut greeting cards and other specialty
uses. In 1993, the Company produced 653,000 and 176,000 tons of recycled
boxboard and SBS, respectively. The Company's total sales of recycled boxboard
and SBS in 1993 were $409.7 million (including $197.2 million of intracompany
sales).
The Company believes it is the nation's largest producer of folding
cartons, offering the broadest range of converting capabilities, including web
and sheet litho, rotogravure and flexo printing and a full line of structural
and design graphics services. The Company's 18 folding carton plants convert
recycled boxboard and SBS, including approximately 49% of the boxboard and SBS
produced by the Company, into folding cartons. Folding cartons are used
primarily to protect customers' products while providing point of purchase
advertising. The Company makes folding cartons for a wide variety of
applications, including food and fast foods, detergents, paper products,
beverages, health and beauty aids and other consumer products. Customers range
from small local accounts to large national and multinational accounts. The
Company's folding carton plants are located nationwide, generally in or near
large metropolitan areas. The Company's sales of folding cartons in 1993 were
$648.2 million (including $2.2 million of intracompany sales). Folding carton
sales volumes for 1991, 1992 and 1993 were 482,000, 487,000 and 475,000 tons,
respectively.
The Company has focused its capital expenditures in these operations and
its marketing activities to support a strategy of enhancing product quality as
it relates to packaging graphics, increasing flexibility while reducing customer
response time and assisting customers in innovating package designs.
The Company provides marketing consultation and research activities, a key
competitive factor within the folding carton industry, through its Design and
Market Research (DMR) Laboratory. It provides customers with graphic and product
design tailored to the specific technical requirements of lithographic,
rotogravure and flexographic printing, as well as photography for packaging,
sales promotion concepts, and point of purchase displays.
52
<PAGE>
Recycled Cylinderboard and Industrial Packaging. The Company's recycled
cylinderboard and industrial packaging operations are also integrated. Tons of
recycled cylinderboard produced and converted for the last three years were:
<TABLE>
<CAPTION>
1991 1992 1993
---- ---- ----
(TONS IN THOUSANDS)
<S> <C> <C> <C>
Recycled Cylinderboard
Production.................................................................... 196 213 206
Consumption................................................................... 102 120 123
</TABLE>
The Company's recycled cylinderboard mills are located in: Tacoma,
Washington, Monroe, Michigan (2 mills), Lafayette, Indiana, and Cedartown,
Georgia. In 1993, total sales of recycled cylinderboard were $61.8 million
(including $17.9 million of intracompany sales).
The Company's 16 industrial packaging plants convert recycled
cylinderboard, including a portion of the recycled cylinderboard produced by the
Company, into papertubes and cores. Papertubes and cores are used primarily for
paper, film and foil, yarn carriers and other textile products and furniture
components. The Company also produces solid fibre partitions for the
pharmaceutical, electronics, cosmetics and plastics industries. In addition, the
Company produces a patented self-locking partition especially suited for
automated packaging and product protection. The Company believes it is the
nation's third largest producer of tubes and cores. The Company's industrial
packaging sales in 1993 were $88.1 million (including $1.6 million in
intracompany sales).
Consumer Packaging. The Company manufactures a wide variety of consumer
packaging products, which are generally non-cyclical. These products include
flexible packaging, printed paper labels, foil labels, and labels that are heat
transferred to plastic containers for a wide range of industrial and consumer
product applications. The contract packaging plants provide cartoning, bagging,
liquid- or powder-filling, high-speed overwrapping and fragranced advertising
products. The Company produces high-quality rotogravure cylinders and has a
full-service organization highly experienced in the production of color
separations and lithographic film for the commercial printing, advertising and
packaging industries. The Company also designs, manufactures and sells custom
machinery including specialized machines that apply labels to customers'
packaging. The Company currently has 14 facilities including the engineering
service center referred to below and has improved their competitiveness by
installing state-of-the-art production equipment.
In addition, the Company has an engineering services center, specializing
in automated production systems and highly specialized machinery, providing
expert consultation, design and equipment fabrication for consumer and
industrial products manufacturers, primarily from the food, beverage and medical
products industries.
In 1993, total sales of consumer packaging products and services were
$179.8 million (including $15.1 million of intracompany sales).
Reclamation Operations; Fibre Resources and Timber Products. The raw
materials essential to the Company's business are reclaimed fibre from
wastepaper and wood, in the form of logs or chips. The Brewton, Circleville,
Jacksonville and Fernandina mills use primarily wood fibres, while the other
paperboard mills use reclaimed fibre exclusively. The newsprint mills use
approximately 45% wood fibre and 55% reclaimed fibre.
The Company believes it is the nation's largest processor of wastepaper.
The use of recycled products in the Company's operations begins with its
reclamation division which operates 26 facilities that collect, sort, grade and
bale wastepaper, as well as collect aluminum and glass. The reclamation division
provides valuable fibre resources to both the paperboard and newsprint segments
of the Company as well as to other producers. Many of the reclamation facilities
are located in close proximity to the Company's recycled paperboard and
newsprint mills, assuring availability of supply, when needed, with minimal
shipping costs. In 1993, the Company processed 3.9 million tons of wastepaper,
which the Company believes is approximately twice the amount of wastepaper
processed by its closest competitor. The amount of wastepaper collected and the
proportions sold internally and externally by the Company's reclamation division
for the last three years were:
53
<PAGE>
<TABLE>
<CAPTION>
1991 1992 1993
----- ----- -----
(TONS IN THOUSANDS)
<S> <C> <C> <C>
Wastepaper collected by Reclamation Division.................... 3,666 3,846 3,907
Percent sold internally.................................... 49.7% 49.7% 48.8%
Percent sold to third parties.............................. 50.3% 50.3% 51.2%
</TABLE>
The reclamation division also operates a nationwide brokerage system
whereby it purchases and resells wastepaper (including wastepaper for use in its
recycled fibre mills) on a regional and national contract basis. Such contracts
provide bulk purchasing, resulting in lower prices and cleaner wastepaper. Total
sales of recycled materials for 1993 were $242.9 million (including $120.8
million of intracompany sales).
During 1993, the wastepaper which was reclaimed by the Company's
reclamation plants and brokerage operations satisfied all of the Company's mill
requirements for reclaimed fibre.
The Company's timber division manages approximately one million acres of
owned and leased timberland. In 1993, approximately 53% of the timber harvested
by the Company was used in its Jacksonville, Fernandina and Brewton Mills. The
Company harvested 808,000 cords of timber which would satisfy approximately 32%
of the Company's requirements for woodfibres. The Company's woodfibre
requirements not satisfied internally are purchased on the open market or under
long-term contracts. In the past, the Company has not experienced difficulty
obtaining an adequate supply of wood through its own operations or open market
purchases. The Company is not aware of any circumstances that would adversely
affect its ability to satisfy its wood requirements in the foreseeable future.
In recent years, a shortage of wood fibre in the spotted owl regions in the
Northwest has resulted in increases in the cost of virgin wood fibre. However,
the Company's use of reclaimed fibre in its newsprint mills has mitigated the
effect of this in significant part.
In 1993, the Company's total sales of timber products were $227.8 million
(including $185.1 million of intracompany sales).
NEWSPRINT SEGMENT
Newsprint Mills. The Company believes it is one of the largest producers of
recycled newsprint and the fourth largest producer overall of newsprint in the
United States. The Company's newsprint mills are located in Newberg and Oregon
City, Oregon. During 1991, 1992 and 1993, the Company produced 614,000, 615,000
and 615,000 tons of newsprint, respectively. In 1993, total sales of newsprint
were $219.5 million (none of which were intracompany sales).
For the past three years, an average of approximately 56% of the Company's
newsprint production has been sold to The Times Mirror Company ('Times Mirror')
pursuant to a long-term newsprint agreement (the 'Newsprint Agreement') entered
into in connection with the Company's acquisition of SNC stock in February 1986.
Under the terms of the Newsprint Agreement, the Company supplies newsprint to
Times Mirror generally at prevailing West Coast market prices. Sales of
newsprint to Times Mirror in 1993 amounted to $115.2 million.
Cladwood'r'. Cladwood'r' is a wood composite panel used by the housing
industry, manufactured from sawmill shavings and other wood residuals and
overlayed with recycled newsprint. The Company has two Cladwood'r' plants
located in Oregon. Total sales for Cladwood'r' in 1993 were $29.1 million ($.5
million of which were intracompany sales).
MARKETING
The marketing strategy for the Company's mills is to maximize sales of
products to manufacturers located within an economical shipping area. The
strategy in the converting plants focuses on both specialty products tailored to
fit customers' needs and high volume sales of commodity products. The Company
also seeks to broaden the customer base for each of its segments rather than to
concentrate on only a few accounts for each plant. These objectives have led to
decentralization of marketing efforts, such that each plant has its own sales
force, and many have product design engineers, who are in close contact with
customers to respond to their specific needs. National sales offices are also
54
<PAGE>
maintained for customers who purchase through a centralized purchasing office.
National account business may be allocated to more than one plant because of
production capacity and equipment requirements.
COMPETITION
The paperboard and packaging products markets are highly competitive and
are comprised of many participants. Although no single company is dominant, the
Company does face significant competitors in each of its businesses. The
Company's competitors include large vertically integrated companies as well as
numerous smaller companies. The industries in which the Company competes are
particularly sensitive to price fluctuations as well as other competitive
factors including design, quality and service, with varying emphasis on these
factors depending on product line. The market for the Newsprint segment is also
highly competitive.
BACKLOG
Demand for the Company's major product lines is relatively constant
throughout the year and seasonal fluctuations in marketing, production,
shipments and inventories are not significant. The Company does not have a
significant backlog of orders, as most orders are placed for delivery within 30
days.
RESEARCH AND DEVELOPMENT
The Company's research and development center works with its manufacturing
and sales operations, providing state-of-the-art technology, from raw materials
supply through finished packaging performance. Research programs have provided
improvements in coatings and barriers, stiffeners, inks and printing. The
technical staff conducts basic, applied and diagnostic research, develops
processes and products and provides a wide range of other technical services.
The Company actively pursues applications for patents on new inventions and
designs and attempts to protect its patents against infringement. Nevertheless,
the Company believes that its success and growth are dependent on the quality of
its products and its relationships with its customers, rather than on the extent
of its patent protection. The Company holds or is licensed to use certain
patents, but does not consider that the successful continuation of any important
phase of its business is dependent upon such patents.
EMPLOYEES
Subsequent to closure in early 1994 of three container plants, two folding
carton plants and one recycled boxboard mill, the Company had approximately
16,600 employees at March 1, 1994, of which approximately 11,300 employees
(68%), are represented by collective bargaining units. The expiration date of
union contracts for the Company's major facilities are as follows: the Alton
mill, expiring June 1994; the Newberg mill, expiring March 1995; the Oregon City
mill, expiring March 1997; the Brewton mill, expiring October 1997; the
Fernandina mill, expiring June 1998; a group of 12 properties, including 4 paper
mills and 8 corrugated container plants, expiring June 1998; and the
Jacksonville mill, expiring June 1999. The Company believes that its employee
relations are generally good and is currently in the process of bargaining with
unions representing production employees at a number of its other operations.
However, as of the date hereof, the Company had not reached agreement on a new
labor contract for the Alton mill.
55
<PAGE>
PROPERTIES
The Company's properties at December 31, 1993 are summarized in the table
below. The table reflects the previously mentioned closure in early 1994 of
three container plants, two folding carton plants and one recycled boxboard
mill, but does not reflect the additional closures contemplated by the
Restructuring Program. Approximately 62% of the Company's investment in
property, plant and equipment is represented by its paperboard and newsprint
mills.
<TABLE>
<CAPTION>
NUMBER OF STATE
FACILITIES LOCATIONS
---------- ---------
<S> <C> <C>
Paperboard mills:
Containerboard mills................................................................... 7 6
Boxboard mills......................................................................... 4 4
Cylinderboard mills.................................................................... 5 4
Newsprint mills............................................................................. 2 1
Reclamation plants.......................................................................... 26 12
Converting facilities:
Corrugated container plants............................................................ 52 22
Folding carton plants.................................................................. 18 10
Industrial packaging plants............................................................ 16 11
Consumer packaging plants................................................................... 14 9
Cladwood'r' plants.......................................................................... 2 1
Wood product plants......................................................................... 1 1
---
Total............................................................................. 147 28
--- --
--- --
</TABLE>
In addition to its manufacturing facilities, the Company owns and leases
approximately 758,000 acres and 226,000 acres of timberland, respectively, and
also operates wood harvesting facilities.
LITIGATION
In May 1993, CCA received a notice of default on behalf of Otis B. Ingram,
as executor of the estate of Naomi M. Ingram, and Ingram-LeGrand Lumber Company
with respect to certain timber purchase agreements and timber management
agreements between CCA and such parties dated November 22, 1967 pertaining to
approximately 30,000 acres of property in Georgia (the 'Agreements'). In June
1993, CCA filed suit against such parties in the United States District Court,
Middle District of Georgia, seeking declaratory and injunctive relief and
damages in excess of $3 million arising out of the defendants' alleged breach
and anticipatory repudiation of the Agreements. The defendants have filed an
answer and counterclaim seeking damages in excess of $14 million based on
allegations that CCA breached the Agreements and failed to pay for timber
allegedly stolen or otherwise removed from the property by CCA or third parties.
The alleged thefts of timber are being investigated by the Georgia Bureau of
Investigation, which has advised CCA that it is not presently a target of this
investigation. CCA has filed a third-party complaint against Keadle Lumber
Enterprises, Inc. seeking indemnification with respect to such alleged thefts
and has filed a reply to the defendants' counterclaims denying the allegations
and any liability to the defendants. Management does not believe that the
outcome of this litigation will have a material adverse effect on the Company's
financial condition or operations.
The Company is a defendant in a number of other lawsuits that have arisen
in the normal course of business. While any litigation has an element of
uncertainty, the management of the Company believes that the outcome of such
suits will not have a material adverse effect on its financial condition or
operations.
56
<PAGE>
ENVIRONMENTAL MATTERS
Federal, state and local environmental requirements, particularly relating
to air and water quality, are a significant factor in the Company's business.
The Company employs processes in the manufacture of pulp, paperboard and other
products, resulting in various discharges and emissions that are subject to
numerous federal, state and local environmental control statutes, regulations
and ordinances. The Company operates and expects to operate under permits and
similar authorizations from various governmental authorities that regulate such
discharges and emissions.
Occasional violations of permit terms have occurred from time to time at
the Company's facilities, resulting in administrative actions, legal proceedings
or consent decrees and similar arrangements. Pending proceedings include the
following:
In March 1992, JSC entered into an administrative consent order with
the Florida Department of Environmental Regulation to carry out any
necessary assessment and remediation of JSC-owned property in Duval County,
Florida that was formerly the site of a sawmill that dipped lumber into a
chemical solution. Assessment is on-going, but initial data indicates soil
and groundwater contamination that may require nonroutine remediation.
Management believes that the probable costs of this site, taken alone or
with potential costs at other Company-owned properties where some
contamination has been found, will not have a material adverse effect on
its financial condition or operations.
In February 1994, JSC entered into a consent decree with the State of
Ohio in full satisfaction of all liability for alleged violations of
applicable standards for particulate and opacity emissions with respect to
two coal-fired boilers at its Lockland, Ohio recycled boxboard mill (which
has been permanently closed as part of the Company's restructuring
program), and has paid $122,000 in penalties and enforcement costs pursuant
to such consent decree. The United States Environmental Protection Agency
has also issued a notice of violation with respect to such emissions, but
has informally advised JSC's counsel that no Federal enforcement is likely
to be commenced in light of the settlement with the State of Ohio.
The Company also faces potential liability as a result of releases, or
threatened releases, of hazardous substances into the environment from various
sites owned and operated by third parties at which Company-generated wastes have
allegedly been deposited. Generators of hazardous substances sent to off-site
disposal locations at which environmental problems exist, as well as the owners
of those sites and certain other classes of persons (generally referred to as
'potentially responsible parties' or 'PRPs'), are, in most instances, subject to
joint and several liability for response costs for the investigation and
remediation of such sites under the Comprehensive Environmental Response,
Compensation and Liability Act ('CERCLA') and analogous state laws, regardless
of fault or the legality of the original disposal. The Company has received
notice that it is or may be a PRP at a number of federal and/or state sites
where remedial action may be required, and as a result may have joint and
several liability for cleanup costs at such sites. However, liability of CERCLA
sites is typically shared with the other PRPs and costs are commonly allocated
according to relative amounts of waste deposited. Because the Company's relative
percentage of waste deposited at the majority of these sites is quite small,
management of the Company believes that its probable liability under CERCLA,
taken on a case by case basis or in the aggregate, will not have a material
adverse effect on its financial condition or operations. Pending CERCLA
proceedings include the following:
In January 1990, CCA filed a motion for leave to intervene and for
modification of the consent decree in United States v. General Refuse
Services, a case pending in the United States District Court for the
Southern District of Ohio. CCA contends that it should be allowed to
participate in the proposed consent decree, which provides for remediation
of alleged releases or threatened releases of hazardous substances at a
site in Miami County, near Troy, Ohio, according to a plan approved by the
United States Environmental Protection Agency, Region V (the 'Agency'). The
Court granted CCA's motion to intervene in this litigation, but denied
CCA's motion for an order denying entry of the consent decree.
Consequently, the consent decree has been entered without CCA's being
included as a party to the decree, meaning that CCA may have some exposure
to potential claims for contribution to remediation costs incurred by other
participants and for non-reimbursed response costs incurred by the Agency,
which costs are reported by the Agency as $3.4
57
<PAGE>
million as of February 1994. CCA's appeal of the Court's decision to the
Sixth Circuit Court of Appeals is pending.
In December 1991, the United States filed a civil action against CCA
in United States District Court, Southern District of Ohio, to recover its
unreimbursed costs at the Miami County site, and CCA subsequently filed a
third-party complaint against certain entities that had joined the original
consent decree. The Court has granted in part and denied in part the
third-party defendants' motion for summary judgment, but has allowed CCA to
file an amended third-party complaint against these entities at a later
date. In October 1993, the United States filed an additional suit against
CCA in the same court seeking injunctive relief and damages up to $25,000
per day from March 27, 1989 to the present, based on CCA's alleged failure
to properly respond to the Agency's document and information requests in
connection with this site. In July 1993, counsel for CCA was advised by the
Office of the United States Attorney, Northern District of Illinois that a
criminal inquiry is also underway relating to CCA's responses to the
Agency's document and information requests. CCA is investigating the
circumstances regarding its responses, and is pursuing settlement with
respect to all matters relating to the Miami County site.
CCA has paid approximately $768,000 pursuant to two partial consent
decrees entered into in 1990 and 1991 with respect to clean-up obligations
at the Operating Industries site in Monterey Park, California. It is
anticipated that there will be further remedial measures beyond those
covered by these partial settlements.
JSC and CCA have entered into a settlement with the United States, the
State of Indiana and certain other parties pursuant to which their
obligations in connection with a superfund site in Griffin, Indiana will be
satisfied in exchange for aggregate payments of approximately $588,000,
which will most likely be made in the fourth quarter of 1994. CCA also paid
$258,000 and agreed to pay an additional amount of approximately $50,000 in
full settlement of its obligations in connection with a superfund site in
Kankakee County, Illinois.
In addition to other Federal and State laws regarding hazardous substance
contamination at sites owned or operated by the Company, the New Jersey
Industrial Site Recovery Act ('ISRA') requires that a 'Negative Declaration' or
a 'Cleanup Plan' be filed and approved by the New Jersey Department of
Environmental Protection and Energy ('DEPE') as a precondition to the 'transfer'
of an 'industrial establishment'. The ISRA regulations provide that a transferor
may close a transaction prior to the DEPE's approval of a negative declaration
if the transferor enters into an administrative consent order with the DEPE. The
Company is currently a signatory to administrative consent orders with respect
to two formerly leased or owned industrial establishments and has recently
closed a facility and received a negative declaration with respect thereto.
Management believes that any requirements that may be imposed by the DEPE with
respect to these sites will not have a materially adverse effect on the
financial condition or operations of the Company.
The Company's paperboard and newsprint mills are large consumers of energy,
using either natural gas or coal. Approximately 67% of the Company's total
paperboard tonnage is produced by mills which have coal-fired boilers. The cost
of energy is dependent, in part, on environmental regulations concerning sulfur
dioxide and particulate emissions.
Because various pollution control standards are subject to change, it is
not possible at this time to predict the amount of capital expenditures that
will ultimately be required to comply with future standards. In particular, the
United States Environmental Protection Agency has proposed a comprehensive rule
governing the pulp, paper and paperboard industry, which could require
substantial compliance expenditures on the part of the Company. For the past
three years, the Company has spent an average of approximately $10 million
annually on capital expenditures for environmental purposes. Further sums may be
required in the future, although, in the opinion of management, such
expenditures will not have a material effect on its financial condition or
results of operations. The amount budgeted for such expenditures for fiscal 1994
is approximately $10 million. Since the Company's competitors are, or will be,
subject to comparable pollution control standards, including the proposed rule
discussed above, if implemented, management is of the opinion that compliance
with future pollution standards will not adversely affect the Company's
competitive position.
58
<PAGE>
MANAGEMENT
DIRECTORS
The following table sets forth the names and ages of the directors of each
of JSC and CCA.
<TABLE>
<CAPTION>
NAME AGE
- --------------------------------- ---
<S> <C>
Michael W.J. Smurfit............. 58
Howard E. Kilroy................. 58
James E. Terrill................. 60
James R. Thompson................ 58
Donald P. Brennan................ 53
Alan E. Goldberg................. 40
David R. Ramsay.................. 30
</TABLE>
The Company's Board of Directors includes one additional directorship which
is presently vacant. Pursuant to the Stockholders Agreement (as described
below), such additional directorship will be filled by a director, designated
by, but not affiliated with MSLEF II.
EXECUTIVE OFFICERS
The following table sets forth the names and ages of the executive officers
of each of JSC and CCA and the positions they hold.
<TABLE>
<CAPTION>
NAME AGE POSITION
- --------------------------------- --- --------------------------------------------------------------
<S> <C> <C>
Michael W.J. Smurfit............. 58 Chairman of the Board and Director
James E. Terrill................. 60 President, Chief Executive Officer and Director
Howard E. Kilroy................. 58 Senior Vice President and Director
Richard W. Graham................ 59 Senior Vice President and General Manager -- Folding Carton
and Boxboard Mill Division
C. Larry Bradford................ 58 Vice President -- Sales and Marketing
Raymond G. Duffy................. 52 Vice President -- Planning
Michael C. Farrar................ 53 Vice President -- Environmental and Governmental Affairs
John R. Funke.................... 52 Vice President and Chief Financial Officer
Richard J. Golden................ 52 Vice President -- Purchasing
Michael F. Harrington............ 54 Vice President -- Personnel and Human Resources
Alan W. Larson................... 55 Vice President and General Manager -- Consumer Packaging
Division
Edward F. McCallum............... 60 Vice President and General Manager -- Container Division
Lyle L. Meyer.................... 58 Vice President
Patrick J. Moore................. 39 Vice President and Treasurer
David C. Stevens................. 60 Vice President and General Manager -- Smurfit Recycling
Company
Truman L. Sturdevant............. 59 President of SNC
Michael E. Tierney............... 46 Vice President, General Counsel and Secretary
Richard K. Volland............... 56 Vice President -- Physical Distribution
William N. Wandmacher............ 51 Vice President and General Manager -- Containerboard Mill
Division
Gary L. West..................... 52 Vice President and General Manager -- Industrial Packaging
Division
</TABLE>
59
<PAGE>
BIOGRAPHIES
C. Larry Bradford has been Vice President -- Sales and Marketing since
January 1993. He served as Vice President and General Manager -- Container
Division from February 1991 until October 1992. Prior to that time, he was Vice
President and General Manager of the Folding Carton and Boxboard Mill Division
from January 1983 to February 1991.
Donald P. Brennan joined MS&Co. in 1982 and has been a Managing Director
since 1984. He is responsible for MS&Co.'s Merchant Banking Division and is
Chairman and President of Morgan Stanley Leveraged Equity Fund II, Inc. ('MSLEF
II, Inc.') and Chairman of Morgan Stanley Capital Partners III, Inc. ('MSCP III,
Inc.'). Mr. Brennan serves as Director of Agricultural Minerals and Chemicals
Inc., Agricultural Minerals Corporation, Coltec Industries Inc, Fort Howard
Corporation, Hamilton Services Limited, PSF Finance Holdings, Inc., Shuttleway,
A/S Bulkhandling and Stanklav Holdings, Inc. Mr. Brennan is also Deputy Chairman
and Director of Waterford Wedgwood plc.
Raymond G. Duffy has been Vice President -- Planning since July 1983 and
served as Director of Corporate Planning from 1980 to 1983.
Michael C. Farrar was appointed Vice President-Environmental and
Governmental Affairs in March 1992. Prior to joining JSC, he was Vice President
of the American Paper Institute and the National Forest Products Association for
more than 5 years.
John R. Funke has been Vice President and Chief Financial Officer since
April 1989 and was Corporate Controller and Secretary from 1982 to April 1989.
Richard J. Golden has been Vice President -- Purchasing since January 1985
and was Director of Corporate Purchasing from October 1981 to January 1985. In
January 1994, he was assigned responsibility for world-wide purchasing for JS
Group.
Alan E. Goldberg joined MS&Co. in 1979 and has been a member of MS&Co.'s
Merchant Banking Division since its formation in 1985 and a Managing Director of
MS&Co. since 1988. Mr. Goldberg is a member of the Finance Committee of MS&Co.
Mr. Goldberg is Chairman and President of Morgan Stanley Leveraged Equity Fund,
Inc., a Delaware corporation, is a Director of MSLEF II, Inc. and is a Vice
Chairman and a Director of MSCP III, Inc. Mr. Goldberg also serves as a Director
of Agricultural Minerals and Chemicals Inc., Agricultural Minerals Corporation,
Amerin Guaranty Corporation, CIMIC Holdings Limited, Centre Cat Limited and
Hamilton Services Limited.
Richard W. Graham was appointed Senior Vice President and General
Manager -- Folding Carton and Boxboard Mill Division in February 1994. He served
as Vice President and General Manager -- Folding Carton and Boxboard Mill
Division from February 1991 to January 1994. Mr. Graham was Vice President and
General Manager -- Folding Carton Division from October 1986 to February 1991.
Mr. Graham joined CCA in 1959 and has served in various management positions,
becoming Group Vice President of Administration for CCA in 1984.
Michael F. Harrington was appointed Vice President-Personnel and Human
Resources in January 1992. Prior to joining JSC, he was Corporate Director of
Labor Relations/Safety and Health with Boise Cascade Corporation for more than 5
years.
Howard E. Kilroy has been Chief Operations Director of JS Group since 1978
and President of JS Group since October 1986. Mr. Kilroy was a member of the
Supervisory Board of SIBV from January 1978 to January 1992. He has been a
Director of JSC since 1979 and Senior Vice President for over 5 years. In
addition, he is Governor (Chairman) of Bank of Ireland and a Director of Aran
Energy plc.
Alan W. Larson has been Vice President and General Manager -- Consumer
Packaging Division since October 1988. Prior to joining JSC in 1988, he was
Executive Vice President of The Black and Decker Corporation.
Edward F. McCallum has been Vice President and General Manager -- Container
Division since October 1992. He served as Vice President and General Manager of
the Industrial Packaging Division from January 1991 to October 1992. Prior to
that time, he served in various positions in the Container Division since
joining JSC in 1971.
60
<PAGE>
Lyle L. Meyer has been Vice President since April 1989. He has also been
President of Smurfit Pension and Insurance Services Company since 1982.
Patrick J. Moore has been Vice President and Treasurer since February 1993.
He was Treasurer from October 1990 to February 1993. Prior to joining JSC in
1987 as Assistant Treasurer, Mr. Moore was with Continental Bank in Chicago
where he served in various corporate lending, international banking and
administrative capacities.
David R. Ramsay is a Vice President of MS&Co.'s Merchant Banking Division
where he has worked since his graduation from business school in 1989. Mr.
Ramsay also serves as a Director of Agricultural Minerals and Chemicals Inc.,
Agricultural Minerals Corporation, ARM Financial Group Inc., Hamilton Services
Limited, A/S Bulkhandling and Stanklav Holdings, Inc. and is President and a a
Director of PSF Finance Holdings, Inc.
Michael W.J. Smurfit has been Chairman and Chief Executive Officer of JS
Group since 1977. Dr. Smurfit has been a Director of JSC since 1979 and Chairman
of the Board since September 1983. He was Chief Executive Officer from September
1983 to July 1990.
David C. Stevens has been Vice President and General Manager -- Smurfit
Recycling Company since January 1993. He joined JSC in 1987 as General Sales
Manager and was named Vice President later that year. He held various management
positions with International Paper and was President of Mead Container Division
prior to joining JSC.
Truman L. Sturdevant has been President of SNC since February 1993. He was
Vice President and General Manager of SNC from August 1990 to February 1993. Mr.
Sturdevant joined the Company in 1984 as Vice President and General Manager of
the Oregon City newsprint mill.
James E. Terrill was named a Director and President and Chief Executive
Officer in February 1994. He served as Executive Vice President -- Operations
from August 1990 to February 1994. He also served as Executive Vice President of
SNC from February 1993 to February 1994. He was President of SNC from February
1986 to February 1993. He served as Vice President and General Manager --
Industrial Packaging Division of JSC from 1979 to February 1986.
James R. Thompson was elected to the Board of Directors in July 1994. He
served as Governor of the State of Illinois from 1977 to 1991, and is currently
the Chairman of Winston & Strawn, a law firm that regularly represents the
Company on numerous matters. Governor Thompson also serves as a Director of FMC
Corporation, the Chicago Board of Trade, the Chicago North Western Holdings
Corp., United Fidelity Inc., the International Advisory Council of the Bank of
Montreal, Prime Retail, Inc., Pechiney International, Wakenhut Corrections
Corporation and American Publishing Corporation.
Michael E. Tierney has been Vice President, General Counsel and Secretary
since January 1993. He served as Senior Counsel and Assistant Secretary since
joining JSC in 1987.
Richard K. Volland has been Vice President -- Physical Distribution since
1978.
William N. Wandmacher has been Vice President and General
Manager -- Containerboard Mill Division since January 1993. He served as
Division Vice President -- Medium Mills from October 1986 to January 1993. Since
joining the Company in 1966, he has held increasingly responsible positions in
production, plant management and planning, both domestic and foreign.
Gary L. West has been Vice President and General Manager -- Industrial
Packaging Division since October 1992. He served as Vice President -- Converting
and Marketing for the Industrial Packaging Division from January 1991 to October
1992. Prior to that time, he held various management positions in the Container
and Consumer Packaging divisions since joining JSC in 1980.
PROVISIONS OF STOCKHOLDERS AGREEMENT PERTAINING TO MANAGEMENT
The Stockholders Agreement provides that SIBV and the MS Holders (as
defined in the Stockholders Agreement and which term includes the MSLEF II
Associated Entities and, with respect to certain of their shares, includes the
Direct Investors (as defined below)) shall vote their shares of Holdings Common
Stock subject to the Stockholders Agreement to elect as directors of Holdings
(a) four individuals selected by SIBV (each, an 'SIBV Nominee') one of whom
shall be the Chief
61
<PAGE>
Executive Officer and one of whom shall not be affiliated with SIBV, Holdings,
JSC or CCA (an 'SIBV Unaffiliated Director') and (b) four individuals selected
by MSLEF II (each, a 'MSLEF II Nominee'), one of whom shall not be affiliated
with MSLEF II, Holdings, JSC or CCA (a 'MSLEF II Unaffiliated Director'), if (i)
the MS Holders collectively own more than 10% of the outstanding Holdings Common
Stock or SIBV owns less than 25% of the outstanding Holdings Common Stock and
certain of the MS Holders shall not have collectively received, without
duplication, the Initial Return (as defined below) ('Tier 1') or (ii) the MS
Holders collectively own 30% or more of the outstanding Holdings Common Stock or
the MS Holders collectively own a greater number of voting shares than SIBV and
certain of the MS Holders shall have collectively received the Initial Return
('Tier 2'); provided, however, that in the event that the MS Holders
collectively own 7 1/2% or more and less than 30% of the outstanding Holdings
Common Stock and certain of them shall have collectively received the Initial
Return, then SIBV shall not be required to have one of its nominees be an SIBV
Unaffiliated Director and the four MSLEF II Nominees shall include two MSLEF II
Unaffiliated Directors; provided, further, that in the event that the MS Holders
collectively own 6% or more but less than 7 1/2% of the outstanding Holdings
Common Stock and certain of them shall have collectively received the Initial
Return, then SIBV shall nominate four SIBV Nominees (one of whom shall be the
Chief Executive Officer), MSLEF II shall nominate two MSLEF II Nominees and
Holdings' Board of Directors shall nominate two persons to the Board of
Directors who shall not be affiliated with SIBV or MSLEF II and who shall be
reasonably acceptable to MSLEF II and SIBV. Unless MSLEF II determines
otherwise, MSLEF II Nominees, except MSLEF II Unaffiliated Directors, shall be
Managing Directors, Principals or Vice Presidents of MS&Co. The Stockholders
Agreement defines 'Initial Return' to mean the receipt, as dividends or as a
result of sales of shares of Holdings Common Stock, of $320 million in cash or
certain other property (or a combination thereof) collectively by the MSLEF II
Associated Entities and their affiliates. The Initial Return shall include
amounts received by partners of MSLEF II and Equity Investors (as defined
below), whether or not such partners are MS Holders, by reason of distributions
in respect of, or repurchases of all or a portion of, partnership interests in
such partnerships (and shares which MSLEF II or Equity Investors distributes to
its partners will be deemed to have been sold at the closing sales price per
share for the last trading day prior to the date such distribution is made).
Calculations made for purposes of the foregoing shall not give effect to shares
of Holdings Common Stock purchased after the date of the closing of the 1994
Offerings (other than shares of Common Stock acquired by MS Holders or by SIBV
in certain limited circumstances, including shares acquired by the MSLEF II
Associated Entities upon distributions in respect of, or repurchases of all or a
portion of, partnership interests in MSLEF II or Equity Investors and shares
acquired by SIBV pursuant to the preemptive rights set forth in the Subscription
Agreement). In addition, notwithstanding the termination of the Stockholders
Agreement, upon the MS Holders ceasing to own six percent or more of the
Holdings Common Stock, so long as MSLEF II and MSLEF II, Inc. and its affiliates
own Holdings Common Stock with a market value of at least $25 million, MSLEF II
shall be entitled to designate, and SIBV shall, upon request, vote its shares of
Holdings Common Stock subject to the Stockholders Agreement for the election of,
one nominee to the Board of Directors of Holdings (who need not be a MSLEF II
Unaffiliated Director).
Pursuant to the terms of the Stockholders Agreement, SIBV and MSLEF II each
became entitled to designate four nominees to Holdings' Board of Directors upon
the consummation of the Recapitalization Plan (excluding the Subordinated Debt
Refinancing). Such designees include, in the case of SIBV, Michael W. J.
Smurfit, Howard E. Kilroy, James E. Terrill and James R. Thompson and, in the
case of MSLEF II, Donald P. Brennan, Alan E. Goldberg and David R. Ramsay. The
MSLEF II Unaffiliated Director has not yet been named as of the date of this
Prospectus. See ' -- Directors'. Pursuant to the Stockholders Agreement, SIBV
and MSLEF II have agreed to ensure the Board of Directors will consist of only
eight directors (unless they otherwise agree). In addition, the Investors (as
defined in the Stockholders Agreement and which term includes SIBV, the MSLEF II
Associated Entities and the Direct Investors) have agreed pursuant to the
Stockholders Agreement to use their best efforts to cause their respective
nominees to resign from Holdings' Board of Directors and to cause the remaining
Directors, subject to their fiduciary duties, to fill the resulting vacancies,
if and to the extent changes in directors are necessary in order to reflect the
Board representation contemplated by the Stockholders Agreement.
62
<PAGE>
Pursuant to the Stockholders Agreement, the Board of Directors of Holdings
has all powers and duties and the full discretion to manage and conduct the
business and affairs of Holdings as may be conferred or imposed upon a board of
directors pursuant to Section 141 of the Delaware General Corporation Law;
provided, however, that if the MS Holders' collective ownership of Holdings
Common Stock shall be in Tier 1 or Tier 2, approval of certain specified actions
shall require approval of (a) the sum of one and a majority of the entire Board
of Directors of the Company present at a meeting of the Board of Directors (the
'Required Majority') and (b) two directors who are SIBV Nominees and two
directors who are MSLEF II Nominees. Without limiting the foregoing, unless the
MS Holders collectively own 6% or more but less than 7 1/2% of the Holdings
Common Stock during any period when Holdings' Board of Directors does not
consist of eight members (or such greater number of members as may be agreed to
by SIBV, MSLEF II and Holdings) then all actions of the Board of Directors shall
require approval of at least one director who is an SIBV Nominee and one
director who is a MSLEF II Nominee. The specified corporate actions that must be
approved by a Required Majority include the amendment of the certificate of
incorporation or by-laws of Holdings or any of its subsidiaries (except as
contemplated by this Prospectus); the issuance, sale, purchase or redemption of
securities of Holdings or any of its subsidiaries (other than, in the case of
any issuance or sale, to Holdings or any direct or indirect wholly owned
subsidiary of Holdings and other than pursuant to the Subscription Agreement);
the establishment of and appointments to the Audit Committee of Holdings' Board
of Directors; sales of assets or investments in, or certain transactions with,
JS Group or its affiliates in excess of a specified amount or any other person
in excess of other specified amounts, in each case subject to certain limited
exceptions; certain mergers, consolidations, dissolutions or liquidations of
Holdings or any of its subsidiaries; the filing of a petition in bankruptcy; the
setting aside, declaration or making of any payment or distribution by way of
dividend or otherwise to the stockholders of Holdings or any of its
subsidiaries, except for any such payments or distributions made or to be made
to Holdings or any of its direct or indirect wholly owned subsidiaries; the
incurrence of certain new indebtedness, the creation of certain liens or
guarantees, the institution, termination or settlement of material litigation,
the surrender of property or rights, making certain investments, commitments,
capital expenditures or donations, in each case in excess of certain specified
amounts; entering into any lease (other than a capitalized lease) of any assets
of Holdings located in any one place having a book value in excess of a
specified amount; the entering into any agreement or material transaction
between Holdings and a director or officer of Holdings, JSC, JS Group, CCA, SIBV
or MSLEF II or their affiliates; the replacement of the independent accountants
for Holdings or any of its subsidiaries or modification of significant
accounting methods; the amendment or termination of Holdings' 1992 Stock Option
Plan (except as contemplated by this Prospectus); except as provided in the
Stockholders Agreement, the election or removal of directors and officers of
each of JSC and CCA; the increase or decrease of the number of directors
comprising Holdings' Board of Directors; and any decision regarding registration
of any securities, except as provided in the Registration Rights Agreement.
Upon consummation of the 1994 Offerings, the Board of Directors of Holdings
was divided into three classes of directors serving staggered three-year terms.
Pursuant to the Stockholders Agreement, SIBV and MSLEF II shall use their best
efforts to cause their respective designees to Holdings' Board of Directors to
elect directors to the Boards of Directors of JSC and CCA in an analogous manner
unless they otherwise agree. The directors of Holdings, JSC and CCA are the same
individuals.
COMMITTEES
Since the consummation of the 1994 Offerings, there have been three
committees of the Board of Directors of Holdings: the Compensation Committee,
(comprised of Donald P. Brennan, Alan E. Goldberg and David R. Ramsay) the Audit
Committee (comprised of James R. Thompson, Howard E. Kilroy and Alan E.
Goldberg) and the Appointment Committee (comprised of Michael W.J. Smurfit,
Howard E. Kilroy, James E. Terrill and Alan E. Goldberg). The Stockholders
Agreement provides that the Investors will use their best efforts to cause their
respective designees on the Holdings Board of Directors, subject to their
fiduciary duties, to (i) insure that MSLEF II Nominees (other than, unless MSLEF
II consents, any MSLEF II Unaffiliated Directors) constitute a majority of the
members on the Compensation Committee and any other committees which administer
any option or incentive plan of
63
<PAGE>
Holdings and the Company; provided, however, that if the MS Holders' ownership
of Holdings Common Stock shall not be in Tier 1, Tier 2 or Tier 3 (as defined in
the Stockholders Agreement), the members of the compensation committee of
Holdings shall consist of directors of Holdings who shall be appointed to such
committee by the Holdings Board of Directors; provided, however, that no officer
of Holdings, JSC or CCA shall serve on the Compensation Committee and (ii)
subject to certain limitations (including limitations based on the percentage
stock ownership of the MS Holders and/or SIBV), insure that (a) SIBV Nominees
(other than, unless SIBV consents, the SIBV Unaffiliated Director) constitute a
majority of the members, and a MSLEF II Nominee (other than, unless MSLEF II
consents, the MSLEF II Unaffiliated Director) is a member, of the Appointment
Committee and (b) nominees of the SIBV Nominees on the Appointment Committee for
officers of Holdings, JSC and CCA (other than Chief Financial Officer), and a
nominee of the MSLEF II Nominee for Chief Financial Officer of Holdings, JSC and
CCA, are appointed or elected to such positions, whether by the Appointment
Committee or the Board of Directors.
In addition, the Investors shall use their best efforts to cause their
respective designees on Holdings' Board of Directors, subject to their fiduciary
duties, to cause the officers of Holdings to be the respective officers of each
of JSC and CCA, unless the Investors otherwise agree.
The Compensation Committee of Holdings' Board of Directors has the duty to
review at least once each fiscal year and to establish compensation (including
fringe benefits) for the Chief Financial Officer and for all other officers or
employees of Holdings and its subsidiaries (including JSC and CCA) (i) who are
directors of Holdings (other than the Chief Executive Officer) or (ii) who are
officers of or employed by (or a significant portion of whose time is spent as a
consultant to) JS Group or any of its affiliates (other than Holdings and its
subsidiaries) and whose primary employment is not with Holdings and its
subsidiaries. The Appointment Committee has the duty to review at least once
each fiscal year and to establish compensation (including fringe benefits) for
all other officers of Holdings and its subsidiaries. The Compensation Committee
and the Board of Directors shall both approve the adoption of an amendment to
all bonus and incentive plans (other than those involving stock and options) but
the Board of Directors alone shall approve the allocation of awards thereunder.
The Board of Directors shall make all decisions with respect to the adoption of
or amendents to (i) stock compensation, stock option and stock incentive plans
and (ii) pension and profit sharing plans. The Compensation Committee shall make
all decisions under Holdings' stock compensation, stock option and stock
incentive plans; provided, however, that the Board of Directors shall make all
decisions with respect to grants or awards under such plans except, under
certain circumstances, the Stock Option Committee, if any, or the Compensation
Committee shall make such grants or awards.
The Chief Executive Officer, if a director, shall be on the Appointment
Committee, but for purposes of the Stockholders Agreement shall not be the MSLEF
II Nominee thereon.
DIRECTOR COMPENSATION
Prior to the completion of the 1994 Offerings, no directors of Holdings,
JSC and CCA received any fees for their services as directors; however, the
directors were reimbursed for their travel expenses in connection with their
attendance at board meetings. Following the completion of the 1994 Offerings,
each of Holdings, JSC and CCA intends to reimburse all its directors for their
travel expenses in connection with their attendance at board meetings and to pay
all its directors who are not officers an annual fee of $35,000 plus $2,000 for
attendance at each meeting which is in excess of four meetings per year.
EXECUTIVE COMPENSATION
SUMMARY COMPENSATION TABLE
The following table sets forth the cash and noncash compensation for each
of the last three fiscal years awarded to or earned by the Chief Executive
Officer of the Company and the four other most highly compensated executive
officers of the Company (the 'Named Executive Officers') during 1993.
64
<PAGE>
<TABLE>
<CAPTION>
LONG TERM
COMPENSATION
------------
AWARDS
ANNUAL COMPENSATION ------------
------------------------------------------- SECURITIES ALL OTHER
OTHER ANNUAL UNDERLYING COMPENSATION($)
NAME AND PRINCIPAL POSITION YEAR SALARY($)(a) BONUS($) COMPENSATION($) OPTIONS(#)(b) (c)(d)(e)
- -------------------------------------- ---- ------------ -------- --------------- ------------ ---------------
<S> <C> <C> <C> <C> <C> <C>
Michael W.J. Smurfit, Chairman of the
Board............................... 1993 $832,369 $ 0 $30,000 0 $16,775
1992 793,273 526,605 0 1,026,000 15,764
1991 705,033 0 0 0 14,042
James E. Terrill, President and Chief
Executive Officer, formerly
Executive Vice
President -- Operations(f).......... 1993 440,000 0 17,318 0 19,545
1992 367,500 243,477 944 181,000 16,346
1991 326,667 0 555 0 18,554
Alan W. Larson, Vice President and
General Manager -- Consumer
Packaging Division.................. 1993 292,600 121,558 0 0 8,068
1992 280,000 121,238 1,881 45,000 7,658
1991 236,133 95,634 2,054 0 3,500
C. Larry Bradford, Vice President --
Sales and Marketing................. 1993 369,000 0 18,209 0 15,085
1992 353,000 3,644 1,361 121,000 13,658
1991 299,600 23,370 2,408 0 3,500
James B. Malloy, former President,
Chief Executive Officer and Chief
Operating Officer(f)................ 1993 992,000 0 17,867 0 21,902
1992 945,000 626,082 8,003 724,000 23,294
1991 840,000 0 7,955 0 20,909
</TABLE>
(a) The salary amounts for 1991 reflect a 10% salary reduction for each
officer, implemented during 1991 to help offset the impact of the
recession. The salary reductions were in place for the period of April 1,
1991 to December 15, 1991.
(b) Gives effect to the ten-for-one stock split which occurred pursuant to the
Reclassification.
(c) 1993 totals consist of a $3,500 Company contribution to the Company's
Savings Plan (the 'Savings Plan') for each Named Executive Officer (other
than Dr. Smurfit) and Company-paid split-dollar term life insurance
premiums for Dr. Smurfit ($16,775) and Messrs. Malloy ($12,061), Terrill
($16,045), Larson ($4,568) and Bradford ($11,585). Mr. Malloy also had
reportable (above 120% of the applicable federal long-term rate) earnings
equal to $6,341 credited to his account under the Company's Deferred
Compensation Capital Enhancement Plan (the 'Deferred Compensation Plan').
(d) 1992 totals consist of a $3,500 Company contribution to the Savings Plan
for each Named Executive Officer (other than Dr. Smurfit) and Company-paid
split-dollar term life insurance premiums for Dr. Smurfit ($15,764) and
Messrs. Malloy ($13,255), Terrill ($12,846), Larson ($4,158) and Bradford
($10,158). Mr. Malloy also had reportable earnings of $6,539 credited to
his account under the Deferred Compensation Plan.
(e) 1991 totals consist of a $3,500 Company contribution to the Savings Plan
for each Named Executive Officer (other than Dr. Smurfit) and Company-paid
split-dollar term life insurance premiums for Dr. Smurfit ($14,042) and
Messrs. Malloy ($11,373), Terrill ($10,493), Larson ($3,665) and Bradford
($8,081). Mr. Malloy also had reportable earnings of $6,036 credited to his
account under the Deferred Compensation Plan. Mr. Terrill received a moving
allowance of $4,561.
(f) As of February 1, 1994, James B. Malloy retired as President, Chief
Executive Officer and Chief Operating Officer, and James E. Terrill
succeeded to Mr. Malloy's positions as President and Chief Executive
Officer. Previously, Mr. Terrill was the Executive Vice
President -- Operations.
Upon consummation of the 1994 Offerings, the Company paid aggregate cash
bonuses of $7.62 million to a number of its and its affiliates' officers,
including approximately $1,964,000, $347,000, $87,000, $231,000 and $1,386,000
to Messrs. Smurfit, Terrill, Larson, Bradford and Malloy, respectively, and
$1.77 million to officers of JS Group and its affiliates (other than Michael
W.J. Smurfit). In addition, the Company paid approximately $2.9 million of
bonuses to other employees of the Company in 1992.
1994 LONG-TERM INCENTIVE PLAN
Prior to consummation of the Equity Offerings, JSC adopted the Jefferson
Smurfit Corporation (U.S.) 1994 Long-Term Incentive Plan (the 'Incentive Plan').
Pursuant to the Incentive Plan, participants will be granted awards, payable in
cash on April 30, 1997 (the 'Payment Date') (or earlier in the event of
termination of employment, including upon death or disability) if and to the
extent vested. A participant's award will vest on the Payment Date if he is
still employed by JSC or any of its subsidiaries at such time; provided that
such award shall vest in full if the participant dies or becomes disabled; shall
vest proportionately if the participant retires at age 65 prior to the Payment
Date; and shall vest 20% on April 30, 1995, and an additional 20% on April 30,
1996 if the participant is employed on such date and is thereafter terminated,
prior to April 30, 1997, by the Company without cause. Awards and earnings
therein which are forfeited in whole or in part shall be reallocated to then
current participants. The aggregate amount of awards under the Incentive Plan is
$5 million. The awards
65
<PAGE>
granted to Messrs. Terrill, Larson and Bradford were $1,000,000, $200,000 and
$75,000, respectively. Aggregate and individual awards will be increased
(decreased) by earnings (losses) accrued thereon during the period beginning as
soon as practicable after the consummation of the Equity Offerings and ending on
the Payment Date or earlier date of payment. Each participant may direct the
investment of his award in investment funds selected and managed by a fund
manager appointed by the administrative committee of the Incentive Plan.
1992 STOCK OPTION PLAN
OPTION PLAN
Under Holdings' 1992 Stock Option Plan, the Named Executive Officers and
certain other eligible employees have been granted options to purchase shares of
stock of Holdings. The options become vested over a ten year period and vest in
their entirety upon the death, disability or retirement of the optionee.
Non-vested options are forfeited upon any other termination of employment.
Options may not be exercised unless they are both exercisable and vested. Upon
the earliest to occur of (i) MSLEF II's transfer of all of its Holdings Common
Stock or, if MSLEF II distributes its Holdings Common Stock to its partners
pursuant to its dissolution, the transfer by such partners of at least 50% of
the aggregate Holdings Common Stock received from MSLEF II pursuant to its
dissolution, (ii) the 11th anniversary of the grant date of the options, and
(iii) a public offering of Holdings common stock (including the Equity
Offerings), all vested options shall become exercisable and all options which
vest subsequently shall become exercisable upon vesting; provided, however, that
if a public offering occurs prior to the Threshold Date (defined below) all
vested options and all options which vest subsequent to the public offering but
prior to the Threshold Date shall be exercisable in an amount (as of periodic
determination dates) equal to the product of (a) the number of shares of
Holdings Common Stock vested pursuant to the option (whether previously
exercised or not) and (b) the Morgan Percentage (as defined below) as of such
date; provided further that in any event a holder's options shall become
exercisable from time to time in an amount equal to the percentage that the
number of shares sold or distributed to its partners by MSLEF II represents of
its aggregate ownership of shares (with vested options becoming exercisable up
to such number before any non-vested options become so exercisable) less the
number of options, if any, which have become exercisable on January 1, 1995 as
set forth below. The Threshold Date is the earlier of (x) the date the members
of the MSLEF II Group (as defined in the 1992 Stock Option Plan) shall have
received collectively $200,000,000 in cash and/or other property as a return of
their investment in Holdings (as a result of sales of shares of Holdings' common
equity) and (y) the date that the members of the MSLEF II Group shall have
transferred an aggregate of at least 30% of Holdings' common equity owned by the
MSLEF II Group as of August 26, 1992. The Morgan Percentage as of any date is
the percentage determined from the quotient of (a) the number of shares of
Holdings' common equity held as of August 26, 1992, that were transferred by the
MSLEF II Group as of the determination date and (b) the number of shares of
Holdings' common equity outstanding as of such date. The Plan Committee, with
the consent of the Board of Directors of Holdings, may accelerate the
exercisability of options at such times and circumstances as it deems
appropriate in its discretion. The option exercise price is not adjustable other
than pursuant to an antidilution provision. Ten percent of stock options granted
prior to 1993 become exercisable on January 1, 1995. Already owned shares and
shares otherwise issuable upon exercise may be used to pay the exercise price of
options and any tax withholding liability. The foregoing describes the terms of
the 1992 Stock Option Plan, as it was amended prior to the consummation of the
Equity Offerings.
OPTION GRANTS
No option grants were made during 1993 to any Named Executive Officers.
Effective as of February 15, 1994 options with an exercise price of $12.50 were
granted to a number of officers and employees including Messrs. Terrill and
Larson who were granted options for 319,000, and 5,000 shares of Holdings Common
Stock, respectively (such dollar amount and numbers have been adjusted to
reflect the ten-for-one stock split which occurred pursuant to the
Reclassification). Such options vest over the period ending on January 1, 2001.
66
<PAGE>
OPTION EXERCISES AND YEAR-END VALUE TABLE
The following table summarizes the exercise of options relating to shares
of Holdings Common Stock by the Named Executive Officers during 1993 and the
value of options held by such officers as of the end of 1993. No stock
appreciation rights have been granted to any Named Executive Officers. In
addition, options to purchase 767,000 shares (as adjusted for the ten-for-one
stock split) have been granted to officers of JS Group and its affiliates (other
than Michael W. J. Smurfit and James B. Malloy).
<TABLE>
<CAPTION>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR, AND FY-END OPTION VALUE
------------------------------------------------------------------------------------------
NUMBER OF SECURITIES UNDERLYING VALUE OF UNEXERCISED
UNEXERCISED IN-THE-MONEY
SHARES OPTIONS AT DECEMBER 31, 1993 OPTIONS AT DECEMBER 31, 1993
ACQUIRED ON VALUE ---------------------------------- -------------------------------
NAME EXERCISE(#) REALIZED($) EXERCISABLE(#) UNEXERCISABLE(#)(a) EXERCISABLE($) UNEXERCISABLE($)
- --------------------------------- ----------- ----------- -------------- ------------------- -------------- ----------------
<S> <C> <C> <C> <C> <C> <C>
Michael W. J. Smurfit............ 0 N/A 0 1,026,000 $ 0 $ 0
James E. Terrill................. 0 N/A 0 181,000 0 0
Alan W. Larson................... 0 N/A 0 45,000 0 0
C. Larry Bradford................ 0 N/A 0 121,000 0 0
James B. Malloy.................. 0 N/A 0 724,000 0 0
</TABLE>
- ------------
(a) Gives effect to the ten-for-one stock split which occurred pursuant to the
Reclassification, but does not give effect to options granted in 1994.
PENSION PLANS
SALARIED EMPLOYEES' PENSION PLAN AND SUPPLEMENTAL INCOME PENSION PLANS
The Company and its subsidiaries maintain a non-contributory pension plan
for salaried employees (the 'Pension Plan') and non-contributory supplemental
income pension plans (the 'SIP Plans') for certain key executive officers. The
Pension Plan provides monthly benefits at age 65 equal to 1.5% of a
participant's final average earnings minus 1.2% of such participant's primary
social security benefit, multiplied by the number of years of credited service.
Final average earnings equals the average of the highest five consecutive years
of the participant's last 10 years of service, including overtime and certain
bonuses, but excluding bonus payments under the Management Incentive Plan,
deferred or acquisition bonuses, fringe benefits and certain other compensation.
Employees' pension rights vest after five years of service. Benefits are also
available under the Pension Plan upon early or deferred retirement. The pension
benefits for the Named Executive Officers can be calculated pursuant to the
following table, which shows the total estimated single life annuity payments
that would be payable to the Named Executive Officers participating in the
Pension Plan and one of the SIP Plans after various years of service at selected
compensation levels. A limit of 20 and 22.5 years of service can be credited for
SIP I and SIP II, respectively. Payments under the SIP Plans are an unsecured
liability of the Company.
In order to participate in the SIP Plans, an executive must be selected by
the Board of Directors. SIP Plan I provides annual benefits at normal retirement
age (65) equal to 2.5% of a participant's final average earnings multiplied by
the number of years of credited service (with a limit of 20 years or 50% of
final average earnings), less such participant's regular Pension Plan benefit
and a certain portion of the social security benefit, whereas SIP Plan II uses a
2% multiplier (with a limit of 22.5 years or 45% of final average earnings).
Final average earnings equals the participant's average earnings, including
bonus payments made under the Management Incentive Plan, for the five
consecutive highest-paid calendar years out of the last 10 years of service.
Participants may elect to receive benefits in the form of either a life annuity,
a life annuity with ten years certain or a designated survivor annuity.
67
<PAGE>
<TABLE>
<CAPTION>
SIP I PARTICIPANTS
----------------------------------------------
ANNUAL BENEFITS (SINGLE LIFE ANNUITY)
UPON FINAL RETIREMENT WITH FINAL
YEARS OF SERVICE INDICATED
FINAL (PRIOR TO ADJUSTMENT FOR SOCIAL SECURITY)
AVERAGE ----------------------------------------------
EARNINGS 5 YEARS 10 YEARS 15 YEARS 20 YEARS
- ----------------------------------------------------- -------- -------- -------- ----------
<S> <C> <C> <C> <C>
$ 200,000............................................ $ 25,000 $ 50,000 $ 75,000 $ 100,000
400,000........................................... 50,000 100,000 150,000 200,000
600,000........................................... 75,000 150,000 225,000 300,000
800,000........................................... 100,000 200,000 300,000 400,000
1,000,000........................................... 125,000 250,000 375,000 500,000
1,200,000........................................... 150,000 300,000 450,000 600,000
1,400,000........................................... 175,000 350,000 525,000 700,000
1,600,000........................................... 200,000 400,000 600,000 800,000
1,800,000........................................... 225,000 450,000 675,000 900,000
2,000,000........................................... 250,000 500,000 750,000 1,000,000
</TABLE>
<TABLE>
<CAPTION>
SIP II PARTICIPANTS
---------------------------------------------------------
ANNUAL BENEFITS (SINGLE LIFE ANNUITY)
UPON FINAL RETIREMENT WITH FINAL
YEARS OF SERVICE INDICATED
(PRIOR TO ADJUSTMENT FOR SOCIAL SECURITY)
FINAL ---------------------------------------------------------
AVERAGE 22.5
EARNINGS 5 YEARS 10 YEARS 15 YEARS 20 YEARS YEARS
- ------------------------------------------ ------- -------- -------- ---------- --------
<S> <C> <C> <C> <C> <C>
$ 200,000................................. $20,000 $ 40,000 $ 60,000 $ 80,000 $ 90,000
400,000................................ 40,000 80,000 120,000 160,000 180,000
600,000................................ 60,000 120,000 180,000 240,000 270,000
800,000................................ 80,000 160,000 240,000 320,000 360,000
1,000,000................................ 100,000 200,000 300,000 400,000 450,000
1,200,000................................ 120,000 240,000 360,000 480,000 540,000
1,400,000................................ 140,000 280,000 420,000 560,000 630,000
1,600,000................................ 160,000 320,000 480,000 640,000 720,000
1,800,000................................ 180,000 360,000 540,000 720,000 810,000
2,000,000................................ 200,000 400,000 600,000 800,000 900,000
</TABLE>
Dr. Smurfit and Mr. Malloy participate in SIP Plan I and have 21 and 15
years of credited service, respectively. SIP Plan II became effective January 1,
1993, and Mr. Terrill, Mr. Larson and Mr. Bradford participate in such plan and
have 22, 5 and 11 years of credited service, respectively. Estimated final
average earnings for each of the the Named Executive Officers are as follows:
Mr. Malloy ($1,185,000); Dr. Smurfit ($1,040,000); Mr. Terrill ($532,000); Mr.
Larson ($366,000); and Mr. Bradford ($461,000).
EMPLOYMENT CONTRACTS AND TERMINATION, SEVERANCE AND CHANGE OF CONTROL
ARRANGEMENTS
The Company and its subsidiaries maintain a severance pay plan for all
salaried employees who have at least one year of credited service (the
'Severance Plan'). Upon a covered termination, the Severance Plan provides for
the payment of one week's salary for each full year of service, payable in
accordance with payroll practices.
Mr. Malloy has a deferred compensation agreement with JSC, pursuant to
which he became entitled upon his retirement to lifetime payments of $70,000
annually in addition to his accrued benefits under SIP Plan I.
DEFERRED COMPENSATION CAPITAL ENHANCEMENT PLAN
The Company's Deferred Compensation Capital Enhancement Plan (the 'DCC')
allows for the deferral of compensation of key full-time salaried employees of
the Company and its subsidiaries. Participants may defer a portion of their
compensation and their employer may defer discretionary bonuses (together the
'Deferred Compensation Amount'). Deferrals occur in 18 month cycles. A
participant becomes vested with respect to amounts deferred during a particular
cycle if he continues to be employed by the Company or its subsidiaries for
seven years from the beginning of the cycle, retires
68
<PAGE>
at age 65 or leaves employment for reasons of death or disability. Upon Normal
Retirement (as defined in the DCC) benefits are distributed under the DCC.
Certain participants will receive preretirement distributions from the DCC,
beginning in the eighth year of each cycle. The amounts distributed upon Normal
Retirement for each cycle are determined with reference to the age of the
participant at the beginning of the cycle and the participant's Deferred
Compensation Amount with respect to the cycle. If a participant is younger than
45 years old at the beginning of a cycle, he will receive upon Normal Retirement
a total of fifteen annual payments, each totalling one and one-half times his
Deferred Compensation Amount. If at the beginning of a cycle a participant is
between the ages of 45 and 55 years old, at Normal Retirement he will receive a
total of fifteen annual payments that, in the aggregate, equal his Deferred
Compensation Amount with respect to the cycle plus appreciation credited
annually at 100% of the Moody's Rate (as defined in the DCC). If at the
beginning of a cycle a participant is at least 55 years old, his Normal
Retirement benefit will be a total of fifteen annual payments that, in the
aggregate, equal his Deferred Compensation Amount with respect to the cycle plus
appreciation credited annually at 150% of the Moody's Rate. If at the beginning
of a cycle a participant is age 65 or older, the number of such annual payments
shall be five. If a participant dies prior to retirement, the value of his death
benefit may be more or less than his Normal Retirement benefits, depending on
his age at the beginning of the cycle. Benefits may be reduced by the employer
if a former participant is engaged in a competing business within two years of
termination from the Company or its subsidiaries. Participants may receive early
distributions in the event that they experience unforeseen financial
emergencies. Benefits otherwise payable to the participant are then actuarially
reduced to reflect such early distributions. The benefits payable under the DCC
are funded by the Company through life insurance policies. There have been no
deferrals under the DCC since 1986. Deferrals made by the Named Executive
Officers during 1985 and 1986 and their ages at the time of such deferrals were:
Mr. Malloy ($30,000 at 57, $50,000 at 58), Dr. Smurfit ($30,000 at 48), Mr.
Terrill ($15,000 at 51, $25,000 at 52), Mr. Bradford ($15,000 at 49, $25,000 at
50) and Mr. Larson ($0). In 1993, the Company made the first preretirement
distribution to certain participants, totaling $195,000.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Prior to the consummation of the 1994 Offerings, the Company did not
maintain a formal compensation committee. Dr. Smurfit, Mr. Malloy and Mr.
Kilroy, executive officers of the Company, participated in deliberations of the
Board of Directors on executive compensation matters during 1993. Since the
consummation of the 1994 Offerings, JSC and CCA have maintained a Compensation
Committee of the Board of Directors. See ' -- Committees'.
Dr. Smurfit and Mr. Kilroy are both directors and executive officers of JS
Group, Holdings, JSC and CCA, and Mr. Malloy is a director of JS Group and a
former director and executive officer of Holdings, JSC and CCA.
69
<PAGE>
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The table below sets forth certain information regarding the beneficial
ownership of Holdings' capital stock as of May 1, 1994, and as adjusted to give
effect to the Reclassification and the Equity Offerings, by (i) each person who
is known to the Company to be the beneficial owner of more than 5% of any class
of Holdings' voting stock, together with such person's address, (ii) each of the
Named Executive Officers, (iii) each of the directors of JSC and CCA and (iv)
all directors and executive officers of JSC and CCA as a group. Except as set
forth below, the stockholders named below have sole voting and investment power
with respect to all shares of stock shown as being beneficially owned by them.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP
AFTER EQUITY
BENEFICIAL OWNERSHIP OFFERINGS
PRIOR TO EQUITY -------------------------
BENEFICIAL OWNERS OFFERINGS NUMBER OF
- ----------------------------------------------------------- ----------------------------------------- SHARES OF PERCENT OF
5% STOCKHOLDERS, NAMED EXECUTIVE OFFICERS, DIRECTORS AND NUMBER PERCENT PERCENT COMMON COMMON
EXECUTIVE OFFICERS AND DIRECTORS AS A GROUP OF SHARES(a) CLASS OF CLASS OF STOCK STOCK(a) STOCK
- ----------------------------------------------------------- ------------ ------ --------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
SIBV ...................................................... 18,400,000 A 100.0% 50.0% 51,638,462(b) 46.5%
Smurfit International B.V. 21,700,000 D 100.0%
Strawinskylaan 2001 Total ...... 40,100,000
Amsterdam 1077ZZ, The Netherlands
Attention: Rokin Corporate Services B.V.
MSLEF II Associated Entities .............................. 18,400,000 B 100.0% 39.7% 31,800,000 28.7%
c/o Morgan Stanley & Co. Incorporated 13,400,000 C 61.8%
1251 Avenue of the Americas Total ....... 31,800,000
New York, NY 10020
Attention: Donald P. Brennan
First Plaza Group Trust(c) ................................ 5,000,000 C 23.0% 6.2% 5,000,000 4.5%
c/o Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, NY 10020
Attention: Donald P. Brennan
Michael W.J. Smurfit(d)(e) ................................ 0 0
Howard E. Kilroy(d)(e) .................................... 0 0
James E. Terrill(d) ....................................... 0 0
James B. Malloy(d) ........................................ 0 0
Alan W. Larson(d) ......................................... 0 0
C. Larry Bradford(d) ...................................... 0 0
James R. Thompson.......................................... 0 0
Donald P. Brennan ......................................... 0 0
Alan E. Goldberg .......................................... 0 0
David R. Ramsay ........................................... 0 0
All directors and executive officers as a group (24
persons)(d) . 0 0
</TABLE>
- ------------
(a) Gives effect to the Reclassification pursuant to which, immediately prior
to the consummation of the Equity Offerings, Holdings' five classes of
common stock were converted into one class, on a basis of ten shares of
Holdings Common Stock for each share of stock of each of the old classes.
Following the Reclassification, Holdings' only class of common stock was
Holdings Common Stock.
(b) Includes 11,538,462 shares of Holdings Common Stock which were purchased by
SIBV from Holdings pursuant to the SIBV Investment.
(c) Amounts shown exclude shares of Holdings Common Stock owned by MSLEF II, of
which each of First Plaza Group Trust and State Street Bank & Trust Company
is a limited partner. If MSLEF II were to distribute its shares of Holdings
Common Stock to its partners, each of First Plaza Group Trust and State
Street Bank & Trust Company would receive a number of shares based on its
pro rata ownership of MSLEF II. State Street Bank & Trust Company currently
owns (excluding shares owned by MSLEF II as described in the preceding
sentence) 3,000,000 shares of Holdings Common Stock (after giving effect to
the ten-for-one stock split contemplated by the Reclassification), which
represents 2.7% of the outstanding Holdings Common Stock.
(d) Amounts shown exclude shares of Holdings Common Stock that have been
reserved for sale to certain directors, officers and other employees of the
Company and its affiliates; the actual amounts of such shares to be
purchased by the individuals listed in the foregoing table and by all
directors and executive officers as a group are undetermined. Messrs.
Malloy, Smurfit, Terrill, Larson, Bradford and Kilroy and all directors and
executive officers as a group own options to purchase 724,000, 1,026,000,
500,000, 50,000, 121,000, 423,000 and 3,126,000 shares of Holdings Common
Stock, respectively. None of such options are currently exercisable.
However, a portion of options hereafter vested will become exercisable,
based upon the number of shares of Holdings Common Stock transferred by the
MSLEF II Group (as defined in the 1992 Stock Option Plan) following the
Equity Offerings. See 'Management -- Executive Compensation -- 1992 Stock
Option Plan'. Prior to the Recapitalization, the holder of an option
granted under the 1992 Stock Option Plan had the right to acquire Holdings'
Class E Stock. Subsequent to the Recapitalization, the holder of an option
has the right to acquire Holdings Common Stock.
(e) Amounts exclude shares of Holdings Common Stock owned by SIBV as to which
such persons disclaim beneficial ownership.
70
<PAGE>
CERTAIN TRANSACTIONS
Set forth below is a summary of certain agreements and arrangements entered
into by the Company and related parties in connection with the 1989 Transaction
and the 1992 Transaction (each as defined below), as well as other transactions
between the Company and related parties which have taken place during the
Company's most recently completed three fiscal years.
GENERAL
As a result of certain transactions which occurred in December 1989 (the
'1989 Transaction'), JSC became a wholly-owned subsidiary of Holdings and CCA
became an indirect wholly-owned subsidiary of JSC. As part of the 1989
Transaction, Holdings issued (i) 1,510,000 shares of Holdings' Class A common
stock ('Class A Stock') and 500,000 shares of Holdings' Class D common stock
('Class D Stock') to SIBV for $150 million and $50 million, respectively, (ii)
1,510,000 shares of Holdings' Class B common stock ('Class B Stock') to MSLEF II
for $150 million, (iii) 100,000 shares of Holdings' Class C common stock ('Class
C Stock') to MSLEF II, Inc. (the general partner of MSLEF II) and 400,000 shares
of Class C Stock to the Direct Investors (as defined below) for $10 million and
$40 million, respectively (the Direct Investors also purchased Junior Accrual
Debentures and Subordinated Debentures in aggregate principal amounts of $129.2
million and $30.8 million, respectively), and (iv) its preferred stock ('Old
Preferred Stock') to SIBV for $100 million. SIBV subsequently transferred all of
such common and preferred stock to Smurfit Packaging Corporation, an indirect
wholly-owned subsidiary of SIBV ('Smurfit Packaging').
In addition to the issuances of capital stock by Holdings described above,
the financing for the 1989 Transaction was provided by (i) the issuance by CCA
of the Secured Notes and the Subordinated Debt, and (ii) the incurrence of term
debt and revolving credit indebtedness pursuant to the 1989 Credit Agreement.
As a result of certain transactions among Holdings and CCA and certain of
their securityholders which occurred in August 1992 (the '1992 Transaction'),
(i) MSLEF II acquired an additional 330,000 and 1,212,788 shares of Class B
Stock and Class C Stock, respectively, and certain holders of Class C Stock
acquired 457,212 additional shares of Class C Stock, for an aggregate of $200
million, (ii) Smurfit Holdings, B.V., a subsidiary of SIBV, acquired 330,000
shares of Class A Stock for $33 million (such shares were transferred to SIBV in
1994), (iii) Smurfit Packaging agreed that its Old Preferred Stock (including
shares issued since the 1989 Transaction as a dividend) would convert into
1,670,000 shares of Class D Stock on December 31, 1993, (iv) proceeds from the
issuances of shares described in clauses (i) and (ii) above were used to
acquire, at a purchase price of $1,100 per $1,000 accreted value, an aggregate
of $129.2 million principal amount ($193.5 million accreted value) of Junior
Accrual Debentures from the Direct Investors, (v) CCA borrowed approximately
$400 million under the 1992 Credit Agreement, and used the proceeds to prepay
approximately $400 million of scheduled installments relating to term loan
indebtedness under the 1989 Credit Agreement, (vi) various provisions of the
1989 Credit Agreement and the Secured Note Purchase Agreement were amended and
restated, and (vii) MSLEF II and SIBV amended a number of the provisions
contained in the Organization Agreement, agreed to the terms of the Stockholders
Agreement (which replaced the Organization Agreement upon the closing of the
Equity Offerings) and entered into a registration rights agreement (which
agreement was terminated upon consummation of the 1994 Offerings).
Prior to the consummation of the 1994 Offerings, SIBV and Smurfit
Packaging, through their ownership of all of the outstanding Class A Stock, and
MSLEF II, through its ownership of all of the outstanding Class B Stock, each
owned 50% of the voting common stock of Holdings. MSLEF II, MSLEF II, Inc., a
Delaware corporation that is a wholly-owned subsidiary of Morgan Stanley Group
Inc. ('Morgan Stanley Group') and the general partner of MSLEF II, SIBV/MS
Equity Investors, L.P., a Delaware limited partnership the general partner of
which is a wholly-owned subsidiary of Morgan Stanley Group ('Equity Investors'
and, together with MSLEF II and MSLEF II, Inc., the 'MSLEF II Associated
Entities'), First Plaza Group Trust, as trustee for certain pension plans
('First Plaza'), Leeway & Co., as nominee for State Street Bank and Trust
Company, as trustee for a master pension trust ('Leeway' and, together with
First Plaza, the 'Direct Investors'), certain other investors and Smurfit
Packaging owned all of the non-voting stock of Holdings. On December 31, 1993,
all of the Old
71
<PAGE>
Preferred Stock owned by Smurfit Packaging was converted into 1,670,000 shares
of Class D Stock. Subsequent to such conversion of Old Preferred Stock, but
prior to the consummation of the 1994 Offerings, Smurfit Packaging, on the one
hand, and the MSLEF II Associated Entities, the Direct Investors and such other
investors, on the other, owned, through their ownership of Class D Stock and
Class C Stock, respectively, 50% of the non-voting common stock of Holdings.
Prior to the consummation of the 1994 Offerings, Holdings' capital stock
consisted of Class A Stock, Class B Stock, Class C Stock, Class D Stock and
Class E common stock (the 'Class E Stock' and, together with the Class A, Class
B, Class C and Class D Stock, the 'Old Common Stock'). The classes of stock
comprising the Old Common Stock were identical in all respects except with
respect to certain voting rights, and certain exchange provisions that did not
affect the percentage of Holdings owned by SIBV and MSLEF II. Holdings' Class E
Stock was non-voting stock reserved for issuance pursuant to the 1992 Stock
Option Plan. In the Reclassification, the Old Common Stock, which consisted of
five classes of stock, was converted into one class, on a basis of ten shares of
Common Stock for each share of the Old Common Stock. Following the
Reclassification, Holdings' only class of common stock became Holdings Common
Stock. Immediately prior to the consummation of the Equity Offerings, 80,200,000
shares of Holdings Common Stock were outstanding and such stock was owned by
Holdings' stockholders in proportion to their ownership of the Old Common Stock
as described in the two preceding paragraphs. Substantially concurrently with
the consummation of the Equity Offerings, SIBV purchased 11,538,462 shares of
Holdings Common Stock from Holdings pursuant to the SIBV Investment.
Accordingly, following the consummation of the Equity Offerings and the SIBV
Investment, MSLEF II Associated Entities and SIBV, directly and through its
subsidiaries, beneficially owned 28.7% and 46.5%, respectively, of the shares of
Holdings Common Stock then outstanding. See 'Security Ownership of Certain
Beneficial Owners'.
The relationships among JSC, CCA, Holdings and its stockholders are set
forth in a number of agreements described below. The summary descriptions herein
of the terms of such agreements do not purport to be complete and are subject
to, and are qualified in their entirety by reference to, all of the provisions
of such agreements, which have been filed as exhibits to the Registration
Statement of which this Prospectus forms a part. Capitalized terms not otherwise
defined below or elsewhere in this Prospectus have the meanings given to them in
such agreements. Any reference to either SIBV or MSLEF II in the following
descriptions of the Organization Agreement and the Stockholders Agreement or in
references to the terms of those agreements set forth in this Prospectus shall
be deemed to include their permitted transferees, unless the context indicates
otherwise.
THE ORGANIZATION AGREEMENT
Subsequent to the 1989 Transaction, but prior to the consummation of the
1994 Offerings, the Company was operated pursuant to the terms of the
Organization Agreement, which had been amended on various occasions. The
Organization Agreement, among other things, provided generally for the election
of directors, the selection of officers and the day-to-day management of the
Company. The Organization Agreement provided that one-half of the directors of
each of Holdings, CCA and JSC be elected by the holders of the Class A Stock
(SIBV and Smurfit Packaging) and one-half by the holders of the Class B Stock
(MSLEF II) and that officers of such companies be designated by the designees of
SIBV and Smurfit Packaging on the respective boards, except that the Chief
Financial Officer of the Company be designated by the holders of the Class B
Stock (MSLEF II). The Organization Agreement also contained certain tag along
rights, rights of first refusal and call and put provisions and provisions
relating to a sale of Holdings as an entirety, as well as provisions relating to
transactions between Holdings, the Company and its affiliates, on the one hand,
and SIBV or MSLEF II, as the case may be, and their respective affiliates, on
the other. These latter provisions are similar to those contained in the
Stockholders Agreement described below.
In connection with the Recapitalization Plan, the Organization Agreement
was terminated upon the closing of the Equity Offerings and, at such time, the
Stockholders Agreement became effective among Holdings, SIBV, the MSLEF II
Associated Entities and certain other entities.
The Organization Agreement also contained provisions whereby each of SIBV,
MSLEF II, MSLEF II, Inc., Holdings, JSC, CCA and the holders of Class C Stock
indemnify each other and related parties
72
<PAGE>
with respect to certain matters arising under the Organization Agreement or the
transactions contemplated thereby, including losses resulting from a breach of
the Organization Agreement. In addition, Holdings, JSC and CCA had also agreed
to indemnify SIBV, MSLEF II, MSLEF II, Inc. and the holders of Class C Stock and
related parties against losses arising out of (i) the conduct and operation of
the business of Holdings, JSC or CCA, (ii) any action or failure to act by
Holdings, JSC or CCA, (iii) the 1989 Transaction and the 1992 Transaction or
(iv) the financing for the 1989 Transaction. Further, SIBV had agreed to
indemnify Holdings, JSC, CCA and each of their subsidiaries against all
liability for taxes, charges, fees, levies or other assessments imposed on such
entities as a result of their not having withheld tax upon the issuance or
payment of a specified note to SIBV and the transfer of certain assets to SIBV
in connection with the 1989 Transaction. The foregoing indemnification
provisions survived the termination of the Organization Agreement in connection
with the Recapitalization Plan.
STOCKHOLDERS AGREEMENT
The Stockholders Agreement became effective upon the consummation of the
Equity Offerings by Holdings, SIBV, the MSLEF II Associated Entities and certain
other entities.
DIRECTORS AND MANAGEMENT
For a description of certain provisions of the Stockholders Agreement which
relate to the management of the Company (including the election of directors of
the Company), see 'Management -- Provision of Stockholders Agreement Pertaining
to Management'.
TRANSACTIONS WITH AFFILIATES; OTHER BUSINESSES
The Stockholders Agreement specifically permits the Investors (and their
affiliates) to engage in transactions with Holdings, JSC and CCA in addition to
certain specific transactions contemplated by the Stockholders Agreement,
provided such transactions (except for (i) transactions between any of Holdings,
JSC and CCA, (ii) the transactions contemplated by the Stockholders Agreement or
by the Organization Agreement, (iii) the transactions contemplated by the
Operating Agreement, dated as of April 30, 1992, as amended, between CCA and
Smurfit Paperboard, Inc. ('SPI'), or in the Rights Agreement, dated as of April
30, 1992, as amended, between CCA, SPI and Chemical Bank as collateral agent and
assignee of Bankers Trust Company, (iv) the transactions contemplated by the
Registration Rights Agreement or by the Subscription Agreement, and (v) the
provisions of certain other specified agreements) are fully and fairly
disclosed, have fair and equitable terms, are reasonably necessary and are
treated as a commercial arms-length transaction with an unrelated third party.
No Investor is prohibited from owning, operating or investing in any
business, regardless of whether such business is competitive with Holdings, JSC
or CCA, nor is any Investor required to disclose its intention to make any such
investment to the other Investors or to advise Holdings, JSC or CCA of the
opportunity presented by any such prospective investment.
TRANSFER AND ACQUISITION OF OWNERSHIP
In general, transfers of Holdings Common Stock to entities affiliated with
SIBV or any MS Holder are not restricted. The Stockholders Agreement provides MS
Holders the right to 'tag along' pro rata upon the transfer by SIBV of any
Holdings Common Stock, other than transfers to affiliates and sales pursuant to
a public offering registered under the Securities Act or pursuant to Rule 144
under the Securities Act.
No MS Holder may, without SIBV's prior written consent, transfer shares of
Holdings Common Stock to any non-affiliated person or group which, when taken
together with all other shares of Holdings Common Stock then owned by such
person or group, represent more than ten percent of the Holdings Common Stock
then outstanding. Transfers by MS Holders other than to affiliates,
distributions to partners, or to such ten percent holders are subject to certain
rights of first offer and rights of first refusal in favor of SIBV. Such
transfers by MS Holders which are subject to SIBV's right of first refusal may
not be made to any competitor of SIBV or Holdings or their subsidiaries. SIBV
and
73
<PAGE>
its affiliates have the right, exercisable on or after August 26, 2002, to
purchase all, but not less than all, of the Holdings Common Stock then owned by
the MS Holders at a price equal to the Fair Market Value (as defined in the
Stockholders Agreement).
The terms of the Stockholders Agreement do not restrict the ability of
MSLEF II or Equity Investors to distribute, upon dissolution or otherwise,
shares of Common Stock to their respective partners. Following any such
distribution, the partners of MSLEF II or Equity Investors, as the case may be
(other than Morgan Stanley Group or any controlled affiliate thereof) will not
be subject to the Stockholders Agreement. In addition, following any such
distribution, MSLEF II may, on behalf of its partners or the partners of Equity
Investors, include in a registration requested by it under the Registration
Rights Agreement shares of Common Stock which have been distributed to its
partners. See ' -- Registration Rights Agreement'.
SIBV and its affiliates may not, without MSLEF II, Inc.'s prior written
consent, acquire beneficial ownership of more than 50% of Holdings' outstanding
Common Stock through November 15, 1999 and beneficial ownership of more than 70%
of Holdings' outstanding Common Stock from November 15, 1999 through November
15, 2001, except pursuant to the Stockholders Agreement, the Registration Rights
Agreement or the Subscription Agreement.
In general, if JS Group either does not, directly or indirectly, own a
majority of the voting stock of SIBV, or directly or indirectly, have the right
to appoint a majority of the directors and officers of SIBV, MSLEF II may, at
its option, terminate the Stockholders Agreement.
TERMINATION
The Stockholders Agreement shall terminate either upon mutual agreement of
Holdings, SIBV and MSLEF II, or at the option of SIBV or MSLEF II as the case
may be, upon either the MS Holders collectively or SIBV and its affiliates,
respectively, ceasing to own six percent or more of the outstanding Holdings
Common Stock. In addition, the provisions of the Stockholders Agreement which
restrict transfer of Holdings Common Stock may be terminated, at the option of
MSLEF II, upon SIBV and its affiliates, collectively, having disposed of an
aggregate number of shares of Holdings Common Stock which equals, as of the
consummation of the most recent disposition of Holdings Common Stock by SIBV or
any of its affiliates, at least 25% of the total shares of Holdings Common Stock
then outstanding, and all other provisions of the Stockholders Agreement may be
terminated, at the option of SIBV, if MSLEF II shall have exercised its option
to terminate certain provisions of the Stockholders Agreement as described in
this sentence.
REGISTRATION RIGHTS AGREEMENT
Pursuant to the Registration Rights Agreement, each of MSLEF II and SIBV
have certain rights, upon giving a notice as provided in the Registration Rights
Agreement, to cause Holdings to use its best efforts to register under the
Securities Act the shares of Holdings Common Stock owned by MSLEF II (including
its partners) and certain other entities (including their affiliates) and
certain shares of Holdings Common Stock owned by SIBV and its affiliates. See
' -- Stockholders Agreement -- Transfer of Ownership'. Upon consummation of the
Recapitalization Plan (other than the Subordinated Debt Refinancing), MSLEF II
became entitled to effect up to four such demand registrations pursuant to the
Registration Rights Agreement. SIBV is entitled to effect up to two such demand
registrations pursuant to the Registration Rights Agreement; provided, however,
that SIBV may not exercise such rights until the earlier of (i) such time as
MSLEF II shall have effected two such demand registrations and (ii) October 31,
1996. Neither MSLEF II nor SIBV may, however, exercise a demand right (i) until
the conclusion of any Holdings Registration Process, MSLEF II Registration
Process or SIBV Registration Process (each, as defined in the Registration
Rights Agreement) or (ii) in certain other limited situations. In addition,
MSLEF II (including its partners) and certain other entities (including their
affiliates) and, under certain circumstances, SIBV and its affiliates are
entitled, subject to certain limitations, to register certain of their shares of
Holdings Common Stock in connection with a registration statement prepared by
Holdings to register Holdings Common Stock or any equity securities exercisable
for, convertible into, or exchangeable for Holdings Common Stock. In the event
74
<PAGE>
that there is a public trading market for the Holdings Common Stock, MSLEF II
and certain other entities (including their affiliates) may not effect a sale of
Holdings Common Stock pursuant to the demand registration rights granted in the
Registration Rights Agreement without first offering the shares proposed to be
sold to SIBV for purchase.
Under the terms of the Registration Rights Agreement, Holdings may not
effect a common stock registration for its own account until the earlier of (i)
such time as MSLEF II shall have effected two demand registrations and (ii) July
31, 1996. In addition, Holdings is generally prohibited from 'piggybacking' and
selling stock for its own account in demand registrations except in the case of
any registration requested by SIBV and except in the case of any registration
requested by MSLEF II after the second completed registration for MSLEF II, in
which event SIBV or MSLEF II, as the case may be may require that any such
securities which are 'piggybacked' be offered and sold on the same terms as the
securities offered by SIBV or MSLEF II, as the case may be.
Holdings will pay all registration expenses (other than underwriting
discounts and commissions) in connection with MSLEF II's first two completed
demand registrations, SIBV's two completed demand registrations and all
registrations made in connection with a Holdings registration. The Registration
Rights Agreement also contains customary terms and provisions with respect to,
among other things, registration procedures and certain rights to
indemnification and contribution granted by parties thereunder in connection
with the registration of Holdings Common Stock subject to such agreement.
FINANCIAL ADVISORY SERVICES AGREEMENT
Under a financial advisory services agreement (the 'Financial Advisory
Services Agreement'), MS&Co. agreed to act as Holdings' and the Company's
financial advisor and provided certain services and earned certain fees in
connection with its roles in the 1989 Transaction, with an expectation that for
the term of the Organization Agreement, the Company would retain MS&Co. to
render it investment banking services at market rates to be negotiated. The
Financial Advisory Services Agreement was terminated upon the consummation of
the 1994 Offerings.
OTHER TRANSACTIONS
In the 1989 Transaction, (i) Holdings acquired the entire equity interest
in JSC, (ii) JSC (through its ownership of JSC Enterprises) acquired the entire
equity interest in CCA, (iii) The Morgan Stanley Leveraged Equity Fund, L.P., a
Delaware limited partnership ('MSLEF I'), and certain other private investors,
including MS&Co. and certain limited partners of MSLEF I investing in their
individual capacity (collectively, the 'MSLEF I Group') received $500 million in
respect of their shares of CCA common stock and (iv) SIBV received $41.75 per
share, or an aggregate of approximately $1.25 billion, in respect of its shares
of JSC stock, and the public stockholders received $43 per share of JSC stock.
Certain assets of JSC and CCA were also transferred to SIBV or one of its
affiliates (the 'Designated Assets'). Pursuant to a tender offer and consent
solicitation for certain debentures of CCA which were outstanding prior to the
consummation of the 1989 Transaction, MS&Co. received an aggregate of $3.7
million in consideration. MS&Co. also received $29.5 million for serving in its
capacity as financial advisor to the Company in connection with the 1989
Transaction. In addition, MS&Co. as underwriter of the Subordinated Debt
received aggregate net discounts and commissions of $34.6 million. In connection
with the sale of the Secured Notes to Morgan Stanley International, MS&Co.
received a placement fee of $7.5 million from CCA; in addition, CCA agreed to
indemnify MS&Co. against certain liabilities in connection therewith, including
liabilities under the Securities Act.
In connection with the issuance of the Senior Notes, the Company entered
into an agreement with SIBV whereby SIBV committed to purchase up to $200
million aggregate principal amount of 11 1/2% Junior Subordinated Notes maturing
2005 to be issued by the Company. Pursuant to the terms of such agreement, the
Company could, from time to time until December 31, 1994, at its option, issue
the Junior Subordinated Notes, the proceeds of which had to be used to
repurchase or otherwise retire Subordinated Debt. The Company was obligated to
pay SIBV for letter of credit fees incurred by SIBV in connection with this
commitment in addition to an annual commitment fee of 1.375% on the undrawn
principal amount. The amount payable for such commitment for 1993 was $2.9
million. The
75
<PAGE>
above commitments were terminated upon the consummation of the 1994 Offerings.
In addition, the Company agreed to pay certain costs of SIBV associated with
such commitments and the termination thereof up to a maximum of $900,000.
Net sales by JSC to JS Group, its subsidiaries and affiliates were $18.4
million, $22.8 million and $21.0 million for the years ended December 31, 1993,
1992 and 1991, respectively. Net sales by JS Group, its subsidiaries and
affiliates to JSC were $49.3 million, $60.1 million and $11.8 million for the
years ended December 31, 1993, 1992 and 1991, respectively. Product sales to and
purchases from JS Group, its subsidiaries and affiliates were consummated on
terms generally similar to those prevailing with unrelated parties.
JSC provides certain subsidiaries and affiliates of JS Group with general
management and elective management services under separate management services
agreements. The services provided include, but are not limited to, management
information services, accounting, tax and internal auditing services, financial
management and treasury services, manufacturing and engineering services,
research and development services, employee benefit plan and management
services, purchasing services, transportation services and marketing services.
In consideration of general management services, JSC is paid a fee up to 2% of
the subsidiaries' or affiliates' gross sales, which fee amounted to $2.3
million, $2.4 million and $2.5 million for 1993, 1992 and 1991, respectively. In
consideration for elective services, JSC received approximately $3.5 million,
$3.2 million and $2.9 million in 1993, 1992 and 1991, respectively, for its cost
of providing such services. In addition, JSC paid JS Group and its affiliates
$0.4 million in 1993, $0.3 million in 1992 and $0.7 million in 1991 for
management services and certain other services.
In October 1991, an affiliate of JS Group completed a rebuild of the No. 2
paperboard machine owned by it, located in CCA's Fernandina Beach, Florida
paperboard mill (the 'Fernandina Mill'). Pursuant to the Fernandina Operating
Agreement, CCA operates and manages the machine, which is owned by a subsidiary
of SIBV. As compensation to CCA for its services, the affiliate of JS Group
agreed to reimburse CCA for production and manufacturing costs directly
attributable to the No. 2 paperboard machine and to pay CCA a portion of the
indirect manufacturing, selling and administrative costs incurred by CCA for the
entire Fernandina Mill. The compensation is determined by applying various
formulas and agreed upon amounts to the subject costs. The amounts reimbursed to
CCA totaled $62.2 million, $54.7 million and $10.9 million in 1993, 1992 and
1991, respectively.
CCA, JS Group and MSLEF II have had discussions from time to time regarding
the purchase of the No. 2 paperboard machine in the Fernandina Mill by the
Company from JS Group in exchange for cash or Holdings Common Stock. No
agreement has been reached as to any such transaction. The Company expects,
however, that it may in the future reach an agreement with regard to such
acquisition from JS Group but cannot predict when and on what terms such
acquisition would be consummated. Such acquisition will occur only if it is
approved by the Board of Directors of the Company and is determined by the Board
of Directors to be on terms no less favorable than a sale made to a third party
in an arm's length transaction.
During 1990, certain assets of CCA comprising the business unit performing
management services for the foreign subsidiaries previously owned by CCA were
sold to a subsidiary of JS Group at a price equal to their net book value of
approximately $5.2 million. Net sales and income from operations related to
these assets were not material. Payment for the assets was received in February
1991.
The Company has agreed to reimburse SIBV for legal fees incurred by SIBV in
connection with the Recapitalization Plan.
On February 21, 1986, JSC purchased from Times Mirror 80% of the issued and
outstanding capital stock of SNC for approximately $132 million, including a
promissory note to National Westminster Bank plc in the amount of $42 million
(the 'Subordinated Note'). The Subordinated Note was guaranteed by JS Group. In
the 1992 Transaction, the Company prepaid $19.1 million aggregate principal
amount on the Subordinated Note. The remaining amount of $22.9 million was due
and paid on February 22, 1993. In connection with the purchase of the SNC
capital stock, JSC and Times Mirror entered into a shareholders agreement dated
as of February 21, 1986. Pursuant to the terms of such shareholders agreement,
as amended, Times Mirror has the right to purchase all capital stock of SNC held
by JSC upon the occurrence of certain events, including a change in control of
JSC or JS Group. A
76
<PAGE>
change of control of JSC includes, subject to certain exceptions, (i) JS Group
and its affiliates ceasing to own shares of Holdings having at least 30% of
voting control of Holdings and (ii) a person or group other than MSLEF II and
certain related entities acquiring shares of Holdings having more than 25%
voting control of Holdings and exercising operating control of Holdings. A
change of control of JS Group includes, subject to certain exceptions, a person
or group (other than members of the Smurfit family) acquiring shares of JS Group
having more than 30% voting control of JS Group and exercising operating control
of JS Group.
DESCRIPTION OF CERTAIN INDEBTEDNESS
The following is a brief discussion of the basic terms of and the
instruments governing certain indebtedness of the Company. The following
discussion does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, the instruments governing the respective
indebtedness, which instruments are filed as exhibits to the Registration
Statement of which this Prospectus is a part.
THE NEW CREDIT AGREEMENT
GENERAL
Pursuant to the New Credit Agreement, the New Bank Facilities consist of
(i) the New Term Loans, consisting of two senior secured term loan facilities to
be provided to CCA in an aggregate principal amount of $1,200 million, to be
allocated between the Delayed Term Loan in an aggregate principal amount of $900
million and the Initial Term Loan in an aggregate principal amount of $300
million and (ii) the New Revolving Credit Facility consisting of a seven year
senior secured revolving credit facility available to JSC and CCA in an
aggregate principal amount of $450 million, of which up to $150 million will be
available as a letter of credit facility (the 'Letter of Credit Facility').
JSC and CCA have agreed, jointly and severally, to pay certain fees to
Chemical in its capacity as the administrative agent (in such capacity, the
'Agent') for its own account and for the account of the other Lenders (as
defined below) in connection with the New Bank Facilities, payable as follows:
(i) a commitment fee of 1/2 of 1% per annum on the undrawn amount of the Initial
Term Loan and the New Revolving Credit Facility, accruing, with respect to each
Lender, on the date of acceptance of such Lender's commitment and (ii) with
respect to each Lender which has a commitment under the Delayed Term Loan, (A)
1/2 of 1% per annum on the amount of such commitment accruing for the period
from and including the date of acceptance of such Lender's commitment to but
excluding May 11, 1994, the date of the initial funding of the New Bank
Facilities (the 'Closing Date') or the earlier termination of such Lender's
commitment and (B) 3/4 of 1% per annum on the undrawn amount of such Lender's
commitment, accruing from and including the Closing Date. All such commitment
fees were paid on the Closing Date and, thereafter, in arrears at the end of
each quarter and upon termination of any commitment. The fees payable in respect
of letters of credit provided under the New Revolving Credit Facility are in an
amount equal to the greater of (a) the margin in excess of the Adjusted LIBOR
Rate applicable to the New Revolving Credit Facility at such time minus 1/2 of
1% and (b) 1%. In addition, a separate fronting fee shall be payable by JSC and
CCA to the bank issuing the letters of credit for its own account in an amount
to be agreed. All letter of credit fees shall be payable on the aggregate amount
available under outstanding letters of credit under the New Revolving Credit
Facility, and shall be payable in arrears at the end of each quarter and upon
the termination of the New Revolving Credit Facility. Chemical Securities Inc.
('CSI'), BT Securities Corporation ('BTSC') and the Lenders shall receive such
other fees as have been separately agreed upon with CSI, BTSC, Chemical Bank
('Chemical') and Bankers Trust Company ('Bankers Trust'). (CSI and BTSC acted as
arrangers for the New Bank Facilities).
Pursuant to the amended and restated commitment letter dated February 10,
1994 (the 'Commitment Letter') among Chemical, CSI, Bankers Trust, BTSC, JSC and
CCA, JSC and CCA agreed, regardless of whether the financing agreements relating
to the New Bank Facilities are executed or the commitments to provide the New
Bank Facilities are terminated, to reimburse Chemical, Bankers Trust, CSI and
BTSC for, among other things, all of their respective out-of-pocket costs and
expenses incurred or sustained by such entities in connection with the
transactions contemplated by the
77
<PAGE>
Commitment Letter and to indemnify Chemical, Bankers Trust, CSI and BTSC, and
each director, officer, employee and affiliate thereof against certain claims,
damages, liabilities and expenses incurred or asserted in connection with the
transactions contemplated by the Commitment Letter. In addition to the indemnity
provided in the Commitment Letter, JSC and CCA agreed, pursuant to the New
Credit Agreement, to indemnify, jointly and severally, the Lenders, and each
director, officer, employee and agent thereof, against certain claims, damages,
liabilities and expenses incurred or asserted in connection with the
transactions contemplated by the New Credit Agreement.
THE NEW BANK FACILITIES
The New Bank Facilities are provided pursuant to the terms and conditions
of the New Credit Agreement among Holdings, JSC, CCA, the financial institutions
party thereto (the 'Lenders'), the managing agents named therein, Chemical and
Bankers Trust, as senior managing agents, Bankers Trust and the other Lenders
named therein as fronting banks and Chemical as administrative agent and
collateral agent.
Borrowings under the Initial Term Loan and under the Delayed Term Loan on
the Closing Date were used, together with the proceeds of the Equity Offerings
and the SIBV Investment, borrowings under the New Revolving Credit Facility, and
a portion of the proceeds of the Debt Offerings, to consummate the Bank Debt
Refinancing. Borrowings under the Delayed Term Loan after the Closing Date must
be made on or before December 15, 1994 and will be used to redeem or repurchase
the Subordinated Debt and pay accrued interest and the applicable redemption
premiums thereon, to repay amounts drawn under the New Revolving Credit Facility
prior to December 15, 1994 for the purpose of repurchasing Subordinated Debt and
to pay the related fees and expenses in connection with such repurchase or
redemption, and to repay other amounts outstanding under the New Revolving
Credit Facility after or simultaneously with the redemption of all the
Subordinated Debt. Borrowings under the New Revolving Credit Facility are to be
used for the sole purpose of providing working capital for JSC, CCA and their
subsidiaries and for other general corporate purposes including to fund open
market or privately negotiated purchases of Subordinated Debt prior to December
15, 1994.
The obligations under the New Credit Agreement are unconditionally
guaranteed by Holdings, JSC, CCA, JSC Enterprises, CCA Enterprises, SNC (but
only to the extent permitted under the shareholders agreement between JSC and
Times Mirror) and certain other existing and subsequently acquired or organized
material subsidiaries of Holdings, JSC and CCA (each such entity providing such
a guaranty, a 'Guarantor'). The obligations of JSC and CCA, and such guarantees,
under the New Credit Agreement (including all guarantee obligations of JSC and
CCA in respect thereof) will be secured, among other things, by a security
interest in substantially all of the assets of JSC, CCA and their material
subsidiaries, with the exception of trade receivables of JSC, CCA and their
material subsidiaries sold to JSFC, by a pledge of all the capital stock of JSC,
CCA and each material subsidiary of Holdings, JSC and CCA and by the
intercompany notes referred to in the following paragraph.
As of December 31, 1993, under intercompany notes bearing interest at a
rate of 12.65%, JSC and CCA had indebtedness to CCA Enterprises of $1,262
million and $829 million, respectively, and JSC had $262 million of such
indebtedness to CCA. CCA Enterprises is a guarantor of indebtedness under the
New Credit Agreement, but is not a guarantor of the 1994 Notes. To the extent
that it or any other holder of existing or future intercompany notes (other than
CCA or JSC) receives proceeds from payments on any of such intercompany notes,
such proceeds will be available to meet obligations under the New Credit
Agreement but will be available to make payments under the 1994 Notes only to
the extent that such proceeds are transferred to CCA or JSC. In this regard,
however, JSC is obligated to pay amounts due under the intercompany notes to CCA
rather than CCA Enterprises (and CCA is prohibited from paying amounts under its
intercompany notes to CCA Enterprises) if an event of default has occurred (or
with notice or lapse of time or both would occur) under the terms of the New
Credit Agreement or if an event of default has occurred under the Senior Notes
or the Subordinated Debt. The Company expects that the New Credit Agreement will
require that proceeds received by CCA Enterprises from intercompany notes be
loaned or advanced by it to CCA not later than the following business day, and
the Company intends to cause CCA Enterprises to do so. The anticipated mergers
of CCA Enterprises into CCA and JSC Enterprises into JSC, which are expected to
occur
78
<PAGE>
sometime following the consummation of the Recapitalization Plan, will result in
the elimination of the intercompany notes held by CCA Enterprises and JSC
Enterprises, respectively. See 'Recapitalization Plan -- Reclassification and
Related Transactions'.
The Delayed Term Loan and the New Revolving Credit Facility will each
mature on April 30, 2002. The Initial Term Loan will mature on April 30, 2002.
The outstanding principal amount of the New Term Loans is repayable as follows,
such repayments to be made at the end of each six month period on each October
31 and April 30 after the Closing Date as follows:
<TABLE>
<CAPTION>
SEMI-ANNUAL TOTAL
PERIOD AFTER DELAYED TERM LOAN INITIAL TERM LOAN SEMI-ANNUAL
CLOSING DATE SEMI-ANNUAL AMOUNT SEMI-ANNUAL AMOUNT AMOUNT
- ------------------------------------------------------- ------------------ ------------------ --------------
<S> <C> <C> <C>
First.................................................. $ 0 $ 0 $ 0
Second................................................. 0 0 0
Third.................................................. 45,000,000 1,000,000 46,000,000
Fourth................................................. 45,000,000 1,000,000 46,000,000
Fifth.................................................. 70,000,000 1,000,000 71,000,000
Sixth.................................................. 70,000,000 1,000,000 71,000,000
Seventh................................................ 80,000,000 1,000,000 81,000,000
Eighth................................................. 80,000,000 1,000,000 81,000,000
Ninth.................................................. 80,000,000 1,000,000 81,000,000
Tenth.................................................. 80,000,000 1,000,000 81,000,000
Eleventh............................................... 80,000,000 11,000,000 91,000,000
Twelfth................................................ 80,000,000 11,000,000 91,000,000
Thirteenth............................................. 95,000,000 15,000,000 110,000,000
Fourteenth............................................. 95,000,000 15,000,000 110,000,000
Fifteenth.............................................. -- 120,000,000 120,000,000
Sixteenth.............................................. -- 120,000,000 120,000,000
------------------ ------------------ --------------
$900,000,000 $300,000,000 $1,200,000,000
------------------ ------------------ --------------
------------------ ------------------ --------------
</TABLE>
The New Term Loans and the New Revolving Credit Facility may be prepaid at
any time, in whole or in part, at the option of the borrowers. Voluntary
reductions of the unutilized portion of the New Revolving Credit Facility are
permitted at any time. Pursuant to the New Credit Agreement, required
prepayments on the New Bank Facilities are to be made in an amount equal to (i)
75% of Excess Cash Flow (as defined in the New Credit Agreement), reducing to
50% of Excess Cash Flow upon the satisfaction of certain performance tests to be
agreed, (ii) 100% of the net proceeds of the issuance or incurrence of certain
indebtedness (not including the Debt Offerings), (iii) 100% of the net proceeds
of certain non-ordinary course asset sales, (iv) 100% of the net proceeds of
certain condemnation or insurance proceeds, and (v) 25% of the net proceeds of
the issuance of any other equity securities (other than the Equity Offerings and
the exercise of management stock options). Required prepayments will be
allocated pro rata between the Delayed Term Loan and the Initial Term Loan, and
will be applied pro rata against the remaining scheduled amortization payments
under each of the New Term Loans (and, if the Delayed Term Loan has not then
been drawn, the amount allocable thereto will permanently reduce the commitments
thereunder) or, if the New Term Loans have been fully repaid, to permanently
reduce the then existing commitments under the New Revolving Credit Facility.
Interest on indebtedness outstanding under the Delayed Term Loan and the
New Revolving Credit Facility, from and including the Closing Date to but
excluding the first anniversary of the Closing Date, will be payable at a rate
per annum, selected at the option of the borrower, equal to the ABR Rate (as
defined below) plus 1.5% per annum or the Adjusted LIBOR Rate plus 2.5% per
annum. From and including the first anniversary of the Closing Date and
thereafter, the margin in excess of the ABR Rate or the Adjusted LIBOR Rate
applicable to such New Bank Facilities will be determined by reference to
certain financial tests. Interest on indebtedness outstanding under the Initial
Term Loan will be payable at a rate per annum, selected at the option of CCA,
equal to the ABR Rate plus 2% per annum or the Adjusted LIBOR Rate plus 3% per
annum. Notwithstanding the foregoing, for the first 90 days following the
Closing Date, all such borrowings may only be made with reference to the ABR
Rate or the Adjusted LIBOR Rate for one month borrowings. All overdue
installments of principal and, to the
79
<PAGE>
extent permitted by law, interest on borrowings accruing interest based on the
ABR Rate or the Adjusted LIBOR Rate shall bear interest at a rate per annum
equal to 2% in excess of the interest rate then borne by such borrowings. The
borrowers shall have the option of selecting the type of borrowing and the
length of the interest period applicable thereto.
'ABR Rate' shall mean the higher of (a) the rate at which Chemical
announces from time to time as its prime lending rate, (b) 1/2 of 1% in excess
of the Federal Funds Rate and (c) 1% in excess of the base certificate of
deposit rate (defined as the secondary market rate for three month certificates
of deposit, as adjusted for assessments and statutory reserves).
'Adjusted LIBOR Rate' shall mean the London Interbank Offered Rate,
adjusted for statutory reserves at all times.
Interest based on the ABR Rate and the Adjusted LIBOR Rate shall be
determined based on the number of days elapsed over a 360 day year. Interest
based on the (i) ABR Rate shall be payable quarterly and (ii) Adjusted LIBOR
Rate shall be payable at the end of the applicable interest period but in any
event not less often than quarterly.
The New Credit Agreement contains certain representations and warranties,
certain negative, affirmative and financial covenants, certain conditions and
certain events of default which are customarily required for similar financings,
in addition to other representations, warranties, covenants, conditions and
events of default appropriate to the specific transactions contemplated thereby.
Such covenants include restrictions and limitations of dividends, redemptions
and repurchases of capital stock, the incurrence of debt, liens, leases,
sale-leaseback transactions, capital expenditures, the issuance of stock,
transactions with affiliates, the making of loans, investments and certain
payments, and on mergers, acquisitions and asset sales, in each case subject to
exceptions to be agreed upon. Furthermore, the Company is required to maintain
compliance with certain financial covenants, such as minimum levels of
consolidated earnings before depreciation, interest, taxes and amortization, and
minimum interest coverage ratios.
Events of default under the New Credit Agreement include, among other
things, (i) failure to pay principal, interest, fees or other amounts when due;
(ii) violation of covenants; (iii) failure of any representation or warranty
made by the Company to the Lenders to be true in all material aspects; (iv)
cross default and cross acceleration with certain other indebtedness; (v)
'change of control'; (vi) certain events of bankruptcy; (vii) certain material
judgments; (viii) certain ERISA events; and (ix) the invalidity of the
guarantees of the indebtedness under the New Credit Agreement or of the security
interests granted to the Lenders, in certain cases with appropriate agreed upon
grace periods.
The conditions to the borrowing of the Delayed Term Loan are set forth
above. See 'Recapitalization Plan -- Subordinated Debt Refinancing'.
The foregoing summary of the New Credit Agreement is qualified in its
entirety by reference to such agreement, a copy of which has been filed with the
Securities and Exchange Commission as an exhibit to the Registration Statement
of which this Prospectus forms a part.
SECURITIZATION
In 1991, JSC and CCA entered into the Securitization in order to reduce its
borrowings under the 1989 Credit Agreement. The Securitization involved the sale
of Receivables to JSFC, a special purpose subsidiary of JSC. Under the
Securitization, JSFC currently has borrowings of $182.3 million outstanding from
EFC, a third-party owned corporation not affiliated with JSC, and has pledged
its interest in such Receivables to EFC. EFC issued CP Notes and Term Notes. EFC
also entered into a liquidity facility with the Liquidity Banks and a
subordinated loan agreement with the Subordinated Lender to provide additional
sources of funding. EFC pledged its interest in the Receivables assigned to it
by JSFC to secure EFC's obligations to the Liquidity Banks, the Subordinated
Lender, and the holders of the CP Notes and the Term Notes. Neither the Company
nor JSFC is a guarantor of CP Notes, the Term Notes or borrowings under the
liquidity facility. See Note 5 to the Company's consolidated financial
statements and 'Recapitalization Plan -- Consents and
Waivers -- Securitization'.
80
<PAGE>
TERMS OF 1994 NOTES
Concurrently with the Equity Offerings, CCA offered $300 million aggregate
principal amount of 11 1/4% Series A Senior Notes due May 1, 2004 and $100
million aggregate principal amount of 10 3/4% Series B Senior Notes due May 1,
2002 in the Debt Offerings. The 1994 Notes are unsecured senior obligations of
CCA with interest payable semiannually on May 1 and November 1 of each year.
The 1994 Notes are senior unsecured obligations of CCA, which rank pari
passu with the other senior indebtedness of CCA, including without limitation,
CCA's obligations under the New Credit Agreement and the Senior Notes, and are
senior in right to payment to the Subordinated Debt. CCA's obligations under the
New Credit Agreement, but not the 1994 Notes, are secured by liens on
substantially all the assets of CCA and its subsidiaries with the exception of
cash and cash equivalents and trade receivables. The secured indebtedness has
priority over the 1994 Notes with respect to the assets securing such
indebtedness.
The Series A Senior Notes are redeemable in whole or in part at the option
of CCA, at any time on or after May 1, 1999, at the following redemption prices
(expressed as percentages of principal amount) together with accrued and unpaid
interest to the redemption date, if redeemed during the 12-month period
commencing:
<TABLE>
<CAPTION>
REDEMPTION
MAY 1, PRICES
- ------ ----------
<C> <S> <C>
1999 ........................................................................... 105.625%
2000 ........................................................................... 102.813
</TABLE>
and on or after May 1, 2001, at 100% of principal amount. In addition, up to
$100 million aggregate principal amount of Series A Senior Notes are redeemable
at 110% of the principal amount thereof prior to May 1, 1997 in connection with
certain common stock issuances. The Series B Senior Notes are not redeemable
prior to maturity.
The indentures relating to the 1994 Notes (the '1994 Note Indentures')
contain certain covenants that, among other things, limit the ability of JSC and
its subsidiaries (including CCA) to incur indebtedness, pay dividends, engage in
transactions with stockholders and affiliates, issue capital stock, create
liens, sell assets, engage in mergers and consolidations and make investments in
unrestricted subsidiaries. The limitations imposed by the covenants on JSC and
its subsidiaries (including CCA) are subject to certain exceptions.
Upon a Change of Control, CCA is required to make an offer to purchase the
1994 Notes at a purchase price equal to 101% of the principal amount thereof,
plus accrued interest. Certain transactions with affiliates of the Company may
not constitute a Change of Control. 'Change of Control' is defined to mean such
time as (i)(a) a person or group, other than the Original Stockholders, becomes
the beneficial owner of more than 35% of the total voting power of the then
outstanding voting stock of the Company or a parent of the Company and (b) the
Original Stockholders beneficially own, directly or indirectly, less than the
then outstanding voting stock of the Company or a parent of the Company
beneficially owned by such person or group; or (ii)(a) a person or a group,
other than the Original Stockholders, becomes the beneficial owner of more than
35% of the total voting power of the then outstanding voting stock of JSC, (b)
the Original Stockholders beneficially own, directly or indirectly, less than
the then outstanding voting stock of JSC beneficially owned by such person or
group and (c) CCA is a subsidiary of JSC at the time that the later of (a) and
(b) above occurs.
The payment of principal and interest on the 1994 Notes is unconditionally
guaranteed on a senior basis by JSC. Such guarantee ranks pari passu with the
other senior indebtedness of JSC, including, without limitation, JSC's
obligations under the New Credit Agreement (including its guarantees of CCA's
obligations thereunder) and JSC's guarantee of CCA's obligations under the
Senior Notes, and is senior in right of payment to JSC's guarantees of the
Subordinated Debt. JSC's obligations under the New Credit Agreement, but not its
guarantees of the 1994 Notes, are secured by liens on substantially all the
assets of JSC and its subsidiaries with the exception of cash and cash
equivalents and trade receivables, and guaranteed by CCA and certain
subsidiaries of JSC and CCA. The secured indebtedness has priority over JSC's
guarantees of the 1994 Notes with respect to the assets securing such
indebtedness. In the event that (i) a purchaser of capital stock of CCA acquires
a majority of the
81
<PAGE>
voting rights thereunder or (ii) there occurs a merger or consolidation of CCA
that results in CCA having a parent other than JSC and, at the time of and after
giving effect to such transaction, such purchaser or parent satisfies certain
minimum net worth and cash flow requirements, JSC will be released from its
guarantee of the 1994 Notes. Such sale, merger or consolidation is prohibited
unless certain other requirements are met, including that the purchaser or the
entity surviving such a merger or consolidation expressly assumes JSC's or CCA's
obligations, as the case may be, and that no Event of Default (as defined in the
1994 Note Indenture) occur or be continuing.
MS&Co. acted as underwriter in connection with the offering of the 1994
Notes and received an underwriting discount of $10.0 million in connection
therewith.
SUBSTITUTION TRANSACTION
JSC is currently the guarantor of all of CCA's outstanding public
indebtedness (consisting of the Senior Notes, the three classes of Subordinated
Debt and the 1994 Notes). Holdings intends to organize a new subsidiary
('Smurfit Interco'), all the outstanding capital stock of which will be owned by
Holdings and which will own all of the outstanding capital stock of JSC, but
which will have no other significant assets (other than possibly intercompany
note receivables) and, except for guarantees of indebtedness of CCA, no
indebtedness for borrowed money. Holdings intends (i) to cause Smurfit Interco
to replace JSC as guarantor under the indentures relating to CCA's public
indebtedness (and under the New Credit Agreement) and to assume JSC's other
obligations thereunder, (ii) to amend such indentures so that references to JSC
therein and in the securities issued thereunder shall be changed to be Smurfit
Interco and (iii) to cause JSC to merge into CCA, which shall succeed to all of
JSC's assets and liabilities (except that any guaranty of obligations of CCA by
JSC shall be extinguished) (collectively, the 'Substitution Transaction'). The
purpose of the Substitution Transaction is to maximize operating efficiencies by
combining Holdings' two key operating subsidiaries into one entity and achieve
cost savings.
TERMS OF SUBORDINATED DEBT
Terms. The Senior Subordinated Notes are unsecured senior subordinated
obligations of CCA, limited to $350 million aggregate principal amount, and will
mature on December 1, 1999. The Senior Subordinated Notes bear interest at
13 1/2% from the date of their issuance or from the most recent interest payment
date to which interest has been paid or duly provided for. Interest is payable
semiannually on June 1 and December 1 of each year.
The Subordinated Debentures are unsecured subordinated obligations of CCA,
limited to $300 million aggregate principal amount, and will mature on December
1, 2001. The Subordinated Debentures bear interest at 14% from the date of
issuance of the Subordinated Debentures or from the most recent interest payment
date to which interest has been paid or duly provided for. Interest is payable
semiannually on June 1 and December 1 of each year.
The Junior Accrual Debentures are unsecured junior subordinated obligations
of CCA, limited to $200 million aggregate principal amount, and will mature on
December 1, 2004. The Junior Accrual Debentures bear interest at 15 1/2% from
the date of issuance. No interest will be paid on the Junior Accrual Debentures
prior to December 1, 1994. On December 1, 1994 all interest accrued from the
date of issuance of the Junior Accrual Debentures to and including November 30,
1994 will be paid in one lump sum. From and after December 1, 1994 interest on
the Junior Accrual Debentures will be payable semiannually on each June 1 and
December 1, commencing June 1, 1995.
82
<PAGE>
The indentures under which the Subordinated Debt is governed contain
certain restrictive covenants which impose limitations on JSC and CCA and
certain of their subsidiaries' ability to, among other things: (i) incur
additional indebtedness; (ii) pay dividends and make other distributions; (iii)
create liens; and (iv) use the proceeds of certain asset sales.
Optional Redemption. The Senior Subordinated Notes will be redeemable in
whole or in part, at the option of CCA, at any time on or after December 1,
1994, at the following redemption prices (expressed in percentages of principal
amount) together with accrued and unpaid interest to the redemption date, if
redeemed during the 12-month period commencing:
<TABLE>
<CAPTION>
REDEMPTION
DECEMBER 1 PRICES
- ------------------------------------------------------------- ----------
<S> <C>
1994......................................................... 106.750%
1995......................................................... 103.375
1996 and thereafter.......................................... 100.000
</TABLE>
The Subordinated Debentures will be redeemable in whole or in part, at the
option of CCA, at any time on or after December 1, 1994, at the following
redemption prices (expressed in percentages of principal amount) together with
accrued and unpaid interest to the redemption date, if redeemed during the
12-month period commencing:
<TABLE>
<CAPTION>
REDEMPTION
DECEMBER 1 PRICES
- ------------------------------------------------------------- ----------
<S> <C>
1994......................................................... 107.000%
1995......................................................... 103.500
1996 and thereafter.......................................... 100.000
</TABLE>
The Junior Accrual Debentures will be redeemable, in whole or in part, at
the option of CCA, at any time on or after December 1, 1994, at 100% of the
principal amount thereof, together with accrued and unpaid interest to the
redemption date.
Sinking Fund. The Subordinated Debenture Indenture requires CCA to provide
for retirement, by redemption, of 33 1/3% of the original aggregate principal
amount of the Subordinated Debentures on each of December 15, 1999 and December
15, 2000 at a redemption price of 100% of the principal amount thereof, plus
accrued interest to the redemption date. Such sinking fund payments are
calculated to retire 66 2/3% of the principal amount of the Subordinated
Debentures originally issued under the Subordinated Debenture Indenture prior to
maturity. CCA may, at its option, receive credit against sinking fund payments
for the principal amount of Subordinated Debentures acquired by CCA and
surrendered for cancellation or redeemed otherwise than through operation of the
sinking fund.
The Junior Accrual Debenture Indenture requires CCA to provide for
retirement, by redemption, of 33 1/3% of the original aggregate principal amount
of the Junior Accrual Debentures on each of December 1, 2002 and December 1,
2003 at a redemption price of 100% of the principal amount thereof, plus accrued
interest to the redemption date. Such sinking fund payments are calculated to
retire 66 2/3% of the principal amount of the Junior Accrual Debentures
originally issued under the Junior Accrual Debenture Indenture prior to
maturity. CCA may, at its option, receive credit against sinking fund payments
for the principal amount of Junior Accrual Debentures acquired by CCA and
surrendered for cancellation or redeemed otherwise than through operation of the
sinking fund.
Subordination. The Subordinated Debt is subordinated in right of payment to
all Senior Debt (as defined in the indentures relating to the Subordinated Debt
(the 'Subordinated Debt Indentures') of CCA which includes CCA's obligations
under the New Credit Agreement, the 1994 Notes, the Senior Notes and certain
other indebtedness of CCA.
Guarantees. The payment of principal and interest on the Subordinated Debt
is guaranteed on a senior subordinated, subordinated and junior subordinated
basis, respectively, by JSC. Such guarantees are subordinated in right of
payment to all Senior Debt of JSC, which includes JSC's obligations under the
New Credit Agreement (including its guarantee of CCA's obligations thereunder),
JSC's guarantee of CCA's obligations under the 1994 Notes and the Senior Notes
and certain other borrowings of JSC.
83
<PAGE>
DESCRIPTION OF THE SENIOR NOTES
The Senior Notes were issued under an Indenture, dated as of April 15,
1993, among CCA, JSC and NationsBank of Georgia, National Association, as
Trustee (the 'Trustee'). A copy of the form of the Indenture is filed as an
exhibit to the Registration Statement of which this Prospectus is a part and is
available as described under 'Additional Information'. The following summary of
certain provisions of the Indenture, as amended by the First Supplemental
Indenture, does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, all the provisions of the Indenture and the
First Supplemental Indenture, including the definitions of certain terms therein
and those terms made a part thereof by the Trust Indenture Act of 1939, as
amended. Wherever particular Sections or defined terms of the Indenture or the
First Supplemental Indenture not otherwise defined herein are referred to, such
Sections or defined terms shall be incorporated herein by reference.
GENERAL
Principal of, premium, if any, and interest on the Senior Notes will be
payable, and the Senior Notes may be exchanged or transferred, at the office or
agency of CCA in the Borough of Manhattan, The City of New York (which initially
shall be the corporate trust office of the Trustee, at 61 Broadway, Room 1412,
New York, New York 10006); provided that, at the option of CCA, payment of
interest may be made by check mailed to the address of the Holders as such
address appears in the Security Register. (Sections 2.01, 2.03 and 2.06)
The Senior Notes were issued only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple of $1,000.
(Section 2.02) No service charge will be made for any registration of transfer
or exchange of Senior Notes, but CCA may require payment of a sum sufficient to
cover any transfer tax or other similar governmental charge payable in
connection therewith. (Section 2.06)
TERMS OF THE SENIOR NOTES
The Senior Notes are unsecured senior obligations of CCA, limited to $500
million aggregate principal amount, and will mature on April 1, 2003. Each
Senior Note bears interest at the rate per annum shown on the front cover of
this Prospectus from the most recent Interest Payment Date to which interest has
been paid or provided for, payable semi-annually (to the Holders of record at
the close of business on the March 15 or September 15 immediately preceding the
Interest Payment Date) on April 1 and October 1 of each year.
Optional Redemption. CCA may not redeem the Senior Notes prior to maturity.
GUARANTEE
CCA's obligations under the Senior Notes are unconditionally Guaranteed by
JSC.
RANKING
The Indebtedness evidenced by the Senior Notes ranks pari passu in right of
payment with all other senior Indebtedness of CCA, including, without
limitation, CCA's obligations under the New Credit Agreement and the 1994 Notes.
JSC's Guarantee of the Senior Notes ranks pari passu in right of payment with
all other senior Indebtedness of JSC, including, without limitation, JSC's
obligations under the New Credit Agreement and its Guarantee of the 1994 Notes.
CCA's and JSC's obligations under the New Credit Agreement are secured by
pledges of substantially all of the assets of JSC, CCA and their material
subsidiaries. CCA's and JSC's obligations under the New Credit Agreement, but
not the Senior Notes, are guaranteed by certain subsidiaries of CCA and JSC, and
the obligations of each such guaranteeing subsidiary are secured by certain
assets of such guaranteeing subsidiary. The Senior Notes and JSC's guarantee of
the Senior Notes will be effectively subordinated to such security interests and
guarantees to the extent of such security interests and guarantees. As of June
30, 1994, CCA had outstanding approximately $1,388.0 million of senior
84
<PAGE>
indebtedness (excluding intercompany indebtedness), of which approximately
$745.6 million was senior secured indebtedness. The secured indebtedness will
have priority over the Senior Notes with respect to the assets securing such
indebtedness. See 'Certain Risk Factors -- Effect of Secured Indebtedness and
Other Guarantees on JSC's Guarantees of the Senior Notes', 'Capitalization' and
'Pro Forma Financial Data'.
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
covenants and other provisions of the Indenture, as amended by the First
Supplemental Indenture. Reference is made to the Indenture and the First
Supplemental Indenture for the full definition of all terms as well as any other
capitalized term used herein for which no definition is provided.
'Acquired Indebtedness' is defined to mean Indebtedness of a Person
existing at the time such Person became a Subsidiary and not Incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary.
'Adjusted Consolidated Net Income' is defined to mean, for any period, the
aggregate net income (or loss) of any Person and its consolidated Subsidiaries
for such period determined in conformity with GAAP; provided that the following
items shall be excluded in computing Adjusted Consolidated Net Income (without
duplication): (i) the net income (or loss) of such Person (other than net income
(or loss) attributable to a Subsidiary of such Person) in which any other Person
(other than such Person or any of its Subsidiaries) has a joint interest, except
to the extent of the amount of dividends or other distributions actually paid to
such Person or any of its Subsidiaries by such other Person during such period,
(ii) solely for the purposes of calculating the amount of Restricted Payments
that may be made pursuant to clause (C) of the first paragraph of the
'Limitation on Restricted Payments' covenant described below (and in such case,
except to the extent includable pursuant to clause (i) above), the net income
(or loss) of such Person accrued prior to the date it becomes a Subsidiary of
any other Person or is merged into or consolidated with such other Person or any
of its Subsidiaries or all or substantially all of the property and assets of
such Person are acquired by such other Person or any of its Subsidiaries, (iii)
the net income (or loss) of any Subsidiary (other than CCA) of any Person to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary of such net income is not at the time permitted by the operation
of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such Subsidiary;
(iv) any gains or losses (on an after-tax basis) attributable to Asset Sales;
(v) except for purposes of calculating the amount of Restricted Payments that
may be made pursuant to clause (C) of the first paragraph of the 'Limitation on
Restricted Payments' covenant described below, any amounts paid or accrued as
dividends on Preferred Stock of such Person or Preferred Stock of any Subsidiary
of such Person owned by Persons other than such Person and any of its
Subsidiaries; (vi) all extraordinary gains and extraordinary losses; and (vii)
all non-cash charges reducing net income of such Person that relate to stock
options or stock appreciation rights and all cash payments reducing net income
of such Person that relate to stock options or stock appreciation rights, to the
extent such cash payments are not made pursuant to clause (xi) of the
'Limitation on Restricted Payments' covenant; provided that, solely for the
purposes of calculating the Interest Coverage Ratio (and in such case, except to
the extent includable pursuant to clause (i) above), 'Adjusted Consolidated Net
Income' of JSC shall include the amount of all cash dividends received by JSC or
any Subsidiary of JSC from an Unrestricted Subsidiary.
'Adjusted Consolidated Net Tangible Assets' is defined to mean the total
amount of assets of JSC and its Subsidiaries (less applicable depreciation,
amortization and other valuation reserves), except to the extent resulting from
write-ups of capital assets (excluding write-ups in connection with accounting
for acquisitions in conformity with GAAP), after deducting therefrom (i) all
current liabilities of JSC and its Subsidiaries (excluding intercompany items)
and (ii) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles, all as set forth on the most
recently available consolidated balance sheet of JSC and its Subsidiaries,
prepared in conformity with GAAP.
'Affiliate' is defined to mean, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes
85
<PAGE>
of this definition, 'control' (including, with correlative meanings, the terms
'controlling', 'controlled by', and 'under common control with'), as applied to
any Person, is defined to mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise. For purposes of this definition, no Bank nor any affiliate of any
Bank shall be deemed to be an Affiliate of JSC or any of its Subsidiaries nor
shall Morgan Stanley & Co. Incorporated (or any affiliate thereof) be deemed an
Affiliate of JSC or any of its Subsidiaries solely by reason of its ownership of
or right to vote any Indebtedness of JSC or any of its Subsidiaries.
'Asset Acquisition' is defined to mean (i) an investment by JSC or any of
its Subsidiaries in any other Person pursuant to which such Person shall become
a Subsidiary of JSC or any of its Subsidiaries or shall be merged into or
consolidated with JSC or any of its Subsidiaries or (ii) an acquisition by JSC
or any of its Subsidiaries of the assets of any Person other than JSC or any of
its Subsidiaries that constitute substantially all of a division or line of
business of such Person.
'Asset Disposition' is defined to mean the sale or other disposition by JSC
or any of its Subsidiaries (other than to JSC or another Subsidiary of JSC) of
(i) all or substantially all of the Capital Stock of any Subsidiary of JSC or
(ii) all or substantially all of the assets that constitute a division or line
of business of JSC or any of its Subsidiaries.
'Asset Sale' is defined to mean, with respect to any Person, any sale,
transfer or other disposition (including by way of merger, consolidation or
sale-leaseback transactions) in one transaction or a series of related
transactions by such Person or any of its Subsidiaries to any Person other than
JSC or any of its Subsidiaries of (i) all or any of the Capital Stock of any
Subsidiary of such Person (other than pursuant to a public offering of Capital
Stock of CCA or JSC pursuant to which at least 15% of the total issued and
outstanding Capital Stock of CCA or JSC has been sold by means of an effective
registration statement under the Securities Act or sales, transfers or other
dispositions of Capital Stock of CCA or JSC substantially concurrently with or
following such a public offering), (ii) all or substantially all of the property
and assets of an operating unit or business of such Person or any of its
Subsidiaries or (iii) any other property and assets of such Person or any of its
Subsidiaries outside the ordinary course of business of such Person or such
Subsidiary and, in each case, that is not governed by the provisions of the
Indenture applicable to Mergers, Consolidations and Sales of Assets (it being
acknowledged that JSC and its Subsidiaries may dispose of equipment in the
ordinary course of their respective businesses); provided that sales or other
dispositions of inventory, receivables and other current assets shall not be
included within the meaning of 'Asset Sale.'
'Attributable Indebtedness' is defined to mean, when used in connection
with a sale-leaseback transaction referred to in the 'Limitation on
Sale-Leaseback Transactions' covenant, at any date of determination, the product
of (i) the net proceeds from such sale-leaseback transaction and (ii) a
fraction, the numerator of which is the number of full years of the term of the
lease relating to the property involved in such sale-leaseback transaction
(without regard to any options to renew or extend such term) remaining at the
date of the making of such computation and the denominator of which is the
number of full years of the term of such lease (without regard to any options to
renew or extend such term) measured from the first day of such term.
'Average Life' is defined to mean, at any date of determination with
respect to any debt security, the quotient obtained by dividing (i) the sum of
the product of (A) the number of years from such date of determination to the
dates of each successive scheduled principal payment of such debt security and
(B) the amount of such principal payment by (ii) the sum of all such principal
payments.
'Banks' is defined to mean the lenders who are from time to time parties to
either of the Credit Agreements.
'Board of Directors' is defined to mean the Board of Directors of JSC or
CCA, as the case may be, or any committee of such Board of Directors duly
authorized to act under the Indenture.
'Business Day' means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York, or in the city of the Corporate
Trust Office of the Trustee, are authorized by law to close.
86
<PAGE>
'Capital Stock' is defined to mean, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's capital stock, whether now
outstanding or issued after the date of the Indenture, including, without
limitation, all Common Stock and Preferred Stock.
'Capitalized Lease' is defined to mean, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such Person as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of such Person;
and 'Capitalized Lease Obligation' is defined to mean the rental obligations, as
aforesaid, under such lease.
'Change of Control' is defined to mean such time as (i) (a) a 'person' or
'group' (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act),
other than the Original Stockholders, becomes the 'beneficial owner' (as defined
in Rule 13d-3 under the Exchange Act) of more than 35% of the total voting power
of the then outstanding Voting Stock of Holdings or a Holdings Parent and (b)
the Original Stockholders beneficially own, directly or indirectly, less than
the then outstanding Voting Stock of Holdings or a Holdings Parent beneficially
owned by such 'person' or 'group'; or (ii) (a) a 'person' or 'group' (within the
meaning of Sections 13(d) and 14(d)(2) of the Exchange Act), other than the
Original Stockholders, becomes the 'beneficial owner' (as defined in Rule 13d-3
under the Exchange Act) of more than 35% of the total voting power of the then
outstanding Voting Stock of JSC, (b) the Original Stockholders beneficially own,
directly or indirectly, less than the then outstanding Voting Stock of JSC
beneficially owned by such 'person' or 'group' and (c) CCA is a Subsidiary of
JSC at the time that the later of (a) and (b) above occurs.
'Closing Date' is defined to mean the date on which the Senior Notes were
originally issued under the Indenture.
'Common Stock' is defined to mean, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's common stock, whether now
outstanding or issued after the date of the Indenture, including, without
limitation, all series and classes of such common stock.
'Consolidated EBITDA' is defined to mean, with respect to any Person for
any period, the sum of the amounts for such period of (i) Adjusted Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii) income taxes (other than
income taxes (either positive or negative) attributable to extraordinary and
non-recurring gains or losses or sales of assets), (iv) depreciation expense,
(v) amortization expense and (vi) all other non-cash items reducing Adjusted
Consolidated Net Income, less all non-cash items increasing Adjusted
Consolidated Net Income, all as determined on a consolidated basis for such
Person and its Subsidiaries in conformity with GAAP; provided that, if a Person
has any Subsidiary that is not a Wholly Owned Subsidiary of such Person,
Consolidated EBITDA of such Person shall be reduced (to the extent not otherwise
reduced by GAAP) by an amount equal to (A) the Adjusted Consolidated Net Income
of such Subsidiary multiplied by (B) the quotient of (1) the number of shares of
outstanding Common Stock of such Subsidiary not owned on the last day of such
period by such Person or any Subsidiary of such Person divided by (2) the total
number of shares of outstanding Common Stock of such Subsidiary on the last day
of such period.
'Consolidated Interest Expense' is defined to mean, with respect to any
Person for any period, the aggregate amount of interest in respect of
Indebtedness (including amortization of original issue discount on any
Indebtedness and the interest portion of any deferred payment obligation,
calculated in accordance with the effective interest method of accounting; all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing; the net costs associated with
Interest Rate Agreements; and Indebtedness that is Guaranteed by such Person)
and all but the principal component of rentals in respect of Capitalized Lease
Obligations paid, accrued or scheduled to be paid or to be accrued by such
Person and its consolidated subsidiaries during such period; excluding, however,
(i) any amount of such interest of any Subsidiary of such Person if the net
income (or loss) of such Subsidiary is excluded in the calculation of Adjusted
Consolidated Net Income for such person pursuant to clause (iii) of the
definition thereof (but only in the same proportion as the net income (or loss)
of such Subsidiary is excluded from the calculation of Adjusted Consolidated Net
Income for such Person pursuant to clause (iii) of the definition thereof) and
(ii) any premiums, fees
87
<PAGE>
and expenses (and any amortization thereof) payable in connection with the 1989
Transaction, the 1992 Transaction, the Refinancing, the issuance of the New
Subordinated Notes and the Recapitalization Plan, all as determined on a
consolidated basis in conformity with GAAP.
'Consolidated Net Worth' is defined to mean, at any date of determination,
shareholders' equity as set forth on the most recently available consolidated
balance sheet of JSC and its Subsidiaries (which shall be as of a date not more
than 60 days prior to the date of such computation), less any amounts
attributable to Redeemable Stock or any equity security convertible into or
exchangeable for Indebtedness, the cost of treasury stock and the principal
amount of any promissory notes receivable from the sale of the Capital Stock of
JSC or any Subsidiary of JSC, each item to be determined in accordance with GAAP
(excluding the effects of foreign currency exchange adjustments under Financial
Accounting Standards Board Statement of Financial Accounting Standards No. 52).
'Credit Agreements' is defined to mean (i) the Second Amended and Restated
Credit Agreement, dated as of November 9, 1989, as amended, and (ii) the Loan
and Note Purchase Agreement dated as of August 26, 1992, as amended, in each
case among JSC, CCA, the guarantors party thereto and the Banks party thereto,
together with all other agreements, instruments and documents executed or
delivered pursuant thereto or in connection therewith (including, without
limitation, any promissory notes, Guarantees and security documents), in each
case, as such agreements, instruments and documents may be amended (including,
without limitation, any amendment and restatement thereof), supplemented,
extended, renewed, replaced or otherwise modified from time to time, including,
without limitation, any agreement increasing the amount of, extending the
maturity of, refinancing or otherwise restructuring (including, but not limited
to, by the inclusion of additional borrowers or guarantors thereunder that are
Subsidiaries of JSC or by the requirement of additional collateral or other
credit enhancement to support the obligations thereunder) all or any portion of
the Indebtedness under such agreement or any successor agreement or agreements;
provided that, with respect to any agreement providing for the refinancing of
Indebtedness under either or both of the Credit Agreements, such agreement shall
be a Credit Agreement under the Indenture only if a notice to that effect is
delivered by JSC to the Trustee and there shall be at any time no more than two
instruments that are Credit Agreements under the Indenture.
'Currency Agreement' is defined to mean any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect JSC or any of its Subsidiaries against fluctuations in currency values
to or under which JSC or any of its Subsidiaries is a party or a beneficiary on
the date of the Indenture or becomes a party or a beneficiary thereafter.
'Default' is defined to mean any event that is, or after notice or passage
of time or both would be, an Event of Default.
'Existing Subordinated Debt Refinancing' means the refinancing of any or
all of the Indebtedness represented by the Junior Accrual Debentures, Senior
Subordinated Notes and the Subordinated Debentures, including pursuant to the
Credit Agreement.
'Foreign Subsidiary' is defined to mean any Subsidiary of JSC that (i)
derives more than 80% of its sales or net income from, or (ii) has more than 80%
of its assets located in, territories and jurisdictions outside the United
States of America (in each case determined on a consolidated basis in conformity
with GAAP).
'GAAP' is defined to mean generally accepted accounting principles in the
United States of America as in effect as of the date of the Indenture,
including, without limitation, those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in the Indenture shall be computed in
conformity with GAAP, except that calculations made for purposes of determining
compliance with the terms of the covenants and with other provisions of the
Indenture shall be made without giving effect to (i) the amortization of any
expenses incurred in connection with the 1989 Transaction, the 1992 Transaction,
the Refinancing, the issuance of the New Subordinated Notes and the
Recapitalization Plan, (ii) except as otherwise provided, the amortization of
any amounts required or
88
<PAGE>
permitted by Accounting Principles Board Opinion Nos. 16 and 17 and (iii) any
charges associated with the adoption of Financial Accounting Standard Nos. 106
and 109.
'Guarantee' is defined to mean any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness or other
obligation of the payment thereof or to protect such obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term 'Guarantee' shall not include endorsements for
collection or deposit in the ordinary course of business. The term 'Guarantee'
used as a verb has a corresponding meaning.
'Holder' or 'Noteholder' or 'Securityholder' is defined to mean the
registered holder of any Senior Note.
'Holdings' is defined to mean SIBV/MS Holdings, Inc., a Delaware
corporation.
'Holdings Parent' is defined to mean any entity of which Holdings is a
direct or indirect Subsidiary.
'Incur' is defined to mean, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with respect
to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness; provided that neither the accrual of interest (whether such
interest is payable in cash or kind) nor the accretion of original issue
discount shall be considered an Incurrence of Indebtedness.
'Indebtedness' is defined to mean, with respect to any Person at any date
of determination (without duplication), (i) all indebtedness of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments (other than, in the case of JSC
and its Subsidiaries, any non-negotiable notes of JSC or its Subsidiaries issued
to its insurance carriers in lieu of maintenance of policy reserves in
connection with its workers' compensation and liability insurance programs),
(iii) all obligations of such Person in respect of letters of credit or other
similar instruments (including reimbursement obligations with respect thereto),
(iv) all obligations of such Person to pay the deferred and unpaid purchase
price of property or services, which purchase price is due more than six months
after the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except Trade Payables, (v) all
obligations of such Person as lessee under Capitalized Leases, (vi) all
Indebtedness of other Persons secured by a Lien on any asset of such Person,
whether or not such Indebtedness is assumed by such Person; provided that the
amount of such Indebtedness shall be the lesser of (A) the fair market value of
such asset at such date of determination and (B) the amount of such
Indebtedness, (vii) all Indebtedness of other Persons Guaranteed by such Person
to the extent such Indebtedness is Guaranteed by such Person, (viii) all
obligations in respect of borrowed money under either of the Credit Agreements,
the Secured Notes and any Guarantees thereof and (ix) to the extent not
otherwise included in this definition, obligations under Currency Agreements and
Interest Rate Agreements. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability determined by such Person's board
of directors, in good faith, as reasonably likely to occur, upon the occurrence
of the contingency giving rise to the obligation, of any contingent obligations
at such date, provided that the amount outstanding at any time of any
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in conformity with
GAAP; and provided further that Indebtedness shall not include (A) any liability
for federal, state, local or other taxes or (B) obligations of JSC or its
Restricted Subsidiaries pursuant to Receivables Programs.
'Interest Coverage Ratio' is defined to mean, with respect to any Person on
any Transaction Date, the ratio of (i) the aggregate amount of Consolidated
EBITDA of such Person for the four fiscal
89
<PAGE>
quarters for which financial information in respect thereof is available
immediately prior to such Transaction Date to (ii) the aggregate Consolidated
Interest Expense of such Person during such four fiscal quarters. In making the
foregoing calculation, (A) pro forma effect shall be given to (1) any
Indebtedness Incurred subsequent to the end of the four-fiscal-quarter period
referred to in clause (i) and prior to the Transaction Date (other than
Indebtedness Incurred under a revolving credit or similar arrangement to the
extent of the commitment thereunder (or under any predecessor revolving credit
or similar arrangement) on the last day of such period), (2) any Indebtedness
Incurred during such period to the extent such Indebtedness is outstanding at
the Transaction Date and (3) any Indebtedness to be Incurred on the Transaction
Date, in each case as if such Indebtedness had been Incurred on the first day of
such four-fiscal-quarter period and after giving pro forma effect to the
application of the proceeds thereof as if such application had occurred on such
first day; (B) Consolidated Interest Expense attributable to interest on any
Indebtedness (whether existing or being Incurred) computed on a pro forma basis
and bearing a floating interest rate shall be computed as if the rate in effect
on the date of computation (taking into account any Interest Rate Agreement
applicable to such Indebtedness if such Interest Rate Agreement has a remaining
term in excess of 12 months) had been the applicable rate for the entire period;
(C) there shall be excluded from Consolidated Interest Expense any Consolidated
Interest Expense related to any amount of Indebtedness that was outstanding
during such four-fiscal-quarter period or thereafter but that is not outstanding
or is to be repaid on the Transaction Date, except for Consolidated Interest
Expense accrued (as adjusted pursuant to clause (B)) during such
four-fiscal-quarter period under a revolving credit or similar arrangement to
the extent of the commitment thereunder (or under any successor revolving credit
or similar arrangement) on the Transaction Date; (D) pro forma effect shall be
given to Asset Dispositions and Asset Acquisitions (including giving pro forma
effect to the application of proceeds of any Asset Disposition) that occur
during such four-fiscal-quarter period or thereafter and prior to the
Transaction Date as if they had occurred and such proceeds had been applied on
the first day of such four-fiscal-quarter period; (E) with respect to any such
four-fiscal-quarter period commencing prior to the Refinancing, the Refinancing
shall be deemed to have taken place on the first day of such period; and (F) pro
forma effect shall be given to asset dispositions and asset acquisitions
(including giving pro forma effect to the application of proceeds of any asset
disposition) that have been made by any Person that has become a Subsidiary of
JSC or has been merged with or into JSC or any Subsidiary of JSC during the
four-fiscal-quarter period referred to above or subsequent to such period and
prior to the Transaction Date and that would have constituted Asset Dispositions
or Asset Acquisitions had such transactions occurred when such Person was a
Subsidiary of JSC as if such asset dispositions or asset acquisitions were Asset
Dispositions or Asset Acquisitions that occurred on the first day of such
period; provided that to the extent that clause (D) or (F) of this sentence
requires that pro forma effect be given to an Asset Acquisition or an asset
acquisition, such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the Transaction Date of the Person, or division
or line of business of the Person, that is acquired for which financial
information is available.
'Interest Rate Agreement' is defined to mean any interest rate protection
agreement, interest rate future agreement, interest rate option agreement,
interest rate swap agreement, interest rate cap agreement, interest rate collar
agreement, interest rate hedge agreement or other similar agreement or
arrangement designed to protect JSC or any of its Subsidiaries against
fluctuations in interest rates or obtain the benefits of floating interest rates
to or under which JSC or any of its Subsidiaries is a party or a beneficiary on
the date of the Indenture or becomes a party or a beneficiary thereafter.
'Investment' is defined to mean any direct or indirect advance, loan (other
than advances to customers in the ordinary course of business that are recorded
as accounts receivable on the balance sheet of any Person or its Subsidiaries)
or other extension of credit or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, bonds, notes, debentures or other similar instruments issued by
any other Person. For purposes of the definition of 'Unrestricted Subsidiary'
and the 'Limitation on Restricted Payments' covenant described below, (i)
'Investment' shall include the fair market value of the net assets of any
Subsidiary of JSC at the time that such Subsidiary of JSC is designated an
Unrestricted Subsidiary and shall exclude the fair market value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated
90
<PAGE>
a Restricted Subsidiary of JSC and (ii) any property transferred to or from an
Unrestricted Subsidiary shall be valued at its fair market value at the time of
such transfer, in each case as determined by the Board of Directors in good
faith.
'Junior Accrual Debentures' is defined to mean CCA's 15 1/2% Junior
Subordinated Accrual Debentures due 2004.
'Lien' is defined to mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention agreement or lease in the nature
thereof, any sale with recourse against the seller or any Affiliate of the
seller, or any agreement to give any security interest).
'Net Cash Proceeds' is defined to mean, with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of cash or cash equivalents, including
payments in respect of deferred payment obligations (to the extent corresponding
to the principal, but not interest, component thereof) when received in the form
of cash or cash equivalents (except to the extent such obligations are financed
or sold with recourse to JSC or any Subsidiary of JSC) and proceeds from the
conversion of other property received when converted to cash or cash
equivalents, net of (i) brokerage commissions and other fees and expenses
(including fees and expenses of counsel and investment bankers) related to such
Asset Sale, (ii) provisions for all taxes (whether or not such taxes will
actually be paid or are payable) as a result of such Asset Sale without regard
to the consolidated results of operations of JSC and its Subsidiaries, taken as
a whole, (iii) payments made to repay Indebtedness or any other obligation
outstanding at the time of such Asset Sale that either (A) is secured by a Lien
on the property or assets sold or (B) is required to be paid as a result of such
sale and (iv) appropriate amounts to be provided by JSC or any Subsidiary of JSC
as a reserve against any liabilities associated with such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale, all as determined
in conformity with GAAP.
'New Senior Notes' is defined to mean the Company's Series A Senior Notes
due 2004 and Series B Senior Notes due 2002 and such other debt securities that
may be issued in substitution therefor (in whole or in part) pursuant to clause
(i) of the definition of 'Recapitalization Plan', in each case issued in
connection with the Recapitalization Plan.
'1989 Transaction' is defined to mean the transaction in which (i) Holdings
acquired the entire equity interest in JSC, (ii) JSC (through its ownership of
JSC Enterprises) acquired the entire equity interest in CCA, (iii) the MSLEF I
Group received $500 million in respect of its shares of CCA common stock, (iv)
SIBV received $41.75 per share, or an aggregate of approximately $1.25 billion,
in respect of its shares of JSC stock and (v) the public stockholders received
$43 per share of JSC stock.
'1992 Stock Option Plan' means the Holdings 1992 Stock Option Plan, as the
same may be amended, supplemented or otherwise modified from time to time.
'1992 Transaction' is defined to mean the purchase, in August 1992, by
certain stockholders of Holdings of $231.8 million of Common Stock of Holdings,
the contribution by Holdings of such $231.8 million to CCA and the application
by CCA of such $231.8 million to repurchase Junior Accrual Debentures and repay
other subordinated Indebtedness of CCA.
'Original Stockholders' is defined to mean, collectively, MSLEF II, Morgan
Stanley Group, SIBV, JS Group and any Affiliate of any such Person.
'Permitted Liens' is defined to mean (i) Liens for taxes, assessments,
governmental charges or claims that are being contested in good faith by
appropriate legal proceedings promptly instituted and diligently conducted and
for which a reserve or other appropriate provision, if any, as shall be required
in conformity with GAAP shall have been made; (ii) statutory Liens of landlords
and carriers, warehousemen, mechanics, suppliers, materialmen, repairmen or
other similar Liens arising in the ordinary course of business and with respect
to amounts not yet delinquent or being contested in good faith by appropriate
legal proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made; (iii) Liens incurred or deposits made
in the ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security; (iv) Liens incurred
91
<PAGE>
or deposits made to secure the performance of tenders, bids, leases, statutory
or regulatory obligations, bankers' acceptances, surety and appeal bonds,
government contracts, performance and return-of-money bonds and other
obligations of a similar nature incurred in the ordinary course of business
(exclusive of obligations for the payment of borrowed money); (v) easements,
rights-of-way, municipal and zoning ordinances and similar charges,
encumbrances, title defects or other irregularities that do not materially
interfere with the ordinary course of business of JSC or any of its
Subsidiaries; (vi) Liens (including extensions and renewals thereof) upon real
or tangible personal property acquired after the Closing Date; provided that (a)
such Lien is created solely for the purpose of securing Indebtedness Incurred
(1) to finance the cost (including the cost of improvement or construction) of
the item of property or assets subject thereto and such Lien is created prior
to, at the time of or within six months after the later of the acquisition, the
completion of construction or the commencement of full operation of such
property or (2) to refinance any Indebtedness previously so secured, (b) the
principal amount of the Indebtedness secured by such Lien does not exceed 100%
of such cost and (c) any such Lien shall not extend to or cover any property or
assets other than such item of property or assets and any improvements on such
item; (vii) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of JSC or any of its
Subsidiaries; (viii) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of JSC or any of its
Subsidiaries relating to such property or assets; (ix) any interest or title of
a lessor in the property subject to any Capitalized Lease or Operating Lease;
provided that any sale-leaseback transaction related thereto complies with the
'Limitation on Sale-Leaseback Transactions' covenant; (x) Liens arising from
filing Uniform Commercial Code financing statements regarding leases; (xi) Liens
on property of, or on shares of stock or Indebtedness of, any corporation
existing at the time such corporation becomes, or becomes a part of, any
Restricted Subsidiary; (xii) Liens in favor of JSC or any Restricted Subsidiary;
(xiii) Liens arising from the rendering of a final judgment or order against JSC
or any Subsidiary of JSC that does not give rise to an Event of Default; (xiv)
Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the
products and proceeds thereof; (xv) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs duties in
connection with the importation of goods; (xvi) Liens encumbering customary
initial deposits and margin deposits, and other Liens that are either within the
general parameters customary in the industry and incurred in the ordinary course
of business or otherwise permitted under the terms of either of the Credit
Agreements, in each case securing Indebtedness under Interest Rate Agreements,
Currency Agreements and forward contracts, options, future contracts, futures
options or similar agreements or arrangements designed to protect JSC or any of
its Subsidiaries from fluctuations in the price of commodities; (xvii) Liens
arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by JSC or any of its
Subsidiaries in the ordinary course of business in accordance with the past
practices of JSC and its Subsidiaries prior to the Closing Date; (xviii) Liens
on or sales of receivables; and (xix) Liens securing any real property or other
assets of JSC or any Restricted Subsidiary in favor of the United States of
America or any State thereof, or any department, agency, instrumentality or
political subdivision thereof, in connection with the financing of industrial
revenue bond facilities or any equipment or other property designed primarily
for the purpose of air or water pollution control; provided that any such Lien
on such facilities, equipment or other property shall not apply to any other
assets of JSC or any Restricted Subsidiary.
'Person' is defined to mean an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
'Preferred Stock' is defined to mean, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
'Principal Property' is defined to mean any manufacturing or processing
plant, warehouse or other building used by JSC or any Restricted Subsidiary,
other than a plant, warehouse or other building that, in the good faith opinion
of the Board of Directors of JSC as reflected in a Board Resolution, is not of
92
<PAGE>
material importance to the business conducted by JSC and its Restricted
Subsidiaries taken as a whole as of the date such Board Resolution is adopted.
'Recapitalization Closing Date' is defined to mean the date on which the
transactions described in clauses (i) through (iv) of the definition of
'Recapitalization Plan' are consummated; provided that if such transactions do
not occur on the same date, 'Recapitalization Closing Date' shall be defined to
mean the date designated as such by the Company.
'Recapitalization Plan' means, collectively, the following transactions to
the extent they occur: (i) the sale of debt securities of CCA guaranteed by JSC,
(ii) the sale by Holdings of Common Stock of Holdings either publicly or
pursuant to the SIBV Investment or both, (iii) the execution and delivery of a
credit agreement which refinances amounts outstanding under the Credit
Agreements in effect on March 1, 1994, (iv) the application of the proceeds of
the transactions described in clauses (i) through (iii), (v) the Existing
Subordinated Debt Refinancing, (vi) the obtaining of all consents and waivers
necessary or determined by CCA, JSC or Holdings to be appropriate in connection
with the foregoing, (vii) all other transactions related to, or entered into in
connection with, the foregoing unless CCA determines that any such transaction
should not be considered part of the Recapitalization Plan and (viii) the
payment and accrual of all fees and expenses related to the foregoing; provided
that the transactions described in clauses (i), (ii) and (iii), to the extent
they occur, shall occur substantially concurrently with each other.
'Receivables Program' means, with respect to any Person, obligations of
such Person or its Subsidiaries pursuant to accounts receivable securitization
programs, to the extent that the proceeds received pursuant to a pledge, sale or
other encumbrance of accounts receivable pursuant to such programs do not exceed
91% of the total book value of such accounts receivable (determined on a
consolidated basis in accordance with GAAP as of the end of the most recent
fiscal quarter for which financial information is available), and any extension,
renewal, modification or replacement of such programs, including, without
limitation, any agreement increasing the amount of, extending the maturity of,
refinancing or otherwise restructuring all or any portion of the obligations
under such programs or any successor agreement or agreements.
'Redeemable Stock' is defined to mean any class or series of Capital Stock
of any Person that by its terms or otherwise is (i) required to be redeemed
prior to the Stated Maturity of the Senior Notes, (ii) redeemable at the option
of the holder of such class or series of Capital Stock at any time prior to the
Stated Maturity of the Senior Notes or (iii) convertible into or exchangeable
for Capital Stock referred to in clause (i) or (ii) above or Indebtedness having
a scheduled maturity prior to the Stated Maturity of the Senior Notes; provided
that any Capital Stock that would not constitute Redeemable Stock but for
provisions thereof giving holders thereof the right to require such Person to
repurchase or redeem such Capital Stock upon the occurrence of an 'asset sale'
or 'change of control' occurring prior to the Stated Maturity of the Senior
Notes shall not constitute Redeemable Stock if the 'asset sale' or 'change of
control' provisions applicable to such Capital Stock are no more favorable
(except with respect to any premium payable) to the holders of such Capital
Stock than the provisions contained in 'Limitation on Asset Sales' and
'Repurchase of Senior Notes upon Change of Control' covenants described below
and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provisions prior to such
Person's repurchase of such Senior Notes as are required to be repurchased
pursuant to the 'Limitation on Asset Sales' and 'Repurchase of Senior Notes upon
Change of Control' covenants described below.
'Refinancing' is defined to mean the issuance and sale of the Senior Notes,
the repayment of Indebtedness under the Credit Agreements with the proceeds of
such sale and the amendments (and consent payments in respect thereof) to the
Credit Agreements and the Secured Notes, and the agreements related thereto,
that are being effected prior to, or at approximately the same time as, the
issuance and sale of the Senior Notes.
'Restricted Subsidiary' is defined to mean any Subsidiary of JSC other than
an Unrestricted Subsidiary.
'Secured Notes' is defined to mean CCA's Senior Secured Floating Rate
Senior Notes due 1998 and the note purchase agreement relating thereto, as the
foregoing may be amended from time to time.
93
<PAGE>
'Senior Subordinated Notes' is defined to mean CCA's 13 1/2% Senior
Subordinated Notes due 1999.
'SIBV Investment' means the purchase by SIBV or a corporate affiliate
thereof of shares of Common Stock of Holdings, substantially concurrently with
the sale by CCA of the New Senior Notes.
'Significant Subsidiary' is defined to mean, at any date of determination,
any Subsidiary of JSC that, together with its Subsidiaries, (i) for the most
recent fiscal year of JSC, accounted for more than 10% of the consolidated
revenues of JSC or (ii) as of the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of JSC, all as set forth on the most
recently available consolidated financial statements of JSC for such fiscal
year.
'Smurfit Newsprint' is defined to mean Smurfit Newsprint Corporation, a
Delaware corporation.
'Stated Maturity' is defined to mean, (i) with respect to any debt
security, the date specified in such debt security as the fixed date on which
the final installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of or interest on
any debt security, the date specified in such debt security as the fixed date on
which such installment is due and payable.
'Subordinated Debentures' is defined to mean CCA's 14% Subordinated
Debentures due 2001.
'Subsidiary' is defined to mean, with respect to any Person, any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is owned, directly or indirectly, by JSC or by one or
more other Subsidiaries of JSC, or by such Person and one or more other
Subsidiaries of such Person; provided that, except as the term 'Subsidiary' is
used in the definition of 'Unrestricted Subsidiary' set forth below, an
Unrestricted Subsidiary shall not be deemed to be a Subsidiary of JSC for
purposes of the Indenture.
'Times Mirror Agreement' is defined to mean the Shareholders Agreement,
dated February 21, 1986 between JSC and the Times Mirror Company, as the same
may at any time be amended, modified or supplemented.
'Trade Payables' is defined to mean, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with the
acquisition of goods or services.
'Transaction Date' is defined to mean, with respect to the Incurrence of
any Indebtedness by JSC or any of its Subsidiaries, the date such Indebtedness
is to be Incurred and, with respect to any Restricted Payment, the date such
Restricted Payment is to be made.
'Unrestricted Subsidiary' is defined to mean (i) any Subsidiary of JSC that
at the time of determination shall be designated an Unrestricted Subsidiary by
the Board of Directors of JSC in the manner provided below and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors of JSC may
designate any Subsidiary of JSC (including any newly acquired or newly formed
Subsidiary of JSC) other than CCA to be an Unrestricted Subsidiary unless such
Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property
of, JSC or any other Subsidiary of JSC that is not a Subsidiary of the
Subsidiary to be so designated; provided that either (A) the Subsidiary to be so
designated has total assets of $1,000 or less or (B) if such Subsidiary has
assets greater than $1,000, that such designation would be permitted under the
'Limitation on Restricted Payments' covenant described below. The Board of
Directors of JSC may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary of JSC; provided that immediately after giving effect to such
designation (x) JSC could Incur $1.00 of additional Indebtedness under the first
paragraph of the 'Limitation on Indebtedness' covenant described below and (y)
no Default or Event of Default shall have occurred and be continuing. Any such
designation by the Board of Directors of JSC shall be evidenced to the Trustee
by promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions. Any Subsidiary of JSC may be
designated as an Unrestricted Subsidiary (or not so designated) for purposes of
the Indenture without regard to whether such Subsidiary is so designated (or not
so designated) for purposes of any other agreement relating to Indebtedness of
JSC or any of its Subsidiaries.
94
<PAGE>
'Voting Stock' is defined to mean Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors.
'Wholly Owned Subsidiary' is defined to mean, with respect to any Person,
any Subsidiary of such Person if all of the Common Stock or other similar equity
ownership interests (but not including Preferred Stock) in such Subsidiary
(other than any director's qualifying shares or Investments by foreign nationals
mandated by applicable law) is owned directly or indirectly by such Person.
COVENANTS
LIMITATION ON INDEBTEDNESS
Under the terms of the Indenture, JSC shall not, and shall not permit any
Restricted Subsidiary to Incur any Indebtedness unless, after giving effect to
the Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Interest Coverage Ratio of JSC would be greater than
<TABLE>
<CAPTION>
<S> <C>
(1) prior to July 1, 1994............................................................ 1.50:1,
(2) after June 30, 1994 and prior to July 1, 1995.................................... 1.75:1, and
(3) after June 30, 1995.............................................................. 2.00:1.
</TABLE>
Notwithstanding the foregoing, JSC and any Restricted Subsidiary (except as
expressly provided below) may Incur each and all of the following: (i)
Indebtedness (A) of JSC and CCA outstanding at any time in an aggregate
principal amount not to exceed the sum of (x) the amount of outstanding
Indebtedness and unused commitments under the Credit Agreement on the
Recapitalization Closing Date less any Indebtedness Incurred pursuant to clause
(iii) below to refinance or refund the Junior Accrued Debentures, the Senior
Subordinated Notes or the Subordinated Debentures and (y) the Indebtedness
represented by the 1994 Notes, (B) of JSC and CCA outstanding at any time in an
aggregate principal amount not to exceed $275 million, (C) of JSC Enterprises,
CCA Enterprises and Smurfit Newsprint under the Credit Agreement, (D) of
Restricted Subsidiaries of JSC (other than CCA) in an aggregate principal amount
not to exceed $50 million at any one time outstanding, and (E) consisting of
Guarantees by Restricted Subsidiaries of JSC (other than CCA) of Indebtedness of
JSC and its Restricted Subsidiaries under the Credit Agreement or any other
Indebtedness of such persons for borrowed money; provided that any such
Restricted Subsidiary that Guarantees such Indebtedness under the Credit
Agreement or any such other Indebtedness for borrowed money shall fully and
unconditionally Guarantee the Senior Notes on a senior basis (to the same extent
and for only so long as such Indebtedness under the Credit Agreement or such
other Indebtedness for borrowed money is Guaranteed by such Restricted
Subsidiary); provided further that (x) any such Guarantees of Indebtedness
subordinated to the Senior Notes will be subordinated to such subsidiary's
Guarantee of the 1994 Notes, if any, in a like manner and (y) a Guarantee by a
Restricted Subsidiary shall not be deemed to exist, and Indebtedness shall not
be deemed to have been Incurred by a Restricted Subsidiary, solely by reason of
one or more security interests in assets of such Restricted Subsidiary having
been granted to a Person; (ii) Indebtedness (A) of JSC to any of its Restricted
Subsidiaries that is a Wholly Owned Subsidiary of JSC, or of a Restricted
Subsidiary to JSC or to any other Restricted Subsidiary that is a Wholly Owned
Subsidiary of JSC, (B) of JSC or any Restricted Subsidiary to Smurfit Newsprint
or (C) of JSC or any Restricted Subsidiary to any Foreign Subsidiary in an
aggregate principal amount not to exceed $20 million at any one time
outstanding; (iii) Indebtedness issued in exchange for, or the net proceeds of
which are used to refinance or refund, outstanding Indebtedness of JSC or any of
its Restricted Subsidiaries, other than Indebtedness Incurred under clauses
(i)(A), (B) or (D), (ii)(C), (vi) or (ix) of this paragraph and any refinancings
thereof, in an amount (or, if such new Indebtedness provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration thereof, with an original issue price) not to exceed the amount so
exchanged, refinanced or refunded (plus premiums, accrued interest, fees and
expenses); provided that Indebtedness issued in exchange for, or the proceeds of
which are used to refinance or refund, the Senior Notes or JSC's Guarantee
thereof or other Indebtedness of CCA or JSC that is pari passu with, or
subordinated in right of payment to, the Senior Notes or JSC's Guarantee
thereof, as the case may be (other than the Junior Accrual Debentures, the
Senior Subordinated Notes and the Subordinated Debentures), shall only be
permitted under this clause (iii) if (A) in case the Indebtedness to be
95
<PAGE>
refinanced is subordinated in right of payment to the Senior Notes or JSC's
Guarantee thereof, such new Indebtedness, by its terms or by the terms of any
agreement or instrument pursuant to which such new Indebtedness is issued or
remains outstanding, is expressly made subordinate in right of payment to the
Senior Notes or JSC's Guarantee thereof, as the case may be, at least to the
extent that the Indebtedness to be refinanced is subordinated to the Senior
Notes or JSC's Guarantee thereof, as the case may be, (B) in case the Senior
Notes are refinanced in part or the Indebtedness to be refinanced is pari passu
with, or subordinated in right of payment to, the Senior Notes or JSC's
Guarantee thereof, such new Indebtedness, determined as of the date of
Incurrence of such new Indebtedness, does not mature prior to six months after
the Stated Maturity of the Indebtedness to be refinanced (or, if earlier, six
months after the Stated Maturity of the Senior Notes) and the Average Life of
such new Indebtedness is at least equal to the remaining Average Life of the
Indebtedness to be refinanced plus six months (or, if less, the remaining
Average Life of the Senior Notes plus six months), and (C) if Indebtedness to be
refinanced is Indebtedness of JSC or CCA, such new Indebtedness Incurred
pursuant to this clause (iii) may not be Indebtedness of any Restricted
Subsidiary of JSC other than CCA; (iv) Indebtedness (A) in respect of
performance, surety or appeal bonds provided in the ordinary course of business,
(B) under Currency Agreements and Interest Rate Agreements; provided that, in
the case of Currency Agreements that relate to other Indebtedness, such Currency
Agreements do not increase the Indebtedness of JSC or its Restricted
Subsidiaries outstanding at any time other than as a result of fluctuations in
foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder; and (C) arising from agreements providing for
indemnification, adjustment or purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of JSC or any Restricted Subsidiary of JSC pursuant to such
agreements, in any case Incurred in connection with the disposition of any
business, assets or Restricted Subsidiary of JSC, other than Guarantees of
Indebtedness Incurred by any Person acquiring all or any portion of such
business, assets or Restricted Subsidiary of JSC for the purpose of financing
such acquisition; (v) Indebtedness in respect of letters of credit and bankers'
acceptances Incurred in the ordinary course or business consistent with past
practice; (vi) Indebtedness of JSC or CCA in an aggregate amount not to exceed
$100 million at any one time outstanding; provided that such Indebtedness, by
its terms or by the terms of any agreement or instrument pursuant to which such
Indebtedness is issued or remains outstanding, (A) is expressly made subordinate
in right of payment to the Senior Notes or JSC's Guarantee thereof, as the case
may be, (B) provides that no required payments of principal of such Indebtedness
by way of sinking fund, mandatory redemption or otherwise shall be made by JSC
or CCA (including, without limitation, at the option of the holder thereof other
than an option given to a holder pursuant to an 'asset sale' or 'change of
control' provision that is no more favorable (except with respect to any premium
payable) to the holders of such Indebtedness than the provisions contained in
the 'Limitation on Asset Sales' and 'Repurchase of Senior Notes upon Change of
Control' covenants and such Indebtedness specifically provides that JSC and CCA
will not repurchase or redeem such Indebtedness pursuant to such provisions
prior to CCA's repurchase of the Senior Notes required to be repurchased by CCA
under the 'Limitation on Asset Sales' and 'Repurchase of Senior Notes upon
Change of Control' covenants) at any time prior to the Stated Maturity of the
Senior Notes; and (C) after giving effect to the Incurrence of such Indebtedness
and the application of the proceeds therefrom, JSC's Interest Coverage Ratio
would be at least 1.25:1; (vii) Indebtedness of CCA or JSC Incurred on or before
December 1, 1994, the proceeds of which are used to pay cash interest on the
Junior-Accrual Debentures; (viii) Acquired Indebtedness, provided that, at the
time of the Incurrence thereof, JSC could incur at least $1.00 of Indebtedness
under the first paragraph of this 'Limitation on Indebtedness' covenant, and
refinancings thereof; provided that such refinancing Indebtedness may not be
Incurred by any Person other than JSC, CCA or the Restricted Subsidiary that is
the obligor on such Acquired Indebtedness; (ix) Indebtedness of JSC or CCA
Incurred to finance, directly or indirectly, capital expenditures of JSC and its
Restricted Subsidiaries in an aggregate principal amount not to exceed $75
million in each fiscal year of JSC, and any refinancing of such Indebtedness
(including pursuant to any Capitalized Lease); provided that the amount of
Indebtedness which may be Incurred in any fiscal year of JSC pursuant to this
clause (ix) shall be increased by the amount of Indebtedness (other than
refinancing Indebtedness) which could have been Incurred in the prior fiscal
year including by reason of this proviso) of JSC pursuant to this clause (ix)
but which was not so Incurred; and (x) Indebtedness represented by the
obligations of JSC or CCA to
96
<PAGE>
repurchase shares, or cancel or repurchase options to purchase shares, of
Holdings', a Holdings Parent's, JSC's or CCA's Common Stock held by employees of
Holdings, JSC or any of its Restricted Subsidiaries as set forth in the
agreements under which such employees purchase or hold shares of Holdings', a
Holdings Parent's, JSC's or CCA's Common Stock, as such agreements may be
amended; provided that such Indebtedness is subordinated to the Senior Notes and
JSC's Guarantee thereof, and that no payment of principal of such Indebtedness
may be made while any Senior Notes are outstanding.
Notwithstanding any other provision of this 'Limitation on Indebtedness'
covenant, (i) the maximum amount of Indebtedness that JSC or any Restricted
Subsidiary may Incur pursuant to this 'Limitation on Indebtedness' covenant
shall not be deemed to be exceeded due solely to fluctuations in the exchange
rates of currencies, (ii) Indebtedness Incurred pursuant to the Credit
Agreement, or represented by the 1994 Notes, on the Recapitalization Closing
Date (and after repaying the Indebtedness to be repaid pursuant to the
Recapitalization Plan (other than the Existing Subordinated Debt Refinancing)
and without giving effect to any exercise of any overallotment option granted in
connection with sales of Common Stock of Holdings pursuant to clause (ii) of the
definition of 'Recapitalization Plan' and the application of any proceeds
thereof) shall be treated as Incurred immediately after the Recapitalization
Closing Date pursuant to clause (i)(A) of the second paragraph of this
'Limitation on Indebtedness' covenant, (iii) for purposes of calculating the
amount of Indebtedness outstanding at any time under clauses (i)(B) and (i)(D)
of the second paragraph of this 'Limitation on Indebtedness' covenant, no amount
of Indebtedness of JSC or any Restricted Subsidiary outstanding on the Closing
Date shall be considered to be outstanding and (iv) neither JSC nor CCA may
Incur any Indebtedness that is expressly subordinated to any other Indebtedness
of JSC or CCA, as the case may be, unless such Indebtedness, by its terms or the
terms of any agreement or instrument pursuant to which such Indebtedness is
issued, is also expressly made subordinate to JSC's Guarantee of the Senior
Notes or the 1994 Notes, as the case may be, at least to the extent that such
Indebtedness is subordinated to such other Indebtedness; provided that the
limitation in clause (iv) above shall not apply to distinctions between
categories of unsubordinated Indebtedness which exist by reason of (a) any liens
or other encumbrances arising or created in respect of some but not all
unsubordinated Indebtedness, (b) intercreditor agreements between holders of
different classes of unsubordinated Indebtedness or (c) different maturities or
prepayment provisions.
For purposes of determining any particular amount of Indebtedness under
this 'Limitation on Indebtedness' covenant, (1) Indebtedness resulting from
security interests granted with respect to Indebtedness of JSC or any Restricted
Subsidiary otherwise included in the determination of such particular amount,
and Guarantees (and security interests in respect thereof) of, or obligations
with respect to letters of credit supporting, Indebtedness otherwise included in
the determination of such particular amount shall not be included, (2) any Liens
granted pursuant to the equal and ratable provisions referred to in the first
paragraph or clause (i) of the second paragraph of the 'Limitation on Liens'
convenant shall not be treated as Indebtedness and (3) Indebtedness permitted
under this covenant need not be permitted solely by reference to one provision
permitting such Indebtedness but may be permitted in part by reference to one
such provision and in part by reference to one or more other provisions of this
covenant permitting such Indebtedness. For purposes of determining compliance
with this 'Limitation on Indebtedness' covenant, (x) in the event that an item
of Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses, JSC, in its sole discretion, shall classify such
item of Indebtedness and only be required to include the amount and type of such
Indebtedness in one of such clauses and (y) the amount of Indebtedness issued at
a price that is less than the principal amount thereof shall be equal to the
amount of the liability in respect thereof determined in conformity with GAAP.
(Section 3.03)
LIMITATION ON RESTRICTED PAYMENTS
So long as any of the Senior Notes are outstanding, JSC will not, and will
not permit any Restricted Subsidiary to, directly or indirectly, (i) declare or
pay any dividend or make any distribution on its Capital Stock (other than
dividends or distributions payable solely in shares of its or such Restricted
Subsidiary's Capital Stock (other than Redeemable Stock) of the same class held
by such holders or in options, warrants or other rights to acquire such shares
of Capital Stock) held by Persons other than
97
<PAGE>
JSC or any Restricted Subsidiary that is a Wholly Owned Subsidiary of JSC, (ii)
purchase, redeem, retire or otherwise acquire for value any shares of Capital
Stock of Holdings, a Holdings Parent, JSC or CCA (including options, warrants or
other rights to acquire such shares of Capital Stock) held by Persons other than
JSC or any Restricted Subsidiary that is a Wholly Owned Subsidiary of JSC, (iii)
make any voluntary or optional principal payment, or voluntary or optional
redemption, repurchase, defeasance, or other voluntary acquisition or retirement
for value, of (1) Indebtedness of Holdings or a Holdings Parent, (2)
Indebtedness of CCA that is subordinated in right of payment to the Senior Notes
(other than the Senior Subordinated Notes, the Subordinated Debentures and the
Junior Accrual Debentures) or (3) Indebtedness of JSC that is subordinated in
right of payment to JSC's Guarantee of the Senior Notes (other than the
Guarantees of JSC with respect to the Senior Subordinated Notes, the
Subordinated Debentures and the Junior Accrual Debentures), or (iv) make any
Investment in any Unrestricted Subsidiary (such payments or any other actions
described in clauses (i) through (iv) being collectively 'Restricted Payments')
if, at the time of, and after giving effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be continuing, (B) JSC
could not Incur at least $1.00 of Indebtedness under the first paragraph of the
'Limitation on Indebtedness' covenant or (C) the aggregate amount expended for
all Restricted Payments (the amount so expended, if other than in cash, to be
determined in good faith by the Board of Directors of JSC, whose determination
shall be conclusive and evidenced by a Board Resolution) after the date of the
Indenture shall exceed the sum of (1) 50% of the aggregate amount of the
Adjusted Consolidated Net Income (or, if the Adjusted Consolidated Net Income is
a loss, minus 100% of such amount) of JSC (determined by excluding income
resulting from the transfers of assets received by JSC or a Restricted
Subsidiary from an Unrestricted Subsidiary) accrued on a cumulative basis during
the period (taken as one accounting period) beginning on the first day of the
month immediately following the Closing Date and ending on the last day of the
last fiscal quarter preceding the Transaction Date plus (2) the aggregate net
proceeds (including the fair market value of non-cash proceeds as determined in
good faith by the Board of Directors of JSC) received by JSC or CCA from the
issuance and sale permitted by the Indenture of the Capital Stock of JSC or CCA
(other than Redeemable Stock) to a Person who is not a Restricted Subsidiary of
JSC or an Unrestricted Subsidiary of JSC, including an issuance or sale
permitted by the Indenture for cash or other property upon the conversion of any
Indebtedness of JSC or CCA subsequent to the Closing Date, or from the issuance
of any options, warrants or other rights to acquire Capital Stock of JSC or CCA
(in each case, exclusive of any Redeemable Stock or any options, warrants or
other rights that are redeemable at the option of the holder, or are required to
be redeemed, prior to the Stated Maturity of the Senior Notes) plus all amounts
contributed to the capital of JSC by Holdings plus (3) an amount equal to the
net reduction in Investments in Unrestricted Subsidiaries (other than such
Investments made pursuant to clause (v) of the second paragraph of this
'Limitation on Restricted Payments' covenant) resulting from payments of
interest on Indebtedness, dividend, repayments of loans or advances, or other
transfers of assets, in each cause to JSC or any Restricted Subsidiary from
Unrestricted Subsidiaries, or from redesignations of Unrestricted Subsidiaries
as Restricted Subsidiaries (valued in each case as provided in the definition of
'Investments'), not to exceed in the case of any Unrestricted Subsidiary the
amount of Investments previously made by JSC or any Restricted Subsidiary in
such Unrestricted Subsidiary plus (4) $25 million.
The foregoing provision shall not take into account, and shall not be
violated by reason of: (i) the payment of any dividend within 60 days after the
date of declaration thereof if, at said date of declaration, such payment would
comply with the foregoing paragraph; (ii) the redemption, repurchase, defeasance
or other acquisition or retirement for value of (A) Indebtedness of Holdings or
a Holdings Parent, (B) Indebtedness of CCA that is subordinated in right of
payment to the Senior Notes or (C) Indebtedness of JSC that is subordinated in
right of payment to JSC's Guarantee of the Senior Notes, including premium, if
any, and accrued and unpaid interest, with the proceeds of, or in exchange for,
Indebtedness Incurred under clause (iii) or (vi) of the second paragraph of the
'Limitation on Indebtedness' covenant; (iii) the payment of dividends on the
Capital Stock of JSC or CCA, following any initial public offering of Capital
Stock of Holdings, JSC or CCA (including as provided for in the Recapitalization
Plan), of up to 6% per annum of the net proceeds received by JSC or CCA, as the
case may be, out of the proceeds of, or from Holdings out of the proceeds of,
(a) such public offering, and
98
<PAGE>
(b) the SIBV Investment or any other sale of Capital Stock of Holdings, JSC or
CCA which is substantially concurrent with the public offering referred to in
clause (a) above (in each case, net of underwriting discounts and commissions,
if any, but without deducting other fees and expenses therefrom); (iv) the
repurchase, redemption or other acquisition of Capital Stock of Holdings, a
Holdings Parent, JSC or CCA in exchange for, or out of the proceeds of a
substantially concurrent offering of, shares of Capital Stock (other than
Redeemable Stock) of Holdings, a Holdings Parent, JSC or CCA; (v) the making of
Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed
$25 million in each fiscal year of JSC; (vi) the acquisition of (A) Indebtedness
of Holdings or a Holdings Parent, (B) Indebtedness of CCA which is subordinated
in right of payment to the Senior Notes or (C) Indebtedness of JSC that is
subordinated in right of payment of JSC's Guarantee of the Senior Notes in
exchange for, or out of the proceeds of, a substantially concurrent offering of,
shares of the Capital Stock of Holdings, a Holdings Parent, JSC or CCA (other
than Redeemable Stock); (vii) payments or distributions pursuant to or in
connection with a consolidation, merger or transfer of assets that complies with
the provisions of the Indenture applicable to mergers, consolidations and
transfers of all or substantially all of the property and assets of JSC or CCA;
(viii) payments to Holdings (A) in an aggregate amount not to exceed $2 million
per annum to cover the reasonable expenses of Holdings incurred in the ordinary
course of business and (B) in an amount not to exceed the amount believed in
good faith by the Board of Directors of JSC or CCA, as the case may be, to be
necessary or advisable for the payment of any liability of Holdings, JSC and CCA
in connection with federal, state, local or foreign taxes; (ix) payments to JSC
or any Restricted Subsidiary of JSC in respect of Indebtedness of JSC or any
Restricted Subsidiary of JSC owed to JSC or another Restricted Subsidiary of
JSC; (x) distributions and payments required to be made pursuant to the Times
Mirror Agreement or distributions or payments to Holdings, to enable Holdings to
satisfy its payment obligations under the Times Mirror Agreement; (xi) payments
to Persons who are no longer Employees (as defined in the 1992 Stock Option
Plan) or the beneficiaries or estates of such Persons, as a result of the
purchase by Holdings of options issued pursuant to the 1992 Stock Option Plan
(or Common Stock issued upon the exercise of such options) held by such Persons
in accordance with the 1992 Stock Option Plan; provided that such payments do
not exceed $4 million in any fiscal year; or payments or distributions to
Holdings to enable Holdings to make any such payments; or (xii) the payment of
pro rata dividends to holders of Capital Stock of Smurfit Newsprint; provided
that, in the case of clauses (ii) through (vii), (xi) and (xii), no Default or
Event of Default shall have occurred and be continuing or occur as a consequence
of the actions or payments set forth therein. In connection with any purchase,
repurchase, redemption, defeasance or other acquisition or retirement for value
of any security which is not Capital Stock but which is convertible into or
exchangeable for Capital Stock (including options, warrants or other rights to
purchase Capital Stock), such purchase, repurchase, redemption, defeasance or
other acquisition or retirement shall be deemed covered by clause (iii) and not
by clause (ii) of the first paragraph of this covenant if the Board of Directors
of JSC makes a good faith determination that the value of the underlying Capital
Stock, less any consideration payable by the holder of such security in
connection with such conversion or exchange, is less than the value of the
referenced security. Notwithstanding the foregoing, any amounts paid pursuant to
clause (iii) of this second paragraph of this 'Limitation on Restricted
Payments' covenant shall reduce the amount available for Restricted Payments
under clause (C) of the first paragraph of this 'Limitation on Restricted
Payments' covenant. (Section 3.04)
Notwithstanding the foregoing, in the event of an issuance of Capital Stock
of CCA or JSC (or Holdings or a Holdings Parent to the extent that the proceeds
therefrom are contributed to CCA) and (1) the repurchase, redemption or other
acquisition of Capital Stock out of the proceeds of such issuance or (2) the
acquisition of Indebtedness that is subordinated in right of payment to the
Senior Notes, as permitted by clause (iv) or (vi) above, then, in calculating
whether the conditions of clause (C) of the first paragraph of this 'Limitation
on Restricted Payments' covenant have been met with respect to any subsequent
Restricted Payments, both the proceeds of such issuance and the application of
such proceeds shall be included under clause (C).
LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING RESTRICTED
SUBSIDIARIES
So long as any of the Senior Notes are outstanding, JSC will not, and will
not permit any Restricted Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual
99
<PAGE>
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary (other than CCA) to (i) pay dividends or make any other distributions
permitted by applicable law on any Capital Stock of such Restricted Subsidiary
owned by JSC or any other Restricted Subsidiary, (ii) pay any Indebtedness owed
to JSC or any other Restricted Subsidiary, (iii) make loans or advances to JSC
or any other Restricted Subsidiary or (iv) transfer, subject to certain
exceptions, any of its property or assets to JSC or any other Restricted
Subsidiary.
The foregoing provision shall not restrict or prohibit any encumbrances or
restrictions: (i) existing in any Credit Agreement, (ii) existing under the
Senior Subordinated Notes, the Subordinated Debentures, the Junior Accrual
Debentures, the 1994 Notes, any indenture or agreement related to any of the
foregoing or any agreements in effect on the Closing Date or in any Indebtedness
containing any such encumbrance or restriction that is permitted pursuant to
clause (v) below or in any extensions, refinancings, renewals or replacements of
any of the foregoing; provided that the encumbrances and restrictions in any
such extensions, refinancings, renewals or replacements are not materially less
favorable taken as a whole to the Holders than those encumbrances or
restrictions that are then in effect and that are being extended, refinanced,
renewed or replaced; (iii) existing under any Receivables Program or any other
agreement providing for the Incurrence of Indebtedness (or any exhibit, appendix
or schedule to such agreement or other agreement executed as a condition to the
execution of, funding under or pursuant to such agreement); provided that the
encumbrances and restrictions in any such agreement are not materially less
favorable taken as a whole to the Holders than those encumbrances and
restrictions contained in any Credit Agreement as of the Recapitalization
Closing Date; (iv) existing under or by reason of applicable law; (v) existing
with respect to any Person or the property or assets of such Person acquired by
JSC or any Restricted Subsidiary and existing at the time of such acquisition,
which encumbrances or restrictions are not applicable to any Person or the
property or assets of any Person other than such Person or the property or
assets of such Person so acquired; (vi) in the case of clause (v) of the first
paragraph of this 'Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries' covenant, (A) that restrict in a customary
manner the subletting, assignment or transfer of any property or asset that is a
lease, license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or right
with respect to, or Lien on, any property or assets of JSC or any Restricted
Subsidiary not otherwise prohibited by the Indenture or (C) arising or agreed to
in the ordinary course of business and that do not, individually or in the
aggregate, detract from the value of property or assets of JSC or any Restricted
Subsidiary in any manner material to JSC and its Restricted Subsidiaries taken
as a whole; or (vii) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or disposition
of all or substantially all of the Capital Stock of, or property and assets of,
such Restricted Subsidiary. Nothing contained in this 'Limitation on Dividend
and Other Payment Restrictions Affecting Restricted Subsidiaries' covenant shall
prevent JSC or any Restricted Subsidiary from (1) entering into any agreement
permitting or providing for the incurrence of Liens otherwise permitted in the
'Limitation on Liens' covenant or (2) restricting the sale or other disposition
of property or assets of JSC or any of its Subsidiaries that secure Indebtedness
of JSC or any of its Subsidiaries. (Section 3.05)
LIMITATION ON THE ISSUANCE OF CAPITAL STOCK OF JSC AND RESTRICTED SUBSIDIARIES
Under the terms of the Indenture, JSC will not and will not permit any
Restricted Subsidiary (other than CCA), directly or indirectly, to issue or sell
any shares of its Capital Stock (including options, warrants or other rights to
purchase shares of such Capital Stock) except (i) to JSC or another Restricted
Subsidiary that is a Wholly Owned Subsidiary of JSC, (ii) if, immediately after
giving effect to such issuance or sale, such Restricted Subsidiary would no
longer constitute a Restricted Subsidiary for purposes of the Indenture, (iii)
if the Net Cash Proceeds from such issuance or sale are applied, to the extent
required to be applied, pursuant to the 'Limitation on Asset Sales' covenant or
if such issuance or sale does not constitute an 'Asset Sale', (iv) issuances or
sales to foreign nationals of shares of the Capital Stock of Foreign
Subsidiaries, to the extent mandated by applicable foreign law or (v) issuances
or sales of Capital Stock by JSC to Holdings. (Section 3.06)
100
<PAGE>
LIMITATION ON TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES
Under the terms of the Indenture, JSC will not, and will not permit any
Restricted Subsidiary of JSC to, directly or indirectly, enter into, renew or
extend any transaction (including, without limitation, the purchase, sale, lease
or exchange of property or assets, or the rendering of any service) with any
holder (or any Affiliate of such holder) of 5% or more of any class of Capital
Stock of Holdings or with any Affiliate of JSC, except upon fair and reasonable
terms no less favorable to JSC or such Restricted Subsidiary of JSC than could
be obtained, at the time of such transaction or at the time of the execution of
the agreement providing therefor, in a comparable arm's-length transaction with
a Person that is not such a holder or an Affiliate.
The foregoing limitation does not limit, and shall not apply to, (i)
transactions (A) approved by a majority of the disinterested members of the
Board of Directors or (B) for which JSC or a Restricted Subsidiary delivers to
the Trustee a written opinion of a nationally recognized investment banking firm
or a nationally recognized accounting firm stating that the transaction is fair
or, in the case of an opinion of a nationally recognized accounting firm,
reasonable or fair to JSC or such Restricted Subsidiary from a financial point
of view; (ii) any transaction among JSC and any Restricted Subsidiaries or among
Restricted Subsidiaries; (iii) the payment of reasonable and customary regular
fees to directors of JSC or any Restricted Subsidiary who are not employees of
JSC or any Restricted Subsidiary; (iv) any payments or other transactions
pursuant to any tax-sharing agreement between JSC, CCA and Holdings or any other
Person with which JSC is required or permitted to file a consolidated tax return
or with which JSC is or could be part of a consolidated group for tax purposes;
(v) any Restricted Payments not prohibited by the 'Limitation on Restricted
Payments' covenant; (vi) the provisions of management, financial and operational
services by JSC and its Subsidiaries to Affiliates of JSC in which JSC or its
Subsidiaries have Investments and the payment of compensation for such services;
provided, that the Board of Directors of JSC has determined that the provision
of such services is in the best interests of JSC and its Subsidiaries; (vii) any
transaction required by the Times Mirror Agreements; or (viii) any transaction
contemplated by the terms of the Recapitalization Plan. (Section 3.07)
LIMITATION ON LIENS
Under the terms of the Indenture, JSC will not, and will not permit any
Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien on
any Principal Property, or any shares of Capital Stock or Indebtedness of any
Restricted Subsidiary, without making effective provision for all of the Senior
Notes and all other amounts due under the Indenture to be directly secured
equally and ratably with (or prior to) the obligation or liability secured by
such Lien for so long as such Lien affects such Principal Property, shares of
Capital Stock or Indebtedness unless, after giving effect thereto, the aggregate
amount of any Indebtedness so secured, plus, the Attributable Indebtedness for
all sale-leaseback transactions restricted as described in the 'Limitation on
Sale-Leaseback Transactions' covenant, does not exceed 10% of Adjusted
Consolidated Net Tangible Assets.
The foregoing limitation does not apply to, and any computation of secured
Indebtedness under such limitation shall exclude, (i) Liens securing obligations
under (A) any Credit Agreement, (B) the Secured Notes for so long as they remain
outstanding and (c) Receivables Programs; (ii) other Liens existing on the
Closing Date; (iii) Liens securing Indebtedness of Restricted Subsidiaries
(other than Acquired Indebtedness and refinancings thereof); (iv) Liens securing
Indebtedness Incurred under clause (iv) or (v) of the second paragraph of the
'Limitation on Indebtedness' covenant; (v) Liens granted in connection with the
extension, renewal or refinancing, in whole or in part, of any Indebtedness
described in clauses (i) through (iv) above; provided that with respect to
clauses (ii) and (iii) the amount of Indebtedness secured by such Lien is not
increased thereby; and provided further that the extension, renewal or
refinancing of Indebtedness of JSC may not be secured by Liens on assets of any
Restricted Subsidiary (other than CCA) other than to the extent the Indebtedness
being extended, renewed or refinanced was at any time previously secured by
Liens on assets of such Restricted Subsidiary; (vi) Liens with respect to
Acquired Indebtedness permitted under clause (viii) of the second paragraph of
the 'Limitation on Indebtedness' covenant and permitted refinancings thereof;
provided that such Liens do not extend to or cover any property or assets of JSC
or any Subsidiary of JSC other than the property or assets of the Subsidiary
acquired; (vii) Liens securing the Senior
101
<PAGE>
Subordinated Notes, the Subordinated Debentures, the Junior Accrual Debentures
or the 1994 Notes, in each case to the extent required to be incurred pursuant
to the terms of the indentures governing such indebtedness; or (viii) Permitted
Liens. (Section 3.08)
LIMITATION ON SALE-LEASEBACK TRANSACTIONS
Under the terms of the Indenture, JSC will not, and will not permit any
Restricted Subsidiary to, enter into any sale-leaseback transaction involving
any Principal Property, unless the aggregate amount of all Attributable
Indebtedness with respect to such transactions, plus all Indebtedness secured by
Liens on Principal Properties (excluding secured Indebtedness that is excluded
as described in the 'Limitation on Liens' covenant), does not exceed 10% of
Adjusted Consolidated Net Tangible Assets.
The foregoing restriction does not apply to, and any computation of
Attributable Indebtedness under such limitation shall exclude, any
sale-leaseback transaction if (i) the lease is for a period, including renewal
rights, of not in excess of three years; (ii) the sale or transfer of the
Principal Property is entered into prior to, at the time of, or within 12 months
after the later of the acquisition of the Principal Property or the completion
of construction thereof; (iii) the lease secures or relates to industrial
revenue or pollution control bonds; (iv) the transaction is between JSC and any
Restricted Subsidiary or between Restricted Subsidiaries; or (v) JSC or such
Restricted Subsidiary, within 12 months after the sale of any Principal Property
is completed, applies an amount not less than the net proceeds received from
such sale to the retirement of unsubordinated Indebtedness, to Indebtedness of a
Restricted Subsidiary (other than CCA) or to the purchase of other property that
will constitute Principal Property or improvements thereto. (Section 3.09)
LIMITATION ON ASSET SALES
Under the terms of the Indenture, in the event and to the extent that the
Net Cash Proceeds received by Holdings, JSC or any of its Restricted
Subsidiaries from one or more Asset Sales occurring on or after the Closing Date
in any period of 12 consecutive months (other than Asset Sales by Holdings, JSC
or any Restricted Subsidiary to JSC or another Restricted Subsidiary) exceed 10%
of Adjusted Consolidated Net Tangible Assets in any one fiscal year (determined
as of the date closest to the commencement of such 12-month period for which a
consolidated balance sheet of JSC has been prepared), then JSC shall or shall
cause the relevant Restricted Subsidiary to (i) within 12 months (or, in the
case of Asset Sales of plants or facilities, 24 months) after the date Net Cash
Proceeds so received exceed 10% of Adjusted Consolidated Net Tangible Assets in
any one fiscal year (determined as of the date closest to the commencement of
such 12-month period for which a balance sheet of JSC and its Subsidiaries has
been prepared) (A) apply an amount equal to such excess Net Cash Proceeds to
repay unsubordinated Indebtedness of CCA or JSC, make a dividend or distribution
to JSC for application by JSC to repay unsubordinated Indebtedness of JSC, or
repay Indebtedness of any Restricted Subsidiary of JSC, in each case owing to a
Person other than JSC or any of its Restricted Subsidiaries or (B) invest an
equal amount, or the amount not so applied pursuant to clause (A) (or enter into
a definitive agreement committing to so invest within 12 months after the date
of such agreement), in property or assets of a nature or type or which will be
used in a business (or in a company having property and assets of a nature or
type, or engaged in a business) similar or related to the nature or type of the
property and assets of, or the business of, JSC and its Restricted Subsidiaries
existing on the date of such Investment (as determined in good faith by the
Board of Directors of JSC, whose determination shall be conclusive and evidenced
by a Board Resolution) and (ii) apply (no later than the end of such 12-month
period or 24-month period, as the case may be, referred to in clause (i)) such
excess Net Cash Proceeds (to the extent not applied pursuant to clause (i)) as
provided in the following paragraphs of this 'Limitation on Asset Sales'
covenant. The amount of such excess Net Cash Proceeds required to be applied (or
to be committed to be applied) during such 12-month period or 24-month period,
as the case may be, as set forth in clause (A) or (B) of the preceding sentence
and neither applied nor committed to be applied as set forth above by the end of
such period shall constitute 'Excess Proceeds.'
If, as of the first day of any calendar month, the aggregate amount of
Excess Proceeds not theretofore subject to an Excess Proceeds Offer (as defined
below) totals at least $10 million, CCA must, not later than the fifteenth
Business Day of such month, make an offer (an 'Excess Proceeds
102
<PAGE>
Offer') to purchase from the Holders on a pro rata basis an aggregate principal
amount of Senior Notes equal to the Excess Proceeds on such date, at a purchase
price equal to 101% of the principal amount of such Senior Notes, plus, in each
case, accrued interest (if any) to the date of purchase (the 'Excess Proceeds
Payment').
Notwithstanding the foregoing, (i) to the extent that any or all of the Net
Cash Proceeds of any Asset Sale are prohibited or delayed by applicable local
law from being repatriated to the United States of America, the portion of such
Net Cash Proceeds so affected will not be required to be applied pursuant to
this 'Limitation on Asset Sales' covenant but may be retained for so long, but
only for so long, as the applicable local law will not permit repatriation to
the United States of America (under the Indenture JSC will agree to promptly
take or cause the relevant Restricted Subsidiary to promptly take all reasonable
actions required by the applicable local law and within JSC's control to permit
such repatriation) and once such repatriation of any such affected Net Cash
Proceeds is permitted under the applicable local law, such repatriation will be
immediately effected and such repatriated Net Cash Proceeds will be applied in
the manner set forth in this 'Limitation on Asset Sales' covenant as if such
Asset Sale had occurred on the date of repatriation; and (ii) to the extent that
the Board of Directors of JSC has determined in good faith that repatriation of
any or all of the Net Cash Proceeds would have an adverse tax or other
consequence to JSC, the Net Cash Proceeds so affected may be retained outside
the United States of America for so long as such adverse tax or other
consequence would continue.
CCA shall commence an Excess Proceeds Offer by mailing a notice to the
Trustee and each Holder stating: (i) that the Excess Proceeds Offer is being
made pursuant to this 'Limitation on Asset Sales' covenant and that all Senior
Notes validly tendered will be accepted for payment on a pro rata basis; (ii)
the purchase price and the date of purchase (which shall be a Business Day no
earlier than 30 days nor later than 60 days from the date such notice is mailed)
(the 'Excess Proceeds Payment Date'); (iii) that any Senior Note not tendered
will continue to accrue interest; (iv) that, unless CCA defaults in the payment
of the Excess Proceeds Payment, any Senior Note accepted for payment pursuant to
the Excess Proceeds Offer shall cease to accrue interest after the Excess
Proceeds Payment Date; (v) that Holders electing to have a Senior Note purchased
pursuant to the Excess Proceeds Offer will be required to surrender the Senior
Note, together with the form entitled 'Option of the Holder to Elect Purchase'
on the reverse side of the Senior Note completed, to the Paying Agent at the
address specified in the notice prior to the close of business on the Business
Day immediately preceding the Excess Proceeds Payment Date; (vi) that Holders
will be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the third Business Day immediately preceding
the Excess Proceeds Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of Senior
Notes delivered for purchase and a statement that such Holder is withdrawing his
election to have such Senior Notes purchased; and (vii) that Holders whose
Senior Notes are being purchased only in part will be issued new Senior Notes
equal in principal amount to the unpurchased portion of the Senior Notes
surrendered; provided that each Senior Note purchased and each new Senior Note
issued shall be in an original principal amount of $1,000 or integral multiples
thereof.
On the Excess Proceeds Payment Date, CCA shall (i) accept for payment on a
pro rata basis Senior Notes or portions thereof tendered pursuant to the Excess
Proceeds Offer; (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Senior Notes or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee all Senior Notes or portions
thereof so accepted together with an Officers' Certificate specifying the Senior
Notes or portions thereof accepted for payment by CCA. The Paying Agent shall
promptly mail to the Holders of Senior Notes so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
mail to such Holders a new Senior Note equal in principal amount to any
unpurchased portion of the Senior Note surrendered; provided that each Senior
Note purchased and each new Senior Note issued shall be in an original principal
amount of $1,000 or integral multiples thereof. CCA will publicly announce the
results of the Excess Proceeds Offer as soon as practicable after the Excess
Proceeds Payment Date. For purposes of this 'Limitation on Asset Sales'
covenant, the Trustee shall act as the Paying Agent.
103
<PAGE>
CCA will comply with Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable, in the event that such Excess Proceeds are received
by CCA under this 'Limitation on Asset Sales' covenant and CCA is required to
repurchase Senior Notes as described above and CCA may modify any of the
foregoing provisions of this 'Limitation on Asset Sales' covenant to the extent
it is advised by independent counsel that such modification is necessary or
appropriate in order to ensure such compliance. (Section 3.10)
REPURCHASE OF SENIOR NOTES UPON CHANGE OF CONTROL
(a) In the event of a Change of Control, each Holder shall have the right
to require the repurchase of its Senior Notes by CCA in cash pursuant to the
offer described below (the 'Change of Control Offer') at a purchase price equal
to 101% of the principal amount thereof, plus accrued interest (if any) to the
date of purchase (the 'Change of Control Payment'). Prior to the mailing of the
notice to Holders provided for in the succeeding paragraph, but in any event
within 30 days following any Change of Control, CCA covenants to (i) (A) repay
in full all unsubordinated Indebtedness of CCA or make a dividend or
distribution to JSC for application by JSC to repay in full all unsubordinated
Indebtedness of JSC or (B) offer to repay in full all such unsubordinated
Indebtedness of either JSC or CCA and to repay such unsubordinated Indebtedness
of each holder of such unsubordinated Indebtedness who has accepted such offer
or (ii) obtain the requisite consents, if any, under the instruments governing
any such unsubordinated Indebtedness of JSC or CCA to permit the repurchase of
the Senior Notes as provided for in the succeeding paragraph. CCA shall first
comply with the covenant in the preceding sentence before it shall be required
to repurchase Senior Notes pursuant to this 'Repurchase of Senior Notes upon
Change of Control' covenant.
(b) Within 30 days of the Change of Control, CCA shall mail a notice to the
Trustee and each Holder stating: (i) that a Change of Control has occurred, that
the Change of Control Offer is being made pursuant to this 'Repurchase of Senior
Notes upon Change of Control' covenant and that all Senior Notes validly
tendered will be accepted for payment; (ii) the purchase price and the date of
purchase (which shall be a Business Day no earlier than 30 days nor later than
60 days from the date such notice is mailed) (the 'Change of Control Payment
Date'); (iii) that any Senior Note not tendered will continue to accrue
interest; (iv) that, unless CCA defaults in the payment of the Change of Control
Payment, any Senior Note accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of Control Payment Date;
(v) that Holders electing to have any Senior Note or portion thereof purchased
pursuant to the Change of Control Offer will be required to surrender such
Senior Note, together with the form entitled 'Option of the Holder to Elect
Purchase' on the reverse side of such Senior Note completed, to the Paying Agent
at the address specified in the notice prior to the close of business on the
Business Day immediately preceding the Change of Control Payment Date; (vi) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the third Business Day
immediately preceding the Change of Control Payment Date, a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder, the
principal amount of Senior Notes delivered for purchase and a statement that
such Holder is withdrawing his election to have such Senior Notes purchased; and
(vii) that Holders whose Senior Notes are being purchased only in part will be
issued new Senior Notes equal in principal amount to the unpurchased portion of
the Senior Notes surrendered; provided that each Senior Note purchased and each
new Senior Note issued shall be in an original principal amount of $1,000 or
integral multiples thereof.
(c) On the Change of Control Payment Date, CCA shall: (i) accept for
payment Senior Notes or portions thereof tendered pursuant to the Change of
Control Offer; (ii) deposit with the Paying Agent money sufficient to pay the
purchase price of all Senior Notes or portions thereof so accepted; and (iii)
deliver, or cause to be delivered, to the Trustee, all Senior Notes or portions
thereof so accepted together with an Officers' Certificate specifying the Senior
Notes or portions thereof accepted for payment by CCA. The Paying Agent shall
promptly mail, to the Holders of Senior Notes so accepted, payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
mail to such Holders a new Senior Note equal in principal amount to any
unpurchased portion of the
104
<PAGE>
Senior Notes surrendered; provided that each Senior Note purchased and each new
Senior Note issued shall be in an original principal amount of $1,000 or
integral multiples thereof. CCA will publicly announce the results of the Change
of Control Offer on or as soon as practicable after the Change of Control
Payment Date. For purposes of this 'Repurchase of Senior Notes upon Change of
Control' covenant, the Trustee shall act as Paying Agent.
(d) CCA will comply with Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent such laws and
regulations are applicable in the event that a Change of Control occurs under
this 'Repurchase of Senior Notes upon Change of Control' covenant and CCA is
required to repurchase Senior Notes as described above and CCA may modify any of
the foregoing provisions of this 'Repurchase of Senior Notes upon Change of
Control' covenant to the extent it is advised by independent counsel that such
modification is necessary or appropriate in order to ensure such compliance.
(Section 3.18)
If CCA is unable to repay all of its unsubordinated Indebtedness and is
also unable to obtain the consents of the 1989 Requisite Banks and the 1992
Requisite Banks (and/or of the holders of other Indebtedness, if any, of CCA or
JSC outstanding at the time of a Change of Control whose consent would be so
required) to permit the repurchase of Senior Notes either pursuant to clause
(i)(B) or clause (ii) of the first paragraph of the foregoing covenant, then CCA
will have breached such covenant. This breach will constitute an Event of
Default under the Indenture if it continues for a period of 30 consecutive days
after written notice is given to CCA by the Trustee or the holders of at least
25% in aggregate principal amount of the Senior Notes outstanding. In addition,
the failure by CCA to repurchase Senior Notes at the conclusion of the Change of
Contol Offer will constitute an Event of Default without any waiting period or
notice requirements. JSC has guaranteed all payments due on the Senior Notes,
including those due by reason of the acceleration thereof following the
occurrence of an Event of Default. This obligation of JSC is not subject to any
waiting period or notice requirement once such an acceleration has occurred; as
discussed above, however, in certain circumstances there are notice and waiting
period requirements that must be satisfied before CCA's breach of the above
covenant constitutes an Event of Default.
There can be no assurances that CCA (or JSC) will have sufficient funds
available at the time of any Change of Control to make any debt payment
(including repurchases of Senior Notes) required by the foregoing covenant and
similar provisions contained in the Senior Subordinated Notes, the Subordinated
Debentures, the Junior Accrual Debentures, the Credit Agreements and the Secured
Notes (as well as in any other indebtedness which might be outstanding at the
time). Although there is some variation in the definition of 'Change of Control'
among such different classes of debt, there is substantial overlap. In any
event, the above covenant requiring CCA to repurchase the Senior Notes will,
unless the consents referred to above are obtained, require CCA and JSC to offer
to repay or repay all indebtedness outstanding under the Credit Agreements and
the Secured Notes, and any other indebtedness then outstanding which by its
terms prohibit such Senior Note repurchases, either prior to or concurrently
with such Senior Note repurchases.
EVENTS OF DEFAULT
The following events are defined as 'Events of Default' in the Indenture:
(a) default in the payment of principal of (or premium, if any, on) any Senior
Note when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise; (b) default in the payment of interest on any Senior
Note when the same becomes due and payable, and such default continues for a
period of 30 days; (c) JSC or CCA defaults in the performance of or breaches any
other covenant or agreement of JSC or CCA in the Indenture or under the Senior
Notes and such default or breach continues for a period of 30 consecutive days
after written notice by the Trustee or the Holders of 25% or more in aggregate
principal amount of the Senior Notes; (d) there occurs with respect to any issue
or issues of Indebtedness of JSC, CCA and/or one or more of their Significant
Subsidiaries having an outstanding principal amount of $50 million or more
individually or $100 million or more in the aggregate for all such issues of all
such Persons, whether such Indebtedness now exists or shall hereafter be
created, an event of default that has caused the holder thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration
105
<PAGE>
has not been rescinded or annulled within 30 days of such acceleration; (e) any
final judgment or order (not covered by insurance) for the payment of money in
excess of $50 million individually or $100 million in the aggregate for all such
final judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against JSC,
CCA or any of their Significant Subsidiaries and shall not be paid or
discharged, and there shall be any period of 30 consecutive days following entry
of the final judgment or order in excess of $50 million individually or that
causes the aggregate amount for all such final judgments or orders outstanding
and not paid or discharged against all such Persons to exceed $100 million
during which a stay of enforcement of such final judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect; (f) a court having
jurisdiction in the premises enters a decree or order for (i) relief in respect
of JSC, CCA or any of their Significant Subsidiaries in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (ii) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of JSC, CCA or any of their
Significant Subsidiaries or for all or substantially all of the property and
assets of JSC, CCA or any of their Significant Subsidiaries or (iii) the winding
up or liquidation of the affairs of JSC, CCA or any of their Significant
Subsidiaries and, in each case, such decree or order shall remain unstayed and
in effect for a period of 60 consecutive days; (g) JSC, CCA or any of their
Significant Subsidiaries (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of JSC, CCA or any of their Significant Subsidiaries or for all or
substantially all of the property and assets of JSC, CCA or any of their
Significant Subsidiaries or (iii) effects any general assignment for the benefit
of creditors; (h) JSC, CCA and/or one or more of their Significant Subsidiaries
fails to make (i) at the final (but not any interim) fixed maturity of any issue
of Indebtedness a principal payment of $50 million or more or (ii) at the final
(but not any interim) fixed maturity of more than one issue of such Indebtedness
principal payments aggregating $100 million or more and, in the case of clause
(i), such defaulted payment shall not have been made, waived or extended within
30 days of the payment default and, in the case of clause (ii), all such
defaulted payments shall not have been made, waived or extended within 30 days
of the payment default that causes the amount described in clause (ii) to exceed
$100 million; or (i) the nonpayment of any two or more items of Indebtedness of
JSC, CCA and/or one or more of their Significant Subsidiaries that would
constitute at the time of such nonpayments, but for the individual amounts of
such Indebtedness, an Event of Default under clause (d) or clause (h) above, or
both, and which items of Indebtedness aggregate $100 million or more. (Section
5.01)
If an Event of Default (other than an Event of Default specified in clause
(f) or (g) above that occurs with respect to JSC or CCA) occurs and is
continuing under the Indenture, the Trustee or the Holders of at least 25% in
aggregate principal amount of the Senior Notes then outstanding, by written
notice to CCA (and to the Trustee if such notice is given by the Holders (the
'Acceleration Notice')), may, and the Trustee at the request of the Holders
shall, declare the entire unpaid principal of, premium, if any, and accrued
interest on the Senior Notes to be immediately due and payable. Upon a
declaration of acceleration, such principal of, premium, if any, and accrued
interest shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in clause (d), (h) or (i)
above has occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to clause (d), (h) or (i) shall be remedied, cured by
JSC or CCA or waived by the holders of the relevant Indebtedness within 60 days
after the declaration of acceleration with respect thereto. If an Event of
Default specified in clause (f) or (g) above occurs with respect to JSC or CCA,
all unpaid principal of, premium, if any, and accrued interest on the Senior
Notes then outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. The Holders of at least a majority in principal amount of the
outstanding Senior Notes, by written notice to JSC, CCA and the Trustee, may
waive all past defaults and rescind and annul a declaration of acceleration and
its consequences if (i) all existing Events of Default, other than the
non-payment of the principal of, premium, if any, and interest on the Senior
Notes that have become due solely by such declaration of acceleration, have been
cured or waived and (ii) the rescission
106
<PAGE>
would not conflict with any judgment or decree of a court of competent
jurisdiction. (Section 5.02) For information as to the waiver of defaults, see
' -- Modification and Waiver.'
The Holders of at least a majority in aggregate principal amount of the
outstanding Senior Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee. However, the Trustee may refuse to follow any
direction that conflicts with law or the Indenture, that may involve the Trustee
in personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders of Senior Notes not joining in the
giving of such direction. (Section 5.05) A Holder may not pursue any remedy with
respect to the Indenture or the Senior Notes unless: (i) the Holder gives the
Trustee written notice of a continuing Event of Default; (ii) the Holders of at
least 25% in aggregate principal amount of outstanding Senior Notes make a
written request to the Trustee to pursue the remedy; (iii) such Holder or
Holders offer the Trustee indemnity satisfactory to the Trustee against any
costs, liability or expense; (iv) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of indemnity; and (v)
during such 60-day period, the Holders of a majority in aggregate principal
amount of the outstanding Senior Notes do not give the Trustee a direction that
is inconsistent with the request. (Section 5.06) However, such limitations do
not apply to the right of any Holder of a Senior Note to receive payment of the
principal of, premium, if any, or interest on, such Senior Note or to bring suit
for the enforcement of any such payment, on or after the due date expressed in
the Senior Notes, which right shall not be impaired or affected without the
consent of the Holder. (Section 5.02)
The Indenture requires certain officers of JSC and CCA to certify, on or
before a date not more than 90 days after the end of each fiscal year, that a
review has been conducted of the activities of JSC and CCA and their
Subsidiaries and JSC's and CCA's and their Subsidiaries' performance under the
Indenture and that JSC and CCA have fulfilled all obligations thereunder, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default and the nature and status thereof. JSC and CCA are also
obligated to notify the Trustee of any default or defaults in the performance of
any covenants or agreements under the Indenture. (Section 3.15)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Neither JSC nor CCA shall consolidate with, merge with or into, or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) to, any Person (other than a
Restricted Subsidiary that is a Wholly Owned Subsidiary of JSC with a positive
net worth; provided that, in connection with any merger of JSC or CCA with a
Restricted Subsidiary that is a Wholly Owned Subsidiary of JSC, no consideration
(other than common stock in the surviving Person, JSC or CCA) shall be issued or
distributed to the stockholders of JSC) unless: (i) JSC or CCA shall be the
continuing Person, or the Person (if other than JSC or CCA) formed by such
consolidation or into which JSC or CCA is merged or that acquired or leased such
property and assets of JSC or CCA shall be a corporation organized and validly
existing under the laws of the United States of America or any jurisdiction
thereof and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of JSC or CCA, as the case may
be, on all of the Senior Notes and under the Indenture; (ii) immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; (iii) immediately after giving effect to such
transaction on a pro forma basis, the Interest Coverage Ratio of the continuing
Person continuing as, or becoming the successor, obligor on the Senior Notes or
the Guarantee is at least 1:1, or, if less, equal to the Interest Coverage Ratio
of JSC or CCA, as the case may be, immediately prior to such transaction;
provided that, if the Interest Coverage Ratio of JSC or CCA, as the case may be,
before giving effect to such transaction is within the range set forth in column
(A) below, then the pro forma Interest Coverage Ratio of the continuing Person
becoming the successor obligor of the Senior Notes shall be at least equal to
the lesser of (1) the ratio determined by multiplying the percentage set forth
in column
107
<PAGE>
(B) below by the Interest Coverage Ratio of JSC or CCA, as the case may be,
prior to such transaction and (2) the ratio set forth in column (C) below:
<TABLE>
<CAPTION>
(A) (B) (C)
- ------------------------------------------------------------------------------ --- ------
<S> <C> <C>
1.11:1 to 1.99:1.............................................................. 90% 1.5:1
2.00:1 to 2.99:1.............................................................. 80% 2.1:1
3.00:1 to 3.99:1.............................................................. 70% 2.4:1
4.00:1 or more................................................................ 60% 2.5:1;
</TABLE>
and provided further that, if the pro forma Interest Coverage Ratio of JSC, CCA
or any Person becoming the successor obligor of the Senior Notes, as the case
may be, is 3:1 or more, the calculation in the preceding proviso shall be
inapplicable and such transaction shall be deemed to have complied with the
requirements of this clause (iii); (iv) immediately after giving effect to such
transaction on a pro forma basis, JSC, CCA or any Person becoming the successor
obligor of the Senior Notes shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of JSC or CCA, as the case may be,
immediately prior to such transaction; and (v) JSC or CCA, as the case may be,
delivers to the Trustee an Officers' Certificate (attaching the arithmetic
computations to demonstrate compliance with clauses (iii) and (iv)) and Opinion
of Counsel, in each case stating that such consolidation, merger or transfer and
such supplemental indenture comply with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with (in no event, however, shall such Opinion of Counsel cover financial
ratios, the solvency of any Person or any other financial or statistical data or
information); provided, however, that clauses (iii) and (iv) above do not apply
if, in the good faith determination of the Board of Directors of JSC or CCA, as
the case may be, whose determination shall be evidenced by a Board Resolution,
the principal purpose of such transaction is to change the state of
incorporation of JSC or CCA, as the case may be; and provided further that any
such transaction shall not have as one of its purposes the evasion of the
foregoing limitations.
JSC shall be released from all of its obligations under its Guarantee of
the Senior Notes and the Indenture if the purchaser of Capital Stock of CCA
having a majority of the voting rights thereunder, or the parent of CCA (other
than JSC) following a consolidation or merger of CCA, satisfies the requirements
of clauses (iii) and (iv) of the preceding sentence with respect to JSC.
Notwithstanding the foregoing, nothing in clause (ii), (iii), (iv) or (v)
above shall prevent the occurrence of (i) a merger or consolidation of JSC and
CCA, or either of their respective successors, (ii) the sale of all or
substantially all of the assets of CCA to JSC, (iii) the sale of all or
substantially all of the assets of JSC to CCA or (iv) the assumption by JSC of
the Indebtedness represented by the Senior Notes.
In the event (i) JSC merges into CCA and (ii) in connection therewith a
direct or indirect Wholly Owned Subsidiary of Holdings ('Interco'), of which CCA
is at such time a direct or indirect Wholly Owned Subsidiary, (x) guarantees the
obligations of CCA on the Senior Notes on the same terms and to the same extent
as JSC had guaranteed such obligations prior to the aforesaid merger, and (y)
assumes all obligations of JSC set forth in the Indenture (without giving effect
to the effect of the aforesaid merger on such obligations) (collectively, the
'Substitution Transaction') then, notwithstanding anything to the contrary in
the Indenture, upon delivery of an Officer's Certificate to the effect that the
foregoing has occurred and the execution and delivery by CCA and Interco of a
supplemental indenture evidencing such merger and guarantee and assumption, and
without regard to the requirements set forth in clauses (i) through (v) of the
first paragraph under 'Consolidation, Merger and Sale of Assets', (a) all
references in the Indenture to 'CCA' shall continue to refer to CCA, as the
survivor in such merger, (b) all references to 'JSC' and to 'JSC's guarantee'
shall refer to Interco and to Interco's guarantee contemplated by clause (ii)
above, respectively; and (c) no breach of default under the Indenture shall be
deemed to have occurred solely by reason of the Substitution Transaction.
(Section 4.01)
108
<PAGE>
DEFEASANCE
Defeasance and Discharge. The Indenture provides that JSC and CCA will be
deemed to have paid and will be discharged from any and all obligations in
respect of the Senior Notes on the 123rd day after the deposit referred to
below, and the provisions of the Indenture will no longer be in effect with
respect to the Senior Notes or JSC's Guarantee of the Senior Notes (except for,
among other matters, certain obligations to register the transfer or exchange of
the Senior Notes, to replace stolen, lost or mutilated Senior Notes, to maintain
paying agencies and to hold monies for payment in trust) if, among other things,
(A) CCA has deposited with the Trustee, in trust, money and/or U.S. Government
Obligations that through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of, premium, if any, and accrued interest on the
Senior Notes on the Stated Maturity of such payments in accordance with the
terms of the Indenture and the Senior Notes, (B) JSC or CCA has delivered to the
Trustee (i) either an Opinion of Counsel to the effect that Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
CCA's exercise of its option under this 'Defeasance' provision and will be
subject to federal income tax on the same amount and in the same manner and at
the same times as would have been the case if such deposit, defeasance and
discharge had not occurred, which Opinion of Counsel must be accompanied by a
ruling of the Internal Revenue Service to the same effect unless there has been
a change in applicable federal income tax law after the date of the Indenture
such that a ruling is no longer required or a ruling directed to the Trustee
received from the Internal Revenue Service to the same effect as the
aforementioned Opinion of Counsel and (ii) an Opinion of Counsel to the effect
that the creation of the defeasance trust does not violate the Investment
Company Act of 1940 and after the passage of 123 days following the deposit, the
trust fund will not be subject to the effect of Section 547 of the United States
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law, (C)
immediately after giving effect to such deposit on a pro forma basis, no Event
of Default, or event that after the giving of notice or lapse of time or both
would become an Event of Default, shall have occurred and be continuing on the
date of such deposit or during the period ending on the 123rd day after the date
of such deposit, and such deposit shall not result in a breach or violation of,
or constitute a default under, any other agreement or instrument to which JSC or
CCA is a party or by which JSC or CCA is bound, and (D) if at such time the
Senior Notes are listed on a national securities exchange, CCA has delivered to
the Trustee an Opinion of Counsel to the effect that the Senior Notes will not
be delisted as a result of such deposit, defeasance and discharge. (Section
7.02)
Defeasance of Certain Covenants and Certain Events of Default. The
Indenture further provides that the provisions of the Indenture will no longer
be in effect with respect to clauses (iii) and (iv) under 'Consolidation, Merger
and Sale of Assets' and all the covenants described herein under 'Covenants,'
clause (c) under 'Events of Default' with respect to such covenants and clauses
(iii) and (iv) under 'Consolidation, Merger and Sale of Assets,' and clauses
(d), (e), (h) and (i) under 'Events of Default' shall be deemed not to be Events
of Default, upon, among other things, the deposit with the Trustee, in trust, of
money and/or U.S. Government Obligations that through the payment of interest
and principal in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay the principal of, premium, if any, and
accrued interest on the Senior Notes on the Stated Maturity of such payments in
accordance with the terms of the Indenture and the Senior Notes, the
satisfaction of the provisions described in clauses (B)(ii), (C), and (D) of the
preceding paragraph and the delivery by CCA to the Trustee of an Opinion of
Counsel to the effect that, among other things, the Holders will not recognize
income, gain or loss for federal income tax purposes as a result of such deposit
and defeasance of certain covenants and Events of Default and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred. (Section 7.03)
Defeasance and Certain Other Events of Default. In the event CCA exercises
its option to omit compliance with certain covenants and provisions of the
Indenture with respect to the Senior Notes as described in the immediately
preceding paragraph and the Senior Notes are declared due and payable because of
the occurrence of an Event of Default that remains applicable, the amount of
money and/or U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on the Senior Notes at the time of their Stated
Maturity but may not be sufficient to pay amounts due on the Senior Notes at the
time of the acceleration resulting from such Event of Default. However, CCA will
109
<PAGE>
remain liable for such payments and JSC's Guarantee with respect to such
payments will remain in effect.
The Credit Agreements and the Secured Notes each contain a covenant
prohibiting defeasance of the Senior Notes. See 'Description of Certain
Indebtedness -- Description of the Credit Agreements' and ' -- Description of
the Secured Notes'.
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by JSC, CCA and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Senior Notes; provided, however,
that no such modification or amendment may, without the consent of each Holder
affected thereby, (i) change the Stated Maturity of the principal of, or any
installment of interest on, any Senior Note, (ii) reduce the principal amount
of, or premium, if any, or interest on, any Senior Note, (iii) change the place
or currency of payment of principal of, or premium, if any, or interest on, any
Senior Note, (iv) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of a redemption, on or
after the Redemption Date) of any Senior Note, (v) reduce the above-stated
percentage of outstanding Senior Notes the consent of whose Holders is necessary
to modify or amend the Indenture, (vi) waive a default in the payment of
principal of, premium, if any, or interest on the Senior Notes, (vii) reduce the
percentage of aggregate principal amount of outstanding Senior Notes the consent
of whose Holders is necessary for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults or (viii) release JSC from
its Guarantee of the Senior Notes. (Section 8.02)
The New Credit Agreement contains a covenant prohibiting JSC or CCA from
consenting to any modification of the Indenture or waiver of any provision
thereof without the consent of a specified percentage of the lenders under the
New Credit Agreement if such modification or waiver would have the effect of
increasing the amounts due under the Indenture or increasing the interest rate
thereunder, subjecting property to any lien to which such property was not
previously subject, shortening the maturity or average life of the Senior Notes
or creating or changing any covenant or event of default to make it more
restrictive.
NO PERSONAL LIABILITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS, DIRECTORS OR
EMPLOYEES
The Indenture provides that no recourse for the payment of the principal
of, premium, if any, or interest on any of the Senior Notes or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of JSC or CCA in the Indenture, or in any of
the Senior Notes or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, shareholder, officer, director,
employee or controlling person of JSC or CCA or of any successor Person thereof.
Each Holder, by accepting the Senior Notes, waives and releases all such
liability. (Section 9.09)
CONCERNING THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in such Indenture. If an Event of Default has occurred and is continuing, the
Trustee will exercise such rights and powers vested in it under the Indenture
and use the same degree of care and skill in its exercise as a prudent person
would exercise under the circumstances in the conduct of such person's own
affairs. (Section 6.01)
The Indenture and provisions of the Trust Indenture Act of 1939, as
amended, incorporated by reference therein contain limitations on the rights of
the Trustee, should it become a creditor of CCA or JSC, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions; provided, however, that if it acquires any
conflicting interest, it must eliminate such conflict or resign.
110
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a discussion of certain federal income tax consequences
relevant to purchasers of the Senior Notes under currently applicable law. The
discussion does not cover all aspects of federal taxation that may be relevant
to particular purchasers, and does not address state, local, foreign or other
tax laws. Certain holders (including insurance companies, tax-exempt
organizations, financial institutions, broker-dealers, taxpayers subject to the
alternative minimum tax and foreign persons) may be subject to special rules not
discussed below. PROSPECTIVE PURCHASERS ARE URGED TO CONSULT THEIR TAX ADVISORS
AS TO THE PRECISE FEDERAL, STATE, LOCAL AND FOREIGN INCOME AND OTHER TAX
CONSEQUENCES OF ACQUIRING, OWNING AND DISPOSING OF THE SENIOR NOTES.
Market Discount. The federal income tax treatment of the Senior Notes may
be affected by the market discount provisions of the Code. These rules generally
provide that a holder who purchases Senior Notes subsequent to their original
issuance for an amount which is less than their stated redemption price at
maturity (which in the case of the Senior Notes is their face amount) will be
considered to have purchased the Senior Notes at a 'market discount' equal to
the amount of such difference. Such a holder will generally be required to treat
any gain realized upon the disposition (including a disposition by gift) of such
Senior Notes as ordinary income to the extent of the market discount that is
treated as having accrued during the period such holder held such Senior Notes,
unless the holder elects to include such market discount in income on a current
basis. A holder of Senior Notes who has acquired the Senior Notes at a market
discount and who does not elect to include market discount in income on a
current basis may also be required to defer the deduction of a portion of the
interest on any indebtedness incurred or maintained to purchase or carry the
Senior Notes until such holder disposes of such Senior Notes in a taxable
transaction.
Amortizable Bond Premium. If a holder purchases Senior Notes for an amount
that is greater than their stated redemption price at maturity, such holder will
be considered to have purchased such Senior Notes with 'amortizable bond
premium' equal in amount to such excess. Such a holder may elect (in accordance
with applicable Code provisions) to amortize such premium, using a constant
yield method over the remaining term of the Senior Notes, generally resulting in
an offset of amounts otherwise required to be included in income in respect of
such Senior Notes during any taxable year by the amortized amount of such excess
for such taxable year.
MARKET-MAKING ACTIVITIES OF MS&CO.
This Prospectus is to be used by MS&Co. in connection with offers and sales
of the Senior Notes in market-making transactions at negotiated prices related
to prevailing market prices at the time of sale. MS&Co. may act as principal or
agent in such transactions. MS&Co. has no obligation to make a market for the
Senior Notes and may discontinue or suspend its market-making activities at any
time without notice.
MS&Co. acted as underwriter in connection with the original offering of the
Senior Notes and received an underwriting discount of $12.5 million in
connection therewith.
Following the consummation of the Equity Offerings and the SIBV Investment,
affiliates of MS&Co. owned approximately 28.7% of the outstanding shares of
Holdings Common Stock. See 'Security Ownership of Certain Beneficial Owners'.
Donald P. Brennan, Alan E. Goldberg and David R. Ramsay, directors of Holdings,
JSC and CCA, are designees of MSLEF II. For a description of certain
transactions between Holdings, JSC, CCA, MSLEF II, MS&Co. and affiliates of
MS&Co., see 'Certain Transactions'.
LEGAL MATTERS
The validity of the Senior Notes and the guarantees thereof have been
passed upon for CCA and JSC by Skadden, Arps, Slate, Meagher & Flom, New York,
New York. Certain legal matters have been passed upon for the Underwriter by
Shearman & Sterling, New York, New York. Skadden, Arps, Slate, Meagher & Flom
also represented MSLEF II and Holdings in connection with the 1989 Transaction,
the 1992 Transaction, the Recapitalization Plan and regularly represents MS&Co.
and MSLEF II on a
111
<PAGE>
variety of legal matters. Shearman & Sterling regularly represents MSLEF II on a
variety of legal matters.
EXPERTS
The consolidated financial statements and schedules of JSC at December 31,
1993 and 1992, and for each of the three years in the period ended December 31,
1993, appearing in this Prospectus and Registration Statement, have been audited
by Ernst & Young LLP, independent auditors, as set forth in their report thereon
appearing elsewhere herein and in the Registration Statement and are included in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements of JSC appearing in JSC's Annual
Report (Form 10-K) for the year ended December 31, 1993, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
112
<PAGE>
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Consolidated Financial Statements of Jefferson Smurfit Corporation (U.S.):
Report of Independent Auditors................................................................. F-2
Consolidated Balance Sheets at December 31, 1993 and 1992...................................... F-3
For the Years Ended December 31, 1993, 1992 and 1991:
Consolidated Statements of Operations....................................................... F-4
Consolidated Statements of Stockholder's Deficit............................................ F-5
Consolidated Statements of Cash Flows....................................................... F-6
Notes to Consolidated Financial Statements..................................................... F-7
Consolidated Balance Sheet at June 30, 1994 (unaudited)........................................ F-22
Consolidated Statements of Operations for the Three Months ended March 31, 1994 and 1993, and
the Six Months ended June 30, 1994 and 1993 (unaudited)..................................... F-23
Consolidated Statements of Cash Flows for the Six Months ended June 30, 1994 and 1993
(unaudited)................................................................................. F-24
Notes to Consolidated Financial Statements (unaudited)......................................... F-25
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Board of Directors
JEFFERSON SMURFIT CORPORATION (U.S.)
(formerly Jefferson Smurfit Corporation)
We have audited the accompanying consolidated balance sheets of Jefferson
Smurfit Corporation (U.S.) (formerly Jefferson Smurfit Corporation) as of
December 31, 1993 and 1992, and the related consolidated statements of
operations, stockholder's deficit and cash flows for each of the three years in
the period ended December 31, 1993. Our audits also included the financial
statement schedules listed in the Index at Item 16(b) of the Registration
Statement. These financial statements and schedules are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements and schedules based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Jefferson
Smurfit Corporation (U.S.) at December 31, 1993 and 1992, and the consolidated
results of its operations and its cash flows for each of the three years in the
period ended December 31, 1993, in conformity with generally accepted accounting
principles. Also, in our opinion, the related financial statement schedules,
when considered in relation to the basic financial statements taken as a whole,
present fairly in all material respects the information set forth therein.
As described in Note 6 and Note 7 to the financial statements, in 1993, the
Company changed its method of accounting for income taxes and postretirement
benefits.
ERNST & YOUNG LLP
St. Louis, Missouri
January 28, 1994
F-2
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
----------------------
1993 1992
--------- ---------
(IN MILLIONS, EXCEPT
SHARE DATA)
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents................................................................ $ 44.2 $ 45.0
Receivables, less allowances of $9.2 in 1993 and $7.8 in 1992............................ 243.2 243.7
Refundable income taxes.................................................................. .7 17.0
Inventories
Work-in-process and finished goods................................................... 96.1 91.4
Materials and supplies............................................................... 137.2 132.6
--------- ---------
233.3 224.0
Deferred income taxes.................................................................... 41.9 41.1
Prepaid expenses and other current assets................................................ 5.2 10.1
--------- ---------
Total current assets............................................................. 568.5 580.9
Property, plant and equipment
Land..................................................................................... 60.2 47.6
Buildings and leasehold improvements..................................................... 241.3 216.4
Machinery, fixtures and equipment........................................................ 1,601.1 1,477.8
--------- ---------
1,902.6 1,741.8
Less accumulated depreciation and amortization........................................... 563.2 525.0
--------- ---------
1,339.4 1,216.8
Construction in progress................................................................. 35.1 53.3
--------- ---------
Net property, plant and equipment.................................................... 1,374.5 1,270.1
Timberland, less timber depletion............................................................ 261.5 226.4
Deferred debt issuance costs, net............................................................ 52.3 67.0
Goodwill, less accumulated amortization of $27.6 in 1993 and $20.3 in 1992................... 261.4 226.0
Other assets................................................................................. 78.9 66.0
--------- ---------
$ 2,597.1 $ 2,436.4
--------- ---------
--------- ---------
LIABILITIES AND STOCKHOLDER'S DEFICIT
Current liabilities
Current maturities of long-term debt..................................................... $ 10.3 $ 32.4
Accounts payable......................................................................... 270.6 267.8
Accrued compensation and payroll taxes................................................... 110.1 85.7
Interest payable......................................................................... 52.6 45.4
Other accrued liabilities................................................................ 84.9 43.9
--------- ---------
Total current liabilities........................................................ 528.5 475.2
Long-term debt, less current maturities
Nonsubordinated.......................................................................... 1,839.4 1,741.3
Subordinated............................................................................. 779.7 761.7
--------- ---------
Total long-term debt............................................................. 2,619.1 2,503.0
Other long-term liabilities.................................................................. 257.1 108.1
Deferred income taxes........................................................................ 232.2 159.8
Minority interest............................................................................ 18.0 19.2
Stockholder's deficit
Common stock, par value $.01 per share;
1,000 shares authorized and outstanding
Additional paid-in capital............................................................... 731.8 731.8
Retained earnings (deficit)
At date of 1989 Recapitalization..................................................... (1,425.9) (1,425.9)
Subsequent to 1989 Recapitalization.................................................. (363.7) (134.8)
--------- ---------
(1,789.6) (1,560.7)
--------- ---------
Total stockholder's deficit...................................................... (1,057.8) (828.9)
--------- ---------
$ 2,597.1 $ 2,436.4
--------- ---------
--------- ---------
</TABLE>
See notes to consolidated financial statements.
F-3
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1993 1992 1991
---- ---- ----
(IN MILLIONS)
<S> <C> <C> <C>
Net sales...................................................................... $2,947.6 $2,998.4 $2,940.1
Costs and expenses
Cost of goods sold........................................................ 2,573.1 2,499.3 2,409.4
Selling and administrative expenses....................................... 239.2 231.4 225.2
Restructuring charge...................................................... 96.0
Environmental and other charges........................................... 54.0
-------- -------- --------
Income (loss) from operations........................................ (14.7) 267.7 305.5
Other income (expense)
Interest expense.......................................................... (254.2) (300.1) (335.2)
Other, net................................................................ 8.1 5.2 5.4
-------- -------- --------
Loss before income taxes, equity in earnings (loss) of affiliates,
minority interests, extraordinary item and cumulative effect of
accounting changes................................................. (260.8) (27.2) (24.3)
Provision for (benefit from) income taxes...................................... (83.0) 10.0 10.0
-------- -------- --------
(177.8) (37.2) (34.3)
Equity in earnings (loss) of affiliates........................................ .5 (39.9)
Minority interest share of (income) loss....................................... 3.2 2.7 (2.9)
-------- -------- --------
Loss before extraordinary item and cumulative effect of accounting
changes............................................................ (174.6) (34.0) (77.1)
Extraordinary item
Loss from early extinguishments of debt, net of income tax benefits of
$21.7 in 1993 and $25.8 in 1992......................................... (37.8) (49.8)
Cumulative effect of accounting changes
Postretirement benefits, net of income tax benefit of $21.9............... (37.0)
Income taxes.............................................................. 20.5
-------- -------- --------
Net loss............................................................. $ (228.9) $ (83.8) $ (77.1)
-------- -------- --------
-------- -------- --------
</TABLE>
See notes to consolidated financial statements.
F-4
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S DEFICIT
(IN MILLIONS EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
COMMON STOCK
---------------------
AMOUNT NUMBER ADDITIONAL RETAINED
($.01 PAR OF PAID-IN EARNINGS
VALUE) SHARES CAPITAL (DEFICIT)
--------- -------- ---------- ---------
<S> <C> <C> <C> <C>
Balance at January 1, 1991........................................ 1,000 $500.0 $(1,399.8)
Net loss.......................................................... (77.1)
--------- -------- ---------- ---------
Balance at December 31, 1991...................................... 1,000 500.0 (1,476.9)
Net loss.......................................................... (83.8)
Capital contribution, net of related expenses..................... 231.8
--------- -------- ---------- ---------
Balance at December 31, 1992...................................... 1,000 731.8 (1,560.7)
Net loss.......................................................... (228.9)
--------- -------- ---------- ---------
Balance at December 31, 1993...................................... 1,000 $731.8 $(1,789.6)
--------- -------- ---------- ---------
--------- -------- ---------- ---------
</TABLE>
See notes to consolidated financial statements.
F-5
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------
1993 1992 1991
------- ------- -------
(IN MILLIONS)
<S> <C> <C> <C>
Cash flows from operating activities
Net loss..................................................................... $(228.9) $ (83.8) $ (77.1)
Adjustments to reconcile net loss to net cash provided by operating
activities
Extraordinary loss from early extinguishment of debt.................... 59.5 75.6
Cumulative effect of accounting changes
Postretirement benefits............................................ 58.9
Income taxes....................................................... (20.5)
Restructuring charge.................................................... 96.0
Environmental and other charges......................................... 54.0
Depreciation, depletion and amortization................................ 130.8 134.9 130.0
Amortization of deferred debt issuance costs............................ 7.9 14.6 17.6
Deferred income taxes................................................... (156.9) .1 (6.3)
Equity in (earnings) loss of affiliates................................. (.5) 39.9
Non-cash interest....................................................... 18.0 33.6 37.8
Non-cash employee benefit expense....................................... (12.5) (18.8) (9.4)
Change in current assets and liabilities, net of effects from
acquisitions
Receivables........................................................ .7 12.9 (6.8)
Inventories........................................................ 14.2 (10.4) (20.8)
Prepaid expenses and other current assets.......................... 5.0 (2.9) 2.3
Accounts payable and accrued liabilities........................... 26.2 14.9 (30.8)
Interest payable................................................... 4.7 (4.9) 5.5
Income taxes....................................................... 16.2 (17.3) 13.4
Other, net.............................................................. 4.9 (2.3) 37.7
------- ------- -------
Net cash provided by operating activities.................................... 78.2 145.7 133.0
------- ------- -------
Cash flows from investing activities
Property additions........................................................... (97.2) (77.5) (102.0)
Timberland additions......................................................... (20.2) (20.4) (16.9)
Investments in affiliates and acquisitions................................... (.1) (5.8) (9.9)
Proceeds from property and timberland disposals and sale of businesses....... 24.5 1.8 6.1
------- ------- -------
Net cash used for investing activities....................................... (93.0) (101.9) (122.7)
------- ------- -------
Cash flows from financing activities
Borrowings under senior unsecured notes...................................... 500.0
Net borrowings (repayments) under accounts receivable securitization
program..................................................................... 6.4 (8.8) 184.7
Borrowings under bank credit facility........................................ 400.0
Other increases in long-term debt............................................ 12.0 56.8 55.8
Payments of long-term debt and, in 1992, related premiums.................... (479.2) (698.6) (203.3)
Deferred debt issuance costs................................................. (25.2) (40.4) (3.7)
Capital contribution, net of related expenses................................ 231.8
------- ------- -------
Net cash provided by (used for) financing activities......................... 14.0 (59.2) 33.5
------- ------- -------
Increase (decrease) in cash and cash equivalents.................................. (.8) (15.4) 43.8
Cash and cash equivalents
Beginning of year............................................................ 45.0 60.4 16.6
------- ------- -------
End of year.................................................................. $ 44.2 $ 45.0 $ 60.4
------- ------- -------
------- ------- -------
</TABLE>
See notes to consolidated financial statements.
F-6
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
1. BASIS OF PRESENTATION
Jefferson Smurfit Corporation (U.S.) (formerly Jefferson Smurfit
Corporation) hereinafter referred to as the 'Company' is a wholly-owned
subsidiary of Jefferson Smurfit Corporation (formerly SIBV/MS Holdings, Inc.),
hereinafter referred to as 'Holdings'. Fifty percent of the voting stock of
Holdings is owned by Smurfit Packaging Corporation ('SPC') and Smurfit Holdings
B.V. ('SHBV'), indirect wholly-owned subsidiaries of Jefferson Smurfit Group plc
('JS Group'), a public corporation organized under the laws of the Republic of
Ireland. The remaining 50% is owned by The Morgan Stanley Leveraged Equity Fund
II, L.P. ('MSLEF II'). Holdings has no operations other than its investment in
JSC. In December 1989, pursuant to a series of transactions referred to
hereafter as the '1989 Recapitalization', Holdings acquired the entire equity
interest in JSC. Concurrently with Holdings' acquisition of JSC, Container
Corporation of America ('CCA') acquired its common equity interest not owned by
JSC. Prior to the 1989 Recapitalization, Smurfit International B.V. ('SIBV'), an
indirect wholly-owned subsidiary of JS Group, owned 78% of JSC's outstanding
common equity, the public owned the remaining common equity of JSC and JSC
indirectly owned 50% of the common stock and 100% of the preferred stock of CCA.
The remaining 50% of the common stock of CCA was owned by The Morgan Stanley
Leveraged Equity Fund, L.P. and other investors ('MSLEF I Group'). Both MSLEF II
and MSLEF I Group are affiliates of Morgan Stanley & Co. Incorporated
('MS&Co.').
For financial accounting purposes, the 1989 acquisition by CCA of its
common equity owned by MSLEF I Group and the purchase of the JSC common equity
owned by SIBV were accounted for as purchases of treasury stock, resulting in a
deficit balance in stockholder's equity in the accompanying consolidated
financial statements. The acquisition of JSC's minority interest, representing
approximately 22% of JSC's common equity, was accounted for as a purchase.
2. SIGNIFICANT ACCOUNTING POLICIES
Principles of Consolidation: The consolidated financial statements include
the accounts of the Company and its majority-owned subsidiaries. Significant
intercompany accounts and transactions are eliminated in consolidation.
Cash Equivalents: The Company considers all highly liquid investments with
a maturity of three months or less when purchased to be cash equivalents. At
December 31, 1993 cash and cash equivalents of $42.9 million are maintained as
collateral for obligations under the accounts receivable securitization program
(see Note 5).
Revenue Recognition: Revenue is recognized at the time products are
shipped.
Inventories: Inventories are valued at the lower of cost or market,
principally under the last-in, first-out ('LIFO') method except for $50.6
million in 1993 and $51.9 million in 1992 which are valued at the lower of
average cost or market. First-in, first-out costs (which approximate replacement
costs) exceed the LIFO value by $44.7 million and $46.3 million at December 31,
1993 and 1992, respectively.
Property, Plant and Equipment: Property, plant and equipment are carried at
cost. Provisions for depreciation and amortization are made using straight-line
rates over the estimated useful lives of the related assets and the terms of the
applicable leases for leasehold improvements.
Effective January 1, 1993, the Company changed its estimate of the useful
lives of certain machinery and equipment. Based upon historical experience and
comparable industry practice, the depreciable lives of the papermill machines
that previously ranged from 16 to 20 years were increased to an average of 23
years, while major converting equipment and folding carton presses that
previously averaged 12 years were increased to an average of 20 years. These
changes were made to better reflect the estimated periods during which such
assets will remain in service. These changes had the effect of reducing
depreciation expense by $17.8 million and decreasing net loss by $11.0 million
in 1993.
F-7
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
Timberland: The portion of the costs of timberland attributed to standing
timber is charged against income as timber is cut, at rates determined annually,
based on the relationship of unamortized timber costs to the estimated volume of
recoverable timber. The costs of seedlings and reforestation of timberland are
capitalized.
Deferred Debt Issuance Costs: Deferred debt issuance costs are amortized
over the terms of the respective debt obligations using the interest method.
Goodwill: The excess of cost over the fair value assigned to the net assets
acquired is recorded as goodwill and is being amortized using the straight-line
method over 40 years.
Income Taxes: The taxable income of the Company is included in the
consolidated federal income tax return filed by Holdings. The Company's income
tax provisions are computed on a separate return basis. State income tax returns
are filed on a separate return basis. Effective January 1, 1993, the Company
changed its method of accounting for income taxes from the deferred method to
the liability method required by Statement of Financial Accounting Standards
('SFAS') No. 109, 'Accounting for Income Taxes' (see Note 6).
Interest Rate Swap Agreements: The Company enters into interest rate swap
agreements which involve the exchange of fixed and floating rate interest
payments without the exchange of the underlying principal amount. The
differential to be paid or received is accrued as interest rates change and is
recognized over the life of the agreements as an adjustment to interest expense.
Reclassifications: Certain reclassifications of prior year presentations
have been made to conform to the 1993 presentation.
3. INVESTMENTS
Equity in loss of affiliates of $39.9 million in 1991, which is net of
deferred income tax benefits of $18.5 million, includes the Company's (i)
write-off of its equity investment in Temboard, Inc., formerly Temboard and
Company Limited Partnership ('Temboard'), totalling $29.3 million, (ii)
write-off of its remaining equity investment in PCL Industries Limited ('PCL')
totaling $6.7 million, and (iii) proportionate share of the net loss of equity
affiliates, including PCL prior to the write-off of that investment, totaling
$3.9 million.
4. RELATED PARTY TRANSACTIONS
TRANSACTIONS WITH JS GROUP
Transactions with JS Group, its subsidiaries and affiliates were as
follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1993 1992 1991
-------- -------- --------
<S> <C> <C> <C>
Product sales..................................... $18.4 $22.8 $21.0
Product and raw material purchases................ 49.3 60.1 11.8
Management services income........................ 5.8 5.6 5.4
Charges from JS Group for services provided....... .4 .3 .7
Charges from JS Group for letter of credit and
commitment fees (see Note 5).................... 2.9
Charges to JS Group for costs pertaining to the
No. 2 paperboard machine........................ 62.2 54.7 10.9
Receivables at December 31........................ 1.7 3.3 2.4
Payables at December 31........................... 11.6 10.2 3.4
</TABLE>
F-8
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
Product sales to and purchases from JS Group, its subsidiaries, and
affiliates are consummated on terms generally similar to those prevailing with
unrelated parties.
The Company provides certain subsidiaries and affiliates of JS Group with
general management and elective management services under separate Management
Services Agreements. In consideration for general management services, the
Company is paid a fee up to 2% of the subsidiaries' or affiliate's gross sales.
In consideration for elective services, the Company is reimbursed for its direct
cost of providing such services.
In October 1991 an affiliate of JS Group completed a rebuild of the No. 2
paperboard machine owned by the affiliate that is located in CCA's Fernandina
Beach, Florida paperboard mill (the 'Fernandina Mill'). Pursuant to an operating
agreement between CCA and the affiliate, the affiliate engaged CCA to operate
and manage the No. 2 paperboard machine. As compensation to CCA for its services
the affiliate reimburses CCA for production and manufacturing costs directly
attributable to the No. 2 paperboard machine and pays CCA a portion of the
indirect manufacturing, selling and administrative costs incurred by CCA for the
entire Fernandina Mill. The compensation is determined by applying various
formulas and agreed upon amounts to the subject costs. The amounts reimbursed to
CCA are reflected as reductions of cost of goods sold and selling and
administrative expenses in the accompanying consolidated statements of
operations.
TRANSACTIONS WITH TIMES MIRROR
Under the terms of a long-term agreement, Smurfit Newsprint Corporation
('SNC'), a majority-owned subsidiary of the Company, supplies newsprint to Times
Mirror, a minority shareholder of SNC, at amounts which approximate prevailing
market prices. The obligations of the Company and Times Mirror to supply and
purchase newsprint, respectively, are wholly or partially terminable upon the
occurrence of certain defined events. Sales to Times Mirror for 1993, 1992 and
1991 were $115.2 million, $114.0 million and $150.6 million, respectively.
F-9
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
5. LONG-TERM DEBT
Long-term debt at December 31 consists of:
<TABLE>
<CAPTION>
1993 1992
----------------------- -----------------------
CURRENT CURRENT
MATURITIES LONG-TERM MATURITIES LONG-TERM
---------- --------- ---------- ---------
<S> <C> <C> <C> <C>
1992 term loan.......................................... $ $ 201.3 $ $ 392.3
1989 term loan.......................................... 412.3 608.8
Revolving loans......................................... 196.5 223.0
Senior secured notes.................................... 270.5 270.5
Accounts receivable securitization program loans........ 182.3 175.9
Senior unsecured notes.................................. 500.0
Other................................................... 10.3 76.5 9.5 70.8
---------- --------- ---------- ---------
Total non-subordinated........................ 10.3 1,839.4 9.5 1,741.3
13.95% Subordinated note, due 1993...................... 22.9
13.5% Senior subordinated notes, due 1999............... 350.0 350.0
14.0% Subordinated debentures, due 2001................. 300.0 300.0
15.5% Junior subordinated accrual debentures, due
2004.................................................. 129.7 111.7
---------- --------- ---------- ---------
Total subordinated............................ 779.7 22.9 761.7
---------- --------- ---------- ---------
$10.3 $2,619.1 $32.4 $2,503.0
---------- --------- ---------- ---------
---------- --------- ---------- ---------
</TABLE>
Aggregate annual maturities of long-term debt at December 31, 1993, for the
next five years are $10.3 million in 1994, $220.6 million in 1995, $379.8
million in 1996, $431.5 million in 1997, and $273.0 million in 1998. In
addition, approximately $77.7 million in accrued interest related to the Junior
Subordinated Accrual Debentures (the 'Junior Accrual Debentures') becomes due in
1994. Accrued interest of approximately $58.9 million is classified as long-term
debt in the accompanying financial statements because it is the Company's
intention to refinance the Junior Accrual Debentures in December 1994 with the
proceeds from its $200 million commitment from SIBV described below.
1992 TERM LOAN
In August 1992, the Company repurchased $193.5 million of Junior Accrual
Debentures, and repaid $19.1 million of the Subordinated Note and $400 million
of the 1989 term loan facility ('1989 Term Loan'). The proceeds from a $231.8
million capital contribution by Holdings and a $400 million senior secured term
loan ('1992 Term Loan') were used to repurchase the Junior Accrual Debentures
and repay the loans. Premiums paid in connection with this transaction, the
write-off of related deferred debt issuance costs, and losses on interest rate
swap agreements, totaling $49.8 million (net of income tax benefits of $25.8
million), are reflected in the accompanying 1992 consolidated statement of
operations as an extraordinary loss.
Outstanding loans under the 1992 Term Loan bear interest primarily at rates
for which Eurodollar deposits are offered plus 3% (6.375% at December 31, 1993).
The 1992 Term Loan, which matures on December 31, 1997, may require principal
prepayments before then as defined in the 1992 Term Loan.
1989 TERM LOAN AND REVOLVING CREDIT FACILITY
The 1989 Amended and Restated Credit Agreement ('1989 Credit Agreement')
consists of the 1989 Term Loan and a $400.0 million revolving credit facility
(which expires in 1995) of which up to $125.0 million may consist of letters of
credit. The 1989 Term Loan, which expires in 1997, requires
F-10
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
minimum annual principal reductions, subject to additional reductions if the
Company has excess cash flows or excess cash balances, as defined, or receives
proceeds from certain sales of assets, issuance of equity securities, permitted
indebtedness or any pension fund termination.
Outstanding loans under the 1989 Credit Agreement bear interest primarily
at rates for which Eurodollar deposits are offered plus 2.25%. The weighted
average interest rate at December 31, 1993 on outstanding Credit Agreement
borrowings was 5.95%. A commitment fee of 1/2 of 1% per annum is assessed on the
unused portion of the revolving credit facility. At December 31, 1993, the
unused portion of the revolving credit facility, after giving consideration to
outstanding letters of credit, was $112.1 million.
SENIOR SECURED NOTES
The Senior Secured Notes due in 1998 may be prepaid at any time. Mandatory
prepayment is required from a pro rata portion of net cash proceeds of certain
sales of assets or additional borrowings. The Senior Secured Notes bear interest
at rates for which three month Eurodollar deposits are offered plus 2.75% (6.25%
at December 31, 1993).
Obligations under the 1992 Term Loan, the 1989 Credit Agreement, and the
Senior Secured Notes Agreement share pro rata in certain mandatory prepayments
and the collateral and guarantees that secure these obligations. These
obligations are secured by the common stock of JSC and CCA and substantially all
of their assets, with the exception of cash and cash equivalents and trade
receivables, and are guaranteed by the Company. These agreements contain various
business and financial covenants including, among other things, (i) limitations
on the incurrence of indebtedness; (ii) limitations on capital expenditures;
(iii) restrictions on paying dividends, except for dividends paid by SNC; (iv)
maintenance of minimum interest coverage ratios; and (v) maintenance of
quarterly and annual cash flows, as defined.
In anticipation of violation of certain financial covenants at September
30, 1993, in connection with its 1992 Term Loan, 1989 Credit Agreement and the
Senior Secured Notes, the Company requested and received waivers from its lender
group. In addition, the Company's credit facilities were amended in December
1993, to modify financial covenants that had become too restrictive due to
continued pricing weakness in the paper industry. The Company complied with the
amended covenants at December 31, 1993.
ACCOUNTS RECEIVABLE SECURITIZATION PROGRAM LOANS
The $230.0 million accounts receivable securitization program
('Securitization Program') provides for the sale of certain of the Company's
trade receivables to a wholly-owned, bankruptcy remote, limited purpose
subsidiary, Jefferson Smurfit Finance Corporation ('JS Finance'), which finances
its purchases of the receivables, through borrowings from a limited purpose
finance company (the 'Issuer') unaffiliated with the Company. The Issuer, which
is restricted to making loans to JS Finance, issued $95.0 million in fixed rate
term notes, issued $13.8 million under a subordinated loan, and may issue up to
$121.2 million in trade receivables backed commercial paper or obtain up to
$121.2 million under a revolving liquidity facility to fund loans to JS Finance.
At December 31, 1993, $47.1 million was available for additional borrowing.
Borrowings under the Securitization Program, which expires April 1996, have been
classified as long-term debt because of the Company's intent to refinance this
debt on a long-term basis and the availability of such financing under the terms
of the program.
At December 31, 1993, all assets of JS Finance, principally cash and cash
equivalents of $42.9 million and trade receivables of $173.8 million, are
pledged as collateral for obligations of JS Finance to the Issuer. Interest
rates on borrowings under this program are at a fixed rate of 9.56% for $95.0
million of the borrowings and at a variable rate on the remainder (3.94% at
December 31, 1993).
F-11
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
SENIOR UNSECURED NOTES
In April 1993, CCA issued $500.0 million of 9.75% Senior Unsecured Notes
due 2003 which are unconditionally guaranteed by JSC. Net proceeds from the
offering were used to repay: $100.0 million outstanding under the revolving
credit facility, $196.5 million outstanding under the 1989 Term Loan, and $191.0
million outstanding under the 1992 Term Loan. The write-off of related deferred
debt issuance costs and losses on interest rate swap agreements, totalling $37.8
million (net of income tax benefits of $21.7 million), are reflected in the
accompanying 1993 consolidated statement of operations as an extraordinary item.
In connection with the issuance of the Senior Unsecured Notes, the Company
entered into an agreement with SIBV whereby SIBV committed to purchase up to
$200 million of 11.5% Junior Subordinated Notes to be issued by the Company
maturing December 1, 2005. From time to time until December 31, 1994, the
Company, at their option, may issue the Junior Subordinated Notes, the proceeds
of which must be used to repurchase or otherwise retire subordinated debt. The
Company is obligated to pay SIBV for letter of credit fees incurred by SIBV in
connection with this commitment in addition to an annual commitment fee of
1.375% on the undrawn principal amount (See Note 4).
The Senior Unsecured Notes due April 1, 2003, which are not redeemable
prior to maturity, rank pari passu with the 1992 Term Loan, the 1989 Credit
Agreement and the Senior Secured Notes. The Senior Unsecured Note Agreement
contains business and financial covenants which are substantially less
restrictive than those contained in the 1992 Term Loan, the 1989 Credit
Agreement and the Senior Secured Notes Agreement.
OTHER NON-SUBORDINATED DEBT
Other non-subordinated long-term debt at December 31, 1993, is payable in
varying installments through the year 2004. Interest rates on these obligations
averaged approximately 9.76% at December 31, 1993.
SUBORDINATED DEBT
The Senior Subordinated Notes, Subordinated Debentures and Junior Accrual
Debentures are unsecured obligations of CCA and are unconditionally guaranteed
on a senior subordinated, subordinated and junior subordinated basis,
respectively, by JSC. Semi-annual interest payments are required on the Senior
Subordinated Notes, and Subordinated Debentures. Interest on the Junior Accrual
Debentures accrues and compounds on a semi-annual basis until December 1, 1994
at which time accrued interest is payable. Thereafter, interest on the Junior
Accrual Debentures will be payable semi-annually.
The Senior Subordinated Notes are redeemable at CCA's option beginning
December 1, 1994 with premiums of 6.75% and 3.375% of the principal amount if
redeemed during the 12-month periods commencing December 1, 1994 and 1995,
respectively. The payment of principal and interest is subordinated to the prior
payment, when due, of all senior indebtedness, as defined.
The Subordinated Debentures are redeemable at CCA's option beginning
December 1, 1994 with premiums of 7% and 3.5% of the principal amount if
redeemed during the 12-month periods commencing December 1, 1994 and 1995,
respectively. The payment of principal and interest is subordinated to the prior
payment, when due, of all senior indebtedness, as defined, and the Senior
Subordinated Notes. Sinking fund payments to retire 33 1/3% of the original
aggregate principal amount of the Subordinated Debentures are required on each
of December 15, 1999 and 2000.
The Junior Accrual Debentures are redeemable at CCA's option beginning
December 1, 1994 at 100% of the principal amount. The payment of principal and
interest is subordinated to the prior
F-12
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
payment, when due, of all senior indebtedness, as defined, the Senior
Subordinated Notes and the Subordinated Debentures. Sinking fund payments to
retire 33 1/3% of the original aggregate principal amount of the Junior Accrual
Debentures are required on each of December 1, 2002 and 2003.
Holders of the Senior Subordinated Notes, Subordinated Debentures, and
Junior Accrual Debentures have the right, subject to certain limitations, to
require the Company to repurchase their securities at 101% of the principal
amount plus accrued and unpaid interest, upon the occurrence of a change of
control or in certain events from proceeds of major asset sales, as defined. The
Senior Subordinated Notes, Subordinated Debentures and Junior Accrual Debentures
contain various business and financial covenants which are less restrictive than
those contained in the 1992 Term Loan, the 1989 Credit Agreement and the Senior
Secured Notes Agreement.
INTEREST RATE SWAPS
At December 31, 1993, the Company has interest rate swap and other hedging
agreements with commercial banks which effectively fix (for remaining periods up
to 3 years) the Company's interest rate on $215 million of variable rate
borrowings at average all-in rates of approximately 9.1%. At December 31, 1993,
the Company had $435 million of swap commitments outstanding which were marked
to market in April 1993. The Company also has outstanding interest rate swap
agreements related to the Securitization Program that effectively convert $95.0
million of fixed rate borrowings to a variable rate (5.6% at December 31, 1993)
through December 1995, and convert $80.0 million of variable rate borrowings to
a fixed rate of 7.2% through January 1996. In addition, the Company is party to
interest rate swap agreements related to the Senior Unsecured Notes which
effectively converts $500.0 million of fixed rate borrowings to a variable rate
(8.6% at December 31, 1993) maturing at various dates through May 1995. The
Company is exposed to credit loss in the event of non-performance by the other
parties to the interest rate swap agreements. However, the Company does not
anticipate non-performance by the counter parties.
Interest costs capitalized on construction projects in 1993, 1992 and 1991
totalled $3.4 million, $4.2 million and $2.4 million, respectively. Interest
payments on all debt instruments for 1993, 1992 and 1991 were $226.2 million,
$257.6 million and $273.1 million, respectively.
6. INCOME TAXES
Effective January 1, 1993, the Company changed its method of accounting for
income taxes from the deferred method to the liability method required by SFAS
No. 109, 'Accounting for Income Taxes'. As permitted under the new rules, prior
years' financial statements have not been restated.
The cumulative effect of adopting SFAS No. 109 as of January 1, 1993 was to
increase net income by $20.5 million. For 1993, application of SFAS No. 109
increased the pretax loss by $14.5 million because of increased depreciation
expense as a result of the requirement to report assets acquired in prior
business combinations at pretax amounts.
In adopting this new accounting principle, the Company (i) adjusted assets
acquired and liabilities assumed in prior business combinations from their
net-of-tax amounts to their pre-tax amounts and recognized the related deferred
tax assets and liabilities for those temporary differences, (ii) adjusted
deferred income tax assets and liabilities to statutory income tax rates and for
previously unrecognized tax benefits related to certain state net operating loss
carryforwards, and (iii) adjusted asset and liability accounts arising from the
1986 acquisition and the 1989 Recapitalization to recognize potential tax
liabilities related to those transactions. The net effect of these adjustments
on assets and liabilities was to increase inventory $23.0 million, increase
property, plant and equipment and timberlands $196.5 million, increase goodwill
$42.0 million, increase liabilities by $12.6 million, and increase deferred
income taxes by $228.4 million.
F-13
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
At December 31, 1993, the Company has net operating loss carryforwards for
federal income tax purposes of approximately $308.6 million (expiring in the
years 2005 through 2008), none of which are available for utilization against
alternative minimum taxes.
Significant components of the Company's deferred tax assets and liabilities
at December 31, 1993 are as follows:
<TABLE>
<S> <C>
Deferred tax liabilities:
Depreciation and depletion.................................................. $354.5
Pensions.................................................................... 26.7
Other....................................................................... 104.0
------
Total deferred tax liabilities......................................... 485.2
------
Deferred tax assets:
Retiree medical............................................................. $ 44.6
Other employee benefit and insurance plans.................................. 70.3
Restructuring and other charges............................................. 49.3
NOL and tax credit carryforwards............................................ 108.4
Other....................................................................... 47.1
------
Total deferred tax assets.............................................. 319.7
Valuation allowance for deferred tax assets...................................... (24.8)
------
Net deferred tax assets..................................................... 294.9
------
Net deferred tax liabilities................................................ $190.3
------
------
</TABLE>
Provisions for (benefit from) income taxes before extraordinary item and
cumulative effect of accounting changes were as follows:
<TABLE>
<CAPTION>
LIABILITY
METHOD DEFERRED METHOD
--------- ----------------------------------
YEAR ENDED DECEMBER 31,
-----------------------------------------------
1993 1992 1991
--------- --------------- ---------------
<S> <C> <C> <C>
Current
Federal............................................................ $ 28.1 $(2.2) $14.4
State and local.................................................... 2.2 2.1 1.9
--------- ------ ------
30.3 (.1) 16.3
Deferred
Federal............................................................ (53.5) 9.7 (7.1)
State and local.................................................... 6.0 .4 .8
Benefits of net operating loss carryforwards....................... (71.5)
--------- ------ ------
(119.0) 10.1 (6.3)
Adjustment of deferred tax assets and liabilities for enacted tax rate
change................................................................ 5.7
--------- ------ ------
$ (83.0) $10.0 $10.0
--------- ------ ------
--------- ------ ------
</TABLE>
The Company increased its deferred tax assets and liabilities in 1993 as a
result of legislation enacted during 1993 increasing the corporate federal
statutory tax rate from 34% to 35% effective January 1, 1993.
F-14
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
The Internal Revenue Service completed the examination of the Company's
consolidated federal income tax returns for 1987 and 1988. The provision for
current taxes includes settlement of the additional tax liabilities.
The components of the provision for (benefit from) deferred taxes were as
follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------------------------
1992 1991
----------------------- -----------------------
<S> <C> <C>
Depreciation and depletion................................................ $ 15.2 $ 21.8
Alternative minimum tax................................................... 10.2 (7.5)
Tax loss carryforwards.................................................... (24.3) (9.7)
Equity in affiliates...................................................... 6.8 3.2
Other employee benefits................................................... 2.7 (10.7)
Other, net................................................................ (.5) (3.4)
------- -------
$ 10.1 $ (6.3)
------- -------
------- -------
</TABLE>
A reconciliation of the difference between the statutory Federal income tax
rate and the effective income tax rate as a percentage of loss before income
taxes, equity in earnings (loss) of affiliates, extraordinary item, and
cumulative effect of accounting changes is as follows:
<TABLE>
<CAPTION>
LIABILITY
METHOD DEFERRED METHOD
--------- ----------------------------------
YEAR ENDED DECEMBER 31,
-----------------------------------------------
1993 1992 1991
--------- --------------- ---------------
<S> <C> <C> <C>
U.S. Federal statutory rate............................................. (35.0)% (34.0)% (34.0)%
Adjustment of deferred tax assets and liabilities for enacted tax rate
change................................................................ 2.2
State and local taxes, net of Federal tax benefit....................... (2.0) 5.8 7.3
Permanent differences from applying purchase accounting................. 3.5 62.7 65.4
Taxes on foreign distributions.......................................... .1 .8 4.5
Effect of valuation allowances on deferred tax assets, net of Federal
benefit............................................................... 1.2
Other, net.............................................................. (1.8) 1.5 (2.1)
--------- ------ ------
(31.8)% 36.8% 41.1%
--------- ------ ------
--------- ------ ------
</TABLE>
The Company made income tax payments of $33.0 million, $6.6 million, and
$5.9 million in 1993, 1992, and 1991, respectively.
7. EMPLOYEE BENEFIT PLANS
PENSION PLANS
The Company sponsors noncontributory defined benefit pension plans covering
substantially all employees not covered by multi-employer plans. Plans that
cover salaried and management employees provide pension benefits that are based
on the employee's five highest consecutive calendar years' compensation during
the last ten years of service. Plans covering non-salaried employees generally
provide benefits of stated amounts for each year of service. These plans provide
reduced benefits for early retirement. The Company's funding policy is to make
minimum annual contributions required by applicable regulations. The Company
also participates in several multi-employer pension plans, which provide defined
benefits to certain union employees.
In order to minimize significant year-to-year fluctuations in pension cost
caused by financial market volatility, the Company changed, effective as of
January 1, 1993, the method of accounting used for
F-15
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
determining the market-related value of plan assets. The method changed from a
fair market value to a calculated value that recognizes all changes in a
systematic manner over a period of four years and eliminates the use of a
corridor approach for amoritizing gains and losses. The effect of this change on
1993 results of operations, including the cumulative effect of prior years, was
not material.
Assumptions used in the accounting for the defined benefit plans were:
<TABLE>
<CAPTION>
1993 1992 1991
----- ----- -----
<S> <C> <C> <C>
Weighted average discount rates............................................ 7.6% 8.75% 9.0%
Rates of increase in compensation levels................................... 4.0% 5.5% 6.0%
Expected long-term rate of return on assets................................ 10.0% 10.0% 10.0%
</TABLE>
The components of net pension income for the defined benefit plans and the
total contributions charged to pension expense for the multi-employer plans
follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------
1993 1992 1991
------ ------ ------
<S> <C> <C> <C>
Defined benefit plans:
Service cost-benefits earned during the period........................ $ 12.7 $ 12.1 $ 11.3
Interest cost on projected benefit obligations........................ 54.0 50.1 47.6
Actual return on plan assets.......................................... (91.1) (26.4) (147.9)
Net amortization and deferral......................................... 8.8 (54.6) 80.3
Multi-employer plans....................................................... 2.2 2.1 1.5
------- ------- -------
Net pension income............................................... $(13.4) $(16.7) $ (7.2)
------- ------- -------
------- ------- -------
</TABLE>
The following table sets forth the funded status and amounts recognized in
the consolidated balance sheets at December 31 for the Company's and its
subsidiaries' defined benefit pension plans:
<TABLE>
<CAPTION>
1993 1992
------ ------
<S> <C> <C>
Actuarial present value of benefit obligations:
Vested benefit obligations...................................................... $616.7 $530.5
------ ------
Accumulated benefit obligations................................................. $664.3 $543.0
------ ------
Projected benefit obligations................................................... $716.0 $599.0
Plan assets at fair value............................................................ 778.1 729.2
------ ------
Plan assets in excess of projected benefit obligations............................... 62.1 130.2
Unrecognized net (gain) loss......................................................... 34.5 (45.2)
Unrecognized net asset at December 31, being recognized over 14 to 15 years.......... (29.2) (33.2)
------ ------
Net pension asset.......................................................... $ 67.4 $ 51.8
------ ------
------ ------
</TABLE>
Approximately 44% of plan assets at December 31, 1993 are invested in cash
equivalents or debt securities and 56% are invested in equity securities,
including common stock of JS Group having a market value of $87.7 million.
POSTRETIREMENT HEALTH CARE AND LIFE INSURANCE BENEFITS
The Company provides certain health care and life insurance benefits for
all salaried and certain hourly employees. The Company has various plans under
which the cost may be borne either by the Company, the employee or partially by
each party. The Company does not currently fund these plans. These benefits are
discretionary and are not a commitment to long-term benefit payments. The plans
F-16
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
were amended effective January 1, 1993 to allow employees who retire on or after
January 1, 1994 to become eligible for these benefits only if they retire after
age 60 while working for the Company.
Effective January 1, 1993, the Company adopted SFAS No. 106, 'Employers'
Accounting for Postretirement Benefits Other Than Pensions', which requires
companies to accrue the expected cost of retiree benefit payments, other than
pensions, during employees' active service period. The Company elected to
immediately recognize the accumulated liability, measured as of January 1, 1993.
The cumulative effect of this change in accounting principle resulted in a
charge of $37.0 million (net of income tax benefits of $21.9 million). The
Company had previously recorded an obligation of $36.0 million in connection
with prior business combinations. The net periodic postretirement benefit cost
for 1993 was $9.8 million. In 1992 and 1991, the cost of the postretirement
benefits was recognized as claims were paid and was $6.4 million and $5.3
million, respectively.
The following table sets forth the accumulated postretirement benefit
obligation ('APBO') with respect to these benefits as of December 31, 1993:
<TABLE>
<S> <C>
Retirees................................................................... $ 58.3
Active employees........................................................... 51.8
------
Total accumulated postretirement benefit obligation........................ 110.1
Unrecognized net loss...................................................... (11.9)
------
Accrued postretirement benefit cost........................................ $ 98.2
------
------
</TABLE>
Net periodic postirement benefit cost for 1993 included the following
components:
<TABLE>
<S> <C>
Service cost of benefits earned............................................ $ 1.5
Interest cost on accumulated postretirement benefit obligation............. 8.3
------
Net periodic postretirement benefit cost................................... $ 9.8
------
------
</TABLE>
A weighted-average discount rate of 7.6% was used in determining the APBO
at December 31, 1993. The weighted-average annual assumed rate of increase in
the per capita cost of covered benefits ('healthcare cost trend rate') was 11%,
with an annual decline of 1% until the rate reaches 5%. The effect of a 1%
increase in the assumed healthcare cost trend rate would increase both APBO as
of December 31, 1993 by $5.7 million and the annual net periodic postretirement
benefit cost for 1993 by $.8 million.
1992 STOCK OPTION PLAN
Effective August 26, 1992, Holdings adopted the Holdings 1992 Stock Option
Plan (the 'Plan') which replaced the 1990 Long-Term Management Incentive Plan.
Under the Plan, selected employees of Holdings and its affiliates and
subsidiaries are granted non-qualified stock options, up to a maximum of 603,656
shares, to acquire shares of common stock of Holdings. The stock options are
exercisable at a price equal to the fair market value, as defined, of the common
stock of Holdings on the date of grant. The options vest pursuant to the
schedule set forth for each option and expire upon the earlier of twelve years
from the date of grant or termination of employment. The stock options become
exercisable upon the earlier of the occurrence of certain trigger dates, as
defined, or eleven years from the date of grant. Options for 494,215 and 502,645
shares were outstanding at December 31, 1993 and 1992, respectively, at an
exercise price of $100.00, none of which were exercisable.
8. LEASES
The Company leases certain facilities and equipment for production, selling
and administrative purposes under operating leases. Future minimum lease
payments at December 31, 1993, required
F-17
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
under operating leases that have initial or remaining noncancelable lease terms
in excess of one year are $30.3 million in 1994, $22.5 million in 1995, $15.5
million in 1996, $11.3 million in 1997, $8.3 million in 1998 and $19.1 million
thereafter.
Net rental expense was $45.0 million, $42.2 million, and $38.7 million for
1993, 1992 and 1991, respectively.
9. FAIR VALUE OF FINANCIAL INSTRUMENTS
The estimated fair values of the Company's financial instruments are as
follows:
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------------------------------
1993 1992
-------------------- --------------------
CARRYING FAIR CARRYING FAIR
AMOUNT VALUE AMOUNT VALUE
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Cash and cash equivalents.......................................... $ 44.2 $ 44.2 $ 45.0 $ 45.0
Long-term debt, including current maturities....................... 2,629.4 2,686.4 2,535.4 2,540.4
Loss on interest rate swap agreements.............................. (3.9) (35.5)
</TABLE>
The carrying amount of cash equivalents approximates fair value because of
the short maturity of those instruments. The fair value of the Company's
long-term debt is estimated based on the quoted market prices for the same or
similar issues or on the current rates offered to the Company for debt of the
same remaining maturities. The fair value of the interest rate swap agreements
is the estimated amount the Company would pay, net of accrued interest expense,
to terminate the agreements at December 31, 1993, taking into account current
interest rates and the current credit worthiness of the swap counterparties.
10. RESTRUCTURING CHARGE
During 1993, the Company recorded a pre-tax charge of $96 million to
recognize the effects of a restructuring program designed to improve the
Company's long-term competitive position. The charge includes a provision for
direct expenses associated with plant closures, reductions in workforce,
realignment and consolidation of various manufacturing operations and
write-downs of nonproductive assets.
11. CONTINGENCIES
During 1993, the Company recorded a pre-tax charge of $54 million of which
$39 million represents asbestos and PCB removal, solid waste cleanup at existing
and former operating sites, and expenses for response costs at various sites
where the Company has received notice that it is a potentially responsible
party.
The Company is a defendant in a number of lawsuits and claims arising out
of the conduct of its business, including those related to environmental
matters. While the ultimate results of such suits or other proceedings against
the Company cannot be predicted with certainty, the management of the Company
believes that resolution of these matters will not have a material adverse
effect on its consolidated financial condition or results of operation.
12. BUSINESS SEGMENT INFORMATION
The Company's business segments are paperboard/packaging products and
newsprint. Substantially all the Company's operations are in the United States.
The Company's customers represent a diverse range of industries including
paperboard and paperboard packaging, consumer products, wholesale
F-18
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
trade, retailing agri-business, and newspaper publishing located throughout the
United States. Credit is extended based on an evaluation of the customer's
financial condition. The paperboard/packaging products segment includes the
manufacture and distribution of containerboard, boxboard and cylinderboard,
corrugated containers, folding cartons, fibre partitions, spiral cores and
tubes, labels and flexible packaging. A summary by business segment of net
sales, operating profit, identifiable assets, capital expenditures and
depreciation, depletion and amortization follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1993 1992 1991
-------- -------- --------
<S> <C> <C> <C>
Net sales
Paperboard/packaging products............................................. $2,699.5 $2,751.0 $2,653.9
Newsprint................................................................. 248.1 247.4 286.2
-------- -------- --------
$2,947.6 $2,998.4 $2,940.1
-------- -------- --------
-------- -------- --------
Operating profit (loss)
Paperboard/packaging products............................................. $ 13.3 $ 281.4 $ 273.0
Newsprint................................................................. (21.4) (10.3) 36.4
-------- -------- --------
Total operating profit (loss)........................................ (8.1) 271.1 309.4
Interest expense, net.......................................................... (252.7) (298.3) (333.7)
-------- -------- --------
Loss before income taxes, equity in earnings (loss) of affiliates,
minority interests, extraordinary item, and cumulative effect of
accounting changes...................................................... $ (260.8) $ (27.2) $ (24.3)
-------- -------- --------
-------- -------- --------
Identifiable assets
Paperboard/packaging products............................................. $2,153.4 $1,960.6 $1,971.6
Newsprint................................................................. 224.9 235.1 253.1
Corporate assets.......................................................... 218.8 240.7 235.4
-------- -------- --------
$2,597.1 $2,436.4 $2,460.1
-------- -------- --------
-------- -------- --------
Capital expenditures
Paperboard/packaging products............................................. $ 107.2 $ 91.6 $ 114.7
Newsprint................................................................. 10.2 6.3 4.2
-------- -------- --------
$ 117.4 $ 97.9 $ 118.9
-------- -------- --------
-------- -------- --------
Depreciation, depletion and amortization
Paperboard/packaging products............................................. $ 115.2 $ 121.2 $ 116.7
Newsprint................................................................. 15.6 13.7 13.3
-------- -------- --------
$ 130.8 $ 134.9 $ 130.0
-------- -------- --------
-------- -------- --------
</TABLE>
Sales and transfers between segments are not material. Export sales are
less than 10% of total sales. Corporate assets consist principally of cash and
cash equivalents, refundable and deferred income taxes, investments in
affiliates, deferred debt issuance costs and other assets which are not specific
to a segment.
F-19
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
13. SUMMARIZED FINANCIAL INFORMATION OF CCA
Summarized below is financial information for CCA which is the issuer of
the Senior Subordinated Notes, Senior Unsecured Notes, Subordinated Debentures
and Junior Accrual Debentures.
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1993 1992
-------- --------
<S> <C> <C>
ASSETS
Current assets............................................................................. $ 448.1 $ 365.7
Property and timberlands, net.............................................................. 1,073.5 944.5
Due from JSC............................................................................... 1,244.3 1,221.5
Deferred debt issuance costs............................................................... 50.5 64.8
Goodwill................................................................................... 93.7 54.2
Other assets............................................................................... 54.8 46.0
-------- --------
$2,964.9 $2,696.7
-------- --------
-------- --------
LIABILITIES AND STOCKHOLDER'S DEFICIT
Current liabilities........................................................................ $ 264.4 $ 268.4
Long-term debt............................................................................. 2,378.4 2,273.4
Deferred income taxes and other liabilities................................................ 371.6 165.2
Stockholder's deficit...................................................................... (49.5) (10.3)
-------- --------
$2,964.9 $2,696.7
-------- --------
-------- --------
</TABLE>
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1993 1992 1991
-------- -------- --------
<S> <C> <C> <C>
Net sales...................................................................... $1,931.6 $2,014.4 $1,947.6
Cost of goods sold............................................................. 1,647.4 1,655.3 1,587.4
Selling and administrative expenses............................................ 141.8 141.6 136.2
Other.......................................................................... 65.0
Interest expense............................................................... 237.4 277.3 313.6
Interest income from JSC....................................................... 173.2 160.1 159.6
Other income................................................................... .1 5.0 2.4
-------- -------- --------
Income before income taxes, extraordinary item, and cumulative effect of
accounting change....................................................... 13.3 105.3 72.4
Provision for income taxes..................................................... 10.0 51.0 39.0
-------- -------- --------
Income before extraordinary item and cumulative effect of accounting
change.................................................................. 3.3 54.3 33.4
Extraordinary item
Loss from early extinguishment of debt, net of income tax benefits of
$21.7 in 1993 and $25.5 in 1992......................................... (37.8) (49.1)
Cumulative effect of accounting change for postretirement benefits, net of
income tax benefits of $2.7 million.......................................... (4.7)
-------- -------- --------
Net income (loss)......................................................... $ (39.2) $ 5.2 $ 33.4
-------- -------- --------
-------- -------- --------
</TABLE>
F-20
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
DECEMBER 31, 1993
(TABULAR AMOUNTS IN MILLIONS)
Intercompany loans to the Company made in connection with the 1989
Recapitalization ($1,262.0 million at December 31, 1993) are classified as
long-term by CCA and are evidenced by a demand note which bears interest at
12.65%, which was the weighted average interest rate applicable to the bank
credit facilities and the various debt securities sold in connection with the
1989 Recapitalization. Term loans to the Company under the Securitization
Program ($262.5 million at December 31, 1993) are included in CCA's current
assets and bear interest at the average borrowing rate under the Securitization
Program (6.56% at December 31, 1993). Other amounts advanced to or from the
Company are non-interest bearing.
14. QUARTERLY RESULTS (UNAUDITED)
The following is a summary of the unaudited quarterly results of
operations:
<TABLE>
<CAPTION>
FIRST SECOND THIRD FOURTH
QUARTER QUARTER QUARTER QUARTER
------- ------- ------- -------
<S> <C> <C> <C> <C>
1993
Net sales................................................... $735.9 $734.9 $745.7 $731.1
Gross profit................................................ 100.1 99.4 95.8 79.2
Income (loss) from operations(1)............................ 39.8 40.0 (111.6) 17.1
Loss before extraordinary item and cumulative effect of
accounting changes........................................ (15.5) (14.6) (116.7) (27.8)
Loss from early extinguishment of debt...................... (37.8)
Cumulative effect of changes in accounting principles
Postretirement benefits................................ (37.0)
Income taxes........................................... 20.5
Net loss.................................................... (32.0) (52.4) (116.7) (27.8)
1992
Net sales................................................... $741.9 $749.0 $773.0 $734.5
Gross profit................................................ 110.7 121.5 140.5 126.4
Income from operations...................................... 53.7 65.3 83.6 65.1
Income (loss) before extraordinary item..................... (19.9) (11.3) 1.6 (4.4)
Loss from early extinguishment of debt...................... (49.8)
Net loss.................................................... (19.9) (11.3) (48.2) (4.4)
</TABLE>
- ------------
(1) In the third quarter of 1993, the Company recorded a pre-tax charge of $96
million to recognize the effects of a restructuring program designed to
improve the Company's long term competitive position and recorded a pre-tax
charge of $54 million relating primarily to environmental matters.
F-21
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
CONSOLIDATED BALANCE SHEETS
The information presented below for the interim periods is unaudited but,
in the opinion of management, such information reflects all adjustments
(consisting of only normal recurring accruals) necessary for a fair presentation
of the financial data for the interim periods. The results for the interim
periods are not necessarily indicative of the results for a full year.
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1994 1993
-------- ------------
(UNAUDITED)
(IN MILLIONS, EXCEPT SHARE DATA)
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents..... $ 80.9 $ 44.2
Receivables, less allowances
of $8.9 in 1994 and $9.2 in
1993........................ 289.9 243.2
Refundable income taxes....... .2 .7
Inventories
Work-in-process and
finished goods......... 89.6 96.1
Materials and supplies... 128.4 137.2
---------- ----------
218.0 233.3
Deferred income taxes......... 41.8 41.9
Prepaid expenses and other
current assets.............. 3.3 5.2
---------- ----------
Total current
assets............ 634.1 568.5
Property, plant and equipment...... 1,994.6 1,937.7
Less accumulated depreciation
and amortization............ 612.8 563.2
---------- ----------
1,381.8 1,374.5
Timberland, less timber
depletion........................ 259.8 261.5
Deferred debt issuance costs....... 87.4 52.3
Goodwill, less accumulated
amortization of $31.3 in 1994 and
$27.6 in 1993.................... 258.6 261.4
Other assets....................... 98.3 78.9
---------- ----------
$2,720.0 $2,597.1
---------- ----------
---------- ----------
LIABILITIES AND STOCKHOLDERS' DEFICIT
Current liabilities
Current maturities of
long-term debt.............. $ 8.1 $ 10.3
Accounts payable.............. 324.4 270.6
Accrued compensation and
payroll taxes 118.8 110.1
Interest payable.............. 45.2 52.6
Other accrued liabilities..... 93.5 84.9
---------- ----------
Total current
liabilities....... 590.0 528.5
Long-term debt, less current
maturities
Nonsubordinated............... 1,645.3 1,839.4
Subordinated.................. 789.6 779.7
---------- ----------
Total long-term
debt.............. 2,434.9 2,619.1
Other long-term liabilities........ 230.6 257.1
Deferred income taxes.............. 190.2 232.2
Minority interest.................. 17.3 18.0
Stockholders' deficit
Common stock, par value $.01
per share; 1,000 shares
authorized and outstanding
Additional paid-in capital.... 1,118.3 731.8
Retained earnings (deficit)... (1,861.3) (1,789.6)
---------- ----------
Total stockholders'
deficit........... (743.0) (1,057.8)
---------- ----------
$2,720.0 $2,597.1
---------- ----------
---------- ----------
</TABLE>
See notes to consolidated financial statements.
F-22
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
---------------------------------------- --------------------
1994 1993 1994 1993
------------------ ------------------ -------- --------
(UNAUDITED)
(IN MILLIONS)
<S> <C> <C> <C> <C>
Net sales..................... $765.9 $734.9 $1,493.6 $1,470.8
Costs and expenses
Cost of goods sold....... 654.9 634.4 1,284.1 1,268.8
Selling and
administrative
expenses............... 55.4 59.4 107.1 119.7
------- ------- -------- --------
710.3 693.8 1,391.2 1,388.5
Income from operations........ 55.6 41.1 102.4 82.3
Other income (expense)
Interest expense......... (69.3) (62.5) (134.1) (127.7)
Other, net............... 1.7 .8 3.1 2.3
------- ------- -------- --------
(67.6) (61.7) (131.0) (125.4)
Loss before income taxes,
extraordinary item and
cumulative effect of
accounting changes.......... (12.0) (20.6) (28.6) (43.1)
Provision for (benefit from)
income taxes................ (3.6) (6.0) (8.4) (13.0)
------- ------- -------- --------
Loss before extraordinary item
and cumulative effect of
accounting changes.......... (8.4) (14.6) (20.2) (30.1)
Extraordinary item
Loss from early
extinguishment of debt,
net of income tax
benefits............... (51.6) (37.8) (51.6) (37.8)
Cumulative effect of
accounting changes
Post-retirement
benefits............... (37.0)
Income taxes............. 20.5
------- ------- -------- --------
Net loss............ $(60.0) $(52.4) $ (71.8) $ (84.4)
------- ------- -------- --------
------- ------- -------- --------
</TABLE>
See notes to consolidated financial statements.
F-23
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
------------------
1994 1993
-------- ------
(UNAUDITED)
(IN MILLIONS)
<S> <C> <C>
Cash flows from operating activities
Net loss................................................................................ $ (71.8) $(84.4)
Adjustments to reconcile net loss to net cash provided by operating activities
Extraordinary loss from early extinguishment of debt.................................... 83.2 59.5
Cumulative effect of accounting changes
Post-retirement benefits........................................................... 58.9
Income taxes....................................................................... (20.5)
Depreciation, depletion and amortization................................................ 65.6 63.1
Amortization of deferred debt issuance costs............................................ 4.4 4.5
Deferred income taxes................................................................... (42.0) (64.1)
Non-cash interest....................................................................... 10.0 8.6
Non-cash employee benefit expense....................................................... (3.9) (4.6)
Change in current assets and liabilities, net of effects from acquisitions
Receivables........................................................................ (57.6) (11.8)
Inventories........................................................................ 15.3 (9.3)
Prepaid expenses and other current assets.......................................... 2.1 3.2
Accounts payable and accrued liabilities........................................... 1.1 26.3
Interest payable................................................................... (6.4) (2.3)
Income taxes payable............................................................... .6 16.2
Other, net.............................................................................. (6.1) 1.1
-------- ------
Net cash provided by (used for) operating activities.................................... (5.5) 44.4
-------- ------
Cash flows from investing activities
Property additions...................................................................... (55.6) (47.4)
Timberland additions.................................................................... (9.4) (8.3)
Proceeds from property and timberland disposals......................................... 1.0 3.5
-------- ------
Net cash used for investing activities.................................................. (64.0) (52.2)
-------- ------
Cash flows from financing activities
Capital contribution.................................................................... 386.5
Proceeds from long-term borrowings...................................................... 928.4 513.9
Repayment of long-term debt............................................................. (1,131.8) (486.3)
Deferred debt issuance costs............................................................ (76.9) (19.9)
-------- ------
Net cash provided by (used for) financing activities.................................... 106.2 7.7
-------- ------
Increase (decrease) in cash and cash equivalents............................................. 36.7 (.1)
Cash and cash equivalents
Beginning of period..................................................................... 44.2 45.0
-------- ------
End of period........................................................................... $ 80.9 $ 44.9
-------- ------
-------- ------
</TABLE>
See notes to consolidated financial statements.
F-24
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(TABULAR AMOUNTS IN MILLIONS)
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying consolidated financial statements of Jefferson Smurfit
Corporation (U.S.) ('the Company' or 'JSC U.S.') have been prepared in
accordance with the instructions to Form 10-Q and reflect all adjustments which
management believes necessary (which include only normal recurring accruals) to
present fairly the financial position and results of operations. These
statements, however, do not include all information and footnotes necessary for
a complete presentation of financial position, results of operations and cash
flows in conformity with generally accepted accounting principles. Interim
results may not necessarily be indicative of results which may be expected for
any other interim period or for the year as a whole. For further information
refer to the consolidated financial statements and footnotes included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1993, filed
on March 31, 1994 with the Securities and Exchange Commission (the 'JSC U.S.
1993 10-K').
As further explained in the JSC U.S. 1993 10-K, JSC U.S. is a wholly-owned
subsidiary of Jefferson Smurfit Corporation ('JSC'). Prior to May 4, 1994, 50%
of the voting stock of JSC was owned by Smurfit Packaging Corporation and
Smurfit Holdings B.V., indirect wholly-owned subsidiaries of Jefferson Smurfit
Group plc ('JS Group'), a public corporation organized under the laws of the
Republic of Ireland. As of such date, the remaining 50% was owned by the Morgan
Stanley Leveraged Equity Fund II, L.P. ('MSLEF II'). JSC has no operations other
than its investment in JSC U.S.
In May 1994, JSC completed the initial phase of a recapitalization plan
(the 'Recapitalization') to repay or refinance a substantial portion of its
indebtedness in order to improve operating and financial flexibility. In
connection with the Recapitalization, (i) JSC issued and sold 19,250,000 shares
of common stock pursuant to a registered public offering at an initial public
offering price of $13.00 per share, (ii) JS Group, through its wholly-owned
subsidiary Smurfit International B.V. ('SIBV'), purchased an additional
11,538,462 shares of common stock for $150 million, and (iii) Container
Corporation of America ('CCA') issued and sold $300 million aggregate principal
amount of 11.25% Series A Senior Notes due 2004 and $100 million aggregate
principal amount of 10.75% Series B Senior Notes due 2002 pursuant to a
registered public offering. The proceeds from the equity and debt offerings, the
sale to SIBV, and borrowings under a new bank facility, among other things, were
used to repay the Company's outstanding bank debt. The new bank facility
includes a delayed term loan which allows the Company to redeem its Subordinated
Debentures and pay related premiums on approximately December 1, 1994, as the
second phase of the Recapitalization. December 1, 1994 is the earliest date the
Subordinated Debentures may be redeemed.
In connection with the recapitalization as discussed above, in May 1994,
the Company changed its name to Jefferson Smurfit Corporation (U.S.) and
Holdings changed its name to Jefferson Smurfit Corporation.
2. SUMMARIZED FINANCIAL INFORMATION OF CONTAINER CORPORATION OF AMERICA
The following summarized financial information is presented for CCA, a
wholly-owned subsidiary of the Company. CCA is the issuer of the Senior
Subordinated Notes, the Subordinated Debentures and the Junior Subordinated
Accrual Debentures, as defined in the JSC U.S. 1993 10-K. These securities are
guaranteed by JSC.
F-25
<PAGE>
JEFFERSON SMURFIT CORPORATION (U.S.)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(TABULAR AMOUNTS IN MILLIONS)
(UNAUDITED)
Condensed consolidated balance sheets:
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1994 1993
-------- ------------
<S> <C> <C>
Current assets..................................................... $ 620.9 $ 448.1
Property, plant and equipment and timberlands, net................. 1,081.1 1,073.5
Due from JSC....................................................... 1,260.2 1,244.3
Deferred debt issuance costs....................................... 86.0 50.5
Goodwill........................................................... 92.3 93.7
Other assets....................................................... 57.3 54.8
-------- ------------
Total assets.................................................. $3,197.8 $2,964.9
-------- ------------
-------- ------------
Current liabilities................................................ $ 345.5 $ 264.4
Long-term debt..................................................... 2,176.2 2,378.4
Deferred income taxes and other liabilities........................ 361.9 371.6
Stockholder's equity (deficit)..................................... 314.2 (49.5)
-------- ------------
Total liabilities and stockholder's deficit................... $3,197.8 $2,964.9
-------- ------------
-------- ------------
</TABLE>
Condensed consolidated statement of operations:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
---------------------------------------- ------------------------------------
1994 1993 1994 1993
<S> <C> <C> <C> <C>
Net sales..................................... $516.8 $480.7 $1,003.4 $964.8
Costs and expenses............................ 477.8 444.6 928.8 888.8
Interest expense.............................. 64.2 58.6 124.6 119.2
Interest income from JSC...................... 45.5 42.5 89.5 85.3
Other income, net............................. 5.4 5.6 .1
------- ------- -------- -------
Income before income taxes, extraordinary item
and cumulative effect of accounting
change...................................... 25.7 20.0 45.1 42.2
Provision for income taxes.................... 9.1 8.3 16.3 17.0
Extraordinary item
Loss from early extinguishment of debt,
net of income tax benefits............. (51.6) (37.8) (51.6) (37.8)
Cumulative effect of change in accounting for
post-retirement benefits.................... (4.7)
------- ------- --------- -------
Net loss............................ $(35.0) $(26.1) $ (22.8) $(17.3)
------- ------- --------- -------
------- ------- --------- -------
</TABLE>
F-26
<PAGE>
[Logo]
CONTAINER CORPORATION OF AMERICA
JEFFERSON SMURFIT CORPORATION (U.S.)
<PAGE>
APPENDIX
Graphic And Image Information
On page 6 of the paper format:
GRAPHIC REPRESENTATION of the corporate structure and principal assets and
indebtedness of Jefferson Smurfit Corporation* ('Holdings'), Jefferson
Smurfit Corporation (U.S.)* ('JSC' and, including its consolidated subsidiaries,
the 'Company') and Container Corporation of America ('CCA'), illustrating that:
(i) the principal assets of Holdings include 100% of the stock of JSC, (ii) the
principal assets of JSC include 100% of the stock of CCA, 80% of the stock of
Smurfit Newsprint Corporation, paper mills, converting facilities and other
operating assets, (iii) the principal assets of CCA include paper mills,
converting facilities, timberland and other operating assets, (iv) JSC's
indebtedness consists of Senior Obligations** (New Revolving Credit Facility,
Guarantees of CCA debt under New Revolving Credit Facility, Initial Term Loan,
Delayed Term Loan***, Senior Notes and 1994 Notes), other indebtedness **** and
Subordinated Obligations (None***) and (v) CCA's indebtedness consists of Senior
Obligations** (New Revolving Credit Facility, Initial Term Loan, Delayed Term
Loan***, Guarantee of JSC debt under New Revolving Credit Facility, Senior Notes
and 1994 Notes), other indebtedness and Subordinated Obligations (None***). The
asterisks relate to the four footnotes following the graphic representation.
On page 44 of the paper format:
GRAPHIC REPRESENTATION of the relationship between the change in Gross Domestic
Product ('GDP') and the change in containerboard production from 1983 to 1993.
For each year during the period 1983-1993, the annual percentage change in GDP
was 3.9%, 6.2%, 3.2%, 2.9%, 3.1%, 3.9%, 2.5%, 1.2%, (0.7)%, 2.6% and 2.9%,
respectively. During this same period, the annual percentage change in
containerboard production was 10.2%, 7.1%, (3.7)%, 8.4%, 7.1%, 1.8%, 1.1%, 3.7%,
2.2%, 4.2% and 1.0%, respectively. The source of the containerboard production
data is the American Forest and Paper Association.
On page 45 of the paper format:
GRAPHIC REPRESENTATION of the relationship between the level of containerboard
capacity utilization and linerboard prices from 1983 to 1993. For each year
during the period 1983-1993, annual containerboard capacity utilization was
90.4%, 94.5%, 90.3%, 95.2%, 97.8%, 95.4%, 94.6%, 95.1%, 95.2%, 95.6% and 93.7%,
respectively. For each year during this same period, unbleached kraft linerboard
prices per short ton (42 lb., Eastern Market) were $290, $335, $274, $295, $361,
$403, $405, $378, $336, $345 and $316, respectively (1983-1984 prices are as of
December 31. 1985-1993 prices reflect the average of the four quarter-end
prices). The source of the containerboard capacity utilization data is the
American Forest and Paper Association. The source of the linerboard prices is
the Pulp and Paper North American Factbook.
On page 46 of the paper format:
GRAPHIC REPRESENTATION of the level of boxboard capacity utilization from 1983
to 1993. For each year during the period 1983-1993, annual boxboard capacity
utilization was 89.9%, 92.9%, 87.5%, 89.5%, 90.2%, 92.2%, 92.8%, 90.7%, 93.5%,
92.6% and 94.8%, respectively. The source of this data is the American Forest
and Paper Association.
On page 47 of the paper format:
GRAPHIC REPRESENTATION of the level of newsprint capacity utilization in the
United States and Canada from 1983 to 1993. For each year during the period
1983-1993, U.S. newsprint capacity utilization was 89.5%, 94.7%, 93.8%, 97.0%,
97.3%, 97.8%, 96.7%, 97.3%, 97.0%, 97.0% and 98.0%, respectively. For each year
during this same period, Canadian newsprint capacity utilization was 85.1%,
91.8%, 91.4%, 93.9%, 97.7%, 98.9%, 96.2%, 89.8%, 87.3%, 88.6% and 95.7%,
respectively. The source of these figures is the American Forest and Paper
Association.
<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 the
Co-Registrants 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>
Security and Exchange Commission registration fee................................................... $ 156,250
National Association of Securities Dealers, Inc. filing fee......................................... 30,500
Blue Sky and legal investment fees and expenses (including fees of counsel)......................... 35,000
Printing and engraving expenses..................................................................... 500,000
Legal fees and expenses............................................................................. 900,000
Accounting fees and expenses........................................................................ 200,000
Miscellaneous....................................................................................... 20,000
----------
Total..................................................................................... $1,841,750
----------
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Co-Registrants provide the Co-Registrants with the
authority to indemnify their directors, officers, employees and agents to the
full extent allowed by Delaware law. Holdings maintains an insurance policy
which provides directors and officers of the Co-Registrants with coverage in
connection with certain events.
See Item 17 for the Co-Registrants' undertaking with respect to
indemnification.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<C> <S>
1.1* Form of Underwriting Agreement.
3.1 Restated Certificate of Incorporation of JSC.
3.2 Restated Certificate of Incorporation of CCA.
3.3 By-laws of JSC.
3.4 By-laws of CCA.
4.1 Indenture for the Series A Senior Notes (incorporated by reference to Exhibit 4.1 to
Holdings' quarterly report on Form 10-Q for the quarter ended March 31, 1994).
4.2 Indenture for the Series B Senior Notes (incorporated by reference to Exhibit 4.2 to
Holdings' quarterly report on Form 10-Q for the quarter ended March 31, 1994).
4.3 Indenture for the Senior 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 Senior 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.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
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 Stockholders Agreement among Holdings, SIBV, MSLEF II and certain related entities
(incorporated by reference to Exhibit 10.2 to Holdings' quarterly report on Form 10-Q for
the quarter ended March 31, 1994).
10.3 Registration Rights Agreement among Holdings, MSLEF II and SIBV (incorporated by reference
to Exhibit 10.3 to Holdings' quarterly report on Form 10-Q for the quarter ended March 31,
1994).
10.4 Subscription Agreement among Holdings, JSC, CCA and SIBV (incorporated by reference to
Exhibit 10.4 to Holdings' quarterly report on Form 10-Q for the quarter ended March 31,
1994).
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).
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(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).
10.12(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).
10.13 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)).
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
10.14 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)).
10.15 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).
10.16(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).
10.16(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)).
10.17 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)).
10.18 Credit Agreement, among JSC, CCA and the banks parties thereto (incorporated by reference
to Exhibit 10.1 to Holdings' quarterly report on Form 10-Q for the quarter ended March 31,
1994).
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 LLP.
24.1 Powers of Attorney (other than those previously filed).
25.1* Statement on Form T-1 of the eligibility of NationsBank of Georgia, National Association,
as Trustee under the Senior Note Indenture (bound separately).
27.1 Financial Data Schedule.
27.2 Financial Data Schedule.
</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.
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.
II-3
<PAGE>
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>
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
Post-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, on September 6, 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
Post-Effective Amendment No. 1 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 September 6, 1994
......................................... (Principal Financial and Accounting
JOHN R. FUNKE Officer)
* Director
.........................................
HOWARD E. KILROY
* Director
.........................................
JAMES R. THOMPSON
* Director
.........................................
DONALD P. BRENNAN
* Director
.........................................
ALAN E. GOLDBERG
* Director
.........................................
DAVID R. RAMSAY
</TABLE>
*By /s/ JOHN R. FUNKE
..................................
JOHN R. FUNKE
ATTORNEY-IN-FACT
SEPTEMBER 6, 1994
II-5
<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
Post-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, on September 6, 1994.
JEFFERSON SMURFIT CORPORATION (U.S.)
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
Post-Effective Amendment No. 1 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 September 6, 1994
......................................... (Principal Financial and Accounting
JOHN R. FUNKE Officer)
* Director
.........................................
HOWARD E. KILROY
* Director
.........................................
JAMES R. THOMPSON
* Director
.........................................
DONALD P. BRENNAN
* Director
.........................................
ALAN E. GOLDBERG
* Director
.........................................
DAVID R. RAMSAY
</TABLE>
*By /s/ JOHN R. FUNKE
..................................
JOHN R. FUNKE
ATTORNEY-IN-FACT
SEPTEMBER 6, 1994
II-6
<PAGE>
STATEMENT OF DIFFERENCES
The registered trademark symbol shall be expressed as 'r'
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
---------------- ----------------------------------------------------------------------------------- ----
<C> <S> <C>
<CAPTION>
.1* 1 Form of Underwriting Agreement.
<C> <S> <C>
3.1 Restated Certificate of Incorporation of JSC.
3.2 Restated Certificate of Incorporation of CCA.
3.3 By-laws of JSC.
3.4 By-laws of CCA.
4.1 Indenture for the Series A Senior Notes (incorporated by reference to Exhibit 4.1
to Holdings' quarterly report on Form 10-Q for the quarter ended March 31, 1994).
4.2 Indenture for the Series B Senior Notes (incorporated by reference to Exhibit 4.2
to Holdings' quarterly report on Form 10-Q for the quarter ended March 31, 1994).
4.3 Indenture for the Senior 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 Senior 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 Stockholders Agreement among Holdings, SIBV, MSLEF II and certain related entities
(incorporated by reference to Exhibit 10.2 to Holdings' quarterly report on Form
10-Q for the quarter ended March 31, 1994).
10.3 Registration Rights Agreement among Holdings, MSLEF II and SIBV (incorporated by
reference to Exhibit 10.3 to Holdings' quarterly report on Form 10-Q for the
quarter ended March 31, 1994).
10.4 Subscription Agreement among Holdings, JSC, CCA and SIBV (incorporated by reference
to Exhibit 10.4 to Holdings' quarterly report on Form 10-Q for the quarter ended
March 31, 1994).
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>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
---------------- ----------------------------------------------------------------------------------- ----
<C> <S> <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(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).
10.12(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).
10.13 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)).
10.14 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)).
10.15 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).
10.16(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).
10.16(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)).
10.17 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)).
10.18 Credit Agreement, among JSC, CCA and the banks parties thereto (incorporated by
reference to Exhibit 10.1 to Holdings' quarterly report on Form 10-Q for the
quarter ended March 31, 1994).
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 LLP.
24.1 Powers of Attorney (other than those previously filed).
25.1* Statement on Form T-1 of the eligibility of NationsBank of Georgia, National
Association, as Trustee under the Senior Note Indenture (bound separately).
27.1 Financial Data Schedule.
27.2 Financial Data Schedule.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION PAGE
---------------- ----------------------------------------------------------------------------------- ----
<C> <S> <C>
</TABLE>
(b) ** Financial Statement Schedules:
<TABLE>
<C> <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.
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
JEFFERSON SMURFIT CORPORATION
JEFFERSON SMURFIT CORPORATION, a Delaware corporation,
the original Certificate of Incorporation of which was filed with
the Secretary of State of the State of Delaware on November 15,
1976, HEREBY CERTIFIES that this Restated Certificate of Incorpo-
ration, restating, integrating and amending its Certificate of
Incorporation, was duly adopted in accordance with Sections 228,
242 and 245 of the General Corporation Law of the State of
Delaware.
FIRST: The name of the Corporation is Jefferson
Smurfit Corporation (U.S.)(the 'Corporation').
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust Compa-
ny.
THIRD: The purpose of the Corporation is to engage in
any lawful act or activity for which a corporation may be orga-
nized under the General Corporation Law of the State of Delaware
(the 'GCL').
FOURTH: The total number of shares of capital stock
which the Corporation shall have authority to issue is 1,000
shares of common stock, par value $.0l per share (the 'Common
Stock').
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and regula-
tion of the powers of the Corporation and of its directors and
stockholders:
(1) The business and affairs of the
Corporation shall be managed by or under the
direction of the Board of Directors.
(2) The directors shall have concurrent
power with the stockholders to make, alter,
amend, change, add to or repeal the By-Laws
of the Corporation.
<PAGE>
(3) The number of directors of the
Corporation shall be as from time to time
fixed by, or in the manner provided in, the
By-Laws of the Corporation. Election of
directors need not be by written ballot un-
less the By-Laws so provide.
(4) No director shall be personally
liable to the Corporation or any of its stock-
holders for monetary damages for breach of
fiduciary duty as a director, except for
liability (i) for breach of the director's
duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not
in good faith or which involve intentional
misconduct or a knowing violation of law,
(iii) pursuant to Section l74 of the GCL or
(iv) for any transaction from which the di-
rector derived an improper personal benefit.
Any alteration, amendment or repeal of this
Article FIFTH by the stockholders of the
Corporation shall not adversely affect any
right or protection of a director of the
Corporation existing at the time of such
alteration, amendment or repeal with respect
to acts or omissions occurring prior to such
alteration, amendment or repeal.
(5) In addition to the powers and au-
thority hereinbefore or by statute expressly
conferred upon them, the directors are hereby
empowered to exercise all such powers and do
all such acts and things as may be exercised
or done by the Corporation, subject, never-
theless, to the provisions of the GCL, this
Restated Certificate of Incorporation, and
any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate
any prior act of the directors which would
have been valid if such By-Laws had not been
adopted.
SIXTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The
books of the Corporation may be kept (subject to any provision
contained in the GCL) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of
Directors or in the By-Laws of the Corporation.
2
<PAGE>
SEVENTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, and all rights conferred upon
stockholders hereby are granted subject to this reservation.
3
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed in its name and attested by its duly
authorized officers this 11th day of May, 1994.
JEFFERSON SMURFIT CORPORATION
By: /s/ James E. Terrill
------------------------
President
ATTEST:
/s/ Craig Hunt
-----------------------
Assistant Secretary
4
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION
OF
CONTAINER CORPORATION OF AMERICA
CONTAINER CORPORATION OF AMERICA, a Delaware corpora-
tion, the original Certificate of Incorporation of which was
filed with the Secretary of State of the State of Delaware on
July 23, 1986, HEREBY CERTIFIES that this Restated Certificate of
Incorporation, restating, integrating and amending its Certifi-
cate of Incorporation, was duly adopted in accordance with
Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware. The original name was Concora Corporation.
FIRST: The name of the Corporation is Container
Corporation of America (the 'Corporation').
SECOND: The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust Compa-
ny.
THIRD: The purpose of the Corporation is to engage in
any lawful act or activity for which a corporation may be orga-
nized under the General Corporation Law of the State of Delaware
(the 'GCL').
FOURTH: The total number of shares of capital stock
which the Corporation shall have authority to issue is 1,000
shares of common stock, par value $.0l per share (the 'Common
Stock').
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the
Corporation, and for further definition, limitation and regula-
tion of the powers of the Corporation and of its directors and
stockholders:
(1) The business and affairs of the
Corporation shall be managed by or under the
direction of the Board of Directors.
(2) The directors shall have concurrent
power with the stockholders to make, alter,
amend, change, add to or repeal the By-Laws
of the Corporation.
<PAGE>
(3) The number of directors of the
Corporation shall be as from time to time
fixed by, or in the manner provided in, the
By-Laws of the Corporation. Election of
directors need not be by written ballot un-
less the By-Laws so provide.
(4) No director shall be personally
liable to the Corporation or any of its stock-
holders for monetary damages for breach of
fiduciary duty as a director, except for
liability (i) for breach of the director's
duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not
in good faith or which involve intentional
misconduct or a knowing violation of law,
(iii) pursuant to Section l74 of the GCL or
(iv) for any transaction from which the di-
rector derived an improper personal benefit.
Any alteration, amendment or repeal of this
Article FIFTH by the stockholders of the
Corporation shall not adversely affect any
right or protection of a director of the
Corporation existing at the time of such
alteration, amendment or repeal with respect
to acts or omissions occurring prior to such
alteration, amendment or repeal.
(5) In addition to the powers and au-
thority hereinbefore or by statute expressly
conferred upon them, the directors are hereby
empowered to exercise all such powers and do
all such acts and things as may be exercised
or done by the Corporation, subject, never-
theless, to the provisions of the GCL, this
Restated Certificate of Incorporation, and
any By-Laws adopted by the stockholders;
provided, however, that no By-Laws hereafter
adopted by the stockholders shall invalidate
any prior act of the directors which would
have been valid if such By-Laws had not been
adopted.
SIXTH: Meetings of stockholders may be held within or
without the State of Delaware, as the By-Laws may provide. The
books of the Corporation may be kept (subject to any provision
contained in the GCL) outside the State of Delaware at such place
or places as may be designated from time to time by the Board of
Directors or in the By-Laws of the Corporation.
2
<PAGE>
SEVENTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Restated
Certificate of Incorporation, and all rights conferred upon
stockholders hereby are granted subject to this reservation.
3
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed in its name and attested by its duly
authorized officers this 11th day of May, 1994.
CONTAINER CORPORATION
OF AMERICA
By: /s/ James E. Terrill
------------------------
President
ATTEST:
/s/ Craig Hunt
- ------------------------
Assistant Secretary
4
<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 Wilmin-
gton, 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
<PAGE>
than ten (10) nor more than sixty (60) days before the
date of the meeting.
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
2
<PAGE>
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
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
3
<PAGE>
inspected by any stockholder of the Corporation who is
present.
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
4
<PAGE>
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 (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
5
<PAGE>
declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
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)
6
<PAGE>
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
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 accordance with Section 5 of this
Article III. 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
7
<PAGE>
elected and qualified, or until his earlier death or
incapacity, resignation, retirement, disqualification or
removal from office. Any director 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 incapaci-
ty, 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 Stockholders
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, retire-
ment, 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
8
<PAGE>
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 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 telephone, tele-
gram on twenty-four (24) hours' notice, or on such short-
er 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 Incorporation 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; pro-
vided, 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 directors who are
MSLEF II Nominees, shall be required to authorize the ac-
tions 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 Directors 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:
9
<PAGE>
'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.
'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 May 3, 1994, among SIBV/MS
Holdings, Inc. (to be renamed Jefferson Smurfit Corpora-
tion), 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 members 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
proceedings of the Board of Directors or such committee.
10
<PAGE>
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
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 commit-
tee by the Board of Directors. The Board of Directors
may designate one or more directors as alternate members
of any committee, who may replace any absent or disquali-
fied 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 committee, to the extent allowed by law
and provided in the resolution establishing such commit-
tee, 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 com-
mittee shall keep regular minutes and report to the Board
of Directors when required.
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.
11
<PAGE>
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
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
12
<PAGE>
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.
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
Corporation 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-
13
<PAGE>
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
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
14
<PAGE>
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-
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
15
<PAGE>
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
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
16
<PAGE>
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.
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.
17
<PAGE>
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.
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
18
<PAGE>
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-
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
19
<PAGE>
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.
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
20
<PAGE>
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-
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
21
<PAGE>
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
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.
22
<PAGE>
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
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
23
<PAGE>
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
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,
24
<PAGE>
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
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,
25
<PAGE>
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.
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
26
<PAGE>
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.
27
<PAGE>
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 any issuance or sale to the
Corporation or Holdings or any direct or indirect wholly
owned subsidiary of Holdings).
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 busi-
ness).
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 subsidiar-
ies' 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 Wilming-
ton, 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
<PAGE>
than ten (10) nor more than sixty (60) days before the
date of the meeting.
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
2
<PAGE>
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
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
3
<PAGE>
inspected by any stockholder of the Corporation who is
present.
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
4
<PAGE>
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 (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
5
<PAGE>
declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
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)
6
<PAGE>
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
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 accordance with Section 5 of this Article III.
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 direc-
tor so elected shall hold office until the next such
annual meeting and until his successor is duly
7
<PAGE>
elected and qualified, or until his earlier death or incapa-
city, resignation, retirement, disqualification or removal
from office. Any director 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 incapaci-
ty, 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 Stockholders
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, retire-
ment, 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
8
<PAGE>
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 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 telephone, tele-
gram, 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 appro-
priate in the circumstances.
Section 5. Quorum; Actions by Board. Except
as may be otherwise specifically provided by law, the
Certificate of Incorporation 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; pro-
vided, 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 directors who are
MSLEF II Nominees, shall be required to authorize the ac-
tions 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 Directors 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:
9
<PAGE>
'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.
'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 May 3, 1994, among SIBV/MS
Holdings, Inc. (to be renamed Jefferson Smurfit Corpora-
tion), 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 members 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
proceedings of the Board of Directors or such committee.
10
<PAGE>
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
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 commit-
tee by the Board of Directors. The Board of Directors
may designate one or more directors as alternate members
of any committee, who may replace any absent or disquali-
fied 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 committee, to the extent allowed by law
and provided in the resolution establishing such commit-
tee, 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 com-
mittee shall keep regular minutes and report to the Board
of Directors when required.
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.
11
<PAGE>
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
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
12
<PAGE>
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.
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
Corporation 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-
13
<PAGE>
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
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
14
<PAGE>
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-
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
15
<PAGE>
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
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
16
<PAGE>
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.
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.
17
<PAGE>
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.
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
18
<PAGE>
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-
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
19
<PAGE>
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.
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
20
<PAGE>
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-
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
21
<PAGE>
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
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.
22
<PAGE>
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
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
23
<PAGE>
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
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,
24
<PAGE>
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
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,
25
<PAGE>
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.
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
26
<PAGE>
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.
27
<PAGE>
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 any issuance or sale to the
Corporation or Holdings or any direct or indirect wholly
owned subsidiary of Holdings).
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 busi-
ness).
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 subsidiar-
ies' 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, 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.
<PAGE>
THE COMPANY
CALCULATION OF HISTORICAL RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
------------------- -----------------------------------------------------
1994 1993 1993 1992 1991 1990 1989
------- ------- -------- ------- ------- ------ ------
(DOLLAR AMOUNTS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
Income (loss) before income taxes, equity in
earnings (loss) of affiliates, minority
interests, extraordinary item and
cumulative effect of accounting changes.... $(28.6) $(22.5) $(260.8) $(27.2) $(24.3) $ 64.7 $155.6
Add (deduct):
Earnings before income taxes of
unconsolidated foreign subsidiaries... 19.5
Interest expense........................ 134.1 127.7 254.2 300.1 335.2 337.8 119.1
Interest expense of unconsolidated
foreign subsidiaries.................. 2.8
Interest component of rental expense.... 6.0 5.6 11.3 10.6 9.7 9.3 8.6
------- ------- -------- ------- ------- ------ ------
Earnings available for fixed charges......... $ 111.5 $ 110.8 $ 4.7 $ 283.5 $ 320.6 $411.8 $305.6
------- ------- -------- ------- ------- ------ ------
------- ------- -------- ------- ------- ------ ------
Fixed charges:
Interest expense(a)..................... $ 134.1 $ 127.7 $ 254.2 $ 300.1 $ 335.2 $337.8 $119.1
Interest expense of unconsolidated
foreign subsidiaries.................. 2.8
Capitalized interest.................... 1.5 1.8 3.4 4.2 2.4 5.8 6.0
Interest component of rental expense.... 6.0 5.6 11.3 10.6 9.7 9.3 8.6
------- ------- -------- ------- ------- ------ ------
Total fixed charges................ $ 141.6 $ 135.1 $ 268.9 $ 314.9 $ 347.3 $352.9 $136.5
------- ------- -------- ------- ------- ------ ------
------- ------- -------- ------- ------- ------ ------
Ratio of earnings to fixed charges........... (b) (b) (b) (b) (b) 1.17 2.24
------- ------- -------- ------- ------- ------ ------
------- ------- -------- ------- ------- ------ ------
</TABLE>
- ------------
(a) For the six months ended June 30, 1994 and 1993 and for the years ended
December 31, 1993, 1992, 1991, 1990 and 1989, interest expense includes
amortization of deferred debt issuance costs of $4.4 million, $4.5 million,
$7.9 million, $14.6 million, $17.6 million, $16.9 million and $3.2 million,
respectively.
(b) For the six months ended June 30, 1994 and 1993 and for the years ended
December 31, 1993, 1992 and 1991, earnings were inadequate to cover fixed
charges by $30.1 million, $24.3 million, $264.2 million, $31.4 million and
$26.7 million, respectively.
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption 'Experts' and to
the use of our report dated January 28, 1994, in the Post-Effective Amendment
No. 1 to the Registration Statement (Form S-2 No. 33-58348) and related
Prospectus of Container Corporation of America and Jefferson Smurfit Corporation
(U.S.) (formerly Jefferson Smurfit Corporation) for the registration of $500
million aggregate principal amount of 9 3/4 percent Senior Notes due 2003
guaranteed on a senior basis by Jefferson Smurfit Corporation (U.S.).
ERNST & YOUNG LLP
St. Louis, Missouri
August 31, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that the under-
signed hereby constitutes and appoints John R. Funke,
Patrick J. Moore and James E. Terrill, each with full
power to act without the others as his true and lawful
attorneys-in-fact and agents with full power of substitu-
tion and resubstitution for him and in his name, place
and stead, in any and all capacities, (i) to sign any and
all post-effective amendments to the Registration State-
ment on Form S-1 (file no. 33-31212) (the 'Subordinated
Debt Registration Statement') of Container Corporation of
America ('CCA'), as co-registrant, and Jefferson Smurfit
Corporation (U.S.) ('JSC'), as co-registrant, to be filed
under the Securities Act of 1933, as amended, with re-
spect to the subordinated notes issued by CCA and guaran-
teed by JSC, (ii) to sign any and all post-effective
amendments to the Registration Statement on Form S-2
(file no. 33-58348) (the '1993 Note Registration State-
ment') of Container Corporation of America ('CCA'), as
co-registrant, and Jefferson Smurfit Corporation (U.S.)
('JSC'), as co-registrant, to be filed under the Securi-
ties Act of 1933, as amended, with respect to the senior
notes issued in 1993 by CCA and guaranteed by JSC, and
(iii) to file any post-effective amendments to the Subor-
dinated Debt Registration Statement and the 1993 Note
Registration Statement, in each case, together with all
exhibits thereto and other documents in connection there-
with, with the Securities and Exchange Commission and
such other state and federal government commissions and
agencies as may be necessary, granting unto said attor-
neys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and con-
firming all that said attorneys-in-fact and agents, or
their or his substitute or substitutes, lawfully do or
cause to be done by virtue hereof.
/s/ James R. Thompson
----------------------------
Signature
James R. Thompson
----------------------------
(Print Name)
August 31, 1994
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CIK> 798916
<NAME> CONTAINER CORPORATION OF AMERICA
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> JUN-30-1994
<CASH> 80,900
<SECURITIES> 0
<RECEIVABLES> 298,800
<ALLOWANCES> 8,900
<INVENTORY> 218,000
<CURRENT-ASSETS> 634,100
<PP&E> 1,994,600
<DEPRECIATION> 612,800
<TOTAL-ASSETS> 2,704,000
<CURRENT-LIABILITIES> 590,000
<BONDS> 2,434,900
<COMMON> 1,100
0
0
<OTHER-SE> (760,100)
<TOTAL-LIABILITY-AND-EQUITY> 2,704,000
<SALES> 1,493,600
<TOTAL-REVENUES> 1,493,600
<CGS> 1,284,100
<TOTAL-COSTS> 1,284,100
<OTHER-EXPENSES> 107,100
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 134,100
<INCOME-PRETAX> (28,600)
<INCOME-TAX> (8,400)
<INCOME-CONTINUING> (20,200)
<DISCONTINUED> 0
<EXTRAORDINARY> (51,600)
<CHANGES> 0
<NET-INCOME> (71,800)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<CIK> 727742
<NAME> JEFFERSON SMURFIT CORPORATION (U.S)
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> JUN-30-1994
<CASH> 80,900
<SECURITIES> 0
<RECEIVABLES> 298,800
<ALLOWANCES> 8,900
<INVENTORY> 218,000
<CURRENT-ASSETS> 634,100
<PP&E> 1,994,600
<DEPRECIATION> 612,800
<TOTAL-ASSETS> 2,704,000
<CURRENT-LIABILITIES> 590,000
<BONDS> 2,434,900
<COMMON> 1,100
0
0
<OTHER-SE> (760,100)
<TOTAL-LIABILITY-AND-EQUITY> 2,704,000
<SALES> 1,493,600
<TOTAL-REVENUES> 1,493,600
<CGS> 1,284,100
<TOTAL-COSTS> 1,284,100
<OTHER-EXPENSES> 107,100
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 134,100
<INCOME-PRETAX> (28,600)
<INCOME-TAX> (8,400)
<INCOME-CONTINUING> (20,200)
<DISCONTINUED> 0
<EXTRAORDINARY> (51,600)
<CHANGES> 0
<NET-INCOME> (71,800)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
