Securities and Exchange Commission
Washington, D.C. 20549
Form 10-K
Annual Report Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
For the fiscal year ended Commission File
December 31, 1994 Number 0-11951
JSCE, Inc.
(Successor corporation to Jefferson Smurfit Corporation (U.S.))
(Exact name of registrant as specified in its charter)
Delaware 37-1337160
State of incorporation or organization) (I.R.S. Employer Identification)
Jefferson Smurfit Centre
8182 Maryland Avenue
St. Louis, Missouri, 63105
(Address of principal executive offices) (Zip Code)
Registrant's Telephone Number: (314) 746-1100
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether Registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days.
Yes x No
Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulation S-K is not contained herein, and will not be
contained, to the best of the Registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III
of this Form 10-K or any amendment to this Form 10-K. [X]
As of February 10, 1995, none of the Registrant's voting stock was held
by non-affiliates.
The number of shares outstanding of the Registrant's common stock as of
February 10, 1995: 1,000
DOCUMENTS INCORPORATED BY REFERENCE: NONE
<PAGE>
JEFFERSON SMURFIT CORPORATION
Annual Report on Form 10-K
December 31, 1994
TABLE OF CONTENTS
PART I
Page
Item 1. Business . . . . . . . . . . . . . . . . . . . . . . . . . 1
Item 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . 8
Item 3. Legal Proceedings. . . . . . . . . . . . . . . . . . . . . 8
Item 4. Submission of Matters to a Vote of Security Holders. . . .12
PART II
Item 5. Market for Registrant's Common Equity and
Related Stockholder Matters. . . . . . . . . . . . . . . . .12
Item 6. Selected Financial Data. . . . . . . . . . . . . . . . . . .13
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations . . . . . . . . . . .15
Item 8. Financial Statements and Supplementary Data. . . . . . . . .24
Item 9. Changes in and Disagreements with Accountants
on Accounting and Financial Disclosure . . . . . . . . . . .48
PART III
Item 10. Directors and Executive Officers of the Registrant . . . . .48
Item 11. Executive Compensation . . . . . . . . . . . . . . . . . . .52
Item 12. Security Ownership of Certain Beneficial Owners and
Management . . . . . . . . . . . . . . . . . . . . . . . . .63
Item 13. Certain Relationships and Related Transactions . . . . . . .64
Item 14. Exhibits, Financial Statement Schedules and Reports
on Form 8-K. . . . . . . . . . . . . . . . . . . . . . . . .67
<PAGE>
PART I
ITEM 1. BUSINESS
SUMMARY OF SIGNIFICANT TRANSACTIONS
Jefferson Smurfit Corporation (formerly SIBV/MS Holdings, Inc.),
hereinafter referred to as "JSC", owns 100% of the equity interest
in JSCE, Inc. ("JSCE"). JSC has no operations other than its
investment in JSCE. On December 31, 1994, Jefferson Smurfit
Corporation (U.S.), a wholly-owned subsidiary of JSC, merged into
its wholly-owned subsidiary, Container Corporation of America
("CCA"), with CCA surviving and changing its name to Jefferson
Smurfit Corporation (U.S.) ("JSC (U.S.)"). JSCE owns a 100% equity
interest in JSC (U.S.) and is the guarantor of JSC (U.S.)'s senior
indebtedness. 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. The remaining 50% was owned by The Morgan
Stanley Leveraged Equity Fund II, L.P. ("MSLEF II") and certain
other investors.
In May 1994, JSC completed 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,
(iii) JSC (U.S.) 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 "1994 Senior Notes")
and (iv) JSC (U.S.) entered into a new bank credit facility (the
"1994 Credit Agreement") which consists of a $450 million revolving
credit facility (the "New Revolving Credit Facility") of which up
to $150 million may consist of letters of credit, a $900 million
Tranche A term loan and a $300 million Tranche B term loan. The
proceeds from the equity and debt offerings, the sale to SIBV and
borrowings under a new bank facility were used, among other things,
to repay outstanding bank debt. The new bank facility enabled JSC
(U.S.) to consummate the Subordinated Debt Refinancing which
consisted of the redemption of the 13.5% Senior Subordinated Notes
due 1999, 14.0% Subordinated Debentures due 2001 and 15.5% Junior
Subordinated Accrual Debentures due 2004 (collectively, the
"Subordinated Debt") and the payment of related premiums on
December 1, 1994.
All references hereinafter to the "Company" shall, as the contract
may require, refer collectively to CCA and Jefferson Smurfit
Corporation (U.S.) prior to the Merger or JSC, JSCE and JSC (U.S.).
GENERAL
The Company operates in two business segments, Paperboard/Packaging
Products and Newsprint. 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 addition, the Company believes it is one of
the nation's largest producers of recycled newsprint.
<PAGE>
The Company's Paperboard/Packaging Products segment includes a
system of 16 paperboard mills that, in 1994, produced 1,932,000
tons of virgin and recycled containerboard, 767,000 tons of coated
and uncoated recycled boxboard and solid bleached sulfate ("SBS")
and 209,000 tons of recycled cylinderboard, which were sold to the
Company's own converting operations and to third parties. The
Company's converting operations consist of 52 corrugated container
plants, 18 folding carton plants, and 20 industrial packaging
plants located across the country, with three plants located
outside the U.S. In 1994, the Company's container plants converted
2,018,000 tons of containerboard, an amount equal to approximately
104.5% of the amount it produced, its folding carton plants
converted 543,000 tons of SBS, recycled boxboard and coated natural
kraft, an amount equal to approximately 70.8% of the amount of
boxboard it produced, and its industrial packaging plants converted
128,000 tons of recycled cylinderboard, an amount equal to
approximately 61.1% of the amount it produced. The Company's
Paperboard/Packaging Products segment contributed 92.0% of the
Company's net sales in 1994.
The Company's paperboard operations are supported by its
reclamation division, which processed or brokered 4.1 million tons
of wastepaper in 1994, 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 15 consumer
packaging plants.
The Company's Newsprint segment includes two newsprint mills in
Oregon, which produced 615,000 tons of recycled newsprint in 1994,
and two facilities that produce Cladwood, a construction material
produced from newsprint and wood by-products. The Company's
newsprint mills are also supported by the Company's reclamation
division.
PRODUCTS
PAPERBOARD/PACKAGING PRODUCTS SEGMENT
CONTAINERBOARD AND CORRUGATED SHIPPING CONTAINERS
The Company's containerboard operations are highly integrated.
Tons of containerboard produced and converted for the last three
years were:
<TABLE>
<CAPTION>
1992 1993 1 994
(Ton in thousands)
<S> <C> <C> <C>
Containerboard
Production 1,918 1,840 1,932
Consumption 1,898 1,942 2,018
</TABLE>
The Company's mills produce a full line of containerboard,
including unbleached kraft linerboard, mottled white linerboard and
recycled medium. 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 1994, the Company produced
<PAGE>
1,085,000, 317,000 and 530,000 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 $181
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 chip thickness screening
project for the Fernandina Beach linerboard mill.
The Company's sales of containerboard in 1994 were $786.4 million
(including $424.9 million of intracompany sales). During the first
part of 1994, sales of containerboard to its container plants were
reflected at prices based upon those published by Official Board
Markets which were generally higher than those paid by third
parties except in exchange contracts. Beginning in September 1994,
the sales price of containerboard to the container plants was the
same as market price.
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 52 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 1994
were $1,282.7 million (including $91.4 million of intracompany
sales). Total corrugated shipping container sales volumes for
1992, 1993 and 1994 were 28,095, 29,394 and 30,822 million square
feet, respectively.
RECYCLED BOXBOARD, SBS AND FOLDING CARTONS
The Company's recycled boxboard, SBS and folding carton operations
are also integrated. Tons of recycled boxboard and SBS produced
and converted for the last three years were:
<TABLE>
<CAPTION>
1992 1993 1994
(Tons in thousands)
<S> <C> <C> <C>
Recycled Boxboard and SBS
Production 745 744 767
Consumption 551 542 543
</TABLE>
The Company's mills produce recycled coated and uncoated boxboard
and SBS. 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 table above excludes
production of approximately 87,000 and 85,000 tons in 1992 and
1993, respectively, from the Lockland, Ohio boxboard mill that was
closed in January 1994 as part of the Company's Restructuring
<PAGE>
Program (as discussed in Item 7. - Management's Discussion and
Analysis of Financial Condition and Results of Operations). In
1994, the Company produced 586,000 and 181,000 tons of recycled
boxboard and SBS, respectively. The Company's total sales of
recycled boxboard and SBS in 1994 were $390.9 million (including
$197.5 million of intracompany sales).
The Company's folding carton plants offer a broad 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 52% 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 1994 were $644.7 million (including $1.8
million of intracompany sales). Folding carton sales volumes for
1992, 1993 and 1994 were 487,000, 475,000 and 486,000 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
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.
RECYCLED CYLINDERBOARD AND INDUSTRIAL PACKAGING
The Company's recycled cylinderboard and industrial packaging
<PAGE>
operations are also integrated. Tons of recycled cylinderboard
produced and converted for the last three years were:
<TABLE>
<CAPTION>
1992 1993 1994
(Tons in thousands)
<S> <C> <C> <C>
Recycled Cylinderboard
Production 213 206 209
Consumption 120 123 128
</TABLE>
The Company's recycled cylinderboard mills are located in Tacoma,
Washington, Monroe, Michigan (2 mills), Lafayette, Indiana, and
Cedartown, Georgia. In 1994, total sales of recycled cylinderboard
were $67.8 million (including $28.9 million of intracompany sales).
The Company's 20 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, glass, cosmetics and plastics industries. In
addition, the Company produces a patented self-locking partition
especially suited for automated packaging and product protection.
Also, the Company manufactures corrugated pallets that are made
entirely from corrugated components and are lightweight yet
extremely strong and are fully recyclable. The Company's
industrial packaging sales in 1994 were $94.0 million (including
$1.6 million in intracompany sales).
CONSUMER PACKAGING
The Company manufactures a wide variety of consumer packaging
products. These products include flexible packaging, paper and
metallized paper 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 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 15
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 pharmaceutical, agricultural and specialty
products industries.
Total sales of consumer packaging products and services in 1994
were $179.7 million (including $14.2 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 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 1994, the Company
processed 4.1 million tons of wastepaper. The amount of wastepaper
collected and the proportions sold internally and externally by the
Company's reclamation division for the last three years were:
<TABLE>
<CAPTION>
1992 1993 1994
(Tons in thousands)
<S> <C> <C> <C>
Wastepaper collected by Reclamation Division 3,846 3,907 4,134
Percent sold internally 49.7% 48.8% 45.5%
Percent sold to third parties 50.3% 51.2% 54.5%
</TABLE>
<PAGE>
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 1994 were $428.2 million (including $190.2
million of intracompany sales).
During 1994, 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 1994, approximately 61%
of the timber harvested by the Company was used in its
Jacksonville, Fernandina and Brewton Mills. The Company harvested
953,000 cords of timber which would satisfy approximately 37% of
the Company's requirements for wood fibres. The Company's wood
fibre 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. In 1994, the Company's total sales of timber
products were $235.2 million (including $185.4 million of
intracompany sales).
NEWSPRINT SEGMENT
NEWSPRINT MILLS
The Company's newsprint mills are located in Newberg and Oregon
City, Oregon. During 1992, 1993 and 1994, the Company produced
615,000, 615,000 and 615,000 tons of newsprint, respectively. In
1994, total sales of newsprint were $231.4 million (none of which
were intracompany sales).
For the past three years, an average of approximately 54% 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 Smurfit Newsprint Corporation
("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 1994 amounted to $113.0 million.
CLADWOOD
Cladwood is a wood composite panel used by the housing industry,
manufactured from sawmill shavings and other wood residuals and
overlaid with recycled newsprint. The Company has two Cladwood
plants located in Oregon. Total sales for Cladwood in 1994 were
$28.7 million ($.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
<PAGE>
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 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
The Company had approximately 16,600 employees at December 31,
1994, of which approximately 11,200 employees (68%), are
represented by collective bargaining units. The expiration date of
union contracts for the Company's major facilities are as follows:
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,
<PAGE>
including 4 paper mills and 8 corrugated container plants, expiring
June 1998; and the Jacksonville mill, expiring June 1999. Although
the contract for the Alton mill expired in June 1994, production at
the mill has not been interrupted and the Company is currently in
the process of bargaining with the union representing the mill
employees. 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.
ITEM 2. PROPERTIES
The Company's properties at December 31, 1994 are summarized in the
table below. Approximately 59% 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 20 13
Consumer packaging plants 15 9
Cladwood plants 2 1
Wood product plants 1 1
Total 152 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.
ITEM 3. LEGAL PROCEEDINGS
Litigation
In May 1993, the Company 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 the
Company and such parties dated November 22, 1967 pertaining to
approximately 30,000 acres of property in Georgia (the
"Agreements"). In June 1993, the Company 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 the Company breached the
Agreements and failed to pay for timber allegedly stolen or
otherwise removed from the property by the Company or third
parties. The case is set for trial in June 1995. The alleged
thefts of timber are being investigated by the Georgia Bureau of
Investigation, which has advised the Company that it is not
<PAGE>
presently a target of this investigation. Management does not
believe that the outcome of this litigation <PAGE>
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 which 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.
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, the Company entered into an administrative consent
order with the Florida Department of Environmental Regulation to
carry out any necessary assessment and remediation of Company-
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, the Company 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 was permanently
closed as part of the Company's Restructuring Program). The
Company paid $122,000 in penalties and enforcement costs pursuant
to such consent decree. The United States Environmental
Protection Agency also issued a notice of violation with respect
to such emissions, but has informally advised the Company's
counsel that no Federal enforcement is likely to be commenced in
light of the settlement with the State of Ohio.
In the fourth quarter of 1994, the Company learned of possible
noncompliance with certain provisions of its
construction/operation permit at its D-Graphics labels plant
located in Jacksonville, Florida. In October, 1994, the Company
voluntarily reported such possible noncompliance to state and
local environmental authorities and suspended operations at this
facility for several days until temporary operating authority was
obtained. Subsequently, a settlement agreement was signed
between the Company, the Florida Department of Environmental
Protection and the City of Jacksonville Regulatory and
Environmental Services Division to resolve all civil and
administrative issues regarding this matter, pursuant to which
<PAGE>
the Company has paid an aggregate of $1.5 million in fines and
penalties. An operating permit allowing the plant to be operated
on a continuing basis has also been obtained. The United States
Department of Justice is currently conducting a criminal
investigation of the matters reported by the Company and it is
uncertain whether any criminal action will be forthcoming.
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:
Miami County, Ohio Site
In January 1990, the Company 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. The
Company contended that it should have been allowed to participate
in the proposed consent decree, which provided 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 the Company's motion
to intervene in this litigation, but denied the Company's motion
for an order denying entry of the consent decree. Consequently,
the consent decree was entered without the Company's being
included as a party to the decree, meaning that the Company had
some exposure to potential claims for contribution to remediation
costs incurred by other participants and for non-reimbursed
response costs incurred by the Agency.
In December 1991, the United States filed a civil action against
the Company in United States District Court, Southern District of
Ohio, to recover its unreimbursed costs at the Miami County site,
and the Company subsequently filed a third-party complaint
against certain entities that had joined the original consent
decree. The Company and the United States have executed a
consent decree which was lodged with the Court in January 1995,
pursuant to which the Company will pay $3.1 million in
satisfaction of its alleged and/or potential liability for past
and future response costs in connection with this site.
In October 1993, the United States filed an additional suit
against the Company in the same court seeking injunctive relief
<PAGE>
and damages up to $25,000 per day from March 27, 1989 to the
present, based on the Company's alleged failure to properly
respond to the Agency's document and information requests in
connection with this site. The Company and the United States
have reached an agreement in principle pursuant to which the
Company will pay $1.2 million in settlement of the pending
litigation concerning the Company's allegedly improper responses
to the document requests of the Environmental Protection Agency
in connection with this site.
In July 1993, counsel for the Company was advised by the Office
of the United Stated Attorney, Northern District of Illinois that
a criminal inquiry is also underway relating to the Company's
responses to the Agency's document and information requests. The
Company is investigating the circumstances regarding its
responses. It is uncertain whether any criminal action will be
forthcoming.
Monterey Park, California Site
The Company 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.
Griffin, Indiana Site
The Company 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 were satisfied in exchange for aggregate payments of
approximately $588,000.
Kankakee County, Illinois Site
The Company has 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 68% 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,
<PAGE>
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 expenditures to achieve compliance on the part of the
Company. For the past three years, the Company has spent an
average of approximately $10.0 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
capital expenditures for fiscal 1995 is approximately $20.0
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.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders of the
registrant during the fourth quarter of 1994.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED
STOCKHOLDER MATTERS
MARKET INFORMATION
The Company is a wholly-owned subsidiary of JSC, and therefore, all
of the outstanding common stock of the Company ("JSCE Common
Stock") is owned by JSC. As a result, there is no established
public market for the JSCE Common Stock.
DIVIDENDS
The Company has not paid cash dividends on its common stock. The
ability of the Company to pay dividends in the future is restricted
by certain provisions contained in the 1994 Credit Agreement and
the indentures relating to the outstanding indebtedness of JSC
(U.S.) which the Company guarantees. Delaware law generally
requires that dividends are payable only out of a company's surplus
or current net profits in accordance with the General Corporation
Law of Delaware. Such Delaware law limitations apply to the
payment of dividends by the Company. Any determination to pay cash
dividends in the future will be at the discretion of the Board of
Directors and will be dependent upon the Company's results of
operations, financial condition, contractual restrictions and other
factors deemed relevant at the time by the Board of Directors.
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
(In millions, except statistical data)
<TABLE>
<CAPTION>
1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C>
Summary of Operations
Net sales $3,233.3 $2,947.6 $2,998.4 $2,940.1 $2,910.9
Cost of goods sold 2,718.7 2,567.2 2,495.4 2,407.3 2,294.2
Gross profit 514.6 380.4 503.0 532.8 616.7
Selling and administrative expenses 223.7 239.2 231.4 225.2 218.8
Restructuring charge 96.0
Environmental and other charges 54.0
Income (loss) from operations 290.9 (8.8) 271.6 307.6 397.9
Interest expense (268.5) (254.2) (300.1) (335.2) (337.8)
Other, net <F1> 6.3 5.4 4.5 (39.5) (2.9)
Income (loss) before income taxes,
extraordinary item and cumulative
effect of accounting changes 28.7 (257.6) (24.0) (67.1) 57.2
Provision for (benefit from)
income taxes 16.4 (83.0) 10.0 10.0 35.4
Income (loss) before
extraordinary item and cumulative
effect of accounting changes 12.3 (174.6) (34.0) (77.1) 21.8
Extraordinary item
Loss from early extinguishment
of debt, net of income tax benefit (55.4) (37.8) (49.8)
Cumulative effect of accounting
changes (16.5)
Net income (loss) $ (43.1) $ (228.9) $ (83.8) $ (77.1) $ 21.8
Other Financial Data
Net cash provided by operating
activities $ 149.3 $ 78.2 $ 145.7 $ 133.0 $ 299.1
Depreciation, depletion and
amortization 131.6 130.8 134.9 130.0 122.6
Property and timberland additions 163.2 117.4 97.9 118.9 192.0
Working capital 10.5 40.0 105.7 76.9 60.7
Property, plant and equipment and
timberland, net 1,686.1 1,636.0 1,496.5 1,525.9 1,527.3
Total assets 2,759.0 2,597.1 2,436.4 2,460.1 2,447.9
Long-term debt 2,391.7 2,619.1 2,503.0 2,650.4 2,636.7
Deferred income tax liability 207.7 232.2 159.8 158.3 168.6
Stockholder's deficit (730.3) (1,057.8) (828.9) (976.9) (899.4)
ITEM 6. SELECTED FINANCIAL DATA (cont'd)
(In millions, except statistical data)
1994 1993 1992 1991 1990
Statistical Data (tons in thousands)
Containerboard production (tons) 1,932 1,840 1,918 1,830 1,797
Boxboard production (tons)<F2> 767 744 745 726 718
Newsprint production (tons) 615 615 615 614 623
Corrugated shipments (billion sq. ft.) 30.8 29.4 28.1 26.4 24.7
Folding carton shipments (tons) 486 475 487 482 455
Fibre reclaimed and brokered (tons) 4,134 3,907 3,846 3,666 3,547
Timberland owned or leased
(thousand acres) 985 984 978 978 968
Number of employees 16,600 17,300 17,800 18,100 17,600
<FN>
<F1>
Other, net 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 Company Limited Partnership, Inc. and PCL Industries Limited,
respectively.
<F2>
Amounts shown for 1993, 1992, 1991 and 1990 exclude production from the
Lockland, Ohio boxboard mill that was closed in January 1994 as part of
the Company's Restructuring Program (as discussed in Item 7. -
Management's Discussion and Analysis of Financial Condition and Results
of Operations).
</FN>
</TABLE>
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
General
Markets for containerboard, corrugated shipping containers and
newsprint, three of the Company's most important products, are
generally subject to cyclical changes in the economy and changes in
industry capacity, both of which can significantly impact selling
prices and the Company's profitability. The sluggish U.S. economy
in 1991, 1992 and 1993, coupled with a decline in export markets,
caused an imbalance of supply and demand, which resulted in excess
inventories and lower prices for these products. From the first
quarter of 1991 through the third quarter of 1993, reported
linerboard prices fell from approximately $350 per ton to
approximately $280 per ton. Similarly, newsprint prices were
depressed over the same period. As a result, profits of companies
in these industries, including profits of the Company, fell sharply
in 1993.
Containerboard markets began to recover in late 1993 and, based on
increasing demand, a price increase was successfully implemented in
the fourth quarter of 1993. As the economy gained strength and
export shipments increased during 1994, demand for containerboard
products improved. Excess inventories were sold and additional
price increases were rapidly implemented. By the end of 1994, the
reported price of linerboard had risen to $430 per ton and
increased an additional $50 per ton on January 1, 1995. An
additional price increase for containerboard has been announced by
the Company for April 1, 1995. Demand for newsprint improved in
the second half of 1994 and price increases were implemented by the
Company in August and December of 1994, for a total price increase
of $87 per ton. Additional newsprint increases have been announced
by the Company effective March 1 and May 1, 1995.
Prices for the Company's other products showed mixed performance
for 1994. Recycled boxboard prices were comparable to 1993, but
SBS prices, although rising in the second half of 1994, were 5%
lower on average compared to last year. Recycled cylinderboard
prices were higher by approximately 8% compared to last year.
As the economic recovery progressed, unprecedented demand for
recycled fibre caused shortages of this material and prices
escalated at a dramatic rate beginning in the second quarter of the
year. While the effect of the reclaimed fibre price increases is
favorable to the Company's reclamation products division, it is
unfavorable to the Company overall because of the increase in fibre
cost to the paper mills that use reclaimed fibre. The Company
believes that its cost of fibre, a key raw material, will remain
substantially higher than in prior years, although it does not
anticipate a problem satisfying its need for this material in the
foreseeable future.
With the exception of recycled fibre, the moderate level of
inflation during the past few years, has not had a material impact
on the Company's financial position or operating results. The
Company uses the LIFO method of accounting for approximately 80% 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.
<PAGE>
Cost Reduction Initiatives
The cyclical downturn of the early 1990's 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 Initiatives").
The Cost Reduction Initiatives include systematic Company-wide
efforts 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
less commodity oriented business at its converting operations, the
program focuses 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 the purchase cost of materials, (iv) reductions in
personnel costs and (v) reductions in waste cost.
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-offs 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.
The restructuring charge consisted of approximately $43 million for
the write-down of assets at closed facilities and other
nonproductive assets and $53 million of anticipated cash
expenditures. Approximately $23.9 million (45%) of the cash
expenditures were incurred through 1994, the majority of which
related to plant closure costs. The remaining cash expenditures
will continue to be funded through operations, a majority of which
will be paid in 1995 and 1996, as originally planned. Based on
expenditures to date and those anticipated by the original plan, no
significant adjustment to the reserve balance is expected at this
time.
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"). During 1994, the Company incurred $6.1
million in cash expenditures related to these environmental
matters. The Company, as well as other companies in the industry,
<PAGE>
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, 1994.
Further, 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.
<PAGE>
Results of Operations
<TABLE>
<CAPTION>
(In millions) 1994 1993 1992
Operating Operating Operating
Net profit Net profit Net profit
sales (loss) sales (loss) sales (loss)
<S> <C> <C> <C> <C> <C> <C>
Paperboard/
Packaging Products $2,973.7 $310.9 $2,699.5 $16.5 $2,751.0 $284.6
Newsprint 259.6 (16.5) 248.1 (21.4) 247.4 (10.3)
Total $3,233.3 $294.4 $2,947.6 $(4.9) $2,998.4 $274.3
</TABLE>
1994 Compared to 1993
Results for 1994 reflect the accelerating demand for the Company's
products. Net sales of $3.23 billion for 1994 set a record, up
9.7% compared to 1993. Increases/(decreases) in sales for each of
the Company's segments are shown in the chart below.
<PAGE>
<TABLE>
<CAPTION>
(In millions) 1994 Compared to 1993
Paperboard/
Packaging
Products Newsprint Total
<S> <C> <C> <C>
Increase (decrease) due to:
Sales price and product mix $183.8 $11.6 $195.4
Sales volume 199.5 (.1) 199.4
Acquisitions and new facilities 5.3 5.3
Plant closings and asset distributions (114.4) (114.4)
Total net sales increase $274.2 $11.5 $285.7
</TABLE>
Net sales in the Paperboard/Packaging Products segment for 1994
increased $274.2 million, up 10.2% compared to 1993, due to higher
sales prices and increased sales volume. Record sales volume was
achieved for several major products, including: containerboard up
3.8%; corrugated shipping containers up 4.7%; and reclamation
products up 5.8%. Sales growth for this segment was mitigated by
the shutdown of several operating facilities in late 1993 and early
1994, including a coated recycled boxboard mill, five converting
plants and two reclamation products facilities, in connection with
the Company's Restructuring Program.
Net sales in the Newsprint segment for 1994 increased $11.5
million, up 4.6% compared to 1993, due primarily to higher sales
prices in the second half of the year.
Costs and expenses in both segments in 1994 were favorably impacted
by the Cost Reduction Initiatives begun in 1993 and by the
Restructuring Program (together, the "Plans"). Cost of goods sold
as a percent of net sales in the Paperboard/Packaging Products
segment declined from 85.6% in 1993 to 82.5% in 1994, primarily as
a result of higher sales prices, improved capacity utilization and
other benefits associated with the Plans. Cost of goods sold as a
percent of net sales in the Newsprint segment improved modestly
from 102.8% in 1993 to 102.2% in 1994, primarily as a result of
higher sales prices. Selling and administrative expenses in both
segments in 1994 were also favorably impacted by the Plans.
The Company increased its weighted average discount rate in
measuring its pension obligations from 7.6% to 8.5% and its rate of
increase in compensation levels from 4.0% to 5.0% at December 31,
1994. The net effect of changing these assumptions was the primary
reason for the decrease in projected benefit obligations and the
changes are expected to decrease pension cost in 1995 by
approximately $3.9 million.
Average debt levels outstanding decreased in 1994 as a result of
the Recapitalization discussed below; however, interest expense of
$268.5 million for 1994 increased 5.6% compared to 1993 due to the
impact of higher effective interest rates in 1994.
The tax provision for 1994 was $16.4 million compared to a tax
benefit for 1993 of $83.0 million. The Company's effective tax
rate for 1994 was higher than the Federal statutory tax rate due to
several factors, the most significant of which was the effect of
permanent differences between book and tax accounting.
The Company recorded an extraordinary loss from the early
extinguishment of debt (net of income tax benefits) amounting to
<PAGE>
$55.4 million in 1994 and $37.8 million in 1993. The Company
adopted Statement of Financial Accounting Standards ("SFAS") No.
112 "Employers' Accounting for Postemployment Benefits" in 1994,
the effect of which was not material.
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. Increases/(decreases) in each of
the Company's segment sales are shown in the chart below.
<TABLE>
<CAPTION>
(In millions) 1993 Compared to 1992
Paperboard/
Packaging
Products Newsprint Total
<S> <C> <C> <C>
Increase (decrease) due to:
Sales price and product mix $(91.2) $(3.0) $(94.2)
Sales volume 15.8 3.7 19.5
Acquisitions and new facilities 34.9 34.9
Plant closings and asset distribution (11.0) (11.0)
Total net sales increase (decrease) $(51.5) $ .7 $(50.8)
</TABLE>
Net sales decreased 1.9% in the Paperboard/Packaging Products
segment in 1993. The decrease 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.
Net sales increased 0.3% in the Newsprint segment as 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 the
Paperboard/Packaging Products segment rose from 81.8% in 1992 to
85.6% in 1993 due primarily to the aforementioned changes in
pricing and product mix. Cost of good sold as a percent of net
sales in the Newsprint segment rose from 99.0% in 1992 to 102.8% in
1993 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
<PAGE>
assets. The effect of this change on 1993 results of operations,
including the cumulative effect of prior years, was not material.
See Note 6 to the Company's consolidated financial statements.
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.
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 a $231.8 million capital
contribution received in August 1992.
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 to 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 effect of permanent
differences between book and tax accounting 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 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 $37.0 million.
Liquidity and Capital Resources
The Company completed a recapitalization plan in May 1994 (the
"Recapitalization") in order to improve its 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. 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, (iii) JSC (U.S.) 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 "1994 Senior Notes") and (iv) the Company entered
into a new bank credit facility (the "1994 Credit Agreement")
consisting of a $450 million revolving credit facility (the "New
Revolving Credit Facility") of which up to $150 million may consist
of letters of credit, a $300 million Tranche A Term Loan and a $900
million Tranche B Term Loan. Proceeds of the Recapitalization,
including $370.6 million from the shares issued to the public and
SIBV, $400.0 million from the sale of the 1994 Senior Notes and
borrowings under the 1994 Credit Agreement were used to extinguish
the Company's 1989 and 1992 term loans, the 1989 revolving credit
<PAGE>
facility, the Company's senior secured notes and redeem the
Company's subordinated debentures, including related premiums and
accrued interest, and pay related fees and expenses. Had the
Recapitalization occurred on January 1, 1994, the Company's income
before extraordinary item would have been $42.0 million and the net
loss would have been $15.1 million for 1994.
Outstanding loans under the Tranche A Term Loan and the New
Revolving Credit Facility bear interest at rates selected at the
option of the Company equal to the alternate base rate ("ABR") plus
1.5% per annum or the adjusted LIBOR Rate plus 2.5% per annum
(8.77% at December 31, 1994). Interest on outstanding loans under
the Tranche B Term Loan is payable at a rate per annum selected at
the option of the Company, equal to the prime rate plus 2% per
annum or the adjusted LIBOR rate plus 3% per annum (8.56% at
December 31, 1994). The ABR rate is defined as the highest of
Chemical Bank's prime lending rate, 1/2 of 1% in excess of the
Federal Funds Rate or 1% in excess of the base certificate of
deposit rate. The New Revolving Credit Facility matures in 2001.
The Tranche A Term Loan matures in various installments from 1995
to 2001. The Tranche B Term Loan matures in various installments
from 1995 to 2002.
The 1994 Credit Agreement contains various business and financial
covenants including, among other things, (i) limitations on
dividends, redemptions and repurchases of capital stock, (ii)
limitations on the incurrence of indebtedness, liens, leases, sale-
leaseback transactions, (iii) limitations on capital expenditures,
(iv) maintenance of minimum levels of consolidated earnings before
depreciation, interest, taxes and amortization and (v) maintenance
of minimum interest coverage ratios. 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.
The 1994 Credit Agreement imposes an annual limit on future capital
expenditures of $150.0 million. The capital spending limit is
subject to increase by an amount up to $75.0 million in any year if
the prior year's spending was less than the maximum amount allowed.
The Company has a carryover of $62.4 million for 1995. Capital
expenditures in 1994, including property and timberland additions
and acquisitions, were $166.9 million. Because the Company has
invested heavily in its core businesses in prior years, management
believes the annual limitation for capital expenditures does not
impair its plans for maintenance, expansion and continued
modernization of its facilities.
The Company's earnings are significantly affected by the amount of
interest on its indebtedness. The Company enters into interest
rate swap, cap and option agreements to manage its interest rate
exposure on its indebtedness. Management's objective is to protect
the Company from interest rate volatility and reduce or cap
interest expense within acceptable levels of risk. Periodic
amounts to be paid or received under these agreements are accrued
and recognized as adjustments to interest expense. The Company
amends existing agreements or enters into agreements with
offsetting effects when necessary to change its net position.
During 1994, as interest rates increased, the Company amended
several of its agreements and entered new agreements, including
options, to respond to those rate changes. Significant option
positions entered into to offset increasing rates in 1994
<PAGE>
expired unexercised, and there are no
significant options outstanding at December 31, 1994.
The table below shows certain interest rate swap agreements
outstanding at December 31, 1994, the related maturities for the
years thereafter and the contracted pay and receive rates for such
agreements. Included are swaps with a notional amount of $345.0
million not associated with existing debt at December 31, 1994, due
to previous debt extinguishments, which are carried at fair market
value with changes to the fair value reflected in interest expense.
<TABLE>
<CAPTION>
Interest rate
swaps at Interest rate
December 31, swap maturities
(In millions) 1994 1995 1996 1997
<S> <C> <C> <C> <C>
Pay fixed interest rate swaps $532.5 $(150.0) $(150.0) $(232.5)
Pay rate 7.180% 7.180% 6.990% 7.474%
Receive rate 5.732%
Receive fixed interest rate swaps $595.0 $(595.0)
Pay rate 7.161%
Receive rate 5.041% 5.041%
</TABLE>
In addition, the Company has swap agreements not associated with
existing debt at December 31, 1994 with a notional amount of $180
million (of which $100 million matures in 1995 and $80 million
matures in 1996) whereby the Company is receiving a weighted
average variable rate of 5.2% and pays a weighted average variable
rate of 6.1%.
The Company has a cap agreement with a notional amount of $100.0
million, which matures in 1996, on variable rate debt which caps
the Company's variable interest rates at 7.5% on the notional
amount. In addition, the Company has a cap agreement with a
notional amount of $100.0 million, which matures in 1996, on
variable rate debt which limits the Company's interest payments to
a range of 5.5-7.0% on the notional amount.
Operating activities have historically been the major source of
cash for the Company's working capital needs, capital expenditures
and debt payments. Net cash provided by operating activities for
1994 improved $71.1 million (90.9%) over 1993. Scheduled payments
due in 1995 and 1996 under the 1994 Credit Agreement are $46.0
million and $117.0 million, respectively, with increasing amounts
thereafter. The Company believes that cash provided by operating
activities and available financing sources will be sufficient for
the next several years to pay interest on the Company's
obligations, amortize its term loans and fund capital expenditures.
At December 31, 1994, the Company had $303.2 million of unused
borrowing capacity under its 1994 Credit Agreement and borrowing
capacity of $12.0 million under its $230.0 million accounts
receivable securitization program (the "1991 Securitization
Program") subject to the Company's level of eligible accounts
receivable. In the first quarter of 1995, the Company entered into
a new $315.0 million accounts receivable securitization program
(the "1995 Securitization"), consisting of a $300.0 million trade
<PAGE>
receivables-backed commercial paper program and a $15.0 million term
loan. Proceeds of the 1995 Securitization were used to extinguish
the Company's 1991 Securitization Program.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA Page No.
The following consolidated financial statements of JSCE, Inc. are
included in this report:
Consolidated balance sheets - December 31, 1994 and 1993 . . . . . .27
For the years ended December 31, 1994, 1993 and 1992:
Consolidated statements of operations . . . . .. . . . . . . . .28
Consolidated statements of stockholder's deficit. . . . . . . .29
Consolidated statements of cash flows . . . . . . . . . . . . .30
Notes to consolidated financial statements. . . . . . . . . . . . . .31
The following consolidated financial statement schedules of JSCE,
Inc. are included in Item 14(a):
VIII: Valuation and Qualifying Accounts . . . . . . . . . . . .71
All other schedules specified under Regulation S-X for JSCE, Inc.
have been omitted because they are either not applicable, not
required or because the information required is included in the
financial statements or notes thereto.
<PAGE>
MANAGEMENT'S STATEMENT OF RESPONSIBILITY
The management of the Company is responsible for the information
contained in the consolidated financial statements and in other
parts of this report. The consolidated financial statements have
been prepared by the Company in accordance with generally accepted
accounting principles appropriate in the circumstances, and
necessarily include certain amounts based on management's best
estimate and judgment.
The Company maintains a system of internal accounting control,
which it believes is sufficient to provide reasonable assurance
that in all material respects transactions are properly authorized
and recorded, financial reporting responsibilities are met and
accountability for assets is maintained. In establishing and
maintaining any system of internal control, judgment is required to
assess and balance the relative costs and expected benefits.
Management believes that through the careful selection of
employees, the division of responsibilities and the application of
formal policies and procedures, the Company has an effective and
responsive system of internal accounting controls. The system is
monitored by the Company's staff of internal auditors, who evaluate
and report to management on the effectiveness of the system.
The Audit Committee of the Board of Directors is composed of three
directors who meet with the independent auditors, internal auditors
and management to discuss specific accounting, reporting and
internal control matters. Both the independent auditors and
internal auditors have full and free access to the Audit Committee.
James E. Terrill
President, Chief Executive Officer
John R. Funke
Vice President and Chief Financial Officer
(Principal Accounting Officer)
<PAGE>
REPORT OF INDEPENDENT AUDITORS
Board of Directors
JSCE, Inc.
We have audited the accompanying consolidated balance sheets of
JSCE, Inc. as of December 31, 1994 and 1993, 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, 1994. Our audits also included the financial statement
schedule listed in the Index at Item 14(a). These financial
statements and schedule are the responsibility of the Company's
management. Our responsibility is to express an opinion on these
financial statements and schedule 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 JSCE, Inc. at December 31, 1994 and 1993, and the
consolidated results of its operations and its cash flows for each
of the three years in the period ended December 31, 1994 in
conformity with generally accepted accounting principles. Also, in
our opinion, the related financial statement schedule, when
considered in relation to the basic financial statements taken as
a whole, presents fairly in all material respects the information
set forth therein.
As discussed in Note 5 and Note 6 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 30, 1995 except
as to Note 14, as to which
the date is February 23, 1995
<PAGE>
<TABLE>
<CAPTION>
JSCE, Inc.
CONSOLIDATED BALANCE SHEET
(In millions)
December 31, 1994 1993
ASSETS
<S> <C> <C>
Current assets
Cash and cash equivalents $ 61.8 $ 44.2
Receivables, less allowances of
$8.6 in 1994 and $9.2 in 1993 316.3 243.2
Inventories
Work-in-process and finished goods 86.9 96.1
Materials and supplies 136.8 137.2
223.7 233.3
Deferred income taxes 38.1 41.9
Prepaid expenses and other current assets 6.6 5.9
Total current assets 646.5 568.5
Net property, plant and equipment 1,427.1 1,374.5
Timberland, less timber depletion 259.0 261.5
Goodwill, less accumulated amortization of
$35.0 in 1994 and $27.6 in 1993 257.1 261.4
Other assets 169.3 131.2
$2,759.0 $2,597.1
LIABILITIES AND STOCKHOLDER'S DEFICIT
Current liabilities
Current maturities of long-term debt $ 50.2 $ 10.3
Accounts payable 348.8 270.6
Accrued compensation and payroll taxes 114.3 110.1
Interest payable 48.3 52.6
Other accrued liabilities 74.4 84.9
Total current liabilities 636.0 528.5
Long-term debt, less current maturities 2,391.7 2,619.1
Other long-term liabilities 237.5 257.1
Deferred income taxes 207.7 232.2
Minority interest 16.4 18.0
Stockholder's deficit
Common stock, par value $.01 per share;
1,000 shares authorized and outstanding
Additional paid-in capital 1,102.4 731.8
Retained earnings (deficit) (1,832.7) (1,789.6)
Total stockholder's deficit (730.3) (1,057.8)
$ 2,759.0 $ 2,597.1
</TABLE>
See notes to consolidated financial statements.
<PAGE>
<TABLE>
<CAPTION>
JSCE, Inc.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In millions)
Year Ended December 31, 1994 1993 1992
<S> <C> <C> <C>
Net sales $3,233.3 $2,947.6 $2,998.4
Costs and expenses
Cost of goods sold 2,718.7 2,567.2 2,495.4
Selling and administrative expenses 223.7 239.2 231.4
Restructuring charge 96.0
Environmental and other charges 54.0
Income (loss) from operations 290.9 (8.8) 271.6
Other income (expense)
Interest expense (268.5) (254.2) (300.1)
Other, net 6.3 5.4 4.5
Income (loss) before income taxes,
extraordinary item and cumulative
effect of accounting changes 28.7 (257.6) (24.0)
Provision for (benefit from) income taxes 16.4 (83.0) 10.0
Income (loss) before extraordinary item and
cumulative effect of accounting changes 12.3 (174.6) (34.0)
Extraordinary item
Loss from early extinguishment of debt,
net of income tax benefit of $33.7 in
1994, $21.7 in 1993 and $25.8 in 1992 (55.4) (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 $ (43.1) $ (228.9) $ (83.8)
See notes to consolidated financial statements.
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
JSCE, Inc.
CONSOLIDATED STATEMENTS OF STOCKHOLDER'S DEFICIT
(In millions except share data)
Common Stock
Par Number Additional Retained
Value of Paid-In Earnings
$.01 Shares Capital (Deficit)
<S> <C> <C> <C> <C>
Balance at January 1, 1992 $ 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)
Net loss (43.1)
Capital contribution,
net of related expenses 370.6
Balance at December 31, 1994 $ 1,000 $1,102.4 $(1,832.7)
See notes to consolidated financial statements.
<PAGE>
</TABLE>
<TABLE>
<CAPTION>
JSCE, Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In millions)
Year Ended December 31, 1994 1993 1992
<S> <C> <C> <C>
Cash flows from operating activities
Net loss $ (43.1) $(228.9) $ (83.8)
Adjustments to reconcile net loss to net
cash provided by operating activities
Extraordinary loss from early
extinguishment of debt 89.1 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 131.6 130.8 134.9
Amortization of deferred debt issuance costs 10.1 7.9 14.6
Deferred income taxes (20.8) (156.9) .1
Non-cash interest 18.9 18.0 33.6
Non-cash employee benefit expense (9.4) (12.5) (18.8)
Change in current assets and liabilities,
net of effects from acquisitions
Receivables (73.0) .7 12.9
Inventories 9.8 14.2 (10.4)
Prepaid expenses and other current assets (.9) 5.0 (2.9)
Accounts payable and accrued liabilities 42.1 26.2 14.9
Interest payable (7.2) 4.7 (4.9)
Income taxes .8 16.2 (17.3)
Other, net 1.3 4.9 (2.8)
Net cash provided by operating activities 149.3 78.2 145.7
Cash flows from investing activities
Property additions (143.7) (97.2) (77.5)
Timberland additions (19.5) (20.2) (20.4)
Investments in affiliates and acquisitions (3.7) (.1) (5.8)
Proceeds from property and timberland
disposals and sale of businesses 4.4 24.5 1.8
Net cash used for investing activities (162.5) (93.0) (101.9)
Cash flows from financing activities
Capital contribution, net of related expenses 370.6 231.8
Borrowings under bank credit facilities 1,371.8 400.0
Borrowings under senior notes 400.0 500.0
Net borrowings (repayments) under accounts
receivable securitization program 34.8 6.4 (8.8)
Other increases in long-term debt 3.4 12.0 56.8
Payments of long-term debt and related premiums (2,072.9) (479.2) (698.6)
Deferred debt issuance costs (76.9) (25.2) (40.4)
Net cash provided by (used for) financing activities 30.8 14.0 (59.2)
Increase (decrease) in cash and cash equivalents 17.6 (.8) (15.4)
Cash and cash equivalents
Beginning of year 44.2 45.0 60.4
End of year $ 61.8 $ 44.2 $ 45.0
See notes to consolidated financial statements.
<PAGE>
JSCE, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Tabular amounts in millions)
1. -- Basis of Presentation
JSCE, Inc. hereafter referred to as the "Company" is a wholly-owned
subsidiary of Jefferson Smurfit Corporation ("JSC"). JSC has no
operations other than its investment in JSCE, Inc. On December 31, 1994
Jefferson Smurfit Corporation (U.S.), a wholly-owned subsidiary of the
Company, merged into its wholly-owned subsidiary, Container Corporation
of America ("CCA"), with CCA surviving and changing its name to
Jefferson Smurfit Corporation (U.S.) ("JSC (U.S.)"). The Company has no
operations other than its investment in JSC (U.S.). In 1994, JSC
contributed 100% of the common stock of JSC (U.S.) to the Company. This
transaction has been accounted for in a manner similar to a pooling of
interests and accordingly, the consolidated financial statements for all
periods presented include the accounts of JSC (U.S.). Prior to May 4,
1994, JSC had been named "SIBV/MS Holdings" and JSC (U.S.) had been
named "Jefferson Smurfit Corporation". Prior to May 4, 1994, 50% of the
voting stock of JSC was 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%
was owned by The Morgan Stanley Leveraged Equity Fund II, L.P. ("MSLEF
II") and certain other investors.
In May 1994, JSC completed a recapitalization plan (the
"Recapitalization") to repay and refinance a substantial portion of its
indebtedness. 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) JSC (U.S.) issued and sold $300 million
aggregate principal amount of unsecured 11.25% Series A Senior Notes due
2004 and $100 million aggregate principal amount of unsecured 10.75%
Series B Senior Notes due 2002 (the "1994 Senior Notes") pursuant to a
registered public offering. The proceeds from the equity and debt
offerings, the sale of shares to SIBV and $1,200 million of borrowings
under a new bank credit facility (see Note 4) were used to refinance JSC
(U.S.)'s 1989 and 1992 term loans, the 1989 revolving credit facility,
and JSC (U.S.)'s senior secured notes and pay related fees and expenses.
Proceeds were also used to redeem JSC (U.S.)'s subordinated debentures
and pay related premiums and accrued interest. Premiums paid in
connection with the debt payments, the write-off of related deferred
debt issuance costs, and losses on interest rate swap agreements
totalling $51.6 million (net of income tax benefits of $31.6 million)
are reflected in the accompanying 1994 consolidated statement of
operations as an extraordinary item. Net proceeds from the shares
issued totalled $370.6 million.
<PAGE>
For financial accounting purposes, JSC's 1989 purchases of JSC (U.S.)'s
common equity owned by JS Group and the acquisition by JSC (U.S.) of its
common equity owned by MSLEF I Group were accounted for as purchases of
treasury stock and resulted in a deficit balance of $1,425.9 million in
stockholder's equity in the accompanying consolidated financial
statements.
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 an original maturity of three months or less to be cash
equivalents. At December 31, 1994 cash and cash equivalents of $62.4
million are maintained as collateral for obligations under the accounts
receivable securitization program (see Note 4).
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
$55.2 million in 1994 and $50.6 million in 1993 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 $58.5 million
and $44.7 million at December 31, 1994 and 1993, 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. The change had the effect of reducing depreciation expense by
$17.8 million and decreasing net loss by $11.0 million, in 1993.
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.
<PAGE>
2. -- Significant Accounting Policies (cont)
Interest Rate Swap and Cap Agreements: The Company enters into interest
rate swap and cap agreements to reduce the impact of interest rate
fluctuations. Swap agreements involve the exchange of fixed and floating
rate interest payments without the exchange of the underlying principal
amount. Cap agreements provide that the Company will receive a certain
amount when short term interest rates exceed a threshold rate. Periodic
amounts to be paid or received under interest rate swap and cap
agreements are accrued and recognized as adjustments to interest
expense. Premiums paid on cap agreements are included in interest
payable and amortized to interest expense over the life of the
agreements.
Reclassifications: Certain reclassifications of prior year
presentations have been made to conform to the 1994 presentation.
3. -- Property, Plant and Equipment
Property, plant and equipment at December 31 consists of:
</TABLE>
<TABLE>
<CAPTION>
1994 1993
<S> <C> <C>
Land $ 59.7 $ 60.2
Buildings and leasehold improvements 253.7 241.3
Machinery, fixtures and equipment 1,696.3 1,601.1
2,009.7 1,902.6
Less accumulated depreciation and amortization 657.2 563.2
1,352.5 1,339.4
Construction in progress 74.6 35.1
Net property, plant and equipment $1,427.1 $1,374.5
</TABLE>
<PAGE>
4. -- Long-Term Debt
Long-term debt at December 31 consists of:
<TABLE>
<CAPTION>
1994 1993
Current Current
maturities Long-term maturities Long-term
<S> <C> <C> <C> <C>
Tranche A term loan $45.0 $ 855.0 $ $
Tranche B term loan 1.0 299.0
1992 term loan 201.3
1989 term loan 412.3
Revolving loans 43.0 196.5
Senior secured notes 270.5
Accounts receivable securitization
program loans 217.2 182.3
1994 series A senior notes 300.0
1994 series B senior notes 100.0
1993 senior notes 500.0 500.0
Other 4.2 77.5 10.3 76.5
Total non-subordinated 50.2 2,391.7 10.3 1,839.4
13.5% Senior subordinated notes,
due 1999 350.0
14.0% Subordinated debentures,
due 2001 300.0
15.5% Junior subordinated accrual
debentures, due 2004 129.7
Total subordinated 779.7
$50.2 $2,391.7 $10.3 $2,619.1
Aggregate annual maturities of long-term debt at December 31, 1994, for
the next five years are $50.2 million in 1995, $349.8 million in 1996,
$158.8 million in 1997, $164.6 million in 1998 and $174.7 million in
1999.
1994 Credit Agreement
In connection with the Recapitalization, JSC (U.S.) entered into a new
bank credit facility (the "1994 Credit Agreement") which consists of a
$450 million revolving credit facility (the "New Revolving Credit
Facility") of which up to $150 million may consist of letters of credit,
a $900 million Tranche A Term Loan and a $300 million Tranche B Term
Loan. The New Revolving Credit Facility matures in 2001. The Tranche
A Term Loan matures in various installments from 1995 to 2001. The
Tranche B Term Loan matures in various installments from 1995 to 2002.
Outstanding loans under the Tranche A Term Loan and the New Revolving
Credit Facility bear interest at rates selected at the option of JSC
(U.S.) equal to the alternate base rate ("ABR") plus 1.5% per annum or
the adjusted LIBOR Rate plus 2.5% per annum (8.77% at December 31,
1994). Interest on outstanding loans under the Tranche B Term Loan is
payable at a rate per annum selected at the option of JSC (U.S.), equal
to the prime rate plus 2% per annum or the adjusted LIBOR rate plus 3%
per annum (8.56% at December 31, 1994). The ABR rate is defined as the
highest of Chemical Bank's prime lending rate, 1/2 of 1% in excess of
the Federal Funds Rate or 1% in excess of the base certificate of
deposit rate.
<PAGE>
4. -- Long-Term Debt (cont)
A commitment fee of 1/2 of 1% per annum is assessed on the unused
portion of the New Revolving Credit Facility. At December 31, 1994, the
unused portion of this facility, after giving consideration to
outstanding letters of credit, was $303.2 million.
The Tranche A and Tranche B Term Loans and the New Revolving Credit
Facility may be prepaid at any time, in whole or in part, at the option
of JSC (U.S.). The 1994 Credit Agreement requires prepayments if JSC
(U.S.) has excess cash flows, as defined, or receives proceeds from:
certain asset sales, insurance, issuance of equity securities, or
incurrence of certain indebtedness.
The obligations under the 1994 Credit Agreement are unconditionally
guaranteed by JSC, the Company and its subsidiaries and are secured by
a security interest in substantially all of the assets of JSC (U.S.) and
its material subsidiaries, with the exception of cash, cash equivalents
and trade receivables. The 1994 Credit Agreement is also secured by a
pledge of all the capital stock of each material subsidiary of JSC and
by certain intercompany notes.
The 1994 Credit Agreement contains various business and financial
covenants including, among other things, (i) limitations on dividends,
redemptions and repurchases of capital stock, (ii) limitations on the
incurrence of indebtedness, liens, leases, sale-leaseback transactions,
(iii) limitations on capital expenditures, (iv) maintenance of minimum
levels of consolidated earnings before depreciation, interest, taxes and
amortization and (v) maintenance of minimum interest coverage ratios.
1994 Senior Notes
In connection with the Recapitalization, JSC (U.S.) issued and sold $300
million aggregate principal amount of unsecured 11.25% Series A Senior
Notes due 2004 and $100 million aggregate principal amount of unsecured
10.75% Series B Senior Notes due 2002. The Series A Senior Notes are
redeemable in whole or in part at the option of JSC (U.S.), at any time
on or after May 1, 1999 with premiums of 5.625% and 2.813% of the
principal amount if redeemed during the 12-month periods commencing May
1, 1999 and 2000, respectively. In addition, up to $100 million
aggregate principal amount of Series A Senior Notes are redeemable at
110% of the principal amount prior to May 1, 1997 in connection with
certain stock issuances. The Series B Senior Notes are not redeemable
prior to maturity.
The 1994 Senior Notes, which are unconditionally guaranteed on a senior
basis by JSCE, Inc., rank pari passu with the 1994 Credit Agreement and
the 1993 Senior Notes. The 1994 Senior Notes agreements contain
business and financial covenants which are less restrictive than those
contained in the 1994 Credit Agreement.
Holders of the 1994 Senior Notes have the right, subject to certain
limitations, to require JSC (U.S.) 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.
<PAGE>
4. -- Long-Term Debt (cont)
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 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, 1994, $12.0 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, 1994, all assets of JS Finance, principally cash and
cash equivalents of $62.4 million and trade receivables of $213.8
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 (6.37% at December 31, 1994).
1993 Senior Notes
In April 1993, JSC (U.S.) issued $500.0 million of unsecured 9.75%
Senior Notes (the "1993 Senior Notes") due 2003 which are not redeemable
prior to maturity. The 1993 Senior Notes, which are unconditionally
guaranteed on a senior basis by JSCE, Inc., rank pari passu with the
1994 Credit Agreement and the 1994 Senior Notes. The 1993 Senior Notes
agreement contains business and financial covenants which are
substantially less restrictive than those contained in the 1994 Credit
Agreement and substantially similar to those contained in the 1994
Senior Notes agreements.
Holders of the 1993 Senior Notes have the right, subject to certain
limitations, to require JSC (U.S.) to repurchase their securities at
101% of the principal amount plus accrued and unpaid interest, upon the
occurrence of a change in control or in certain events, from proceeds of
major asset sales, as defined.
Net proceeds from the offering were used to partially repay amounts
outstanding under the 1989 and 1992 term loans and the 1989 revolving
credit facility. 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.
Other Non-subordinated Debt
Other non-subordinated long-term debt at December 31, 1994, is payable
in varying installments through the year 2028. Interest rates on these
obligations averaged approximately 9.93% at December 31, 1994.
<PAGE>
4. -- Long-Term Debt (cont)
Interest Rate Swap and Cap Agreements
The Company utilizes interest rate swap and cap agreements to manage its
interest rate exposure on long-term debt. At December 31, 1994, the
Company has interest rate swap agreements with a notional amount of
$282.5 million which effectively fix (for remaining periods up to 3
years) the interest rate on variable rate borrowings. The Company is
currently paying a weighted average fixed interest rate of 6.4% and
receiving a weighted average variable interest rate of 6.0%, calculated
on the notional amount. The Company has a cap agreement with a notional
amount of $100.0 million on variable rate debt (through 1996) which caps
the Company's variable interest rates at 7.5% on the notional amount.
In addition, the Company has a cap agreement with a notional amount of
$100.0 million (through 1996) on variable rate debt which limits the
Company's interest payments to a range of 5.5-7.0% on the notional
amount. The Company is party to interest rate swap agreements on fixed
rate borrowings with a notional amount of $500.0 million which
effectively convert the fixed rate borrowings to variable rate
borrowings maturing at various dates through May 1995. The Company is
currently receiving a weighted average fixed interest rate of 4.6% and
paying a weighted average variable interest rate of 7.1%, calculated on
the notional amount.
The Company has interest rate swaps with a notional amount of $525
million not associated with existing debt at December 31, 1994, due to
previous debt extinguishments, which are carried at fair market value
with changes to the fair value reflected in interest expense. The
Company is currently paying a weighted average fixed rate of 8.1% and
receiving a weighted average variable rate of 5.4% on swaps with a
notional amount of $250.0 million (for remaining periods up to 1997).
The Company is currently receiving a weighted average fixed rate of 7.3%
and paying a weighted average variable rate of 7.4% on swaps with a
notional amount of $95 million (through 1995). In addition, the Company
has swap agreements with a notional amount of $180 million (through
1996) whereby the Company is receiving a weighted average variable rate
of 5.2% and pays a weighted average variable rate of 6.1%.
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.
Other
Interest costs capitalized on construction projects in 1994, 1993 and
1992 totalled $3.9 million, $3.4 million and $4.2 million, respectively.
Interest payments on all debt instruments for 1994, 1993 and 1992 were
$247.0 million, $226.2 million and $257.6 million, respectively.
5. -- 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 Statement of Financial Accounting Standards ("SFAS") No.
109, "Accounting for Income Taxes." Prior years' financial statements
have not been restated.
<PAGE>
5. -- Income Taxes (cont)
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 pretax 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 previous acquisitions
and recapitalizations 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.
At December 31, 1994, the Company has net operating loss carryforwards
for federal income tax purposes of approximately $460.5 million
(expiring in the years 2005 through 2009), 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 are as follows:
</TABLE>
<TABLE>
<CAPTION>
1994 1993
Deferred tax liabilities:
<S> <C> <C>
Depreciation and depletion $365.1 $354.5
Pensions 31.0 26.7
Other 106.7 104.0
Total deferred tax liabilities 502.8 485.2
Deferred tax assets:
Retiree medical 49.6 44.6
Other employee benefit and insurance plans 70.5 70.3
Restructuring and other charges 32.1 49.3
Net operating loss and tax credit carryforwards 161.6 108.4
Other 44.5 47.1
Total deferred tax assets 358.3 319.7
Valuation allowance for deferred tax assets (25.1) (24.8)
Net deferred tax assets 333.2 294.9
Net deferred tax liabilities $169.6 $190.3
</TABLE>
<PAGE>
5. -- Income Taxes (cont)
Provisions for (benefit from) income taxes before extraordinary item and
cumulative effect of accounting changes were as follows:
<TABLE>
<CAPTION>
Deferred
Liability Method Method
Year Ended December 31,
1994 1993 1992
<S> <C> <C> <C>
Current
Federal $ 1.4 $ 28.1 $(2.2)
State and local 2.1 2.2 2.1
3.5 30.3 (.1)
Deferred
Federal 38.6 (53.5) 9.7
State and local 3.8 6.0 .4
Benefits of net operating loss carryforwards (29.5) (71.5)
12.9 (119.0) 10.1
Adjustment of deferred tax assets and
liabilities for enacted tax rate change 5.7
$ 16.4 $( 83.0) $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.
The federal income tax returns for 1989 through 1991 are currently under
examination. While the ultimate results of such examination cannot be
predicted with certainty, the Company's management believes that the
examination will not have a material adverse effect on its consolidated
financial condition or results of operations.
The components of the provision for deferred taxes for the year ended
December 31, 1992 were as follows:
<TABLE>
<CAPTION>
1992
<S> <C>
Depreciation and depletion $15.2
Alternative minimum tax 10.2
Tax loss carryforwards (24.3)
Equity in affiliates 6.8
Other employee benefits 2.7
Other, net (.5)
$10.1
<PAGE>
5. -- Income Taxes (cont)
A reconciliation of the difference between the statutory Federal income
tax rate and the effective income tax rate as a percentage of income
(loss) before income taxes, extraordinary item, and cumulative effect of
accounting changes is as follows:
</TABLE>
<TABLE>
<CAPTION>
Deferred
Liability Method Method
Year Ended December 31,
1994 1993 1992
<S> <C> <C> <C>
U.S. Federal statutory rate 35.0% (35.0%) (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 (4.8) (2.0) 6.6
Permanent differences from applying
purchase accounting 23.7 3.5 71.1
Effect of valuation allowances on
deferred tax assets, net of
Federal benefit 1.1 1.2
Other, net 2.1 (2.1) (2.0)
57.1% (32.2%) 41.7%
</TABLE>
The Company made income tax payments of $2.6 million, $33.0 million, and
$6.6 million in 1994, 1993, and 1992, respectively.
6. -- 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
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 amortizing gains and
losses. The effect of this change on 1993 results of operations,
including the cumulative effect of prior years, was not material.
<PAGE>
6. -- Employee Benefit Plans (cont)
Assumptions used in the accounting for the defined benefit plans were:
<TABLE>
1994 1993 1992
<S> <C> <C> <C>
Weighted average discount rates 8.5% 7.6% 8.75%
Rates of increase in compensation levels 5.0% 4.0% 5.50%
Expected long-term rate of return on assets 10.0% 10.0% 10.00%
</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 follow:
<TABLE>
<CAPTION>
Year Ended December 31,
1994 1993 1992
<S> <C> <C> <C>
Defined benefit plans:
Service cost-benefits earned during the period $ 14.3 $ 12.7 $ 12.1
Interest cost on projected benefit obligations 53.7 54.0 50.1
Actual return on plan assets (7.4) (91.1) (26.4)
Net amortization and deferral (71.3) 8.8 (54.6)
Multi-employer plans 2.1 2.2 2.1
Net pension income $ (8.6) $(13.4) $(16.7)
</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>
1994 1993
Actuarial present value of benefit obligations:
<S> <C> <C>
Vested benefit obligations $631.7 $616.7
Accumulated benefit obligations $669.9 $664.3
Projected benefit obligations $699.6 $716.0
Plan assets at fair value 739.8 778.1
Plan assets in excess of projected benefit obligations 40.2 62.1
Unrecognized net loss 63.1 34.5
Unrecognized net asset at December 31,
being recognized over 14 to 15 years (25.2) (29.2)
Net pension asset $ 78.1 $ 67.4
</TABLE>
Approximately 40% of plan assets at December 31, 1994 are invested in
cash equivalents or debt securities and 60% are invested in equity
securities, including common stock of JS Group having a market value of
$117.2 million.
<PAGE>
6. -- Employee Benefit Plans (cont)
Savings Plans
The Company sponsors voluntary savings plans covering substantially all
salaried and certain hourly employees. The Company match, which is paid
in JSC stock, is fifty percent of each participant's contributions up to
an annual maximum. The Company's expense for the savings plans totalled
$5.3 million, $5.3 million and $5.0 million in 1994, 1993 and 1992
respectively.
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 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. In 1992 the cost of the postretirement benefits
of $6.4 million was recognized as claims were paid.
The following table sets forth the accumulated postretirement benefit
obligation ("APBO") with respect to these benefits as of December 31:
<TABLE>
<CAPTION>
1994 1993
<S> <C> <C>
Retirees $ 52.6 $ 58.3
Active Employees 33.9 51.8
Total accumulated postretirement benefit obligation 86.5 110.1
Unrecognized net gain (loss) 12.9 (11.9)
Accrued postretirement benefit cost $ 99.4 $ 98.2
Net periodic postretirement benefit cost included the following components:
1994 1993
Service cost of benefits earned $ 1.5 $ 1.5
Interest cost on accumulated postretirement
benefit obligation 6.8 8.3
Net amortization (.6)
Net periodic postretirement benefit cost $ 7.7 $ 9.8
</TABLE>
<PAGE>
6. -- Employee Benefit Plans (cont)
A weighted-average discount rate of 8.5% and 7.6% was used in
determining the APBO at December 31, 1994 and 1993, respectively. The
weighted-average annual assumed rate of increase in the per capita cost
of covered benefits ("healthcare cost trend rate") was 10.5%, with an
annual decline of 1% until the rate reaches 5.5%. The effect of a 1%
increase in the assumed healthcare cost trend rate would increase both
the APBO as of December 31, 1994 by $2.9 million and the annual net
periodic postretirement benefit cost for 1994 by $.3 million.
7. -- Related Party Transactions
Transactions with JS Group
Transactions with JS Group, its subsidiaries and affiliates were as
follows:
<TABLE>
<CAPTION>
Year Ended December 31,
1994 1993 1992
<S> <C> <C> <C>
Product sales $36.5 $18.4 $22.8
Product and raw material purchases 71.0 49.3 60.1
Management services income 4.3 5.8 5.6
Charges from JS Group for services provided .6 .4 .3
Charges from JS Group for letter of credit,
commitment fees and related expenses 2.8 2.9
Charges to JS Group for costs pertaining to
the No. 2 paperboard machine 54.0 62.2 54.7
Receivables at December 31 3.7 1.7 3.3
Payables at December 31 10.9 11.6 10.2
</TABLE>
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 1991 an affiliate of JS Group completed a rebuild of the No. 2
paperboard machine owned by the affiliate that is located in the
Company's Fernandina Beach, Florida paperboard mill (the "Fernandina
Mill"). Pursuant to an operating agreement between the Company and the
affiliate, the Company operates and manages the No. 2 paperboard machine
and is compensated for its direct production and manufacturing costs and
indirect manufacturing, selling and administrative costs incurred by the
Company 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 the Company are reflected as
reductions of cost of goods sold and selling and administrative expenses
in the accompanying consolidated statements of operations.
<PAGE>
7. -- Related Party Transactions (cont)
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 are wholly or
partially terminable upon the occurrence of certain defined events.
Sales to Times Mirror for 1994, 1993 and 1992 were $113.0 million,
$115.2 million and $114.0 million, respectively.
Transactions with Morgan Stanley & Co.
In connection with the Recapitalization, Morgan Stanley & Co., in its
capacity as underwriter of public equity and debt securities, received
fees from the Company of $15.5 million.
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, 1994, required under operating
leases that have initial or remaining noncancelable lease terms in
excess of one year are $31.1 million in 1995, $21.5 million in 1996,
$15.6 million in 1997, $10.9 million in 1998, $8.6 million in 1999 and
$19.5 million thereafter.
Net rental expense was $45.5 million, $45.0 million, and $42.2 million
for 1994, 1993 and 1992, respectively.
9. -- Fair Value of Financial Instruments
The estimated fair values of the Company's financial instruments are as
follows:
<TABLE>
<CAPTION>
December 31,
1994 1993
Carrying Fair Carrying Fair
Amount Value Amount Value
<S> <C> <C> <C>
Assets
Cash and cash equivalents $ 61.8 $ 61.8 $ 44.2 $ 44.2
Unrealized gain on interest
rate swap agreements 3.7 5.5
Liabilities
Long-term debt, including
current maturities 2,441.9 2,401.7 2,629.4 2,686.4
Unrealized loss on interest
rate swap agreements 7.7 12.2
Realized loss on interest
rate swap agreements marked
to market 4.1 4.1 12.0 12.0
</TABLE>
<PAGE>
9. -- Fair Value of Financial Instruments (cont)
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 or receive, net of accrued interest expense, to terminate the
agreements at December 31, 1994 and 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 pretax charge of $96.0 million to
recognize the effects of a restructuring program designed to improve the
Company's long-term competitive position of which $43 million related to
the write-down of assets at closed facilities and other nonproductive
assets and $53 million represented cash expenditures. The charge
included 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. The
restructuring program is proceeding as originally planned and no
significant adjustment to the reserve is anticipated at this time.
11. -- Contingencies
The Company's past and present operations include activities which are
subject to federal, state and local environmental requirements,
particularly relating to air and water quality. 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.
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" (PRP) as well as contamination of
certain Company-owned properties, under the Comprehensive Environmental
Response, Compensation and Liability Act concerning hazardous substance
contamination. In estimating its reserves for environmental remediation
and future costs, the Company's estimated liability reflects only the
Company's expected share. In determining the liability, the estimate
takes into consideration the number of other PRP's at each site, the
identity and financial condition of such parties and experience
regarding similar matters. No amounts have been recorded for potential
recoveries from insurance carriers.
During 1993, the Company recorded a pretax charge of $54.0 million of
which $39.0 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 the resolution of
these matters will not have a material adverse effect on its
consolidated financial condition or results of operation.
<PAGE>
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 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,
1994 1993 1992
<S> <C> <C> <C>
Net sales
Paperboard/packaging products $2,973.7 $2,699.5 $2,751.0
Newsprint 259.6 248.1 247.4
$3,233.3 $2,947.6 $2,998.4
Operating profit (loss)
Paperboard/packaging products $ 310.9 $ 16.5 $ 284.6
Newsprint (16.5) (21.4) (10.3)
Total operating profit (loss) 294.4 (4.9) 274.3
Interest expense, net (265.7) (252.7) (298.3)
Income (loss) before income taxes,
extraordinary item, and cumulative
effect of accounting changes $ 28.7 $ (257.6) $ (24.0)
Identifiable assets
Paperboard/packaging products $2,256.2 $2,153.4 $1,960.6
Newsprint 231.0 224.9 235.1
Corporate assets 271.8 218.8 240.7
$2,759.0 $2,597.1 $2,436.4
Capital expenditures
Paperboard/packaging products $ 146.0 $ 107.2 $ 91.6
Newsprint 17.2 10.2 6.3
$ 163.2 $ 117.4 $ 97.9
Depreciation, depletion and amortization
Paperboard/packaging products $ 115.1 $ 115.2 $ 121.2
Newsprint 16.5 15.6 13.7
$ 131.6 $ 130.8 $ 134.9
</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, deferred income taxes, deferred debt issuance
costs and other assets which are not specific to a segment.
<PAGE>
13. -- 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
1994
<S> <C> <C> <C> <C>
Net sales $727.7 $765.9 $858.4 $881.3
Gross profit 98.5 111.0 135.6 169.5
Income from operations 46.8 55.6 80.5 108.0
Income (loss) before
extraordinary item (11.8) (8.4) 5.8 26.7
Loss from early extinguishment
of debt (51.6) (3.8)
Net income (loss) (11.8) (60.0) 5.8 22.9
1993
Net sales $735.9 $734.9 $745.7 $731.1
Gross profit 101.5 100.5 97.5 80.9
<F1>
Income (loss) from operations 41.2 41.1 (109.9) 18.8
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)
<FN>
<F1>
In the third quarter of 1993, the Company recorded a pretax charge
of $96.0 million to recognize the effects of a restructuring program
designed to improve the Company's long-term competitive position and
recorded a pretax charge of $54.0 million relating primarily to
environmental matters.
</FN>
</TABLE>
14. -- Subsequent Events
On February 23, 1995, JSC (U.S.) entered into a $315.0 million accounts
receivable securitization program (the "1995 Securitization") consisting
of a $300.0 million trade-receivables-backed commercial paper program
and a $15.0 million term loan. The proceeds of the 1995 Securitization
were used to extinguish JSC (U.S.)'s borrowings under the 1991
Securitization Program of $230.0 million.
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Directors
The following table sets forth the names and ages of the directors of
the Company.
Name Age
Michael W.J. Smurfit 58
Howard E. Kilroy 59
James E. Terrill 61
James R. Thompson 58
Donald P. Brennan 54
Alan E. Goldberg 40
David R. Ramsay 31
G. Thompson Hutton 39
The Board of Directors currently consists of eight directors.
Executive Officers
The following table sets forth the names, ages and positions of the
executive officers of the Company.
Name Age Position
Michael W.J. Smurfit 58 Chairman of the Board and Director
James E. Terrill 61 President, Chief Executive Officer and Director
Howard E. Kilroy 59 Senior Vice President and Director
Richard W. Graham 60 Senior Vice President
Raymond G. Duffy 53 Vice President - Planning
Michael C. Farrar 54 Vice President - Environmental and Governmental
Affairs
John R. Funke 53 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 56 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 40 Vice President and General Manager - Industrial
Packaging Division
David C. Stevens 60 Vice President and General Manager - Reclamation
Division
Truman L. Sturdevant 60 Vice President and General Manager of SNC
Michael E. Tierney 46 Vice President and General Counsel and Secretary
Richard K. Volland 56 Vice President - Physical Distribution
William N. Wandmacher 52 Vice President and General Manager -
Containerboard Mill Division
Gary L. West 52 Vice President - Sales and Marketing
<PAGE>
Biographies
Donald P. Brennan has been a Director of the Company since 1989.
Mr. Brennan joined Morgan Stanley & Co. Incorporated ("MS&Co.") in
1982 and has been a Managing Director of MS&Co. 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
Fort Howard Corporation, Hamilton Services Limited, PSF Finance
Holdings, Inc., Shuttleway, Stanklav Holdings, Inc. and Waterford
Wedgwood U.K. plc and is Deputy Chairman 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 the Company,
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 has been a Director of the Company since 1989.
Mr. 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
Director of MSLEF II, Inc. and a Vice Chairman of MSCP III, Inc.
Mr. Goldberg also serves as Director of Amerin Guaranty
Corporation, CIMIC Holdings Limited, Centre Cat Limited, Hamilton
Services Limited and Risk Management Solutions, Inc.
Richard W. Graham was appointed Senior Vice President 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.
Michael F. Harrington was appointed Vice President - Personnel and
Human Resources in January 1992. Prior to joining the Company, he
was Corporate Director of Labor Relations/Safety and Health with
Boise Cascade Corporation for more than 5 years.
<PAGE>
G. Thompson Hutton was elected to the Board of Directors in
December 1994. Mr. Hutton has been President and Chief Executive
Officer of Risk Management Solutions, Inc., an information services
company based in Menlo Park, California, since 1991. Prior to that
he was Engagement Manager with McKinsey & Company, Inc. from 1986
to 1991. He also serves as a Director of K2 Technologies, Express
Yachts and is a Trustee of Colorado Outward Bound School.
Howard E. Kilroy has been Chief Operations Director of JS Group
since 1978 and President of JS Group since October 1986. He was a
member of the Supervisory Board of SIBV from January 1978 to
January 1992. He has been a Director of the Company since 1989 and
Senior Vice President for more than 5 years. He will retire from
his executive positions with JS Group and the Company at the end of
March 1995, but will remain a Director of JS Group and the Company.
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
the Company 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 the
Company in 1971.
Lyle L. Meyer has been Vice President since April 1989. He served
as President of Smurfit Pension and Insurance Services Company
("SPISCO") from 1982 until 1992, when SPISCO was merged into the
Company.
Patrick J. Moore has been Vice President and General Manager -
Industrial Packaging Division since December 1994. He served as
Vice President and Treasurer from February 1993 to December 1994
and was Treasurer from October 1990 to February 1993. Prior to
joining the Company 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 has been a Director of the Company since 1989. Mr.
Ramsay joined MS&Co. in 1989 and is a Vice President of MS&Co.'s
Merchant Banking Division. Mr. Ramsay also serves as a Director
of ARM Financial Group Inc., Integrity Life Insurance Company,
National Integrity Life Insurance Company, Consolidated Hydro,
Inc., Hamilton Services Limited, A/S Bulkhandling, Stanklav
Holdings, Inc. and Risk Management Solutions, Inc. and is President
and 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 Chairman of the Board
of the Company since 1989. He was Chief Executive Officer of the
Company prior to July 1990.
David C. Stevens has been Vice President and General Manager -
Reclamation Division since January 1993. He joined the Company 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
the Company.
<PAGE>
Truman L. Sturdevant has been Vice President and General Manager of
SNC since August 1990. 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 and was President of SNC from February 1986 to
February 1993.
James R. Thompson was elected to the Board of Directors in July
1994. He is Chairman of Winston & Strawn, a law firm that
regularly represents the Company on numerous matters. He served as
Governor of the State of Illinois from 1977 to 1991. Mr. Thompson
also serves as a Director of FMC Corporation, the Chicago Board of
Trade, Chicago and North Western Transportation Company, United
Fidelity, Inc., International Advisory Council of the Bank of
Montreal, Prime Retail, Inc., Pechiney International, Wackenhut
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 the Company 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.
<PAGE>
Gary L. West has been Vice President - Sales and Marketing since
December 1994. He was Vice President and General Manager -
Industrial Packaging Division from October 1992 to December 1994.
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 the
Company in 1980.
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION
EXECUTIVE COMPENSATION
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 JSC and the four other most highly
compensated executive officers of JSC (the "Named Executive
Officers") during 1994. The table also includes Mr. James B.
Malloy, who retired from the position of President and Chief
Executive Officer on February 1, 1994.
<PAGE>
<TABLE>
<CAPTION>
SUMMARY COMPENSATION TABLE
Long Term Compensation
Awards Payouts All Other
Annual Compensation Securities LTIP Compen-
1997 Other Annual Underlying Payouts ation($)
Name and Principal Position Year Salary($) Bonus($) Bonus <F1> Compensation($) Options(#) ($)<F2> <F3>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
James E. Terrill, President and 1994 $678,333 $251,029 $1,000,000 $224,577 319,000 $ 346,604 $ 26,235
Chief Executive Officer, 1993 440,000 0 0 17,318 0 0 19,545
formerly Executive Vice 1992 367,500 243,477 0 944 181,000 0 16,346
President -- Operations <F4>
Michael W.J. Smurfit, Chairman 1994 834,000 299,084 0 30,000 0 1,964,088 11,922
of the Board 1993 832,369 0 0 30,000 0 0 16,775
1992 793,273 526,605 0 0 1,026,000 0 15,764
Richard W. Graham, Senior Vice 1994 378,667 110,876 475,000 9,270 9,000 173,302 9,937
President 1993 337,000 0 0 5,215 0 0 10,817
1992 286,760 29,336 0 2,223 91,000 0 9,075
John R. Funke, Vice President 1994 300,000 107,584 500,000 28,599 29,000 231,069 10,779
and Chief Financial Officer 1993 300,000 0 0 13,163 0 0 10,167
1992 232,000 153,705 0 1,647 121,000 0 10,435
David C. Stevens, Vice President 1994 200,000 311,709 200,000 6,515 5,000 34,660 7,719
and General Manager -- 1993 200,000 48,954 0 1,402 0 0 7,965
Reclamation Division 1992 161,000 44,012 0 985 45,000 0 5,947
James B. Malloy, Retired, 1994 82,667 0 0 43,163 0 1,386,415 367,122
formerly President and Chief 1993 992,000 0 0 17,867 0 0 21,902
Executive Officer <F4> 1992 945,000 626,082 0 8,003 724,000 0 23,294
<FN>
<F1> Amounts awarded in 1994 pursuant to the JSC's 1994 Long-Term Incentive Plan. These
awards are not due and payable until April 30, 1997 and may be subject to forfeiture if
the executive's employment is terminated, other than for death or disability, prior to
such date.
<F2> Aggregate long-term incentive payment of $7.67 million was made in 1994 prior to
consummation of JSC's initial public offering of Common Stock on May 4, 1994 (the
"Equity Offerings") to a number of JSC's and its affiliates' officers, including the
Named Executive Officers and officers of JS Group and its affiliates. These amounts
represent deferred settlement of the cancellation in 1992 of the Company's 1990 Long-
Term Management Incentive Plan. The amount paid to the officers of JS Group and its
affiliates (exclusive of Dr. Smurfit) was $1.69 million.
<F3> Amounts shown under "All Other Compensation" for 1994 include a $3,500 Company
contribution to JSC's Savings Plan for each Named Executive Officer (other than Dr.
Smurfit) and JSC-paid split-dollar term life insurance premiums for Dr. Smurfit
($11,922) and Messrs. Terrill ($22,735), Graham ($6,437), Funke ($5,374), Stevens
($4,219) and Malloy (none). Messrs. Malloy and Funke also had reportable (above 120%
of the applicable federal long-term rate) earnings equal to $7,688 and $1,905,
respectively, credited to their accounts under JSC's Deferred Compensation Capital
Enhancement Plan. In addition, Mr. Malloy received $64,859 of unused vacation pay and
$291,075 of retirement benefits.
<F4> James B. Malloy retired, as of February 1, 1994, as President and Chief Executive
Officer, and James E. Terrill succeeded to Mr. Malloy's positions as President and Chief
Executive Officer. Previously, Mr. Terrill was Executive Vice President--Operations.
</FN>
</TABLE>
<PAGE>
1992 STOCK OPTION PLAN
JSC's 1992 Stock Option Plan, as amended (the "Plan") became
effective on August 26, 1992 and will continue in effect until the
later of August 26, 2004 and the expiration of all outstanding
options granted thereunder unless terminated sooner by JSC's Board
of Directors (the "Board"); no options may be granted under the
Plan after August 25, 2004 or such earlier date determined by the
Board.
The purpose of the Plan is to advance the interests of JSC, its
subsidiaries and affiliates and their prospective stockholders by
providing certain eligible employees of JSC, its subsidiaries and
affiliates with an opportunity to acquire a proprietary interest in
JSC. Each salaried employee is eligible to be an optionee,
provided he/she is approved by the Board of Directors. In 1994,
JSC awarded 640,250 stock options, including 448,000 to all
executive officers as a group (12 persons), none to directors (with
the exception of Mr. Terrill) and 192,250 to employees other than
executive officers, at an exercise or base price of $12.50 with an
expiration date of February 14, 2006. As of December 31, 1994,
there were 351 participants in the Plan.
The Plan provides for the granting of nonstatutory stock options,
which are options that do not qualify as incentive stock options
within the meaning of the Code.
The Plan is administered by a committee of the Board (the "Option
Plan Committee") consisting solely of two or more directors of JSC
who are "disinterested" within the meaning of Rule 16b-3 ("Rule
16b-3") promulgated under Section 16 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). Members of the Option
Plan Committee do not receive any remuneration from the Plan.
Option Plan Committee members serve at the discretion of the Board.
The number of shares reserved for issuance under the Plan is
8,050,000, subject to adjustment upon changes in capitalization.
Shares may be treasury shares or authorized but unissued shares.
Under the Plan, the Named Executive Officers and certain other
eligible employees have been granted options to purchase shares of
Common Stock. Options may not be exercised unless they are both
"exercisable" and "vested". The vesting schedule varies according
to the schedule set forth in each Option Agreement and provides for
vesting over a period of time. The options which have been granted
to date generally become fully vested four years from the date of
grant. Options vest in their entirety upon the death, disability
or retirement, as defined in the Plan, of the optionee. Non-vested
options are forfeited upon any other termination of employment.
The Option Plan Committee, with the consent of the Board, may
accelerate the vesting of options at such times and under such
circumstances as it deems appropriate.
Exercisability is determined in accordance with the following
rules. Upon the earliest to occur of (i) MSLEF II's transfer of
all its Common Stock or, if MSLEF II distributes its Common Stock
to its partners pursuant to its dissolution, the transfer by such
partners of at least 50% of the aggregate 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 Common Stock by MSLEF II (a "MSLEF II Public Offering")
(each, a "Trigger Date"), all vested options shall become
exercisable and all options which vest subsequently shall become
<PAGE>
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 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, (i) ten percent of stock options granted prior
to 1993 became exercisable on January 1, 1995, and (ii) 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 on May 11, 1994 (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 became
exercisable on January 1, 1995. The Threshold Date is the earlier
of (x) the date the members of the MSLEF II Group (as defined in
the Option Plan) shall have received collectively $200,000,000 in
cash and/or other property as a return of their investment in JSC
(as a result of sales of shares of JSC's common equity) and (y) the
date that the members of the MSLEF II Group shall have transferred
an aggregate of at least 30% of JSC's 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 JSC's 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 JSC's common equity
outstanding as of such date.
The purchase price of the stock purchased pursuant to the exercise
of an option is $10 per share for options granted as of August 26,
1992 and $12.50 per share for options granted as of February 15,
1994; and for all other options, such price must be the fair market
value of the stock on the day the option is granted. The option
price may be adjusted in accordance with the antidilution
provisions of the Plan. Upon the exercise of any option, the
purchase price must be fully paid in cash or its equivalent or with
already owned shares or shares otherwise issuable upon exercise.
Certain Federal Income Tax Effects -- The following discussion of
certain federal income tax effects applicable to options granted
under the Plan is a summary only, and reference is made to the
Code, the regulations and rulings issued thereunder and judicial
decisions relating thereto for a complete statement of all relevant
federal tax provisions.
An employee generally will not be taxed upon the grant of an
option. Rather, at the time of exercise of such option the
employee will recognize ordinary income for federal income tax
purposes in an amount equal to the excess of the fair market value
of the shares purchased over the option price. JSC, or its
affiliates and subsidiaries, as the case may be, will generally be
entitled to a tax deduction at such time and in the same amount
that the employee recognizes ordinary income. Different rules may
apply in the case of an employee who is subject to the reporting
requirements of Section 16(a) of the Exchange Act.
If shares acquired upon exercise of an option are later sold or
exchanged, then the difference between the sales price and the fair
market value of such shares on the date that ordinary income was
recognized with respect thereto will generally be taxable as long-
term or short-term capital gain or loss (if the shares are a
capital asset of the employee) depending upon whether the shares
have been held for more than one year after such date.
<PAGE>
According to a published ruling of the Internal Revenue Service, an
employee who pays the option price upon exercise of a nonqualified
stock option, in whole or in part, by delivering shares already
owned by him will recognize no gain or loss for federal income tax
purposes on the shares surrendered, but otherwise will be taxed
according to the rules described above. With respect to shares
acquired upon exercise that are equal in number to the shares
surrendered, the basis of such shares will be equal to the basis of
the shares surrendered, and the holding period of shares acquired
will include the holding period of the shares surrendered. The
basis of additional shares received upon exercise will be equal to
the fair market value of such shares on the date that governs the
determination of the employee's ordinary income, and the holding
period for such additional shares will commence on such date.
Option Grants in Last Fiscal Year -- The following table provides
information concerning stock options granted to the Named Executive
Officers effective as of February 15, 1994.
<TABLE>
<CAPTION>
OPTION GRANTS IN 1994
Potential Realizable Value
Number of Sec- % of Total at Annual Rates of
urities Under- Options Granted Exercise or Stock Price Appreciation
lying Options to employees Base Price Expiration for Option Term <F2>
Name Granted in Fiscal Year ($ Per Share)<F1> Date 5% 10%
<S> <C> <C> <C> <C> <C> <C>
James E. Terrill 319,000 49.9% $12.50 2/14/2006 $3,173,477 $8,526,983
Michael W.J. Smurfit 0 N/A N/A N/A N/A N/A
Richard W. Graham 9,000 1.4% 12.50 2/14/2006 89,534 240,573
John R. Funke 29,000 4.5% 12.50 2/14/2006 288,498 775,180
David C. Stevens 5,000 0.8% 12.50 2/14/2006 49,741 133,652
James B. Malloy 0 N/A N/A N/A N/A N/A
<FN>
<F1> The 1994 options were granted on February 15, 1994 and the
exercise price was set prior to JSC's initial public offering
on May 4, 1994.
<F2> The dollar amounts under these columns are the result of
calculations at 5% and 10% rates, as set by the Securities and
Exchange Commission's executive compensation disclosure rules.
Actual gains, if any, on stock option exercises depend on
future performance of the Common Stock and overall stock market
conditions. No assurance can be made that the amounts
reflected in these columns will be achieved.
<F3> On February 9, 1995, 91,750 options were granted to 37
individuals, including 10,000 to Mr. Graham, at an exercise
price of $17.625 per share.
</FN>
</TABLE>
<PAGE>
Option Exercises and Year-End Value Table -- The following table
summarizes the exercise of options and the value of options held by
the Named Executive Officers as of the end of 1994.
<TABLE>
<CAPTION>
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND YEAR-END OPTION VALUE
Number of
Securities Underlying Value of Unexercised
Shares Unexercised Options In-the-Money Options
Acquired on Value at January 1, 1995 (#)<F1> at January 1, 1994($)
Name Exercise(#) Realized($) Exercisable/Unexercisable Exercisable/Unexercisable
<S> <C> <S> <C> <C> <C> <C>
James E. Terrill 0 N/A 18,100 / 481,900 $126,700 /$2,575,800
Michael W.J. Smurfit 0 N/A 102,600 / 923,400 718,200 / 6,463,800
Richard W. Graham 0 N/A 9,100 / 90,900 63,700 / 613,800
John R. Funke 0 N/A 12,100 / 137,900 84,700 / 892,800
David C. Stevens 0 N/A 4,500 / 45,500 31,500 / 306,000
James B. Malloy 0 N/A 72,400 / 651,600 506,800 / 4,561,200
<FN>
<F1> No stock appreciation rights have been granted to any Named Executive Officers. Ten
percent of the outstanding options granted prior to 1993 became exercisable on January
1, 1995. None were exercisable on December 31, 1994.
<F2> Value is the difference between the market value of the Common Stock on the date of
exercise or December 31, 1994 and the exercise price. The market price at December 31,
1994 was $17.00 per share.
</FN>
</TABLE>
<PAGE>
PENSION PLANS
Salaried Employees' Pension Plan and Supplemental Income Pension
Plans
JSC and its subsidiaries maintain a non-contributory pension plan
for salaried employees (the "Pension Plan") and two non-
contributory supplemental income pension plans (the "SIP I" and
"SIP II", together, the "SIP Plans") for certain key executive
officers, under which benefits are determined by final average
earnings and years of credited service and are offset by a certain
portion of social security benefits. For purposes of the Pension
Plan, final average earnings equals the average of the highest five
consecutive years of the participants' 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. For purposes of each SIP, 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.
SIP I recognizes up to 20 years of credited service and SIP II
recognizes 22.5 years of credited service.
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. Payments under the SIP Plans are an unsecured
liability of JSC.
<PAGE>
<TABLE>
<CAPTION>
SIP I Participants
Annual Benefits (Single Life Annuity)
Upon Final Retirement with Final
Final Years of Service Indicated
Average (Prior to Adjustment for Social Security)
Earnings 5 years 10 years 15 years 20 years
<C> <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
SIP II Participants
Annual Benefits (Single Life Annuity)
Upon Final Retirement with Final
Final Years of Service Indicated
Average (Prior to Adjustment for Social Security)
Earnings 5 years 10 years 15 years 20 years 22.5 years
$ 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
39 and 15 years of credited service, respectively. SIP Plan
II became effective January 1, 1993, and Messrs. Terrill,
Graham, Funke and Stevens participate in such plan and have
23, 36, 18 and 7 years of credited service, respectively.
Estimated final average earnings for each of the Named
Executive Officers are as follows: Dr. Smurfit ($1,069,000);
Mr. Terrill ($516,000); Mr. Graham ($340,000); Mr. Funke
($322,000); and Mr. Stevens ($199,000). Mr. Malloy received
approximately $208,000 of SIP Plan I payments in 1994.
<PAGE>
EMPLOYMENT CONTRACTS AND TERMINATION, SEVERANCE AND CHANGE OF
CONTROL ARRANGEMENTS
Mr. Malloy has a deferred compensation agreement with a subsidiary
of 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.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Prior to the Equity Offerings, JSC did not maintain a formal
compensation committee. Dr. Smurfit, Mr. Malloy and Mr. Kilroy,
executive officers of JSC at the beginning of 1994, participated in
deliberations of the Board of Directors on executive compensation
matters for 1994.
Dr. Smurfit and Mr. Kilroy are both directors and executive
officers of JS Group and JSC, and Mr. Malloy is a director of JS
Group and a former director and executive officer of JSC.
REPORT OF THE COMPENSATION COMMITTEE ON EXECUTIVE COMPENSATION
The Compensation Committee (the "Committee") was established in
connection with the Equity Offerings in 1994. The Committee
consists of three members of JSC's Board of Directors who are not
employees of JSC and who have no interlocking relationships
requiring disclosure. The Committee oversees the administration of
executive compensation programs and determines the compensation of
the executive officers, including the Named Executive Officers.
The goals of JSC's executive compensation program are as follows:
to attract, retain and motivate qualified executives with
outstanding abilities; to tie a significant portion of the overall
compensation of executive officers to JSC's profitability; and to
seek to enhance JSC's profitability by aligning the interests of
executive officers with those of JSC's stockholders.
In determining base salaries for each of the Named Executive
Officers, as well as other executive officers, consideration is
given to national and local salary surveys and the results of an
informal, internal review of salaries paid to officers with
comparable qualifications, experience and responsibilities at other
companies of similar size. As part of the cost reduction
initiatives implemented by JSC in 1993, salaries were frozen at
1993 levels for 1994.
JSC's executive officers, as well as other key employees of JSC,
participate in an annual management incentive plan (the "MIP"),
with awards based upon the attainment of pre-established individual
goals and profit targets for JSC.
Each fiscal year the Committee considers the desirability of
granting awards under JSC's 1992 Stock Option Plan to executive
officers, including the Named Executive Officers. In determining
the amount and nature of awards under the Plan to executive
officers other than the Chief Executive Officer, an initial
recommendation is made by the Option Plan Committee, taking into
account the respective scope of accountability, strategic and
operational goals, and anticipated performance requirements and
contributions of each executive officer. The stock options awarded
to the Chief Executive Officer are established separately and are
described below under CEO Compensation. The Committee believes
that past grants of stock options have successfully focused JSC's
senior management on building profitability and shareholder value.
<PAGE>
Beginning with 1994, Section 162(m) of the Code ("Section 162(m)")
generally limits to $1,000,000 per person a publicly held
corporation's federal income tax deduction for compensation paid in
any year to its Chief Executive Officer and each of its four other
highest paid executive officers to the extent such compensation is
not "performance based" within the meaning of Section 162(m).
Section 162(m) does not apply to JSC for either of its 1994 or 1995
tax years because JSC is not "publicly held" as defined for this
purpose in the Code. JSC has historically set compensation and
bonuses based upon performance, and JSC intends to continue this
practice. At such time as Section 162(m) becomes applicable to
JSC, the Committee will, in general, seek to qualify compensation
paid to its executive officers for deductibility under Section
162(m) although the Committee believes it is appropriate to retain
the flexibility to authorize payments of compensation that may not
qualify for deductibility if, in the Committee's judgment, it is in
JSC's best interest to do so.
CEO Compensation
Mr. Terrill's salary as the new Chief Executive Officer was set by
Dr. Smurfit, in consultation with representatives of the major
stockholders. Mr. Terrill's salary was based on an informal review
of salaries paid to officers with comparable qualifications,
experience and responsibilities at other companies of similar size.
Based on this assessment, the Chief Executive Officer was awarded
a base salary for 1994 of $700,000, effective February 1, 1994.
Pursuant to the terms of the MIP, he received a performance based
incentive award of $251,029 for 1994. The Chief Executive Officer
was also awarded stock options covering an aggregate of 319,000
shares of JSC's common stock in February 1994 in recognition of his
new position. The award was based on the Board's evaluation of the
Chief Executive Officer's past and expected contributions toward
the achievement of JSC's long-term strategic initiatives, including
the positive results realized by JSC from the significant
restructuring completed and cost savings measures instituted in
1993.
Commencing on the date of the Equity Offerings, the Committee
undertook the responsibility for reviewing the salary level and the
overall compensation of the Chief Executive Officer based upon a
periodic review of peer group companies, the performance of JSC in
relation to its peers and the performance of the individual. The
evaluation recognizes the major role of the Chief Executive Officer
in strategic initiatives to be accomplished by JSC, including cost
savings measures instituted under the tenure of the Chief Executive
Officer; growth in the market price for JSC's securities; and
favorable corporate developments for increased sales volume.
Submitted by the Compensation Committee of JSC's Board of
Directors.
D.P. Brennan
A.E. Goldberg
D.R. Ramsay
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
All of the outstanding JSC (U.S.) Common Stock is owned by JSCE,
and all of the outstanding JSCE Common Stock is owned by JSC.
Security Ownership of Certain Beneficial Owners
The table below sets forth certain information regarding the
beneficial ownership of the common stock of JSC (the "Common
Stock") by each person who is known to JSC to be the beneficial
owner of more than 5% of JSC's voting stock as of March 1, 1995.
Except as set forth below, the stockholders named below have sole
voting and investment power with respect to all shares of Common
Stock shown as being beneficially owned by them.
<TABLE>
<CAPTION>
Amount and
Nature of Percent of
Name and Address of Beneficial Common
Beneficial Owner Ownership Stock
<S> <C> <C>
SIBV 51,638,462 46.5%
Smurfit International B.V.
Strawinskylaan 2001
Amsterdam 1077ZZ, The Netherlands
Attention: Rokin Corporate Services B.V.
MSLEF II Associated Entities <F1> 31,800,000 28.7%
c/o Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, NY 10020
Attention: Donald Patrick Brennan
Mellon Bank, N.A., as Trustee for
First Plaza Group Trust <F2> 5,000,000 4.5%
One Mellon Bank Center
Pittsburgh, PA 15258
<FN>
<F1> As previously reported in JSC's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1994, representatives of
MSLEF II have informed JSC that they expect, subject to market
and other conditions, to dispose of MSLEF II's shares of
Common Stock through an underwritten offering, a distribution
to MSLEF II's partners, or otherwise, during 1995. No
assurances can be given whether or when disposal of any or all
of such shares will occur.
<F2> Amounts shown exclude shares of Common Stock owned by MSLEF
II, of which First Plaza Group Trust is a limited partner. If
MSLEF II were to distribute its shares of Common Stock to its
partners, First Plaza Group Trust would receive a number of
shares based on its pro rata ownership of MSLEF II.
</FN>
</TABLE>
<PAGE>
Security Ownership of Management
The table below sets forth certain information regarding the
beneficial ownership of the Common Stock as of February 10, 1995
for (i) each of the directors of JSC, (ii) each of the Named
Executive Officers (as defined below), and (iii) all directors and
executive officers of JSC as a group.
<TABLE>
<CAPTION>
Shares of Common Stock
Amount and
Nature of Percent
Beneficial of Common
Beneficial Owner Ownership<F1><F2> Stock <F3>
<S> <C> <C>
Michael W.J. Smurfit<F4> 102,600 0.1%
James B. Malloy 72,400 0.1%
Howard E. Kilroy<F4> 42,300
James E. Terrill<F4> 18,100
John R. Funke 13,600
Richard W. Graham 9,100
David C. Stevens 4,600
Donald P. Brennan<F5> 0
Alan E. Goldberg<F5> 0
David R. Ramsay<F5> 0
G. Thompson Hutton 0
James R. Thompson 0
All directors and
executive officers as
a group (24 persons,
excluding Mr. Malloy)<F4><F5> 255,700 0.2%
<FN>
<F1> Shares shown as beneficially owned include the number of
shares of Common Stock that executive officers have the right
to acquire within 60 days after February 10, 1995 pursuant to
exercisable options under JSC's 1992 Stock Option Plan.
<F2> Shares shown exclude any shares that may be held by JSC's
Savings Plan.
<F3> Based upon a total of 110,988,681 shares of Common Stock
issued and outstanding on March 1, 1995.
<F4> Excludes shares of Common Stock owned by JS Group. JS Group,
through its indirect wholly-owned subsidiary SIBV, owns 46.5%
of the Common Stock. Dr. Smurfit, Mr. Kilroy and Mr. Terrill
own 6.6%, 0.9% and less than 0.1%, respectively, of the
outstanding shares of JS Group. Dr. Smurfit and Mr. Kilroy
are officers of JS Group.
<F5> Excludes shares of Common Stock owned by MSLEF II.
</FN>
</TABLE>
The Company's obligations under the 1994 Credit Agreement are
secured by, among other things, the JSCE Common Stock and the JSC
(U.S.) Common Stock. If an Event of Default occurs and is
continuing under the 1994 Credit Agreement, the banks will have the
right to foreclose upon such stock.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
CERTAIN TRANSACTIONS
In connection with JSC's recapitalization plan implemented in May
1994, JSC issued 19.25 million shares of Common Stock at an initial
public offering price of $13.00 per share and the Company issued
<PAGE>
and sold $400 million of senior notes (the "Debt Offerings"). In
its capacity as underwriter of the Equity Offerings and Debt
Offerings, MS&Co. received net discounts and commissions of $5.5
million and $10.0 million, respectively, in 1994. The Company paid
$.5 million to SIBV for legal fees incurred by SIBV in connection
with the recapitalization of the Company in 1994.
In connection with its issuance in 1993 of $500 million unsecured
9.75% 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
(the "Notes") to be issued by the Company. Proceeds of the Notes
were to be used to repurchase or otherwise retire subordinated debt
of the Company. The agreement was terminated upon the consummation
of the Equity Offerings. In accordance with the agreement, the
Company paid $.4 million to SIBV for letter of credit fees incurred
by SIBV in connection with this commitment, $1.0 million for annual
commitment fees of 1.375% on the undrawn principal amount and $.9
million for certain costs of SIBV associated with such commitments
and the termination thereof.
Net sales by the Company to JS Group, its subsidiaries and
affiliates were $36.5 million for the year ended December 31, 1994.
Net sales by JS Group, its subsidiaries and affiliates to the
Company were $71.0 million for the year ended December 31, 1994.
Product sales to and purchases from JS Group, its subsidiaries and
affiliates were 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. 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, the Company is paid a fee up to 2% of the
subsidiaries' or affiliates' gross sales, which fee amounted to
$1.5 million for 1994. In consideration for elective services
provided in 1994, the Company received reimbursements of
approximately $2.8 million in 1994. In addition, the Company paid
JS Group and its affiliates $.6 million in 1994 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 the Company's
Fernandina Beach, Florida paperboard mill (the "Fernandina Mill").
Pursuant to the Fernandina Operating Agreement, the Company
operates and manages the machine, which is owned by a subsidiary of
SIBV. As compensation to the Company for its services, the
affiliate of JS Group agreed to reimburse the Company for
production and manufacturing costs directly attributable to the No.
2 paperboard machine and to pay the Company a portion of the
indirect manufacturing, selling and administrative costs incurred
by the Company 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 the Company totaled
$54.0 million in 1994.
The Registration Rights Agreement
Pursuant to the Registration Rights Agreement, dated as of May 3,
1994, among MSLEF II, SIBV, JSC and certain other parties (the
<PAGE>
"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 JSC to use its best efforts
to register under the Securities Act of 1933 the shares of Common
Stock owned by MSLEF II (including its partners) and certain other
entities (including their affiliates) and certain shares of Common
Stock owned by SIBV and its affiliates. Under the terms of the
Registration Rights Agreement, JSC 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. The Registration Rights Agreement 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 Common Stock subject to such agreement.
The Stockholders Agreement
Pursuant to the Stockholders Agreement, dated as of May 3, 1994,
among MSLEF II, SIBV, JSC and certain other parties, SIBV and the
MS Holders (as defined in the Stockholders Agreement) shall vote
their shares of Common Stock subject to the Stockholders Agreement
to elect as directors of JSC a certain number of individuals
selected by SIBV and a certain number of individuals selected by
MSLEF II, with such numbers varying depending on the amount of
Common Stock collectively owned by the MS Holders, the amount of
Common Stock owned by SIBV and the magnitude of the Initial Return
(as defined in the Stockholders Agreement) received by the MS
Holders on their investment of Common Stock. Currently, JSC's
Board of Directors consists of four directors selected by MSLEF II
(one of whom is not affiliated with MSLEF II or JSC) and four
directors selected by SIBV (one of whom is not affiliated with SIBV
or JSC). 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). Depending on the
amount of Common Stock collectively owned by the MS Holders and the
magnitude of the Initial Return received by the MS Holders on their
investment of Common Stock, approval of certain specified actions
of the Board shall require certain approval as specified in the
Stockholders Agreement.
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON
FORM 8-K.
(a) (1) and (2) The list of Financial Statements and Financial
Statement Schedules required by this item are included in
Item 8 on page 24.
(3) Exhibits.
3.1 Certificate of Incorporation of the Company.
3.2 By-laws of the Company.
4.1 Indenture for the Series A 1994 Senior Notes
(incorporated by reference to Exhibit 4.1 to JSC's
quarterly report on Form 10-Q for the quarter ended March
31, 1994).
4.2 Indenture for the Series B 1994 Senior Notes
(incorporated by reference to Exhibit 4.2 to JSC's
quarterly report on Form 10-Q for the quarter ended March
31, 1994).
4.3 Indenture for the 1993 Senior Notes (incorporated by
reference to Exhibit 4.4 to JSC's Registration Statement
on Form S-1 (File No. 33-75520)).
4.4 First Supplemental Indenture to the 1993 Senior Note
Indenture (incorporated by reference to Exhibit 4.5 to
JSC's Registration Statement on Form S-1 (File No. 33-
75520)).
10.1 Second Amended and Restated Organization Agreement, as of
August 26, 1992, among JSC (U.S.), CCA, MSLEF II, Inc.,
SIBV, JSC and MSLEF II (incorporated by reference to
Exhibit 10.1(d) to JSC (U.S.)'s quarterly report on Form
10-Q for the quarter ended September 30, 1992).
10.2 Stockholders Agreement among JSC, SIBV, MSLEF II and
certain related entities (incorporated by reference to
Exhibit 10.2 to JSC's quarterly report on Form 10-Q for
the quarter ended March 31, 1994).
10.3 Registration Rights Agreement among JSC, MSLEF II and
SIBV (incorporated by reference to Exhibit 10.3 to JSC's
quarterly report on Form 10-Q for the quarter ended March
31, 1994).
10.4 Subscription Agreement among JSC, JSC (U.S.), CCA and
SIBV (incorporated by reference to Exhibit 10.4 to JSC's
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 (U.S.) and Times Mirror (incorporated by
reference to Exhibit 4.2 to JSC (U.S.)'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 JSC's
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
(U.S.)'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.
<PAGE>
10.6(b) Amendment No. 1 to the Restated Newsprint Agreement
(incorporated by reference to Exhibit 10.6(b) to JSC's
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 (U.S.)'s quarterly
report on Form 10-Q for the quarter ended March 31,
1992).
10.8 Deferred Compensation Agreement, dated January 1, 1979,
between JSC (U.S.) and James B. Malloy, as amended and
effective November 10, 1983 (incorporated by reference to
Exhibit 10(m) to JSC (U.S.)'s Registration Statement on
Form S-1 (File No. 2-86554)).
10.9(a) JSC (U.S.) Deferred Compensation Capital Enhancement Plan
(incorporated by reference to Exhibit 10(r) to JSC
(U.S.)'s quarterly report on Form 10-Q for the quarter
ended September 30, 1985).
10.9(b) Amendment No. 1 to the Deferred Compensation Capital
Enhancement Plan (incorporated by reference to Exhibit
10.37 to JSC (U.S.)/CCA's Annual Report on Form 10-K for
the fiscal year ended December 31, 1989).
10.10 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 (U.S.)'s Registration
Statement on Form S-1 (File No. 2-86554)).
10.11(a) JSC (U.S.) Deferred Director's Fee Plan (incorporated by
reference to Exhibit 10.33 to JSC (U.S.)/CCA's Annual
Report on Form 10-K for the fiscal year ended December
31, 1989).
10.11(b) Amendment No. 1 to JSC (U.S.) Deferred Director's Fee
Plan (incorporated by reference to Exhibit 10.34 to JSC
(U.S.)/CCA's Annual Report on Form 10-K for the fiscal
year ended December 31, 1989).
10.12 Jefferson Smurfit Corporation Management Incentive Plan
1994 (incorporated by reference to Exhibit 10.14 to JSC's
Registration Statement on Form S-1 (File No. 33-75520)).
10.13 Jefferson Smurfit Corporation (U.S.) 1994 Long-Term
Incentive Plan (incorporated by reference to Exhibit
10.13 to JSC's Registration Statement on Form S-1 (File
No. 33-75520)).
10.14 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 (U.S.)'s quarterly report on Form 10-Q for
the quarter ended March 31, 1992).
10.15(a) 1992 SIBV/MS Holdings, Inc. Stock Option Plan
(incorporated by reference to Exhibit 10.48 to JSC
(U.S.)'s quarterly report on Form 10-Q for the quarter
ended September 30, 1992).
10.15(b) Amendment No. 1 to 1992 SIBV/MS Holdings, Inc. Stock
Option Plan (incorporated by reference to Exhibit
10.16(b) to JSC's Registration Statement on Form S-1
(File No. 33-75520)).
10.16 Amended and Restated Commitment Letter, dated February
10, 1994, among JSC (U.S.), CCA, Chemical, Bankers Trust,
CSI and BTSC (incorporated by reference to Exhibit 10.17
to JSC's Registration Statement on Form S-1 (File No. 33-
75520)).
10.17 Credit Agreement, among JSC (U.S.), CCA and the banks
parties thereto (incorporated by reference to Exhibit
10.1 to JSC's quarterly report on Form 10-Q for the
quarter ended March 31, 1994).
18.1 Letter regarding change in accounting for pension plans
(incorporated by reference to Exhibit 18.1 to JSC
(U.S.)'s quarterly report on Form 10-Q for the quarter
ended September 30, 1993).
21.1 Subsidiaries of the Company.
24.1 Powers of Attorney (incorporated by reference to Exhibit
24.1 to JSC's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994).
<PAGE>
25.1 Statement on Form T-1 of the eligibility of NationsBank
of Georgia, National Association, as Trustee under the
1993 Senior Note Indenture (incorporated by reference to
Exhibit 25.1 to JSC (U.S.)/CCA's Registration Statement
on Form S-2 (File No. 33-58348)).
(b) Report on Form 8-K.
The Company did not file any reports on Form 8-K during the
three months ended December 31, 1994.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
DATE March 7, 1995 JSCE, Inc.
(Registrant)
BY: /s/ John R. Funke
John R. Funke
Vice-President and Chief Financial Officer
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed below by the following persons on
behalf of the registrant in the capacities and on the date
indicated.
SIGNATURE TITLE DATE
* Chairman of the Board
Michael W. J. Smurfit and Director
* President, Chief Executive
James E. Terrill Officer and Director
(Principal Executive Officer)
/s/ John R. Funke Vice-President and Chief March 7, 1995
John R. Funke Financial Officer (Principal
Accounting Officer)
* Director
Howard E. Kilroy
* Director
Donald P. Brennan
* Director
Alan E. Goldberg
* Director
David R. Ramsay
* Director
James R. Thompson
* Director
G. Thompson Hutton
* By /s/ John R. Funke , pursuant to Powers of Attorney
John R. Funke filed as a part of the Form 10-K.
As Attorney in Fact
<PAGE>
JSCE, Inc.
SCHEDULE VIII - VALUATION AND QUALIFYING ACCOUNTS
(In Millions)
<TABLE>
<CAPTION>
Column A Column B Column C Column D Column E
Balance at
Beginning of Charged
Period, as Charged to to Other Deductions Balance
Previously Costs and Accounts Describe at End
Description Reported Expenses Describe <F1> of Period
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1994
Allowance for doubtful accounts $9.2 $1.1 $ $1.7 $8.6
Year ended December 31, 1993
Allowance for doubtful accounts $7.8 $4.0 $ $2.6 $9.2
Year ended December 31, 1992
Allowance for doubtful accounts $8.2 $3.5 $ $3.9 $7.8
<FN>
<F1> Uncollectible accounts written off, net of recoveries.
</FN>
</TABLE>
CERTIFICATE OF INCORPORATION
OF
JSCE, INC.
FIRST: The name of the Corporation is JSCE, Inc.
(hereinafter 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 $.01 per share (the "Common
Stock").
FIFTH: The name and mailing address of the Sole
Incorporator is as follows:
Mary E. Keogh
P.O. Box 636
Wilmington, DE 19899
SIXTH: 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
stockholders for monetary damages for breach of fidu-
ciary duty as a director, except for liability (i) for
breach of the director's duty of loyalty to the Corpo-
ration or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional miscon-
duct or a knowing violation of law, (iii) pursuant to
Section 174 of the GCL or (iv) for any transaction from
which the director derived an improper personal bene-
fit. Any alteration, amendment or repeal of this Arti-
cle SIXTH 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.
SEVENTH: 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 provi-
sion 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.
<PAGE>
EIGHTH: The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certifi-
cate of Incorporation, and all rights conferred upon stockholders
hereby are granted subject to this reservation.
I, THE UNDERSIGNED, being the Sole Incorporator herein-
before named, for the purpose of forming a corporation pursuant
to the GCL, do make this Certificate, hereby declaring and
certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this
____ day of December, 1994.
___________________________
Mary E. Keogh
Sole Incorporator
ACTION OF THE SOLE INCORPORATOR
OF
JSCE, INC.
The undersigned, being the sole incorporator of JSCE,
Inc., a Delaware corporation (the "Corporation"), hereby adopts
the following resolutions in lieu of a meeting, pursuant to
Section 108(c) of the General Corporation Law of the State of
Delaware:
RESOLVED, that the proposed form of By-Laws atta-
ched hereto is hereby adopted as and for the By-Laws of
the Corporation.
RESOLVED, that the number of directors constitut-
ing the Board of Directors is hereby fixed at eight (8)
and that the following persons are hereby elected as
directors of the Corporation to serve until the first
Annual Meeting of Stockholders and until their succes-
sors shall be elected and duly qualified:
Michael W.J. Smurfit
James E. Terrill
Howard E. Kilroy
Donald P. Brennan
Alan E. Goldberg
David R. Ramsay
James R. Thompson
G. Thompson Hutton
RESOLVED, that the Board of Directors of the
Corporation is hereby authorized and directed to issue
from time to time the shares of capital stock of the
Corporation, now or hereafter authorized, wholly or
partly for cash, for labor done, or services performed,
or for personal property, or real property or leases
thereof, received for the use and lawful purposes of
the Corporation, or for any consideration, permitted by
law, as in the discretion of the Board of Directors may
seem for the best interest of the Corporation.
IN WITNESS WHEREOF, the undersigned has duly executed
this instrument this day of December, 1994.
___________________________
Mary E. Keogh
Sole Incorporator
<PAGE>
BY-LAWS
OF
JSCE, Inc.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of Wilm-
ington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places both within and
without the State of Delaware as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any
other purpose shall be held at such time and place,
either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The annual meet-
ings of stockholders shall be held on such date and at
such time as shall be designated from time to time by the
Board of Directors and stated in the notice of the meet-
ing, at which meetings the stockholders shall elect
directors by a plurality vote, and transact such other
business as may properly be brought before the meeting.
Written notice of the annual meeting stating the place,
date and hour of the meeting shall be given to each
stockholder entitled to vote at such meeting not less
than ten (10) nor more than sixty (60) days before the
date of the meeting.
<PAGE>
Section 3. Special Meetings. Unless otherwise
prescribed by law or by the Certificate of Incorporation
as it may be amended from time to time (the "Certificate
of Incorporation"), special meetings of stockholders, for
any purpose or purposes, may be called by any of (i) the
Chairman of the Board of Directors, (ii) the President,
(iii) any Vice President, or (iv) the Secretary, and
shall be called by any such officer at the request in
writing of a majority of the entire Board of Directors.
Such request shall state the purpose or purposes of the
proposed meeting. Written notice of a special meeting of
stockholders stating the place, date and hour of the
meeting and the purpose or purposes for which the meeting
is called shall be given not less than ten (10) nor more
than sixty (60) days before the date of the meeting to
each stockholder entitled to vote at such meeting.
Section 4. Quorum. Except as otherwise pro-
vided by law or by the Certificate of Incorporation, the
holders of a majority of the capital stock issued and
outstanding and entitled to vote thereat, present in
person or represented by proxy, shall constitute a quorum
at all meetings of the stockholders for the transaction
of business. If, however, such quorum shall not be
present or represented at any meeting of the stockhold-
ers, the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have the power
to adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represent-
ed, any business may be transacted which might have been
transacted at the meeting as originally noticed. If the
adjournment is for more than thirty (30) days, or if
after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder entitled to vote at
the meeting.
Section 5. Voting. Unless otherwise required
by law, the Certificate of Incorporation or these By-
Laws, any question brought before any meeting of stock-
holders shall be decided by the vote of the holders of a
majority of the capital stock represented and entitled to
vote thereat. Each stockholder represented at a meeting
of stockholders shall be entitled to cast one vote for
each share of the capital stock entitled to vote thereat
<PAGE>
held by such stockholder or such other vote as set forth
in the Certificate of Incorporation. Such votes may be
cast in person or by proxy but no proxy shall be voted on
or after three years from its date, unless such proxy
provides for a longer period. The Board of Directors, in
its discretion, or the officer of the Corporation presid-
ing at a meeting of stockholders, in his discretion, may
require that any votes cast at such meeting shall be cast
by written ballot.
Section 6. Consent of Stockholders in Lieu of
Meeting. Unless otherwise provided in the Certificate of
Incorporation or these By-Laws, any action required or
permitted to be taken at any annual or special meeting of
stockholders of the Corporation, may be taken without a
meeting, without prior notice and without a vote, if a
consent in writing setting forth the action so taken,
shall be signed by the holders of outstanding stock
having not less than the minimum number of votes that
would be necessary to authorize or take such action at a
meeting at which all shares entitled to vote thereon were
present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous
written consent shall be given to those stockholders who
have not consented.
Section 7. List of Stockholders Entitled to
Vote. The officer of the Corporation who has charge of
the stock ledger of the Corporation shall prepare and
make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders enti-
tled to vote at the meeting, arranged in alphabetical
order, and showing the address of each stockholder and
the number of shares registered in the name of each
stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meet-
ing, during ordinary business hours, for a period of at
least ten (10) days prior to the meeting of stockholders,
either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of
the meeting, or, if not so specified, at the place where
the meeting is to be held. The list shall also be pro-
duced and kept at the time and place of the meeting of
stockholders during the whole time thereof, and may be
inspected by any stockholder of the Corporation who is
present.
<PAGE>
Section 8. Stock Ledger. The stock ledger of
the Corporation shall be the only evidence as to who are
the stockholders entitled to examine the stock ledger,
the list required by Section 7 of this Article II or the
books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 9. Nomination of Directors. Only
persons who are nominated in accordance with the follow-
ing procedures shall be eligible for election as direc-
tors of the Corporation, except as may be otherwise
provided in the Certificate of Incorporation of the
Corporation with respect to the right of holders of
preferred stock of the Corporation to nominate and elect
a specified number of directors in certain circumstances.
Nominations of persons for election to the Board of
Directors may be made at any annual meeting of stockhold-
ers (a) by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (b) by any
stockholder of the Corporation (i) who is a stockholder
of record on the date of the giving of the notice provid-
ed for in this Section 8 and on the record date for the
determination of stockholders entitled to vote at such
annual meeting and (ii) who complies with the notice
procedures set forth in this Section 9.
In addition to any other applicable require-
ments, for a nomination to be made by a stockholder, such
stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preced-
ing annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
<PAGE>
To be in proper written form, a stockholder's
notice to the Secretary must set forth (a) as to each
person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business ad-
dress and residence address of the person, (ii) the
principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
record by the person and (iv) any other information
relating to the person that would be required to be
disclosed in a proxy statement or other filings required
to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the
Securities Exchange Act of 1934, as amended from time to
time (the "Exchange Act"), and the rules and regulations
promulgated thereunder; and (b) as to the stockholder
giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of
shares of capital stock of the Corporation which are
owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings
between such stockholder and each proposed nominee and
any other person or persons (including their names)
pursuant to which the nomination(s) are to be made by
such stockholder, (iv) a representation that such stock-
holder intends to appear in person or by proxy at the
annual meeting to nominate the persons named in its
notice and (v) any other information relating to such
stockholder that would be required to be disclosed in a
proxy statement or other filings required to be made in
connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and
the rules and regulations promulgated thereunder. Such
notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve
as a director if elected.
No person shall be eligible for election as a
director of the Corporation unless nominated in accor-
dance with the procedures set forth in this Section 9. If
the officer presiding at an annual meeting of stockhold-
ers determines that a nomination was not made in accor-
dance with the foregoing procedures, such officer shall
declare to the meeting that the nomination was defective
and such defective nomination shall be disregarded.
<PAGE>
Section 10. Business at Annual Meetings. No
business may be transacted at an annual meeting of stock-
holders, other than business that is either (a) specified
in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors
(or any duly authorized committee thereof), (b) otherwise
properly brought before the annual meeting by or at the
direction of the Board of Directors (or any duly autho-
rized committee thereof) or (c) otherwise properly
brought before the annual meeting by any stockholder of
the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this
Section 10 and on the record date for the determination
of stockholders entitled to vote at such annual meeting
and (ii) who complies with the notice procedures set
forth in this Section 10.
In addition to any other applicable require-
ments, for business to be properly brought before an
annual meeting by a stockholder, such stockholder must
have given timely notice thereof in proper written form
to the Secretary of the Corporation.
To be timely, a stockholder's notice to the
Secretary must be delivered to or mailed and received at
the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days
prior to the anniversary date of the immediately preced-
ing annual meeting of stockholders; provided, however,
that in the event that the annual meeting is called for a
date that is not within thirty (30) days before or after
such anniversary date, notice by the stockholder in order
to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on
which notice of the date of the annual meeting was mailed
or public disclosure of the date of the annual meeting
was made, whichever first occurs.
To be in proper written form, a stockholder's
notice to the Secretary must set forth as to each matter
such stockholder proposes to bring before the annual
meeting (i) a brief description of the business desired
to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii)
the name and record address of such stockholder, (iii)
the class or series and number of shares of capital stock
of the Corporation which are owned beneficially or of
<PAGE>
record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder
and any other person or persons (including their names)
in connection with the proposal of such business by such
stockholder and any material interest of such stockholder
in such business and (v) a representation that such
stockholder intends to appear in person or by proxy at
the annual meeting to bring such business before the
meeting.
No business shall be conducted at the annual
meeting of stockholders except business brought before
the annual meeting in accordance with the procedures set
forth in this Section 10; provided, however, that, once
business has been properly brought before the annual
meeting in accordance with such procedures, nothing in
this Section 10 shall be deemed to preclude discussion by
any stockholder of any such business. If the officer
presiding at an annual meeting of stockholders determines
that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, such
officer shall declare to the meeting that the business
was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The Board of Directors shall consist of not less than
three (3) nor more than fifteen (15) members, the exact
number of which shall initially upon the adoption of
these By-Laws be eight (8) 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
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.
<PAGE>
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 and any
vacancies in the Board of Directors resulting from death
or incapacity, resignation, retirement, disqualification
or removal from office may be filled only by the affirma-
tive vote of a majority of the directors then in office,
though less than a quorum, or by a sole remaining direc-
tor, in a manner consistent with the terms of the Stock-
holders Agreement, and directors so elected shall hold
office until the next annual meeting of stockholders and
until their successors are duly elected and qualified, or
until their earlier death or incapacity, resignation,
retirement, disqualification or removal from office.
Section 3. Duties and Powers. The business of
the Corporation shall be managed by or under the direc-
tion of the Board of Directors which may exercise all
such powers of the Corporation and do all such lawful
acts and things as are not by statute or by the Certifi-
cate of Incorporation or by these By-Laws directed or
required to be exercised or done by the stockholders. The
aforesaid powers of the Board of Directors shall include,
but shall in no way be limited to, the power to authorize
any of the specific actions set forth on Schedule I
attached to these By-Laws in accordance with the provi-
sions of Section 5 of this Article III, and such specific
actions shall be within the exclusive province of the
Board of Directors, as prescribed by law, the Certificate
of Incorporation or these By-Laws, and shall not be
delegated to any officer, employee or agent of the Corpo-
ration.
Section 4. Meetings. The Board of Directors of
the Corporation may hold meetings, both regular and
special, either within or without the State of Delaware.
Regular meetings of the Board of Directors may be held
without notice at such time and at such place as may from
time to time be determined by the Board of Directors.
Special meetings of the Board of Directors may be called
by the Chairman of the Board of Directors, if there be
one, the President, or any director. Notice thereof
stating the place, date and hour of the meeting and the
matters to be acted on at such meeting shall be given to
each director either by mail not less than forty-eight
(48) hours before the date of the meeting (and, if such
<PAGE>
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 JSC 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:
"JSC Common Stock" shall mean the Common Stock
(as defined in the Stockholders Agreement) of JSC.
"JSC" shall mean Jefferson Smurfit Corporation,
a Delaware corporation and the parent of the Corporation.
"MS Holders" shall have the meaning set forth
in the Stockholders Agreement.
<PAGE>
"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 JSC,
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 part-
nership ("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 JSC 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.
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
<PAGE>
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.
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
<PAGE>
present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or
interest and as to the contract or transaction are dis-
closed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
(iii) the contract or transaction is fair as to the
Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may
be counted in determining the presence of a quorum at a
meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 1. General. The officers of the
Corporation shall be chosen by the Board of Directors (or
by a duly appointed committee thereof (the "Appointment
Committee")) and shall be a Chairman of the Board of
Directors (who must be a director), a President, a Secre-
tary, a Chief Financial Officer and a Treasurer. The
Board of Directors (or, if there be one, the Appointment
Committee), in its discretion, may also choose one or
more Vice Presidents, Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may
be held by the same person, unless otherwise prohibited
by law, the Certificate of Incorporation or these By-
Laws. The officers of the Corporation need not be stock-
holders of the Corporation nor, except in the case of the
Chairman of the Board of Directors, need such officers be
directors of the Corporation.
<PAGE>
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 JSC.
Section 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments relat-
ing to securities owned by the Corporation may be execut-
ed in the name of and on behalf of the Corporation by the
President or any Vice President and any such officer may,
in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security
holders of any corporation in which the Corporation may
own securities and at any such meeting shall possess and
may exercise any and all rights and powers incident to
the ownership of such securities and which, as the owner
thereof, the Corporation might have exercised and pos-
sessed if present. The Board of Directors may, by reso-
lution, from time to time confer like powers upon any
other person or persons.
Section 4. Chairman of the Board of Directors.
The Chairman of the Board of Directors shall preside at
all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the
<PAGE>
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
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
<PAGE>
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
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.
<PAGE>
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
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-
<PAGE>
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.
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-
<PAGE>
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
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
<PAGE>
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
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
<PAGE>
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
may be used by causing it or a facsimile thereof to be
impressed or affixed or reproduced or otherwise.
<PAGE>
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
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-
<PAGE>
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.
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
<PAGE>
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
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
<PAGE>
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,
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
<PAGE>
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,
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
<PAGE>
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
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
<PAGE>
Directors" means the total number of directors which the
Corporation would have if there were no vacancies.
<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 JSC or any direct or indirect wholly owned
subsidiary of JSC).
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 JSC and any of its direct or indirect
wholly owned subsidiaries or among any of JSC's 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 JSC, the Corporation or Container Corporation of
America, a Delaware corporation ("CCA"), with other sub-
sidiaries of JSC, the Corporation or CCA (other than a
merger or consolidation involving JSC, the Corporation or
CCA, except as contemplated by the Corporation's Regis-
tration 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 JSC or any of its direct or indi-
rect 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 sub-
sidiaries' 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: JSC, 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 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.
EXHIBIT 21.1
SUBSIDIARIES OF THE COMPANY
State or
Jurisdiction of
Incorporation or
Organization% Owned
(1) Jefferson Smurfit Corporation (U.S.) Delaware 100%
(2) Smurfit Newsprint Corporation Delaware 80%
(3) Packaging Unlimited, Inc. Delaware 100%
(4) JSC International Sales, Inc. Barbados 100%
(5) CCA de Baja California, S.A. de C.V. Mexico D.F. 100%
(6) Jefferson Smurfit Finance Corporation Delaware 100%
(7) Groveton Paper Board, Inc. New Hampshire 62.94%
(8) CorFab, Inc. California 66.67%
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000727742
<NAME> JSCE, INC.
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1994
<PERIOD-START> JAN-01-1994
<PERIOD-END> DEC-31-1994
<CASH> 61800
<SECURITIES> 0
<RECEIVABLES> 324900
<ALLOWANCES> 8600
<INVENTORY> 223700
<CURRENT-ASSETS> 646500
<PP&E> 2084300
<DEPRECIATION> 657200
<TOTAL-ASSETS> 2759000
<CURRENT-LIABILITIES> 636000
<BONDS> 2391700
<COMMON> 0
0
0
<OTHER-SE> (730300)
<TOTAL-LIABILITY-AND-EQUITY> 2759000
<SALES> 3233300
<TOTAL-REVENUES> 3233300
<CGS> 2718700
<TOTAL-COSTS> 2718700
<OTHER-EXPENSES> 223700
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 268500
<INCOME-PRETAX> 28700
<INCOME-TAX> 16400
<INCOME-CONTINUING> 12300
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<EXTRAORDINARY> (55400)
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</TABLE>
