As filed with the Securities and Exchange Commission on December 27, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JEFFERSON SMURFIT CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 43-1531401
(State of incorporation) (I.R.S. Employer Identification No.)
8182 Maryland Avenue, St. Louis, Missouri 63105
(Address of principal executive offices) (Zip code)
JEFFERSON SMURFIT CORPORATION 1992 STOCK OPTION PLAN
(Full title of the plan)
John R. Funke
Vice President and Chief Financial Officer
8182 Maryland Avenue, St. Louis, Missouri 63105
(314) 746-1100
(Name, address and telephone number, including area code,
of agent for service)
Copy to:
Lou R. Kling, Esq.
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue, New York, New York 10022
(212) 735-3000
CALCULATION OF REGISTRATION FEE
_____________________________________________________________________________
Proposed Proposed Amount of
Title of Amount to Maximum Maximum Registration
Securities be Offering Price Aggregate Fee
to be Registered Per Share Offering
Registered (1)(2) Price (2)
______________________________________________________________________________
Common Stock,
par value
$0.01 per
share 8,050,000 shares $14.875 $119,743,750.00 $41,290.95
(1) Estimated pursuant to paragraphs (c) and (h) of
Rule 457 under the Securities Act of 1933, as
amended (the "Securities Act"), on the basis of the
average of the high and low sale prices for a share
of Common Stock on the Nasdaq Stock Market on
December 20, 1994, within five business days prior
to filing.
(2) Estimated solely for the purpose of calculating the
registration fee.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Incorporated by reference in this Registration Statement
are the following documents filed by the registrant, JEFFERSON
SMURFIT CORPORATION, a Delaware corporation (the
"Registrant"), with the Securities and Exchange Commission
(the "Commission"):
(a) The Registrant's Registration Statement on Form
S-1 (File No. 33-75520), as amended;
(b) The Registrant's Quarterly Reports on Form 10-Q
for the quarterly periods ended September 30,
1994, June 30, 1994 and March 31, 1994; and
(c) The description of the Registrant's common
stock, par value $0.01 per share (the "Common
Stock"), contained in the Registrant's Report
on Form 8-A (File No. 0-23876), including any
amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is
incorporated or deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the offering of
the shares of Common Stock registered hereby and the interests
in the employee benefit plan described herein have been passed
upon by Michael E. Tierney, Esq., Vice President, General
Counsel and Secretary of Jefferson Smurfit Corporation. Mr.
Tierney has options to acquire shares of Common Stock of
Jefferson Smurfit Corporation.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The By-Laws of the Registrant provide the Registrant
with the authority to indemnify its directors, officers,
employees and agents to the full extent allowed by Delaware
law. The Registrant maintains an insurance policy which
provides directors and officers of the Registrant with
coverage in connection with certain events, whether occurring
before or after the consummation of the Registrant's initial
public offering.
See Item 9 for the Registrant's undertaking with respect
to indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
4.1 Restated Certificate of Incorporation of the
Registrant.
4.2 By-Laws of the Registrant.
4.3 Form of certificate for the Registrant's Common
Stock.
5.1 Opinion of Michael E. Tierney, Esq. regarding the
legality of the securities being registered.
23.1 Consent of Michael E. Tierney, Esq. (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, St. Louis, Missouri.
24.1 Powers of Attorney.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement;
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
Registration Statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
Registration Statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the Registration
Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the
Registration Statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection
with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act, the Registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of St. Louis, State of
Missouri, on the 27th day of December, 1994.
JEFFERSON SMURFIT CORPORATION
By /s/ John R. Funke
________________________
John R. Funke
Vice President and Chief
Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
* Director, Chairman of the Board
_____________________
Michael W.J. Smurfit
* Director, President and Chief Executive
_____________________ Officer (Principal Executive Officer)
James E. Terrill
/s/ John R. Funke Vice President and Chief Financial December 27, 1994
_____________________ Officer (Principal Financial and
John R. Funke Accounting Officer)
* Director
______________________
Howard E. Kilroy
* Director
______________________
Donald P. Brennan
* Director
______________________
Alan E. Goldberg
* Director
______________________
G. Thompson Hutton
* Director
______________________
David R. Ramsay
* Director
______________________
James R. Thompson
*By /s/ John R. Funke
___________________________
John R. Funke
Attorney-in-Fact
December 27, 1994
LIST OF EXHIBITS
Exhibit No. Description
4.1 Restated Certificate of Incorporation of the
Registrant.
4.2 By-Laws of the Registrant.
4.3 Form of certificate for the Registrant's Common Stock.
5.1 Opinion of Michael E. Tierney, Esq. regarding the
legality of the securities being registered.
23.1 Consent of Michael E. Tierney, Esq. (included in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, St. Louis, Missouri.
24.1 Powers of Attorney.
RESTATED CERTIFICATE OF INCORPORATION
OF
SIBV/MS HOLDINGS, INC.
(A CLOSE CORPORATION)
SIBV/MS HOLDINGS, INC., a Delaware corporation, the
original Certificate of Incorporation of which was filed with
the Secretary of State of the State of Delaware on August 4,
1989, HEREBY CERTIFIES that this Restated Certificate of
Incorporation, restating, integrating and amending its
Certificate of Incorporation, reclassifying its capital stock
as described in Article FOURTH below and terminating its
status as a close corporation pursuant to Section 346 of the
General Corporation Law of the State of Delaware, was duly
adopted in accordance with Sections 228, 242 and 245 of the
General Corporation Law of the State of Delaware and that
written notice of such adoption has been given to certain
stockholders as provided in paragraph (d) of such Section
228.
FIRST: The name of the Corporation is Jefferson
Smurfit Corporation (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 such address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage
in any lawful act or activity for which a corporation may be
organized under the General Corporation Law of the State of
Delaware (the "GCL").
FOURTH: Each issued share of the Corporation's (i)
Class A common stock, par value $.01 per share, (ii) Class B
common stock, par value $.01 per share, (iii) Class C common
stock, par value $.01 per share, (iv) Class D common stock,
par value $.01 per share, and (v) Class E common stock, par
value $.01 per share, is hereby changed and reclassified into
ten shares of common stock, par value $.01 per share (the
"Common Stock"), of the Corporation.
The total number of shares of capital stock which
the Corporation shall have authority to issue is 300,000,000
shares, consisting of 250,000,000 shares of Common Stock and
50,000,000 shares of preferred stock, par value $.01 per
share (the "Preferred Stock").
All shares of Common Stock currently owned and held
by Morgan Stanley Leveraged Equity Fund II, Inc. ("MSLEF II,
Inc.") and in which MSLEF II, Inc. holds the entire economic
interest and all shares of Common Stock owned and held by
Morgan Stanley & Co. Incorporated ("MS & Co.") and Morgan
Stanley & Co. International Limited ("MS & Co.
International") will not be entitled to be voted by any such
entity at any time unless, and except to the extent that, at
such time such entity would be able to acquire and vote such
shares owned and held by it without violation of the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended
(the "HSR Act"); provided, however, that the foregoing shall
not limit (i) any rights of MSLEF II, Inc. to vote any shares
owned or held by the Morgan Stanley Leveraged Equity Fund II,
L.P. or (ii) the right of any other party to acquire or vote
any shares of Common Stock; provided, further, that in no
event shall the number of shares which would not be entitled
to be voted pursuant to this sentence exceed 7,000,000 shares
of Common Stock (with the shares which would not be entitled
to be voted being initially allocated to MSLEF II, Inc. and
thereafter being allocated between MS & Co. and MS & Co.
International pro rata based on their respective ownership of
Common Stock). Notwithstanding the foregoing, this paragraph
shall have no force and effect following June 30, 1995, so
long as Morgan Stanley Group, Inc. shall have filed a Pre
Merger Notification and Report Form with respect to its
ownership of Common Stock under the HSR Act prior thereto.
The Board of Directors is expressly authorized to
provide for the issuance of all or any shares of the
Preferred Stock in one or more classes or series, and to fix
for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive
designations, preferences and relative, participating,
optional or other special rights and such qualifications,
limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the
Board of Directors providing for the issuance of such class
or series and as may be permitted by the GCL, including,
without limitation, the authority to provide that any such
class or series may be (i) subject to redemption at such time
or times and at such price or prices; (ii) entitled to
receive dividends (which may be cumulative or non-cumulative)
at such rates, on such conditions, and at such times, and
payable in preference to, or in such relation to, the
dividends payable on any other class or classes or any other
series; (iii) entitled to such rights upon the dissolution
of, or upon any distribution of the assets of, the
Corporation; or (iv) convertible into, or exchangeable for,
shares of any other class or classes of stock, or of any
other series of the same or any other class or classes of
stock, of the Corporation at such price or prices or at such
rates of exchange and with such adjustments; all as may be
stated in such resolution or resolutions.
FIFTH: A. The business and affairs of the
Corporation shall be managed by or under the direction of a
Board of Directors consisting of not less than three (3) and
not more than fifteen (15) directors, the exact number of
directors to be determined as set forth in the By-Laws. The
directors shall be divided into three classes, designated
Class I, Class II and Class III. Each class of directors
shall consist, as nearly as may be possible, of one-third of
the total number of directors constituting the entire Board
of Directors. The initial term of office of directors of
Class I shall expire at the annual meeting of stockholders in
1995; the initial term of office of directors of Class II
shall expire at the annual meeting of stockholders in 1996;
and the initial term of office of directors of Class III
shall expire at the annual meeting of stockholders in 1997.
At each annual meeting of stockholders, beginning with the
annual meeting in 1995, successors to the class of directors
whose term expires at such annual meeting shall be elected
for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among
the classes so as to maintain the number of directors in each
class as nearly equal as possible, but in no case will a
decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the
annual meeting of stockholders for the year in which his or
her term expires and until his or her successor shall be
elected and shall qualify, subject, however, to prior death
or incapacity, resignation, retirement, disqualification or
removal from office.
B. Subject to the terms of any one or more classes or
series of Preferred Stock, newly created directorships
resulting from any increase in the number of directors
(including the two vacancies in the Board of Directors
existing as of the consummation of the Corporation's initial
public offering of its Common Stock) and any vacancies in the
Board of Directors resulting from death or incapacity,
resignation, retirement, disqualification or removal from
office may be filled only by the affirmative vote of a
majority of the directors then in office, though less than a
quorum, or by a sole remaining director, and directors so
elected shall hold office for a term expiring at the annual
meeting of stockholders at which the term of the class to
which they have been elected expires and until their
successors are duly elected and qualified, or until their
earlier death or incapacity, resignation, retirement,
disqualification or removal from office.
C. Any director may be removed from office at any time
with Cause (as defined below); however, any vacancies on the
Board of Directors resulting from such removal for Cause may
only be filled by the remaining directors in accordance with
Paragraph B of this Article FIFTH and not by the
stockholders. The term "Cause" shall mean the commission by
a director of an act of fraud or embezzlement against the
Corporation or any of its subsidiaries or a felony conviction
or guilty plea as to a felony by such director.
D. Notwithstanding anything in this Restated
Certificate of Incorporation to the contrary, no provision of
this Article FIFTH may be altered, amended or repealed, nor
may any provision inconsistent with this Article FIFTH be
adopted, except by the affirmative vote of the stockholders
holding at least two-thirds of the voting power of the
Corporation's then outstanding capital stock entitled to vote
thereon.
SIXTH: No director shall be personally liable to
the Corporation or any of its stockholders for monetary
damages for any breach of fiduciary duty as a director,
except for liability (i) for breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the GCL or (iv) for any transaction from which
the director derived an improper personal benefit. Any
alteration, amendment or repeal of this Article 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.
SEVENTH: The Corporation is to have perpetual
existence.
EIGHTH: The private property of the stockholders
shall not be subject to the payment of corporate debts to any
extent whatsoever.
NINTH: The By-Laws of the Corporation may be
altered, amended or repealed in whole or in part, or new By-
Laws may be adopted, by the stockholders or by the
affirmative vote of such number of directors as may be
required by the By-Laws of the Corporation to approve any
such action; provided, that the stockholders may take such
action only by the affirmative vote of the stockholders
holding at least two-thirds of the voting power of the
Corporation's then outstanding capital stock entitled to vote
thereon. As used in this Restated Certificate of
Incorporation, the term "entire Board of Directors" means the
total number of directors which the Corporation would have if
there were no vacancies. Notwithstanding anything in this
Restated Certificate of Incorporation to the contrary, no
provision of this Article NINTH may be altered, amended or
repealed, nor may any provision inconsistent with this
Article NINTH be adopted, except by the affirmative vote of
the stockholders holding at least two-thirds of the voting
power of the Corporation's then outstanding capital stock
entitled to vote thereon.
TENTH: Any action required or permitted to be
taken by the stockholders of the Corporation may be effected
solely at a duly called annual or special meeting of
stockholders of the Corporation and may not be effected by
any consent in writing by such stockholders in lieu of such a
meeting. Notwithstanding anything in this Restated
Certificate of Incorporation to the contrary, no provision of
this Article TENTH may be altered, amended or repealed, nor
may any provision inconsistent with this Article TENTH be
adopted, except by the affirmative vote of the stockholders
holding at least two-thirds of the voting power of the
Corporation's then outstanding capital stock entitled to vote
thereon.
ELEVENTH: Special meetings of stockholders 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. Special meetings of stockholders may not be
called by the stockholders. Notwithstanding anything in this
Restated Certificate of Incorporation to the contrary, no
provision of this Article ELEVENTH may be altered, amended or
repealed, nor may any provision inconsistent with this
Article ELEVENTH be adopted, except by the affirmative vote
of the stockholders holding at least two-thirds of the voting
power of the Corporation's then outstanding capital stock
entitled to vote thereon.
TWELFTH: The Corporation reserves the right to
amend, alter, change or repeal any provision contained in
this Restated Certificate of Incorporation, and all rights
conferred upon stockholders hereby are granted subject to
this reservation.
IN WITNESS WHEREOF, the Corporation has caused this
certificate to be signed in its name and attested by its duly
authorized officers this 11th day of May, 1994.
SIBV/MS HOLDINGS, INC.
By: /s/ James E. Terrill
_________________________
President
ATTEST:
/s/ Craig Hunt
_____________________
Assistant Secretary
BY-LAWS
OF
JEFFERSON SMURFIT CORPORATION
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
Section 1. Registered Office. The registered
office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices. The Corporation may
also have offices at such other places both within and
without the State of Delaware as the Board of Directors
may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of the
stockholders for the election of directors or for any
other purpose shall be held at such time and place,
either within or without the State of Delaware as shall
be designated from time to time by the Board of Directors
and stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2. Annual Meetings. The annual
meetings 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
meeting, 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.
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
provided 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
stockholders, 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
represented, 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
stockholders 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 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 presiding 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. 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
entitled 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
meeting, 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 produced 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.
Section 7. 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 6 of this Article II or the
books of the Corporation, or to vote in person or by
proxy at any meeting of stockholders.
Section 8. Nomination of Directors. Only
persons who are nominated in accordance with the
following procedures shall be eligible for election as
directors 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
stockholders (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 provided 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 8.
In addition to any other applicable
requirements, 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
preceding 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 (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
stockholder 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
accordance with the procedures set forth in this Section
8. If the officer presiding at an annual meeting of
stockholders determines that a nomination was not made in
accordance with the foregoing procedures, such officer
shall declare to the meeting that the nomination was
defective and such defective nomination shall be
disregarded.
Section 9. Business at Annual Meetings. No
business may be transacted at an annual meeting of
stockholders, 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 authorized 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 9 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
requirements, 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
preceding 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
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 9; provided, however, that, once
business has been properly brought before the annual
meeting in accordance with such procedures, nothing in
this Section 9 shall be deemed to preclude discussion by
any stockholder of any such business. If the officer
presiding at an annual meeting of stockholders determines
that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, such
officer shall declare to the meeting that the business
was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE III
DIRECTORS
Section 1. Number and Election of Directors.
The Board of Directors shall consist of not less than
three (3) nor more than fifteen (15) members, the exact
number of which shall initially upon the adoption of
these By-Laws be eight (8) (consisting of the
Corporation's six (6) directors who are holding office at
such time and two (2) vacancies) and, thereafter shall be
fixed from time to time by resolution of the Board of
Directors adopted in accordance with Section 5 of this
Article III. Except as provided in Section 2 of this
Article III, directors shall be elected by a plurality of
the votes cast at annual meetings of stockholders, and
each director so elected shall hold office until the
annual meeting for the year in which his term expires 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.
Section 2. Vacancies. Subject to the terms of
any one or more classes or series of preferred stock of
the Corporation, newly created directorships resulting
from any increase in the number of directors (including
the two vacancies in the Board of Directors existing as
of the adoption of these By-Laws) and any vacancies in
the Board of Directors resulting from death or
incapacity, resignation, retirement, disqualification or
removal from office may be filled only by the affirmative
vote of a majority of the directors then in office,
though less than a quorum, or by a sole remaining
director, and directors so elected shall hold office for
a term expiring at the annual meeting of stockholders at
which the term of the class to which they have been
elected expires 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
direction 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
Certificate 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 provisions 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
Corporation.
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
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,
telegram, facsimile, telex or cable on twenty-four (24)
hours' notice, or on such shorter notice as the person or
persons calling such meeting may deem necessary or
appropriate in the circumstances.
Section 5. Quorum; Actions by Board. Except
as may be otherwise specifically provided by law, the
Certificate of 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;
provided, however, that, notwithstanding anything to the
contrary contained in these By-Laws, until the Trigger
Event, the approval of (i) the Required Majority at any
meeting at which there is a quorum present and (ii) two
directors who are SIBV Nominees and two directors who are
MSLEF II Nominees, shall be required to authorize the
actions set forth in Schedule I attached to these By-
Laws. Without limiting the foregoing, unless the MS
Holders' collective ownership of 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:
"MS Holders" shall have the meaning set forth
in the Stockholders Agreement.
"MSLEF II Nominees" shall have the meaning set
forth in the Stockholders Agreement.
"Required Majority" shall mean a number of
directors equal to the sum of (i) a majority of the
entire Board of Directors and (i) one. In the event that
the Board of Directors consists of eight members, the
Required Majority shall be six directors.
"SIBV Nominees" shall have the meaning set
forth in the Stockholders Agreement.
"Stockholders Agreement" shall mean the
stockholders agreement, dated as of May 3, 1994, among
the Corporation, Smurfit International B.V., a
corporation organized under the laws of The Netherlands
("SIBV"), The Morgan Stanley Leveraged Equity Fund II,
L.P., a Delaware limited partnership ("MSLEF II"), and
the other parties thereto, as it may be amended from time
to time.
"Tier 1", "Tier 2" and "Tier 5" shall have the
respective meanings set forth in the Stockholders
Agreement.
"Trigger Event" shall mean the MS Holders'
collective ownership of 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
designated by the Board of Directors, may participate in
a meeting of the Board of Directors or such committee by
means of a conference telephone or similar communications
equipment by means of which all persons participating in
the meeting can hear each other, and participation in a
meeting pursuant to this Section 7 shall constitute
presence in person at such meeting.
Section 8. Committees. The Board of Directors
may, by resolution passed by the Required Majority (or,
after the Trigger Event, by a majority of the entire
Board of Directors), designate one or more committees,
each committee to consist of one or more of the directors
of the Corporation who shall be appointed to such
committee 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 disqualified member at any meeting of any such
committee. In the absence or disqualification of a
member of a committee, and in the absence of a
designation by the Board of Directors of an alternate
member to replace the absent or disqualified member,
another director may be designated to act at the meeting
in the place of any absent or disqualified member by the
Required Majority (or, after the Trigger Event, by a
majority of the entire Board of Directors). Any
committee, to the extent allowed by law and provided in
the resolution establishing such committee, shall have
and may exercise all the powers and authority of the
Board of Directors in the management of the business and
affairs of the Corporation. Each committee shall keep
regular minutes and report to the Board of Directors when
required.
Section 9. Compensation. The directors may be
paid their expenses, if any, of attendance at each
meeting 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 therefor. Members of special or standing
committees may be allowed like compensation for attending
committee meetings.
Section 10. Interested Directors. No contract
or transaction between the Corporation and one or more of
its directors or officers, or between the Corporation and
any other corporation, partnership, association, or other
organization in which one or more of its directors or
officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this
reason, or solely because the director or officer is
present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the
contract or transaction, or solely because his or their
votes are counted for such purpose if (i) the material
facts as to his or their relationship or interest and as
to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board
of Directors or committee in good faith authorizes the
contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii)
the material facts as to his or their relationship or
interest and as to the contract or transaction are
disclosed 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.
Section 11. Compensation Committee;
Compensation of Officers. The Compensation Committee
shall be established and consist of such number of
directors, as from time to time shall be designated by
the Board of Directors in accordance with the
Stockholders Agreement, who shall hold office for the
term for which each member is elected or until his
successor is duly elected and qualified, or until his
earlier death or incapacity, resignation, retirement,
disqualification or removal from office, none of whom
shall be an officer or an employee of the Corporation or
of any subsidiary of the Corporation. Each member of the
Compensation Committee shall be a "disinterested person"
within the meaning of Rule 16b-3 (or any successor rule)
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), at all times when Rule 16b-3 (or
any successor rule) would require any stock option or
other plan of the Corporation to be administered solely
by "disinterested persons" in order for grants or awards
of equity securities under such plan to be exempt from
Section 16(b) of the Exchange Act; provided, however,
that in the event that each member of the Compensation
Committee is not such a "disinterested person," then a
Stock Option Committee shall be established and consist
of such number of directors as may be designated by the
Board of Directors, each of which shall be such a
"disinterested person."
The Compensation Committee shall have the duty to
review at least once each fiscal year and to establish
compensation (including fringe benefits) for the Chief
Financial Officer and for all other officers or employees
of the Corporation and its subsidiaries (i) who are
directors of the Corporation (other than the Chief
Executive Officer) or (ii) who are officers of or
employed by (or a significant portion of whose time is
spent as a consultant to) Jefferson Smurfit Group plc or
any of its Affiliates (other than the Corporation and its
subsidiaries) and whose primary employment is not with
the Corporation and its subsidiaries. The Appointment
Committee shall have the duty to review at least once
each fiscal year and to establish compensation (including
fringe benefits) for all other officers of the
Corporation and its subsidiaries. The Compensation
Committee and the Board of Directors shall both approve
the adoption of and amendment to all bonus and incentive
plans (other than those involving stock and options) but
the Board of Directors alone shall approve the allocation
of awards thereunder. The Board of Directors shall make
all decisions with respect to the adoption of or
amendments to (i) stock compensation, stock option and
stock incentive plans and (ii) pension and profit sharing
plans. The Compensation Committee shall make all
decisions under the Corporation's stock compensation,
stock option and stock incentive plans; provided,
however, that the Board of Directors shall make all
decisions with respect to grants or awards under such
plans unless the grant or award of equity securities
under any such plan by the Board of Directors would not,
pursuant to Rule 16b-3 (or any successor rule) under the
Exchange Act, be exempt from Section 16(b) of the
Exchange Act, in which case all decisions with respect to
the grant or award of equity securities under such plan
shall be made by the Stock Option Committee, if there be
one, or the Compensation Committee.
The Chief Executive Officer, if a director, shall be
on the Appointments Committee, but for purposes of the
Stockholders Agreement shall not be the MSLEF II Nominee
thereon.
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
Secretary, 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 stockholders of the Corporation
nor, except in the case of the Chairman of the Board of
Directors, need such officers be directors of the
Corporation.
Section 2. Election. The Board of Directors
(or, if there be one, the Appointment Committee) at its
first annual meeting held after each annual meeting of
stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be
determined from time to time by the Board of Directors
(or, if there be one, the Appointment Committee); and all
officers of the Corporation shall hold office until their
successors are chosen and qualified, or until their
earlier death or incapacity, resignation, retirement,
disqualification or removal from office. Any officer
elected by the Board of Directors (or, if there be one,
the Appointment Committee) may be removed at any time by
the affirmative vote of a majority of the directors
present at any meeting of the Board of Directors at which
there is a quorum (or, if there be an Appointment
Committee, 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). The compensation of all
officers of the Corporation shall be determined as set
forth in Section 11 of Article III of these By-Laws.
Section 3. Voting Securities Owned by the
Corporation. Powers of attorney, proxies, waivers of
notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be
executed 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 possessed if present. The Board of
Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
Section 4. Chairman of the Board of Directors.
The Chairman of the Board of Directors shall preside at
all meetings of the stockholders and of the Board of
Directors. Except where by law the signature of the
President is required, the Chairman of the Board of
Directors shall possess the same power as the President
to sign all contracts, certificates and other instruments
of the Corporation which may be authorized by the Board
of Directors (or, if there be one, the Appointment
Committee). During the absence or disability of the
President, the Chairman of the Board of Directors shall
exercise 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
Directors. The President may be the Chief Executive
Officer of the Corporation. The President shall also
perform such other duties and may exercise such other
powers as from time to time may be assigned to him by
these By-Laws or by the Board of Directors (or, if there
be one, the Appointment Committee).
Section 6. Vice Presidents. At the request of
the President or in his absence or in the event of his
inability or refusal to act (and if there be no Chairman
of the Board of Directors), the Vice President or the
Vice Presidents if there is more than one (in the order
designated by the Board of Directors or, if there be one,
the Appointment Committee) shall perform the duties of
the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the
President. Each Vice President shall perform such other
duties and have such other powers as the Board of
Directors (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
required. 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
Committee) 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 Committee) 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 authority 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 Secretary
shall see that all books, reports, statements,
certificates and other documents and records required by
law to be kept or filed are properly kept or filed, as
the case may be.
Section 8. Chief Financial Officer. The Chief
Financial Officer shall exercise general supervision over
the finances of the Corporation and shall supervise and
be responsible for all matters pertaining to the raising
of debt and equity capital and cash management functions
of the Corporation. He shall render periodically such
balance sheets and other financial statements or reports
relating to the business of the Corporation as may be
required pursuant to the Stockholders Agreement, by the
Board of Directors, the Chairman of the Board of
Directors, 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
Directors. 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,
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 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
disability 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
Secretary.
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
disability 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
Treasurer. If required by the Board of Directors, an
Assistant 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, 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
officers 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
Directors (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
Assistant Treasurer, or the Secretary or an Assistant
Secretary 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,
transfer 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
Corporation 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
discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or
destroyed certificate, or his legal representative, to
advertise the same in such manner as the Board of
Directors 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
Corporation shall be transferable in the manner
prescribed by law and in these By-Laws. Transfers of
stock shall be made on the books of the Corporation only
by the person named in the certificate or by his attorney
lawfully constituted in writing and upon the surrender of
the certificate therefor, which shall be cancelled before
a new certificate shall be issued.
Section 5. Record Date. In order that the
Corporation may determine the stockholders entitled to
notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to express consent
to corporate action in writing without a meeting, or
entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other
lawful action, the Board of Directors may fix, in
advance, 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
stockholders 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
Incorporation or these By-Laws to be given to any
director, member of a committee or stockholder, a waiver
thereof in writing, signed by the person or persons
entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Dividends. Dividends upon the
capital stock of the Corporation, if any, may, subject to
the provisions of the Certificate of Incorporation, be
declared by the Board of Directors at any regular or
special meeting, and may be paid in cash, in property, or
in shares of the capital stock. Before payment of any
dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as
the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for
repairing 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
demands 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
organization and the words "Corporate Seal, Delaware".
The seal may be used by causing it or a facsimile thereof
to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
Section 1. Power to Indemnify in Actions,
Suits or Proceedings other than those by or in the Right
of the Corporation. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was
or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (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,
trustee, administrator, employee or agent of another
corporation, 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
believed 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
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 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,
administrator, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan
or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him
in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the
best interests 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 application 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
determination 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
directs, 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 indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him in
connection therewith, without the necessity of
authorization in the specific case.
Section 4. Good Faith Defined. For purposes
of any determination under Section 3 of this Article
VIII, a person shall be deemed to have acted in good
faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, or,
with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was
unlawful, if his action is based on the records or books
of account of the Corporation or another enterprise, or
on information supplied to him by the officers of the
Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the
Corporation 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 reasonable 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, administrator, employee or agent. The
provisions of this Section 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.
Notwithstanding any contrary determination in the
specific case under Section 3 of this Article VIII, and
notwithstanding 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 indemnification 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 Corporation promptly upon the
filing of such application. If successful, in whole or
in part, the director or officer seeking indemnification
shall also be entitled to be paid the expense of prosecuting
such application.
Section 6. Expenses Payable in Advance.
Expenses (including, without limitation, attorneys fees)
actually and reasonably incurred by a director or officer
in defending or investigating a threatened or pending
action, 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
authorized in this Article VIII.
Section 7. Nonexclusivity of Indemnification
and Advancement of Expenses. The indemnification and
advancement 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
disinterested 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 persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent
permitted by law. The provisions of this Article VIII
shall not be deemed to preclude the indemnification of,
and advancement of expenses to, any person who is not
specified in Sections 1 or 2 of this Article VIII but
whom the Corporation has the power or obligation to
indemnify under the provisions of the General Corporation
Law of the State of Delaware, or otherwise.
Section 8. Insurance. The Corporation may
purchase and maintain insurance on behalf of any person
who is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director,
officer, trustee, administrator, employee or agent of
another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such,
whether or not the Corporation would have the power or
the obligation to indemnify him against such liability
under the provisions of this Article VIII.
Section 9. Certain Definitions. For purposes
of this Article VIII, references to "the Corporation"
shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger
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
constituent corporation if its separate existence had
continued. 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,
trustee, 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 believed 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 interests of the Corporation" as
referred to in this Article VIII.
Section 10. Survival of Indemnification and
Advancement of Expenses. The indemnification and
advancement of expenses obligations set forth in this
Article VIII shall inure to the benefit of the heirs,
executors, administrators and personal representatives of
those persons entitled thereto and shall be binding upon
any successor to the Corporation to the fullest extent
permitted by law. Neither any amendment or repeal of the
provisions of this Article VIII nor adoption of any
provision of the Certificate of Incorporation or of these
By-Laws which is inconsistent with the provisions of this
Article VIII shall adversely affect any right or
protection 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
Corporation 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 Corporation.
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
similar 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
stockholders 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
stockholders or Board of Directors, as the case may be.
Section 2. Entire Board of Directors. As used
in these By-Laws generally, the term "entire Board of
Directors" means the total number of directors which the
Corporation would have if there were no vacancies.
Schedule I
1. Amendment of the Certificate of
Incorporation or By-Laws of the Corporation or any of its
subsidiaries.
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 any direct or indirect wholly owned
subsidiary of the Corporation or pursuant to the
subscription agreement, dated as of May 3, 1994, among
the Corporation, Jefferson Smurfit Corporation (to be
renamed Jefferson Smurfit Corporation (U.S.)), a Delaware
corporation ("JSC"), Container Corporation of America, a
Delaware Corporation ("CCA"), and SIBV (the "Subscription
Agreement")).
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
transactions among the Corporation and any of its direct
or indirect wholly owned subsidiaries or among any of the
Corporation'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
business).
6. Merger, consolidation, dissolution or
liquidation of the Corporation or any of its
subsidiaries, except for mergers or consolidations of
subsidiaries of the Corporation, JSC or CCA with other
subsidiaries of the Corporation, JSC or CCA (other than a
merger or consolidation involving the Corporation, JSC or
CCA, except as contemplated by the Corporation's
Registration Statement (File No. 33-75520) relating to
its initial public offering).
7. Filing of any petition by or on behalf of
the Corporation seeking relief under the federal
bankruptcy 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 the Corporation or any of its
direct or indirect wholly owned subsidiaries.
9. Incurrence of new indebtedness (including
capitalized leases) in excess of $10 million.
10. Creation or incurrence of a lien or
encumbrance on the property of the Corporation or any of
its subsidiaries, except for liens related to the
Refinancing (as defined in the Stockholders Agreement),
liens related to any indebtedness incurred pursuant to
paragraph 9 of this Schedule I or other minor liens,
including liens for taxes or those arising by operation
of law, permitted to exist under the terms of the
Refinancing (or any other material amount of indebtedness
for borrowed money).
11. Guarantees in excess of $10 million of
payment by or performance of obligations of third parties
other than in the ordinary course of business.
12. The Corporation's or any of its
subsidiaries' institution, termination or settlement of
material litigation or litigation not in the ordinary
course of the Corporation's business (in each case where
such litigation represents a case or controversy in
excess of $10 million).
13. Surrendering or abandoning any property,
tangible or intangible, or any rights having a book value
in excess of $10 million.
14. Any commitment or action of the
Corporation or any of its subsidiaries (other than in the
ordinary course of its business) which creates a
liability or commitment (fixed or contingent) in excess
of $15 million.
15. Capital expenditures in excess of
accumulated depreciation allowance of the Corporation or
any of its subsidiaries (including all accumulated
depreciation allowances to date) (calculated in
accordance with generally accepted accounting
principles).
16. Donations of money or property in a given
fiscal year significantly in excess of the amounts
historically 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
transactions 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
covering any) director or officer of any of the following
entities or their Affiliates: the Corporation, JSC, JSG,
CCA, 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. Amendment or termination of the 1992
SIBV/MS Holdings, Inc. Stock Option Plan, except as
contemplated by the Corporation's Registration Statement
(File no. 33-75520) relating to its initial public
offering.
24. Except as provided in the Stockholders
Agreement, the election or removal of directors and
officers of each of JSC and CCA.
25. The increase or decrease of the number of
directors comprising the Corporation's Board of
Directors.
26. Any decision regarding registration of any
securities, except for any registration required under
the Registration Rights Agreement, dated as of May 3,
1994, among the Corporation, MSLEF II, SIBV, and the
other parties thereto.
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.
JSC
COMMON STOCK [Photograph of COMMON STOCK
PAR VALUE $.01 John Jefferson Smurfit, Sr.] PAR VALUE $.01
INCORPORATED UNDER THE LAWS THIS CERTIFICATE IS
OF THE STATE OF DELAWARE TRANSFERABLE IN
ST. LOUIS, MISSOURI.
[Logo] JEFFERSON SMURFIT CORPORATION
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 475087 10 2
Countersigned and Registered:
BOATMEN'S TRUST COMPANY
Transfer Agent and
Registrar
By
Authorized Signature
This certifies that
is the record holder of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
Jefferson Smurfit Corporation, transferable on the books of the Corporation by
the holder hereof, in person or by duly authorized attorney, upon surrender of
this certificate properly endorsed. This Certificate and the shares represented
hereby are issued and shall be held subject to all of the provisions of the
Certificate of Incorporation of the Corporation, as amended, to all of which the
holder by acceptance hereof assents. This certificate is not valid until
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facisimile seal of the Corporation and the fascimile signatures
of its duly authorized officers.
Dated:
/s/ Michael E. Tierney /s/ Michael W.J. Smurfit
VICE PRESIDENT AND SECRETARY [Corporate Seal] CHAIRMAN OF THE BOARD
JEFFERSON SMURFIT CORPORATION
THE CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
STOCKHOLDER WHO SO REQUESTS THE POWERS, DESIGNATIONS, PREFERENCES
AND REALTIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF
EACH CLASS OF STOCK OR SERIES THEREOF OF THE CORPORATION, AND THE
QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS, SUCH REQUEST MAY BE MADE TO THE COPORATION OR THE
TRANSFER AGENT.
The following abbreviations, when used in the inscription on
the face of this certificate, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT - _______(Custodian) _______
(Cust) (Minor)
TEN ENT -- as tenants by the entireties under Uniform Gifts to Minors
JT TEN -- as joint tenants with right
of survivorship and not as
tenants in common Act ________________________
(State)
Additional abbreviations may also be used though not in the above list.
For Value received, _______________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE,
OF ASSIGNEE)
__________________________________________________________________
__________________________________________________________________ shares of
the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
____________________________________________________________Attorney
to transfer the said stock on the books of the within named
Corporation with full power of substitution in the premises.
Dated _______________________ __________________________________
NOTICE: The signature to this
assignment must correspond with
the name as written upon the
face of this Certificate in
every particular, without
alteration or enlargement or any
change whatever.
Signature(s) Guaranteed:
By _____________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED
BY AN ELIGIBLE GUARANTOR INSTITUTION
(Banks, Stockbrokers, Savings and Loan
Associations and Credit Unions) WITH
MEMBERSHIP IN AN APPROVED SIGNATURE
GUARANTEE MEDALLION PROGRAM PURSUANT
TO S.E.C. RULE 17Ad-15.
EXHIBIT 5.1
Opinion of Michael E. Tierney, Esq.
[JSC/CCA Letterhead]
Corporate Mailing Address
P.O. Box 66820
St. Louis, MO 63166
December 27, 1994
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Registration Statement on Form S-8 Jefferson
Smurfit Corporation 1992 Stock Option Plan
Ladies and Gentlemen:
I am General Counsel of Jefferson Smurfit Corporation, a
Delaware corporation (the "Company"), and I have represented
the Company in connection with the Jefferson Smurfit Corporation
1992 Stock Option Plan, as amended ("the Plan") described in
the Registration Statement on Form S-8 of Jefferson Smurfit
Corporation (together with all exhibits thereto, the "Registration
Statement"), filed with the Securities and Exchange Commission on
December 27, 1994 under the Securities Act of 1933, as amended
(the "Securities Act"), relating to the registration of 8,050,000
shares of Common Stock, par value $.01 per share, of the Company
(the "Common Stock").
This opinion is delivered in accordance with the requirements of
Item 601(b) (5) of Regulation S-K under the Securities Act.
In connection with this opinion, I have examined (i) the
Registration Statement; (ii) the Restated Certificate of
Incorporation of the Company as currently in effect; (iii) the
Bylaws of the Company as currently in effect; (iv) resolutions of
the Board of Directors of the Company relating to the
authorization of the Plan and the filing of the Registration
Statement; (v) a specimen certificate representing the Common
Stock; and (vi) such other documents as I have deemed necessary or
appropriate as a basis for the opinions set forth below.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, the
conformity to original documents of all documents submitted to me
as certified or photostatic copies and the authenticity of the
originals of such copies. As to any facts material to the opinions
expressed herein which were not independently established or
verified, I have relied upon oral or written statements and
representations of officers and other representatives of the
Company, and others.
Based upon and subject to the foregoing, I am of the opinion
that the shares of Common Stock to be issued upon the exercise of
options pursuant to the terms of the Plan have been duly and
validly authorized and, when certificates representing the shares
have been duly executed and delivered pursuant to the terms of the
Plan, such shares will be duly and validly issued, fully paid and
nonassessable.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement.
Very truly yours,
/S/ M.E. Tierney
Michael E. Tierney
Vice President, General Counsel
and Secretary
MET/gl
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) of Jefferson Smurfit
Corporation pertaining to the Jefferson Smurfit Corporation
1992 Stock Option Plan of our report dated January 28, 1994,
with respect to the consolidated financial statements and
schedules of Jefferson Smurfit Corporation included in its
Registration Statement (Form S-1 No. 33-75520) for the
year ended December 31, 1993, filed with the Securities
and Exchange Commission.
Ernst & Young LLP
St. Louis, Missouri
December 21, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ G. Thompson Hutton
G. Thompson Hutton
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ Michael W. J. Smurfit
Michael W. J. Smurfit
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ Howard E. Kilroy
Howard E. Kilroy
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ Donald P. Brennan
Donald P. Brennan
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ Alan E. Goldberg
Alan E. Goldberg
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ David R. Ramsay
David R. Ramsay
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ James E. Terrill
James E. Terrill
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ John R. Funke
John R. Funke
December 27, 1994
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned
hereby constitutes and appoints John R. Funke, Patrick J.
Moore and James E. Terrell, each with full power to act
without the others as his true and lawful attorneys-in-
fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead,
in any and all capacities, to sign a Registration
Statement on Form S-8 of Jefferson Smurfit Corporation,
as Registrant, to be filed under the Securities Act of
1933, as amended, and any and all amendments thereto and
all instruments necessary or advisable in connection
therewith and to file the same with the Securities and
Exchange Commission and such other state and federal
government commissions and agencies as may be necessary,
granting unto said attorney-in-fact and agents, and each
of them, full power and authority to do and perform each
and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
/s/ James R. Thompson
James R. Thompson
December 27, 1994
