8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (date of earliest event reported):  June 30, 2010

SMURFIT-STONE CONTAINER CORPORATION

(Exact name of registrant as specified in its charter)

Delaware	1-03439	36-2041256
(State or other jurisdiction of	(Commission	(I.R.S. Employer
incorporation or organization)	File Number)	Identification No.)

222 North LaSalle Street

Chicago, Illinois 60601

(Address of principal executive offices) (Zip Code)

(312) 346-6600

(Registrant’s telephone number, including area code)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

oWritten communications pursuant to Rule 425 under the Securities Act.

oSoliciting material pursuant to Rule 14a-12 under the Exchange Act.

oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act.

oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act.

Item 1.01.Entry into a Material Definitive Agreement.

As previously disclosed, on January 26, 2009, Smurfit-Stone Container Corporation (“Old SSCC”) and its U.S. and Canadian subsidiaries (the “Debtors”) filed a voluntary petition (the “Chapter 11 Petition”) for relief under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court in Wilmington, Delaware (the “Court”).  On the same day, Old SSCC’s Canadian subsidiaries also filed to reorganize under the Companies’ Creditors Arrangement Act (“CCAA”) in the Ontario Superior Court of Justice in Canada (the “Canadian Petition”).

On December 1, 2009, the Debtors filed their Joint Proposed Plan of Reorganization and Plan of Compromise and Arrangement (as the same has been modified or amended, the “Plan”) and Disclosure Statement (as the same has been modified or amended, the “Disclosure Statement”) with the Court. On December 22, 2009, January 27, 2010 and February 4, 2010 the Debtors filed amendments to the Plan and the Disclosure Statement.  On March 19, 2010, the Debtors filed a supplement to the Plan, and on May 27, 2010, the Debtors filed the final Plan reflecting the resolution of certain objections by equity security holders and other non-material modifications.

On January 29, 2010, the Court approved the Disclosure Statement as containing adequate information for the holders of impaired claims and equity interests, who were entitled to vote to accept or reject the Plan.

The confirmation hearing on the Plan began on April 15, 2010 and concluded on May 4, 2010.  Subsequently, on May 24, 2010, Old SSCC announced it reached a resolution with representatives of holders of its common and preferred stock who were prosecuting objections to the Plan.  On June 21, 2010, the Court entered the Findings of Fact, Conclusions of Law and Order Confirming the Joint Plan for Smurfit-Stone Container Corporation and its Debtor Subsidiaries and Plan of Compromise and Arrangement for Smurfit-Stone Container Canada Inc. and Affiliated Canadian Debtors (the “Confirmation Order”), which approved and confirmed the Plan, a copy of which was filed as an exhibit to Old SSCC’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on June 22, 2010.

On June 30, 2010 (the “Effective Date”), the Plan became effective and the Debtors consummated their reorganization through a series of transactions contemplated by the Plan and emerged from Chapter 11 bankruptcy proceedings.

Pursuant to the Plan, on the Effective Date, prior to the distribution of securities under the Plan, Old SSCC merged with and into Smurfit-Stone Container Enterprises, Inc., a wholly-owned subsidiary of Old SSCC (the “Company”), with the Company surviving the merger and becoming “Reorganized SSCC” under the Plan (the “Merger”).  In connection with the Merger, the Company changed its corporate name to “Smurfit-Stone Container Corporation.”  Capitalized terms used but not otherwise defined herein have the meanings given to such terms in the Plan.

In accordance with the Plan, the Debtors entered into the following material agreements:

Merger Agreement

As stated above, pursuant to the Plan, on the Effective Date, the Company entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Old SSCC and filed a related Certificate of Merger with the Secretary of State of the State of Delaware (the “Certificate of Merger”).  Pursuant to the Merger Agreement, the Certificate of Merger and the Plan, Old SSCC merged with and into the Company, with the Company continuing as the surviving corporation.  In addition, (i) all shares of

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common and preferred stock of Old SSCC issued and outstanding immediately prior to the Merger converted into the right to receive shares of New SSCC Common Stock (as defined in Item 3.02 of this Current Report on Form 8-K) of the Company as provided in the Plan and (ii) all shares of common stock of the Company issued and outstanding immediately prior to the Merger and all rights in respect thereof were cancelled.  Further, the certificate of incorporation and bylaws of Old SSCC in effect immediately prior to the Merger became the certificate of incorporation and bylaws of the Company (pending their amendment and restatement as described below) and the directors and officers of Old SSCC immediately prior to the Merger became the directors and officers of the Company (pending the removal and appointment of certain directors as described below).

Immediately after the Merger, among other things, the Company issued additional shares of New SSCC Common Stock as described in Item 3.02 of this Current Report on Form 8-K, certain directors were appointed to and removed from the Company’s Board of Directors (the “Board”) as described in Item 5.02 of this Current Report on Form 8-K, and the Company amended and restated its certificate of incorporation and bylaws as described in Item 5.03 of this Current Report on Form 8-K.

The above summary of the Merger Agreement is qualified in its entirety by reference to the text of the Merger Agreement, a copy of which is included as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Asset Purchase Agreement

Prior to the Effective Date, Smurfit-Stone Container Canada Inc. (“SSC Canada”) and Smurfit-MBI (“SMBI “) were the Company’s principal Canadian operating subsidiaries.  SSC Canada directly operated two containerboard mills which produce linerboard and corrugated medium, respectively, and a laminating plant which coats certain grades of linerboard for use in the food and beverage packaging industries. SMBI operated converting facilities that produce corrugated containers using, among other inputs, linerboard and medium from the Company’s mills and third party mills.  Additionally, BC Shipper Supplies Ltd. (“BC”), a small container converting operation, and Francobec Company (“Francobec”), a chip mill, were other Canadian operations owned by the Company.

Pursuant to the Plan, prior to the Effective Date, the Debtors established a newly formed partnership, Smurfit-Stone Container Canada, L.P. (“Canadian Newco”) which is ultimately controlled by the Company.  On the Effective Date, Canadian Newco, SSC Canada, SMBI, MBI Limited/Limitée (“MBI”), BC and Francobec entered into and consummated the transactions contemplated by an Asset Purchase Agreement (the “Asset Purchase Agreement”), pursuant to which Canadian Newco purchased the assets owned by SSC Canada, SMBI, BC and Francobec and assumed certain liabilities of SSC Canada, SMBI, BC and Francobec (the “Canadian Asset Sale”).  The cash consideration paid by Canadian Newco in the Canadian Asset Sale totaled approximately $440,800,481 million, which includes:

·the repayment of the Prepetition Canadian Revolving Loans (including unpaid interest thereon at non-default rates);

·the repayment of the Prepetition Canadian Term Loans (including unpaid interest thereon at non-default rates);

·the payment of the Other Secured Claims against SSC Canada, SMBI, MBI, BC and Francobec (including interest thereon);

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·the payment of the Administrative Expense Claims, Post-Filing Claims and the amounts secured by the CCAA Charges; and

·cash in the amount of $19.5 million for each of the SSC Canada Distribution Pool and the SMBI Distribution Pool.

In addition, the consideration paid by Canadian Newco in the Canadian Asset Sale included the assumption by Canadian Newco of the liabilities of SSC Canada and SMBI under the Canadian Collective Bargaining Agreements (other than pre-filing grievances, which are being treated as claims subject to compromise), the Canadian Pension Plans including all unfunded liabilities thereunder, and the Canadian Employee Benefit Plans (excluding the Non-Qualified Employee Benefit Plans).

The above summary of the Asset Purchase Agreement is qualified in its entirety by reference to the text of the Asset Purchase Agreement, a copy of which is included as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference.

Equity Incentive Plan

Pursuant to the Plan, upon the Effective Date, the Smurfit-Stone Container Corporation Equity Incentive Plan (the “EIP”) became effective.  Additionally, pursuant to the Plan and the EIP, the Company has made certain equity-based awards to certain officers (and other key employees) that are described in the “Issuance of Equity Awards to Certain Officers” section of Item 5.02 of this Current Report on Form 8-K.

The purposes of the EIP are (i) to align the interests of the Company’s stockholders and the recipients of awards under the EIP by increasing the proprietary interest of such recipients in the Company’s growth and success, (ii) to advance the interests of the Company by attracting and retaining officers, other employees and directors and (iii) to motivate such persons to act in the long-term best interests of the Company and its stockholders.

The EIP authorizes the Compensation Committee of the Board (the “Compensation Committee”) to grant a variety of awards to participants, including the following:

·options to purchase shares of New SSCC Common Stock, including both tax-qualified and non-qualified options;

·stock appreciation rights (“SARs”), which provide the participant the right to receive the excess of the fair market value of a specified number of shares of New SSCC Common Stock at the time of exercise over the base price of the SAR, and which may or may not be granted in tandem with options;

·stock awards, including grants in the form of (i) shares of New SSCC Common Stock that are subject to a restriction period or performance measures (if any) (“Restricted Stock”) and (ii) rights to receive shares of New SSCC Common Stock, or the cash value thereof, contingent upon the expiration of a restriction period or performance measures (if any) (“Restricted Stock Units”); and

·performance-based unit awards which provide the participant the right, contingent upon the attainment of specified performance measures within a specified period, to receive shares of New SSCC Common Stock, or the cash value thereof, if such performance measures are satisfied or met (“Performance Units”).

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The EIP will be administered by the Compensation Committee.  The EIP authorizes the Compensation Committee to grant awards to officers, employees, independent contractors and nonemployee directors, and persons expected to become officers, employees, independent contractors and nonemployee directors, of the Company and its subsidiaries as the Compensation Committee in its sole discretion may select from time to time or as specified in the EIP.  The Compensation Committee has the authority to determine eligibility for awards under the EIP and to determine the form, amount and timing of each award to such persons and, if applicable, the number of shares of New SSCC Common Stock, the number of SARs, the number of Restricted Stock Units or the number of Performance Units subject to such an award, the exercise or base price associated with the award, the time and conditions of exercise or settlement of the award and all other terms and conditions of the award, including the form of the agreement evidencing the award.  The Compensation Committee may not, however, without the prior consent of the stockholders of the Company, amend or replace any previously granted option or stock appreciation right in a transaction that constitutes a “repricing,” as such term is used in the listing rules of the applicable stock exchange on which shares of New SSCC Common Stock are listed.  No award may be granted under the EIP after the tenth anniversary of the Effective Date, but the term of any award may extend beyond that date.

The aggregate number of shares of New SSCC Common Stock reserved for issuance pursuant to the EIP is 8,695,652,  subject to adjustment as described below.  To the extent that shares of New SSCC Common Stock subject to an outstanding award are not issued or delivered by reason of (i) the expiration, termination, cancellation or forfeiture of such award or (ii) the settlement of the award in cash, then such shares of New SSCC Common Stock will again be available under the EIP.  The shares may be issued from authorized but unissued shares of New SSCC Common Stock or from the Company’s treasury stock.  To the extent necessary for an award to be qualified performance-based compensation under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”), (i) the maximum number of shares of New SSCC Common Stock with respect to which options or SARs or a combination thereof may be granted during any fiscal year of the Company to any person is 2% of the total outstanding shares of New SSCC Common Stock determined as of the Effective Date, subject to adjustment as described below, (ii) the maximum number of shares of New SSCC Common Stock with respect to which stock awards subject to performance measures may be granted during any fiscal year of the Company to any person shall be 2% of the total outstanding shares of New SSCC Common Stock determined as of the Effective Date, subject to adjustment as described below, and (iii) the maximum amount that may be payable with respect to Performance Units granted during any fiscal year of the Company to any person shall be the cash equivalent of (x) 2% of the total outstanding shares of New SSCC Common Stock determined as of the Effective Date multiplied by (y) the Fair Market Value of a share of New SSCC Common Stock determined as of the Effective Date, subject to adjustment as described below.

Under the terms of the EIP, in the event of a change in control, (i) all outstanding options and SARs will immediately become exercisable, (ii) the restriction period applicable to all outstanding stock awards will lapse, (iii) the performance period applicable to all outstanding awards will lapse, and (iv) the performance measures applicable to outstanding awards will be deemed to be satisfied at the maximum level.  In addition, the Board may, in its discretion, require:

·that shares of stock of the corporation resulting from such change in control, or its parent corporation, be substituted for some or all of the shares of New SSCC Common Stock subject to an outstanding award, with an appropriate and equitable adjustment to such award; and/or

·outstanding awards, in whole or in part, to be surrendered to the Company by the holder, and to be immediately cancelled by the Company, and to provide for the holder to receive a cash payment in an amount equal to, or shares of stock of the successor corporation having a fair market value equal to, (i) in the case of an option or an SAR, the number of shares of New

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SSCC Common Stock then subject to the portion of such option or SAR surrendered multiplied by the excess, if any, of the fair market value of a share of New SSCC Common Stock as of the date of the change in control, over the applicable purchase price or base price, (ii) in the case of a stock award, the number of shares of New SSCC Common Stock then subject to the portion of such award surrendered multiplied by the fair market value of a share of New SSCC Common Stock as of the date of the change in control, and (iii) in the case of a Performance Unit award, the value of the Performance Units then subject to the portion of such award surrendered.

The number and class of securities available under the EIP, the number and class of securities subject to each outstanding option and the purchase price per security, the terms of each outstanding SAR, the terms of each outstanding stock award, including the number and class of securities subject thereto, the terms of each outstanding Performance Unit, and the maximum number of shares of New SSCC Common Stock with respect to which options, SARs, stock awards subject to performance measures or awards of Performance Units or a combination thereof may be awarded during any one calendar year to any person will be appropriately adjusted by the Compensation Committee in the event of any stock split, stock dividend, recapitalization, reorganization, merger, consolidation, combination, exchange of shares, liquidation, spin-off or other similar change in capitalization or event, or any distribution to holders of New SSCC Common Stock other than a regular cash dividend.

The Board may amend the EIP as it deems advisable, subject to any requirement of stockholder approval mandated by applicable law, rule or regulation, including Section 162(m) of the Code and any rule of the principal national stock exchange on which the New SSCC Common Stock is then traded.  No amendment may impair the rights of a holder of an outstanding award without the consent of such holder.

The above summary of the EIP is qualified in its entirety by reference to the text of the EIP, a copy of which is included as Exhibit 10.3 to this Current Report on Form 8-K and is incorporated herein by reference.

2010 Annual Management Incentive Plan

Pursuant to the Plan, as of the Effective Date, the Company assumed the Smurfit-Stone Container Corporation 2010 Management Incentive Plan (“MIP”).

A description of the material provisions of the MIP is contained in Old SSCC’s Annual Report on Form 10-K for fiscal year end December 31, 2009  (the “2009 Form 10-K”) and is incorporated herein by reference.  A copy of the MIP is included as Exhibit 10.4 to this Current Report on Form 8-K and is incorporated herein by reference.

2009 Long-Term Incentive Plan

Pursuant to the Plan, as of the Effective Date, the Company assumed the Smurfit-Stone Container Corporation 2009 Long-Term Incentive Plan (“2009 LTIP”).

A description of the material provisions of the 2009 LTIP, including the performance metrics thereunder, is contained in Old SSCC’s 2009 Form 10-K and is incorporated herein by reference.  A copy of the 2009 LTIP is included as Exhibit 10.5 to this Current Report on Form 8-K and is incorporated herein by reference.

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Compensation Arrangements of Certain Officers

The information regarding compensation arrangements of certain officers of the Company set forth in Item 5.02 of this Current Report on Form 8-K is incorporated by reference in this Item 1.01.

Item 1.02.Termination of a Material Definitive Agreement.

Prepetition Credit Documents

On the Effective Date, by operation of the Plan, all obligations of the Debtors under the Credit Agreement, dated November 1, 2004, by and among Old SSCC, as guarantor, the Company and SSC Canada, as borrowers, JPMorgan Chase Bank, as Senior Agent, Deposit Account Agent and Deposit Funded Facility Facing Agent, Deutsche Bank Trust Company Americas, as Senior Agent, Administrative Agent, Collateral Agent, Swingline Lender and Revolving Facility Facing Agent, Deutsche Bank AG, as Canadian Administrative Agent and Revolving (Canadian) Facility Facing Agent, and the other financial institutions party thereto, as lenders (including all amendments, modifications and supplements thereto) were cancelled and discharged.

Prepetition Notes

On the Effective Date, by operation of the Plan, all outstanding obligations of the Debtors under the following notes were cancelled and discharged and the indentures (other than the Stone FinCo II Indenture, as defined below) governing such obligations were cancelled, except to the extent to allow the applicable Disbursing Agent(s) to make distributions pursuant to the Plan on account of Prepetition Noteholder Claims, the relevant Prepetition Notes Indenture Trustee to assert its Prepetition Notes Indenture Trustee Charging Lien and appear in the Chapter 11 Cases and the CCAA Proceedings:

·The 7.375% senior unsecured notes due on July 15, 2014, issued by Stone Container Finance Company of Canada II (“Stone FinCo II”) in the aggregate principal amount of $200,000,000 pursuant to an indenture (the “Stone FinCo II Indenture”) dated as of July 20, 2004, by and among Stone FinCo II as the issuer, the Company (as a successor in interest to Stone Container Corporation) as a guarantor, and Manufacturers and Traders Trust Company (as a successor in interest to BNY Midwest Trust Company) as the indenture trustee (the “Stone FinCo II Notes”);

·The 7.50% senior unsecured notes due on June 1, 2013, issued by the Company in the aggregate principal amount of $300,000,000 pursuant to an indenture dated as of May 23, 2003, by and among the Company (as a successor in interest to Jefferson Smurfit Corporation (U.S.)) as the issuer and Wilmington Trust Company (as a successor in interest to The Bank of New York) as the indenture trustee;

·The 8.00% senior unsecured notes due on March 15, 2017, issued by the Company in the aggregate principal amount of $675,000,000 pursuant to an indenture dated as of March 26, 2007, by and among the Company as the issuer and Wilmington Trust Company (as a successor in interest to The Bank of New York Trust Company, N.A.) as the indenture trustee;

·The 8.25% senior unsecured notes due on October 1, 2012, issued by the Company in the aggregate principal amount of $700,000,000 pursuant to an indenture dated as of September 26, 2002, by and among the Company (as a successor in interest to Jefferson Smurfit Corporation (U.S.)) as the issuer and Wilmington Trust Company (as a successor in interest to The Bank of New York) as the indenture trustee; and

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·The 8.375% senior unsecured notes due on July 1, 2012, issued in the aggregate principal amount of $400,000,000 pursuant to an indenture dated as of June 26, 2002, by and among the Company (as a successor in interest to Stone Container Corporation) as the issuer and Wilmington Trust Company (as a successor in interest to The Bank of New York) as the indenture trustee.

Industrial Revenue Bonds

On the Effective Date, by operation of the Plan, all outstanding obligations of the Debtors under the following bonds were cancelled and discharged and the indentures (other than the Hodge Industrial Revenue Bond Indenture or other documents relating thereto) governing such obligations were cancelled, except to the extent to allow the applicable Disbursing Agent(s) to make distributions pursuant to the Plan on account of Industrial Revenue Claims, the relevant Industrial Revenue Indenture Trustee to assert its Industrial Revenue Indenture Trustee Charging Lien and appear in the Chapter 11 Cases and the CCAA Proceedings:

·The 7.40% Industrial Development Revenue Bonds Series 1996 due April 1, 2026, issued by the Industrial Development Authority of the County of Navajo, Arizona on April 1, 1996 in the original principal amount of $20,000,000;

·The 7.20% Industrial Development Revenue Bonds Series 1997 due June 1, 2027, issued by the Industrial Development Authority of the County of Navajo, Arizona on June 1, 1997 in the original principal amount of $14,650,000;

·The 5.125% Environmental Improvement Revenue Refunding Bonds, Series 2005 due August 1, 2013, issued by the County of Coshocton, Ohio on May 1, 2005 in the original principal amount of $30,000,000;

·The 5.25% Environmental Improvement Revenue Refunding Bonds, Series 2005 due June 1, 2015, issued by the Industrial Development Authority of the City of Hopewell, Virginia on May 1, 2005 in the original principal amount of $41,340,000; and

·The 7.45% Combined Utility System Revenue Refunding Bonds Series 2003 due March 1, 2024, issued by the Village of Hodge, Louisiana on December 18, 2003 in the original principal amount of $58,085,000.

Other Agreements/Guarantees

On the Effective Date, by operation of the Plan, all obligations of the Debtors under the following agreements were cancelled and discharged:

·Rights Agreement dated as of September 9, 2002 by and between Old SSCC and Mellon Investor Services, as Rights Agent;

·Amended and Restated Guaranty dated as of July 28, 2008, made by the Company, as Guarantor, in favor of The CIT Group/Equipment Financing, Inc., as the Initial Lender and as Administrative Agent for the benefit of the other lenders, as defined therein; and

·Continuing Guaranty, dated as of July 28, 2008, made by and between the Company and Union Bank of California, N.A.

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Benefit Plans and Agreements

On the Effective Date, by operation of the Plan, all obligations of the Debtors under various benefit plans and agreements, including but not limited to the following, were cancelled and discharged:

·Jefferson Smurfit Corporation Amended and Restated 1992 Stock Option Plan, dated as of May 1, 1997 (and all amendments thereto);

·Jefferson Smurfit Corporation Management Incentive Plan;

·Stone Container Corporation 1995 Long-Term Incentive Plan (and all amendments thereto);

·Smurfit-Stone Container Corporation 1998 Long-Term Incentive Plan (and all amendments thereto);

·Smurfit-Stone Container Corporation 2004 Long-Term Incentive Plan (and all amendments thereto);

·Jefferson Smurfit Corporation Supplemental Income Pension Plan II;

·Jefferson Smurfit Corporation Supplemental Income Pension Plan III; and

·Restricted Stock Unit Agreement dated as of January 4, 2002 by and between Old SSCC and Patrick J. Moore, as amended.

Item 2.01.Completion of Acquisition or Disposition of Assets.

The information regarding the Canadian Asset Sale set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.01.

Item 2.03.Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

As previously disclosed, on February 22, 2010, the Company and certain of its subsidiaries entered into a senior secured term loan exit facility (the “Term Loan Facility”) with J.P. Morgan Chase Bank, N.A. (“JPMCB”), as administrative agent, J.P. Morgan Securities Inc. (“JP Morgan”), Deutsche Bank Securities Inc. (“DBSI”) and Banc of America Securities LLC (“BAS”) as Joint Bookrunners and Co-Lead Arrangers, DBSI as syndication agent, BAS as documentation agent, and other lenders party thereto, and on April 15, 2010, the Company and certain of its subsidiaries entered into a senior secured asset based lending facility (the “ABL Revolving Facility”) with Deutsche Bank AG New York Branch (“DBNY”), DBSI (together with DBNY, “DB”), JPMCB, JP Morgan (together with JPMCB, “JPM”), certain other financial institutions acting, along with DBSI and JP Morgan, as “Lead Arrangers”, and certain other financial institutions, together with DB, JPM and the other Lead Arrangers, as the “Agents”.

On the Effective Date, the Term Loan Facility was fully drawn in the amount of $1,200 million. Net proceeds were reduced by payment of customary issuance costs and fees. There were no borrowings under the Revolving Facility.

A description of the material provisions of the Term Loan Facility is contained in Old SSCC’s Current Report on Form 8-K filed with the SEC on February 25, 2010, and a description of the material

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provisions of the ABL Revolving Facility is contained in Old SSCC’s Current Report on Form 8-K filed with the SEC on April 21, 2010, which descriptions are incorporated herein by reference.

A copy of the Term Loan Facility is included as Exhibit 10.1 to Old SSCC’s Current Report on Form 8-K filed with the SEC on February 25, 2010, and a copy of the ABL Revolving Facility is included as Exhibit 10.1 to Old SSCC’s Current Report on Form 8-K filed with the SEC on April 21, 2010, both of which are incorporated herein by reference.

Item 3.02.Unregistered Sales of Equity Securities.

Pursuant to the Plan, on the Effective Date, the Company issued an aggregate of approximately 90,702,816 shares of new common stock, par value $.001 per share (the “New SSCC Common Stock”) pursuant to the Plan, comprised of the following:

·71,652,902 shares to holders of Prepetition Notes (which includes distributions to holders of Stone FinCo II Notes on account of their guarantee claim against the Company);

·5,659,875 shares to holders of Industrial Revenue Bonds;

·2,172,174 shares to holders of SSCC Preferred Interests;

·2,172,175  shares to holders of SSCC Common Interests; and

·9,045,690 shares to holders of General Unsecured Claims, other than Prepetition Notes, Industrial Revenue Bonds, SSCC Preferred Interests and SSCC Common Interests, of which 833,787 will be distributed approximately 15 days after the Effective Date.

The Company has reserved for issuance approximately 5,838,276 shares of New SSCC Common Stock for the SSCE Distribution Reserve, 3,458,908 shares of New SSCC Common Stock for the Stone FinCo II Contribution Reserve and 8,695,652 shares of New SSCC Common Stock for the EIP, in each case in accordance with the Plan.

Consistent with the Confirmation Order and applicable law, the Company relied on Section 1145(a)(1) of the Bankruptcy Code to exempt from the registration requirements of the Securities Act the issuance of the New SSCC Common Stock.  Section 1145(a)(1) of the Bankruptcy Code exempts the offer and sale of securities under a plan of reorganization from registration under Section 5 of the Securities Act of 1933 and state laws if three principal requirements are satisfied:

·the securities must be issued under a plan of reorganization by the debtor, its successor under a plan or an affiliate participating in a joint plan of reorganization with the debtor;

·the recipients of the securities must hold a claim against, an interest in, or a claim for administrative expense in the case concerning the debtor or such affiliate; and

·the securities must be issued either (i) in exchange for the recipient’s claim against, interest in or claim for administrative expense in the case concerning the debtor or such affiliate or (ii) “principally” in such exchange and “partly” for cash or property.

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Item 3.03.Material Modifications to Rights of Security Holders.

The information regarding the cancellation of the debt securities of the Company set forth in Item 1.02 of this Current Report on Form 8-K and the cancellation of the equity interests of the Company set forth in Item 5.01 of this Current Report on Form 8-K is incorporated by reference in this Item 3.03.

The information regarding the amendments to the Company’s Certificate of Incorporation and Bylaws set forth in Item 5.03 of this Current Report on Form 8-K is incorporated by reference in this Item 3.03.

Item 5.01.Changes in Control of Registrant.

Upon the Effective Date, by operation of the Plan, all of the Company’s pre-petition common stock and all of Old SSCC’s pre-petition common stock and preferred stock were cancelled and shares of the Company’s New SSCC Common Stock as of the Effective Date were issued in accordance with the Plan as described in Item 3.02 of this Current Report on Form 8-K.  In addition, as discussed in Item 5.02 of this Current Report on Form 8-K, the composition of the Board as of the Effective Date is substantially different than the composition of the Board immediately prior to the Effective Date.

Item 5.02.Departure of Directors or Certain Officers, Election of Directors, Appointment of Certain Officers, Compensatory Arrangements of Certain Officers.

Departure and Appointment of Directors

Pursuant to the Plan, as of the Effective Date the number of directors of the Company was fixed at eleven, with Timothy J. Bernlohr, Terrell K. Crews, Eugene I. Davis, Michael E. Ducey, Jonathan F. Foster, Ernst A. Häberli, Ralph F. Hake, Arthur W. Huge and James J. O’Connor, a former director of Old SSCC, becoming members of the Company’s Board.  Existing directors Steven J. Klinger, the Company’s President and Chief Operating Officer, and Patrick J. Moore, the Company’s Chief Executive Officer, remain on the Board.  In addition, Mr. Hake was appointed non-executive Chairman of the Board.

Pursuant to the Plan, the following former directors of Old SSCC (who temporarily became directors of the Company as a result of the Merger, as described in Item 1.01 of this Current Report on Form 8-K) no longer serve on the Company’s Board as of the Effective Date: James R. Boris, Connie K. Duckworth, William T. Lynch, Jr., Jerry K. Pearlman, Thomas A. Reynolds, III and William D. Smithburg.

Committees of the Board of Directors

The committees of the Company’s Board consist of an Audit Committee, a Compensation Committee, a Strategy and Finance Committee and a Nominating and Governance Committee.

The Company’s Board has appointed Terrell K. Crews (chair), Eugene I. Davis, Michael E. Ducey and Ernst A. Häberli as the initial members of the Audit Committee.

The Company’s Board has appointed Timothy J. Bernlohr (chair), Jonathan F. Foster, Ralph F. Hake and Arthur W. Huge as the initial members of the Compensation Committee.

The Company’s Board has appointed Eugene I. Davis (chair), Jonathan F. Foster, Ernst A. Häberli and James J. O’Connor as the initial members of the Strategy and Finance Committee.

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The Company’s Board has appointed James J. O’Connor (chair), Timothy J. Bernlohr, Terrell K. Crews and Arthur W. Huge as the initial members of the Nominating and Governance Committee.

Compensation Arrangements of Certain Officers

Mr. Moore’s New Employment Agreement

Pursuant to the Plan, as of the Effective Date, the Amended and Restated Employment Agreement between the Company’s Chief Executive Officer, Patrick J. Moore, and the Company (referred to herein as Mr. Moore’s “New Agreement”) became effective.  As previously disclosed in Old SSCC’s 2009 Form 10-K, Mr. Moore’s New Agreement requires him to devote substantially all of his business time to the Company’s operations through the nine-month anniversary of the Company’s emergence from bankruptcy, at which time he will retire from his employment with the Company, unless his retirement date is accelerated due to his voluntary resignation for Good Reason or death, or due to the Company’s termination of his employment without Cause (or his employment otherwise terminates sooner in accordance with the provisions of the New Agreement).  He will continue in his position as Chief Executive Officer until his retirement.  During his employment, Mr. Moore will receive a base salary and will be eligible to participate in the Company’s annual incentive bonus plan and receive other benefits and perquisites as are made available to the Company’s senior executives generally.

Upon his retirement from the Company, Mr. Moore is eligible, pursuant to the terms of his New Agreement, to receive, among other things, certain payments and other benefits, including certain retirement benefits.  Mr. Moore’s New Agreement also contains certain confidentiality, non-competition and non-solicitation provisions.  Additional information regarding such payments, other benefits and confidentiality, non-competition and non-solicitation provisions previously was disclosed in Old SSCC’s 2009 Form 10-K and is incorporated by reference herein.

The above summary of Mr. Moore’s New Agreement is qualified in its entirety by reference to the text of such agreement, a copy of which is included as Exhibit 10.6 to this Current Report on Form 8-K and is incorporated herein by reference.

Mr. Klinger’s New Employment Agreement

Pursuant to the Plan, as of the Effective Date, the Amended and Restated Employment Agreement between the Company’s President and Chief Operating Officer, Steven J. Klinger, and the Company (referred to herein as Mr. Klinger’s “New Agreement”) became effective.  As previously disclosed in Old SSCC’s 2009 Form 10-K, Mr. Klinger’s New Agreement requires him to devote substantially all of his business time to the Company’s operations through the term of his employment and is subject to automatic renewal for successive two-year terms unless sooner terminated by either party in accordance with the provisions of the New Agreement.  His New Agreement also provides that he shall be eligible to participate in any annual performance bonus plans, long-term incentive plans, and/or equity-based compensation plans established or maintained by the Company for its senior executive officers, including the MIP and the EIP (described above in Item 1.01 of this Form 8-K), and provides that he will receive a specified grant of New SSCC Common Stock as set forth in the Plan (and further described below in this Current Report on Form 8-K).

Pursuant to Mr. Klinger’s New Agreement, no later than the earlier of the nine-month anniversary of the Company’s emergence from its bankruptcy proceedings and thirty days after the Company receives notice of the current CEO’s termination of employment, the Company will consider Mr. Klinger for employment as its CEO in accordance with a process set forth in the New Agreement.  Mr. Klinger’s New Agreement also provides that Mr. Klinger will be eligible to receive certain severance payments and other benefits if the Company terminates the executive’s employment “without cause” or he

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terminates his employment with “good reason.”  Mr. Klinger’s New Agreement also contains certain confidentiality, non-competition and non-solicitation provisions.  Additional information regarding the process for considering Mr. Klinger for employment as the Company’s CEO, severance payments and other benefits, and the confidentiality, non-competition and non-solicitation provisions contained in his New Agreement previously was disclosed in Old SSCC’s 2009 Form 10-K and is incorporated by reference herein.

The above summary of Mr. Klinger’s New Agreement is qualified in its entirety by reference to the text of such agreement, a copy of which is included as Exhibit 10.7 to this Current Report on Form 8-K and is incorporated herein by reference.

Klinger Executive Retirement Agreement

Pursuant to the Plan, as of the Effective Date, the Amended and Restated Executive Retirement Agreement between Mr. Klinger and the Company became effective.  As previously disclosed in Old SSCC’s 2009 Form 10-K, this agreement provides substantially the same retirement benefits as provided in the Klinger Retirement Agreement to which Mr. Klinger and Old SSCC were parties prior to the commencement of the Company’s Chapter 11 proceedings and is designed to provide a target benefit to Mr. Klinger.  Additional information regarding this agreement previously was disclosed in Old SSCC’s 2009 Form 10-K and is incorporated by reference herein.

The above summary of the Klinger Amended and Restated Executive Retirement Agreement is qualified in its entirety by reference to the text of such agreement, a copy of which is included as Exhibit 10.8 to this Current Report on Form 8-K and is incorporated herein by reference.

Agreements with Messrs. Hunt and Strickland

Pursuant to the Plan, as of the Effective Date, the Amended and Restated Employment Security Agreements between the Company and each of Craig A. Hunt (Senior Vice President, Secretary and General Counsel) and Steven C. Strickland (Senior Vice President, Container Operations) became effective (the “New Employment Security Agreements”).  As previously disclosed in Old SSCC’s 2009 Form 10-K, each such executive’s New Employment Security Agreement requires him to devote substantially all of his business time to the Company’s operations through the term of his employment and is subject to automatic renewal for successive two-year terms unless sooner terminated by either party in accordance with the provisions of the New Employment Security Agreement.  Each such executive’s New Employment Security Agreement also provides that he shall be eligible to participate in any annual performance bonus plans, long-term incentive plans, and/or equity-based compensation plans established or maintained by the Company for its senior executive officers, including the MIP and the EIP, and provides that he will receive a specified grant of New SSCC Common Stock as set forth in the Plan (and further described below in this Current Report on Form 8-K).  The New Employment Security Agreements also provide that each of Messrs. Hunt and Strickland will be eligible to receive certain severance payments and other benefits if the Company terminates the executive’s employment “without cause” or the executive terminates his employment with “good reason.”  Each New Employment Security Agreement also contains certain confidentiality, non-competition and non-solicitation provisions.  Additional information regarding the severance payments and other benefits, and the confidentiality, non-competition and non-solicitation provisions contained in Messrs. Hunt’s and Strickland’s New Employment Security Agreements previously was disclosed in Old SSCC’s 2009 Form 10-K and is incorporated by reference herein.

The above summary of the Hunt and Strickland New Employment Security Agreements is qualified in its entirety by reference to the text of each such agreement, copies of which are included as Exhibit 

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10.9 and Exhibit 10.10, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Agreement with Mr. Kaufmann

Pursuant to the Plan, as of the Effective Date, the Amended and Restated Employment Security Agreement between the Company’s Vice President and Controller, Paul K. Kaufmann, and the Company (referred to herein as Mr. Kaufmann’s “New Severance Agreement”) became effective.  Mr. Kaufmann is serving as the Company’s principal financial officer on an interim basis until a new Chief Financial Officer is appointed.  The New Severance Agreement provides for a multiple of base salary and annual bonus payable over a two-year period, plus the payment of certain fringe benefits, under certain circumstances within two years after a “change in control” (as such term is defined in the New Severance Agreement).  The New Severance Agreement also contains confidentiality, non-competition and non-solicitation provisions.  Additional information regarding the severance payments and other benefits, and the confidentiality, non-competition and non-solicitation provisions contained in Mr. Kaufmann’s New Severance Agreement previously was disclosed in Old SSCC’s 2009 Form 10-K and is incorporated by reference herein.

The above summary of Mr. Kaufmann’s New Severance Agreement is qualified in its entirety by reference to the text of such agreement, a copy of which is included as Exhibit 10.11 to this Current Report on Form 8-K and is incorporated herein by reference.

Issuance of Equity Awards to Certain Officers

Pursuant to the Plan and the EIP, the Company made equity-based awards to NEOs as described below (and other key employees) that will provide appropriate long-term incentives and compensation opportunities that will be substantially dependent on Company performance.  Certain of these equity-based awards were made in connection with the Company’s emergence from bankruptcy (the “Emergence Equity Grants”).  The aggregate total of the Emergence Equity Grants consisted of 914,498 restricted stock units and options to purchase 2,895,909 shares of New SSCC Common Stock.  The Equity Emergence Grants for the NEOs are as follows:

·	Steven J. Klinger:	234,783 restricted stock units and options to purchase 743,478 shares of New SSCC Common Stock
·	Craig A. Hunt:	39,913 restricted stock units and options to purchase 126,391 shares of New SSCC Common Stock
·	Steven C. Strickland:	39,913 restricted stock units and options to purchase 126,391 shares of New SSCC Common Stock
·	Paul K. Kaufmann:	22,174 restricted stock units and options to purchase 70,217 shares of New SSCC Common Stock

Each option to purchase shares of New SSCC Common Stock granted in connection with the Company’s emergence from bankruptcy has a seven-year term and a strike price equal to the average of the closing transaction prices of the New SSCC Common Stock for the thirty (30) calendar day period beginning on the Listing Date.

As discussed in the section discussing Mr. Moore’s New Agreement, Mr. Moore did not receive an Emergence Equity Grant due to his anticipated retirement.

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Item 5.03.Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Pursuant to the Plan, on the Effective Date the Company filed with the Secretary of State of Delaware an Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”).  Also pursuant to the Plan and on the Effective Date, the Company’s Amended and Restated Bylaws (the “Bylaws”) became effective.  A description of the material provisions of the Certificate of Incorporation and Bylaws is contained in Amendment No. 1 to the Company’s registration statement on Form 8-A filed with the SEC on June 24, 2010, which description is incorporated herein by reference.

A copy of the Certificate of Incorporation is included as Exhibit 4.1 to the Company’s Registration Statement on Form S-8 filed with the SEC on June 30, 2010 and a copy of the By-laws is included as Exhibit 3.1 to this Current Report on Form 8-K, both of which are incorporated herein by reference.

Item 8.01.Other Events.

The information regarding the Merger set forth in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 8.01.

On June 30, 2010, the Company issued a press release announcing its emergence from Chapter 11 bankruptcy protection. A copy of the press release is attached hereto as Exhibit 99.1.

Item 9.01.Financial Statements and Exhibits.

(d)Exhibits.

Exhibit No.	Description
3.1	Amended and Restated By-Laws of Smurfit-Stone Container Corporation
3.2	Amended and Restated Certificate of Incorporation of Smurfit-Stone Container Corporation (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-8 (File No. 333-167897))
10.1	Agreement and Plan of Merger, dated as of June 30, 2010, between Smurfit-Stone Container Corporation and Smurfit-Stone Container Enterprises, Inc.
10.2	Asset Purchase Agreement, dated as of June 30, 2010, among Smurfit-Stone Container Canada, L.P., Smurfit-Stone Container Canada Inc., Smurfit-MBI, MBI Limited/Limitée, BC Shipper Supplies Ltd. and Francobec Company
10.3	Smurfit-Stone Container Corporation Equity Incentive Plan
10.4	Smurfit-Stone Container Corporation 2010 Management Incentive Plan
10.5	Smurfit-Stone Container Corporation 2009 Long-Term Incentive Plan
10.6	Amended and Restated Employment Agreement, dated as of June 30, 2010, between the Company and Patrick J. Moore
10.7	Amended and Restated Employment Agreement, dated as of June 30, 2010, between the Company and Steven J. Klinger

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10.8	Amended and Restated Executive Retirement Agreement, dated as of June 30, 2010, between the Company and Steven J. Klinger
10.9	Amended and Restated Employment Security Agreement, dated as of June 30, 2010, between the Company and Craig A. Hunt
10.10	Amended and Restated Employment Security Agreement, dated as of June 30, 2010, between the Company and Steven C. Strickland
10.11	Amended and Restated Employment Security Agreement, dated as of June 30, 2010, between the Company and Paul K. Kaufmann
10.12	Credit Agreement dated as of February 22, 2010 (incorporated by reference to Exhibit 10.1 to Old SSCC’s Current Report on Form 8-K dated February 22, 2010 (File No. 0- 23876))
10.13	ABL Credit Agreement dated as of April 15, 2010 (incorporated by reference to Exhibit 10.1 to Old SSCC’s Current Report on Form 8-K dated April 15, 2010 (File No. 0- 23876))
99.1	Press Release dated June 30, 2010.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated:	July 7, 2010
		SMURFIT-STONE CONTAINER CORPORATION
		By:	/s/ Craig A. Hunt
		Name:	Craig A. Hunt
		Title:	Senior Vice President, Secretary and
			General Counsel

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EX-3.1

Exhibit 3.1

AMENDED AND RESTATED

BYLAWS

OF

SMURFIT-STONE CONTAINER CORPORATION

(f/k/a Smurfit-Stone Container Enterprises, Inc.)

(hereinafter called the “Corporation”)

ARTICLE 1

OFFICES

SECTION 1.01.  Registered Office.  The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State of Delaware.

SECTION 1.02.  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 2

STOCKHOLDERS

SECTION 2.01.  Annual Meetings.  An annual meeting of stockholders shall be held for the election of directors and the transaction of such other business as may properly be brought before the meeting in accordance with these Bylaws at such date, time and place, if any, as may be fixed by resolution of the Board of Directors of the Corporation (the “Board of Directors”) from time to time.  The Board of Directors may, in its sole discretion, determine that the meeting shall not be held at any place, but shall be held solely by means of remote communication, subject to such guidelines and procedures as the Board of Directors may adopt, as permitted by applicable law.  Subject to Section 2.09, any other proper business may be transacted at an annual meeting.

SECTION 2.02.  Special Meetings.  A special meeting of stockholders for any purpose or purposes (x) may be called at any time by the Chairman or the Vice Chairman and (y) shall be called by the Secretary or the Chairman or the Vice Chairman at the request in writing (delivered to such officer at the executive offices of the Corporation) of (i) a majority of the entire Board of Directors pursuant to a resolution adopted thereby (which resolution shall constitute the aforementioned written request) or (ii) the holders of a majority of the voting power of the capital stock of the Corporation issued and outstanding and entitled to vote generally in the election of directors, as promptly as practicable following such request.  Any such request shall specify the purpose or purposes for which the meeting is requested to be called.  The Board of Directors may, in its sole discretion, determine that a special meeting shall not be held in any place, but shall be held solely by means of remote communication, subject to such guidelines and procedures as the Board of Directors may adopt, as permitted by applicable law.

SECTION 2.03.  Notice of Meetings.  A written notice of each annual or special meeting of stockholders shall be given stating the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called.  Unless otherwise provided by law, the Amended and Restated Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) or these Bylaws, such notice of meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting, personally, by mail or, to the extent and in the manner permitted by applicable law, electronically.  If mailed, such notice shall be deemed to be given when deposited in the mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.

SECTION 2.04.  Adjournments.  Any annual or special meeting of stockholders may be adjourned from time to time to reconvene at the same or some other place, if any, and notice need not be given of any such adjourned meeting if the date, time and place, if any, thereof and the means of remote communication, if any, by which stockholders and proxyholders may be deemed present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken.  At the adjourned meeting any business may be transacted which might have been transacted at the original meeting.  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 of record entitled to vote at the adjourned meeting in accordance with Section 2.03.

SECTION 2.05.  Conduct; Remote Communication.  Meetings of stockholders shall be presided over by the Chairman, or if there is no Chairman or in his or her absence or inability to act, by the Vice Chairman, or in the absence or inability of the Vice Chairman, by a chairman chosen at the meeting.  The Secretary shall act as secretary of the meeting, but in his or her absence the chairman presiding over the meeting may appoint any person to act as secretary of the meeting.

If authorized by the Board of Directors in accordance with these Bylaws and applicable law, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, (1) participate in a meeting of stockholders and (2) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

SECTION 2.06.  Quorum.  Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the presence in person or by proxy of the holders of shares of

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capital stock having a majority of the votes which could be cast by the holders of all outstanding shares of capital stock entitled to vote at the meeting shall constitute a quorum at each meeting of stockholders.  In the absence of a quorum, the stockholders so present may, by the affirmative vote of the holders of stock having a majority of the votes which could be cast by all such holders, adjourn the meeting from time to time in the manner provided in Section 2.04 until a quorum is present.  If a quorum is present when a meeting is convened, the subsequent withdrawal of stockholders, even though less than a quorum remains, shall not affect the ability of the remaining stockholders lawfully to transact business.

SECTION 2.07.  Voting.  Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of capital stock held by such stockholder which has voting power on the matter in question.

Voting at meetings of stockholders need not be by written ballot and need not be conducted by inspectors of election unless so required by Section 2.11 of these Bylaws or so determined by the holders of stock having a majority of the votes which could be cast by the holders of all outstanding shares of capital stock entitled to vote which are present in person or by proxy at such meeting.  Directors shall be elected as provided in Section 3.03 of these Bylaws.  Each other question presented to the stockholders at a meeting shall, unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, be decided by the vote of the holders of shares of capital stock having a majority of the votes which could be cast by the holders of all shares of capital stock entitled to vote on such question which are present in person or by proxy at the meeting.

Shares of capital stock of the Corporation standing in the name of another corporation and entitled to vote may be voted by such officer, agent or proxy as the bylaws or other internal regulations of such other corporation may prescribe or, in the absence of such provision, as the board of directors or comparable body of such other corporation may determine.

Shares of capital stock of the Corporation standing in the name of a deceased person, a minor, an incompetent or a debtor in a case under Title 11, United States Code, and entitled to vote may be voted by an administrator, executor, guardian, conservator, debtor-in-possession or trustee, as the case may be, either in person or by proxy, without transfer of such shares into the name of the official or other person so voting.

A stockholder whose shares of voting stock are pledged shall be entitled to vote such shares unless on the transfer records of the Corporation the pledgor has expressly empowered the pledgee to vote such shares, in which case only the pledgee, or such pledgee’s proxy, may represent such shares and vote thereon.

If shares of voting stock are held of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or if two or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein it is so provided, their acts with respect to voting shall have the following effect:  (i) if only one votes,

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such act binds all; (ii) if more than one vote, the act of the majority so voting binds all; and (iii) if more than one votes, but the vote is evenly split on any particular matter each faction may vote such stock proportionally, or any person voting the shares, or a beneficiary, if any, may apply to the Court of Chancery of the State of Delaware or such other court as may have jurisdiction to appoint an additional person to act with the persons so voting the stock, which shall then be voted as determined by a majority of such persons and the person appointed by the Court.  If the instrument so filed shows that any such tenancy is held in unequal interests, a majority or even split for the purpose of this subsection shall be a majority or even split in interest.

Shares of capital stock of the Corporation belonging to the Corporation, or to another corporation a majority of the shares entitled to vote in the election of directors of which are held by the Corporation, shall not be voted at any meeting of stockholders and shall not be counted in the total number of outstanding shares for the purpose of determining whether a quorum is present.  Nothing in this Section 2.07 shall limit the right of the Corporation to vote shares of stock of the Corporation held by it in a fiduciary capacity.

SECTION 2.08.  List of Stockholders Entitled to Vote.  The Secretary shall prepare, 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 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, for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation.  In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.  If the meeting is to be held at a place, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present.  If the meeting is to be held solely by means of remote communication, the list shall be open to the examination of any stockholder during the whole time thereof on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.  The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list of stockholders or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

SECTION 2.09.  Business to be Conducted at Stockholder Meetings.  No business may be transacted at any 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 meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof) or (c) in the case of an annual meeting, otherwise properly brought before the meeting by any stockholder of the Corporation who (i) is a stockholder of record on the date of the giving of the notice provided for in this Section 2.09 and on the record date for the determination of stockholders entitled to vote at such annual meeting and (ii) complies with the notice procedures set forth in this Section 2.09.

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In addition to any other applicable requirements, for business to be properly brought before any 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 ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that (x) in the case of the first annual meeting held after the Effective Date of the Modified Joint Plan of Reorganization for Smurfit-Stone Container Corporation and its Debtor Subsidiaries and Plan of Compromise and Arrangement for Smurfit-Stone Container Canada Inc. and Affiliated Canadian Debtors filed pursuant to Section 1121(a) of Chapter 11 of Title 11 of the United States Code (the “Plan of Reorganization”), and (y) in the event that any other annual meeting is called for a date that is not within thirty (30) days before or after the anniversary date of the immediately preceding annual meeting of stockholders, 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 given or public disclosure of the date of the annual meeting was first made, whichever first occurs.

To be in proper written form, a stockholder’s notice to the Secretary under this Section 2.09 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 meeting, (ii) the reasons for conducting such business at the annual meeting, (iii) the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), (iv) a description of all arrangements or understandings between or among such stockholder and/or any beneficial owner of the shares held by such stockholder and any other person or persons (including their names) in connection with the proposal of such business by such stockholder, (v) any material interest of such stockholder or any such beneficial owner in such business, (vi) the following information in respect of such stockholder and each such beneficial owner:  (A) the name and address of such stockholder or beneficial owner; (B) as of the date of the stockholder notice (1) each class or series and number of shares of capital stock of the Corporation that are owned, directly or indirectly, beneficially or of record by such stockholder or beneficial owner, (2) any option, warrant, convertible security, stock appreciation right or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of capital stock of the Corporation or with a value derived in whole or in part from the value of any class or series of capital stock of the Corporation, whether or not such instrument or right is subject to settlement in the underlying class or series of capital stock of the Corporation (each, a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder or beneficial owner and any other direct or indirect opportunity held or owned beneficially by such stockholder or beneficial owner to profit or share in any profit derived from any increase or decrease in the value of any class or series of shares of capital stock or other securities of the Corporation, (3) any proxy, contract, arrangement, understanding or relationship pursuant to which such stockholder or beneficial owner has a right to vote any shares of capital stock of the Corporation, (4) any short interest held by such stockholder or beneficial owner in any security of the Corporation, (5) any right owned beneficially by such stockholder or beneficial owner to dividends on any shares of capital stock of the Corporation, which right is separated or separable from the underlying shares, (6) any proportionate interest in any shares of capital stock of the Corporation or Derivative

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Instrument held directly or indirectly by a general or limited partnership in which such stockholder or beneficial owner is a general partner or with respect to which such stockholder or beneficial owner directly or indirectly owns an interest in a general partner and (7) any performance related fees (other than an asset-based fee) to which such stockholder or beneficial owner is entitled based on an increase or decrease in the value of any shares of capital stock or other securities of the Corporation or any Derivative Instrument; (C) any other information relating to such stockholder or beneficial owner that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies for election of directors in a contested election 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; (D) a representation that such stockholder is a holder of record of a class of capital stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to bring such business before the meeting; and (E) a representation as whether or not such stockholder or beneficial owner intends, or is part of a group that intends, (x) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding voting capital stock required to approve or adopt the proposal or (y) otherwise to solicit proxies from stockholders in support of such proposal.  For the purposes of these Bylaws, “beneficially owns” (or any similar phrase) shall have the meaning set forth in Rule 13d-3 under the Exchange Act as in effect from time to time; and a person shall be deemed to hold a “short interest” in a security if such person directly or indirectly, through a contract, arrangement, understanding, relationship or otherwise has the opportunity to profit or share in any profit derived from any decrease in the value of such security.

With respect to the information required to be included in the stockholder notice in respect of the stockholder or any beneficial owner pursuant to subclauses (1) through (7) of clause (B) of the preceding paragraph, the stockholder notice shall also include any interests held by members of the immediate family of such stockholder or beneficial owner sharing the same household.  The information included in the stockholder notice pursuant to such subclauses with respect to the stockholder and each beneficial owner and any immediate family members shall be updated by such stockholder by supplemental notices delivered to or mailed and received at the principal executive offices of the Corporation (x) not later than ten (10) days after the record date for the applicable annual meeting and (y) ten (10) days before the applicable annual meeting date, and shall be further updated by delivery of a supplemental notice to the Secretary immediately prior to the commencement of the annual meeting.

No business shall be conducted at any annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.09, and the business transacted at any special meeting of stockholders shall be limited to the purpose or purposes for which such meeting is called, except as otherwise determined by the Board of Directors or the chairman presiding over the meeting.  Notwithstanding the foregoing, once business has been properly brought before any meeting of stockholders, nothing in this Section 2.09 shall be deemed to preclude discussion by any stockholder of any such business.  If the chairman presiding over any meeting of stockholders determines that business was not properly brought before such meeting in accordance with the foregoing procedures, the chairman shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.

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Nothing contained in this Section 2.09 shall be deemed to affect any rights of stockholders to request the inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor thereto) under the Exchange Act.

SECTION 2.10.  Proxies.  Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy filed with the Secretary before or at the time of the meeting.  No such proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period.  A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.  A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by filing with the Secretary an instrument in writing revoking the proxy or another duly executed proxy bearing a later date.

A stockholder may authorize another person or persons to act for such stockholder as proxy (i) by executing a writing authorizing such person or persons to act as such, which execution may be accomplished by such stockholder or such stockholder’s authorized officer, director, partner, employee or agent (or, if the stock is held in a trust or estate, by a trustee, executor or administrator thereof) signing such writing or causing his or her signature to be affixed to such writing by any reasonable means, including, but not limited to, facsimile signature, or (ii) by transmitting or authorizing the transmission of a telegram, cablegram or other means of electronic transmission (a “Transmission”) to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such Transmission; provided that any such Transmission must either set forth or be submitted with information from which it can be determined that such Transmission was authorized by such stockholder.

Any Inspector or Inspectors appointed pursuant to Section 2.11 of these Bylaws shall examine Transmissions to determine if they are valid.  If no Inspector or Inspectors are so appointed, the Secretary or such other person or persons as shall be appointed from time to time by the Board of Directors shall examine Transmissions to determine if they are valid.  If it is determined that a Transmission is valid, the person or persons making that determination shall specify the information upon which such person or persons relied.

Any copy, facsimile telecommunication or other reliable reproduction of such a writing or Transmission may be substituted or used in lieu of the original writing or Transmission for any and all purposes for which the original writing or Transmission could be used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or Transmission.

SECTION 2.11.  Voting Procedures and Inspectors of Elections.  If the Corporation has a class of voting stock that is (i) listed on a national securities exchange, (ii) authorized for quotation on an interdealer quotation system of a registered national securities association or (iii) held of record by more than 2,000 stockholders, the Board of Directors shall, in advance of any meeting of stockholders, appoint one or more inspectors (individually an “Inspector” and collectively the “Inspectors”) to act at such meeting and make a written report thereof.  The Board of Directors may designate one or more persons as alternate Inspectors to replace any

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Inspector who shall fail to act.  If no Inspector or alternate is able to act at such meeting, the chairman presiding over the meeting shall appoint one or more other persons to act as Inspectors.  Each Inspector, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of Inspector with strict impartiality and according to the best of his or her ability.

The Inspectors shall (i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each, (ii) determine the number of shares of capital stock of the Corporation present in person or by proxy at such meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period of time a record of the disposition of any challenges made to any determination by the Inspectors and (v) certify their determination of the number of such shares present in person or by proxy at such meeting and their count of all votes and ballots.  The Inspectors may appoint or retain other persons or entities to assist them in the performance of their duties.

The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at such meeting.  No ballots, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the Inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware upon application by any stockholder shall determine otherwise.

In determining the validity and counting of proxies and ballots, the Inspectors shall be limited to an examination of the proxies, any envelopes submitted with such proxies, any information referred to in the second and third paragraphs of Section 2.10 of these Bylaws, ballots and the regular books and records of the Corporation, except that the Inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by a stockholder of record to cast or more votes than such stockholder holds of record.  If the Inspectors consider other reliable information for the limited purpose permitted herein, the Inspectors, at the time they make their certification pursuant to the second paragraph of this Section 2.11, shall specify the precise information considered by them, including the person or persons from whom such information was obtained, when and the means by which such information was obtained and the basis for the Inspectors’ belief that such information is accurate and reliable.

SECTION 2.12.  Fixing Date of Determination of Stockholders of Record.  In order that the Corporation may determine the stockholders entitled (i) to notice of or to vote at any meeting of stockholders or any adjournment thereof, (ii) to receive payment of any dividend or other distribution or allotment of any rights, (iii) to exercise any rights in respect of any change, conversion or exchange of stock, (iv) to express consent to corporate action in writing without a meeting or (v) to take, receive or participate in any other action, the Board of Directors may fix a record date, which shall not be earlier than the date upon which the resolution fixing the record date is adopted by the Board of Directors (1) in the case of a determination of stockholders entitled to notice of or to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, be not more than sixty (60) nor less than ten (10) days before the date of such meeting; (2) in the case of a determination of stockholders entitled to express consent to corporate action in writing without a meeting, shall be not more than ten (10) days

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after the date upon which the resolution fixing the record date is adopted by the Board of Directors; and (3) in the case of any other action, shall be not more than sixty (60) days before such action.

If no record date is fixed, (i) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; (ii) the record date for determining stockholders entitled to express consent to corporate action in writing without a meeting when no prior action of the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, or, if prior action by the Board of Directors is required by law, shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action; and (iii) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

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, but the Board of Directors may fix a new record date for the adjourned meeting.

SECTION 2.13.  Action By Consent of Stockholders.

Unless the power of stockholders to act by consent without a meeting is restricted or eliminated by the Certificate of Incorporation, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote on such action were present and voted.

Every written consent shall bear the date of signature of each stockholder (or his, her or its proxy) signing such consent.  Prompt notice of the taking of corporate action without a meeting of stockholders by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of persons to authorize or take the action were delivered to the Corporation in the manner required by this Section 2.13.  All such written consents shall be delivered to the Corporation at its registered office in the State of Delaware, at its principal place of business or to the Secretary.  Delivery made to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.

A telegram, cablegram or other electronic transmission consenting to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of these By-laws, provided that any such telegram, cablegram or other electronic

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transmission sets forth or is delivered with information from which the Corporation can determine (A) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission.  Any consent by means of telegram, cablegram or electronic transmission shall be deemed to have been signed on the date on which it was transmitted.  No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, at its principal place of business or to the Secretary.  Delivery made to the Corporation’s registered office shall be made by hand or by certified or registered mail, return receipt requested.  Notwithstanding the foregoing limitations on delivery, consents given by telegram, cablegram or other electronic transmission may be otherwise delivered to the principal place of business of the Corporation or to the Secretary if, to the extent and in the manner provided by resolution of the Board of Directors of the Corporation.

No written consent shall be effective to authorize or take the corporate action referred to therein unless, within sixty (60) days of the earliest dated written consent delivered to the Corporation in the manner required by this Section 2.13, written consents signed by a sufficient number of persons to authorize or take such action are delivered to the Corporation at its registered office in the State of Delaware, at its principal place of business or to the Secretary.  All such written consents shall be filed with the minutes of proceedings of the stockholders, and actions authorized or taken under such written consents shall have the same force and effect as those authorized or taken pursuant to a vote of the stockholders at an annual or special meeting.

ARTICLE 3

DIRECTORS

SECTION 3.01.  Duties and Powers.  The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors which, directly or through one or more committees thereof as provided herein, 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 Bylaws directed or required to be exercised or done by the stockholders.

SECTION 3.02.  Composition of the Board of Directors.  The directors constituting the Board of Directors immediately following the adoption of these Bylaws shall be those persons who are appointed for such purpose pursuant to the Plan of Reorganization, and such directors shall initially constitute the entire Board of Directors.  The number of directors constituting the entire Board of Directors may at any time and from time to time thereafter be changed by resolution adopted by the Board of Directors.

The composition of the Board of Directors shall comply with the independence requirements of the laws, rules and regulations applicable to the Corporation, including the federal securities laws and the Sarbanes-Oxley Act, the rules of the Securities and Exchange Commission (the “SEC”) and the requirements of the New York Stock Exchange (the

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“Exchange”) or such other securities exchange as may be applicable.  Directors need not be stockholders.

As used in these Bylaws, the term “entire Board of Directors” means the total number of directors which the Corporation would have if there were no vacancies.

SECTION 3.03.  Election.  Except as otherwise provided pursuant to the Certificate of Incorporation in respect of directors to be elected solely by the holders of one or more classes or series of preferred stock and except as provided by Section 3.06 with respect to the filling of vacancies, directors shall be elected by a majority of votes cast by the shares of capital stock represented at a meeting of stockholders and entitled to vote thereon, a quorum being present at such meeting, unless the election is contested, in which case directors shall be elected by a plurality of votes cast by the shares represented at such meeting.  A “majority of votes cast” for such purpose means that the number of votes cast “for” the election of the nominee exceeds 50% of the total number of votes cast “for” or “against” the election of that nominee.  Stockholders shall also be provided the opportunity to abstain with respect to the election of a director.  In voting on the election of directors, abstentions, votes designated to be withheld from the election of a director and shares present but not voted in respect of the election of a director, if any, shall not be considered as votes cast.  An election shall be considered “contested” if the number of nominees for election is greater than the number of directors to be elected.  For purposes hereof, the number of nominees shall be determined as of the last date on which a stockholder in accordance with these Bylaws may give notice of the nomination of a person for election as a director in order for such nomination to be required to be presented for a vote of the stockholders.

Each director, including a director elected to fill a vacancy, shall hold office until the next annual meeting of stockholders and until his or her successor is duly elected and qualified or until his or her earlier death, incapacity, resignation, retirement, disqualification or removal from office.

SECTION 3.04.  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 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 or at special meeting of stockholders called for the purpose of electing directors (a) by or at the direction of the Board of Directors (or any duly authorized committee of the Board of Directors) 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 3.04 and on the record date for the determination of stockholders entitled to vote at such meeting of stockholders and (ii) who complies with the notice procedures set forth in this Section 3.04.

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: (a) in

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the case of an annual meeting, not less than ninety (90) days nor more than one hundred twenty (120) days prior to the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that (x) in the case of the first annual meeting held after the Effective Date of the Plan of Reorganization and (y) in the event that any other annual meeting is called for a date that is not within thirty (30) days before or after the anniversary date of the immediately preceding annual meeting of stockholders, 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 given or public disclosure of the date of the annual meeting was first made, whichever first occurs; and (b) in the case of a special meeting of stockholders called for the purpose of electing directors, 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 special meeting was given or public disclosure of the date of the annual meeting was first made, whichever first occurs.  In the event that the number of directors to be elected to the Board of Directors at any annual meeting is increased and there is no public announcement by the Corporation naming all the nominees for director or specifying the size of the increased Board of Directors at least ninety (90) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder notice required by this Section 3.04 shall also be considered timely, but only with respect to the nominees for any new positions created by such increase, if it shall be 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 given or public disclosure of the date of the annual meeting was first made, whichever first occurs.

To be in proper written form, a stockholder’s notice to the Secretary under this Section 3.04 must set forth (a) as to each person whom the stockholder proposes to nominate for election as a director (i) the name, age, business address and residence address of the person, (ii) the principal occupation or employment of the person, (iii) each class or series and number of shares of capital stock of the Corporation which are owned of record or beneficially 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 Exchange Act and the rules and regulations promulgated thereunder, (b) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings and any other material relationships between or among (1) such nominee and (2) such stockholder, any beneficial owner of the shares held by such stockholder and their respective affiliates and associates or others acting in concert therewith, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC if any person referred to in subclause (2) were the “registrant” for the purposes of Item 404 and the nominee were a director or executive officer of such registrant, (c) in respect of such stockholder and each such beneficial owner, the information that would be required to be set forth in a stockholder notice given under Section 2.09 pursuant to subclauses (A) and (B) of clause (vi) of the third paragraph of that Section, (d) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to nominate the persons named in the notice given pursuant to this Section 3.04 and (e) 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

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written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.

The Corporation may require any proposed nominee to furnish such other information as it may reasonably require (x) to determine the eligibility of such proposed nominee to serve as a director of the Corporation, (y) to determine whether such nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rules or regulations or any publicly disclosed corporate governance guidelines or the charter of any committee of the Board of Directors and (z) that could otherwise be material to a reasonable stockholder’s understanding of the independence and qualifications, or lack thereof, of such nominee.

No person shall be eligible for election as a director of the Corporation at any meeting of the stockholders unless nominated in accordance with the procedures set forth in this Section 3.04.  Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the chairman presiding over any meeting of stockholders shall have the power to (x) determine whether a director nomination was made in accordance with the procedures set forth in this Section 3.04 and (y) declare that a director nomination was not made in compliance with this Section 3.04.  Unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) who proposed any nominee for director by a notice given pursuant to this Section 3.04 does not appear at the meeting of stockholders to make such nomination, such nomination shall be disregarded notwithstanding that proxies with respect to the election of such nominee may have been received by the Corporation.  For the purposes of this paragraph, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce evidence of such position or authority.

SECTION 3.05.  Resignation and Removal.  Any director may resign at any time by giving written notice to the Chairman, the Vice Chairman or the Secretary.  A resignation shall take effect when the resignation is delivered to the officer to whom it is directed unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events, without any need for its acceptance.

Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the outstanding shares of capital stock of the Corporation then entitled to vote generally in the election of directors.

SECTION 3.06.  Vacancies.  Subject to the terms of any one or more classes or series of preferred stock of the Corporation, newly created directorships resulting from any increase in the number of directors and any vacancies in the Board of Directors resulting from death or incapacity, resignation, retirement, disqualification or removal from office may be filled only by the affirmative vote of a majority of the directors then in office, though less than a quorum, or by a sole remaining director, or by stockholders at a special meeting duly called for such purpose, and directors so elected shall hold office until the next annual meeting of stockholders and until

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their successors are duly elected and qualified, or until their earlier death or incapacity, resignation, retirement, disqualification or removal from office.

SECTION 3.07.  Regular Meetings.  Unless otherwise determined by the Board of Directors, a regular annual meeting of the Board of Directors shall be held, without call or notice, immediately after and, if the annual meeting of stockholders is held at a place, at the same place as the annual meeting of stockholders, for the purpose of organizing the Board of Directors, electing officers and transacting any other business that may properly come before such meeting.  If the stockholders shall elect the directors by written consent of stockholders as permitted by Section 2.13 of these Bylaws, a special meeting of the Board of Directors shall be called as soon as practicable after such election for the purposes described in the preceding sentence.  Additional regular meetings of the Board of Directors may be held without call or notice at such times as shall be fixed by resolution of the Board of Directors.

SECTION 3.08.  Special Meetings.  Special meetings of the Board of Directors may be called by the Chairman, the Vice Chairman, the Chief Executive Officer or the Secretary or by any member of the Board of Directors.  Notice of a special meeting of the Board of Directors shall be given by the person or persons calling the meeting shall be given to each director either (a) by mail not less than forty-eight (48) hours before the date and time 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, telecopier, electronic transmission or cable), (b) by telephone, telegram or telecopier given not less than twenty-four (24) hours before the date and time of the meeting or (c) on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.  The purpose or purposes of a special meeting need not be stated in the call or notice.

SECTION 3.09.  Organization; Quorum; Actions by Board.  Meetings of the Board of Directors shall be presided over by the Chairman, or if there is no Chairman or in his or her absence or inability to act, by the Vice Chairman, or in the absence or inability to act of the Vice Chairman, by a chairman chosen at the meeting.  The Secretary shall act as secretary of the meeting, but in his or her absence the chairman presiding over the meeting may appoint any person to act as secretary of the meeting.  A majority of the directors present at a meeting, whether or not they constitute a quorum, may adjourn such meeting to any other date, time or place without notice other than announcement at the meeting.

Except as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these Bylaws, 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.

SECTION 3.10.  Action by Written Consent.  Unless otherwise provided by the Certificate of Incorporation or these Bylaws, 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 such committee, as the case may be, consent thereto in writing (which may be in counterparts) or by electronic transmission, and the written consent or consents or electronic transmission or transmissions are filed with the minutes of

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proceedings of the Board of Directors or such committee.  Such filing shall be made in paper form if the minutes of the Corporation are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

SECTION 3.11.  Meetings by Means of Conference Telephone.  Unless otherwise provided by the Certificate of Incorporation or these Bylaws, members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors, the Independent Directors (as defined in Section 3.12) or such committee by means of conference telephone or other 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 3.11 shall constitute presence in person at such meeting.

SECTION 3.12.  Independent Director Meetings.  Those members of the Board of Directors who are “independent” under the rules of the Exchange (herein “Independent Directors”) shall hold periodic meetings.  Immediately following the first meeting of the Board of Directors at which these Bylaws are adopted (provided that a majority of the Independent Directors are present at such meeting), the Independent Directors shall hold a meeting and elect, by a majority vote of the Independent Directors present at such meeting, a director to act as the lead independent director (“Lead Independent Director”).  The Lead Independent Director shall preside at all meetings of the Independent Directors.  Meetings of the Independent Directors may be called by the Lead Independent Director on his or her own or at the request of another Independent Director.  The meetings may be held at such time and place as determined by the Lead Independent Director.  The notice requirements set forth in Section 3.08 shall apply to such meetings, unless waived.  The Lead Independent Director shall be elected annually immediately following the Board of Directors meeting held in conjunction with the annual stockholders meeting, and shall serve until his or her successor is duly elected and qualified, or until his earlier death or incapacity, resignation, retirement, disqualification or removal from office.

SECTION 3.13.  Committees.  In addition to the committees of the Board of Directors provided for in Sections 3.14 through 3.16, the Board of Directors may, by resolution, designate one or more committees, each committee to consist of one or more of the directors of the Corporation.  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 the committee.  In the absence or disqualification of a member of the committee, the member or members present at any meeting and not disqualified from voting, whether or not a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member.  Members of a committee shall hold office for such period as may be fixed by a resolution adopted by the Board of Directors, subject to removal at any time by the Board of Directors.

Except as otherwise provided in these Bylaws, any committee, to the extent allowed by applicable 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.  The Corporation hereby elects to be governed by Section 141(c)(2) of the General Corporation Law of the State of Delaware (the “DGCL”).  Each committee shall keep regular minutes and report to the Board of Directors when required.

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Unless the Board of Directors otherwise provides, each committee of the Board of Directors may make, alter and repeal rules for the conduct of its business.

SECTION 3.14.  Compensation Committee.  There is hereby established a Compensation Committee.  The Compensation Committee shall consist of such number of directors as from time to time shall be designated by the Board of Directors, who shall serve on such committee for the term for which each member is designated or until such member’s successor is duly elected and qualified, or until such member’s earlier death or incapacity, resignation, retirement, disqualification or removal from the Board of Directors or the Compensation Committee.  The composition of the Compensation Committee shall comply with the independence requirements of the Exchange or such other securities exchange as may be applicable, and no member of the Compensation Committee shall be an officer or an employee of the Corporation or of any subsidiary of the Corporation.  The Compensation Committee shall have the powers and authority set forth in a written charter of the Compensation Committee approved and adopted by the Board of Directors.

SECTION 3.15.  Nominating and Governance Committee.  There is hereby established a Nominating and Governance Committee.  The Nominating and Governance Committee shall consist of such number of directors as from time to time shall be designated by the Board of Directors, who shall serve on such committee for the term for which each member is designated or until such member’s successor is duly elected and qualified, or until such member’s earlier death or incapacity, resignation, retirement, disqualification or removal from the Board of Directors or the Nominating and Governance Committee.  The composition of the Nominating and Governance Committee shall comply with the independence requirements of the Exchange or such other securities exchange as may be applicable.  The Nominating and Governance Committee shall have the powers and authority set forth in a written charter of the Nominating and Governance Committee approved and adopted by the Board of Directors.

SECTION 3.16.  Audit Committee.  There is hereby established an Audit Committee of the Board of Directors.  The Audit Committee shall consist of directors who shall serve on such committee for the term for which each member is designated or until such member’s death or incapacity, resignation, retirement, disqualification or removal from the Board of Directors or the Audit Committee.  The Audit Committee shall be comprised of not less than three (3) directors each of whom shall meet the independence, experience and any other requirements of the laws, rules and regulations applicable to the Corporation, including the federal securities laws and the Sarbanes-Oxley Act, the rules of the SEC, and the requirements of the Exchange or such other securities exchange as may be applicable.  The Audit Committee shall have the powers and authority set forth in a written charter of the Audit Committee approved and adopted by the Board of Directors.

SECTION 3.17.  Compensation.  Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors.  The directors shall be paid their reasonable expenses, if any, of attendance at each meeting of the Board of Directors or a committee thereof and may be paid a fixed sum for attendance at each such meeting and an annual retainer or salary for services as a director or committee member.  No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

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SECTION 3.18.  Interested Directors.  A director who is directly or indirectly a party to a contract or transaction with the Corporation, or is a director or officer of or has a financial interest in any other corporation, partnership, association or other organization which is a party to a contract or transaction with the Corporation, may be counted in determining whether a quorum is present at any meeting of the Board of Directors or a committee thereof at which such contract or transaction is considered or authorized, and such director may participate in such meeting and vote on such authorization to the extent permitted by applicable law, including Section 144 of the DGCL.

SECTION 3.19.  Reliance upon Records.  Every director, and every member of any committee of the Board of Directors, shall, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or employees, or committees of the Board of Directors, or by any other person as to matters the director or member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, including, but not limited to, such records, information, opinions, reports or statements as to the value and amount of the assets, liabilities and/or net profits of the Corporation, or any other facts pertinent to the existence and amount of surplus or other funds from which dividends might properly be declared and paid, or with which the Corporation’s capital stock might properly be purchased or redeemed.

ARTICLE 4

OFFICERS

SECTION 4.01.  General.  The officers of the Corporation shall be chosen by the Board of Directors and shall include a Chief Executive Officer, a President, a Chief Operating Officer, a Chief Financial Officer, a Secretary and a Treasurer.  The Board of Directors in its discretion may also elect one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and such other officers as it deems appropriate.  The Corporation shall also have a Chairman and may have a Vice Chairman, each of whom shall be chosen by resolution of the Board of Directors from among the directors of the Corporation.  A person serving as Chairman or Vice Chairman shall not be deemed to be an officer of the Corporation unless such person separately holds an officer position.  Unless otherwise prohibited by applicable law or the Certificate of Incorporation, any number of offices may be held by the same person and any officer who is also a director may be elected as the Chairman or the Vice Chairman.  Any Vice President may be designated Executive, Senior or Corporate, or may be given such other designation or combination of designations as the Board of Directors may determine.  The officers of the Corporation need not be stockholders of the Corporation nor need such officers be directors of the Corporation.

SECTION 4.02.  Election; Resignation; Removal; Vacancies.  The Board of Directors at its 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; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or

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until their earlier death or incapacity, resignation, retirement, disqualification or removal from office.  Any officer may resign at any time by giving written notice to the Chairman, the Chief Executive Officer or the Secretary.  Unless otherwise stated in a notice of resignation, it shall take effect when received by the officer to whom it is directed, without any need for its acceptance.  The Board of Directors may remove any officer with or without cause at any time, but such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation.  A vacancy occurring in any office of the Corporation may be filled for the unexpired portion of the term thereof by the Board of Directors at any regular or special meeting.

SECTION 4.03.  Chairman and Vice Chairman of the Board.  The Chairman shall preside at all meetings of stockholders and of the Board of Directors at which the Chairman is present.  The Chairman shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these Bylaws or by the Board of Directors.

The Board of Directors may also elect by resolution a Vice Chairman from among the members of the Board of Directors to act in the place of the Chairman in his or her absence or inability to act.

SECTION 4.04.  Chief Executive Officer.  Subject to the control of the Board of Directors, the Chief Executive Officer shall have general supervisory responsibilities with respect to the business affairs and officers of the Corporation.  The Chief Executive Officer shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him or her by these Bylaws or by the Board of Directors.

The Chief Executive Officer 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 applicable law, rule or regulation 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 Bylaws, the Board of Directors or the Chief Executive Officer.

SECTION 4.05.  President.  The President shall assist the Chief Executive Officer in directing the business affairs and officers of the Corporation and shall perform such other duties as from time to time may be assigned to him or her by the Board of Directors or the Chief Executive Officer.  He shall also, in the absence, upon the disability or at the request of the Chief Executive Officer, exercise and perform the duties of the Chief Executive Officer.  The President may execute bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or by applicable law, rule or regulation to be otherwise signed and executed.

SECTION 4.06.  Chief Operating Officer.  The Chief Operating Officer shall have responsibility for the day-to-day operation of the business of the Corporation and shall perform such other duties as from time to time may be assigned to him or her by the Board of Directors, the President or the Chief Executive Officer.  The Chief Operating Officer may execute bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or by applicable law, rule or regulation to be otherwise signed and executed.

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SECTION 4.07.  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.  The Chief Financial Officer shall render periodically such balance sheets and other financial statements or reports relating to the business of the Corporation as may be required by the Board of Directors, the Chairman, the Chief Executive Officer or any other authorized officer of the Corporation.  The Chief Financial Officer shall be a Vice President and shall report to the Chief Executive Officer.

SECTION 4.08.  Vice Presidents.  At the request of the President or the Chief Operating Officer or in the absence of the President or the Chief Operating Officer or in the event of the inability or refusal of the President or the Chief Operating Officer to act, the Vice President or the Vice Presidents, if there is more than one (first the Executive Vice President, second the Chief Financial Officer and then in the order designated by the Board of Directors) shall perform the duties of the President and Chief Operating Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President or the Chief Operating Officer (as applicable).  Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe.  If there be no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or the Chief Operating Officer or in the event of the inability or refusal of the President or the Chief Operating Officer to act, shall perform the duties of the President or the Chief Operating Officer (as applicable), and when so acting, shall have all the powers of and be subject to all the restrictions upon the President or the Chief Operating Officer (as applicable).

SECTION 4.09.  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, the Chairman or the Chief Executive Officer, who shall have supervisory authority with respect to the Secretary.  If the Secretary shall be unable or shall refuse to cause to be given notice of any meeting of the stockholders or any special meetings of the Board of Directors, and if there be no Assistant Secretary then, either the Board of Directors, the Chairman or the Chief Executive Officer 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 or document executed on behalf of the Corporation 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 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 4.10.  Treasurer.  The Treasurer shall have 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

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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 Chairman, the Chief Executive Officer and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his or her 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 or her office and for the restoration to the Corporation, in case of his or her death or incapacity, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.

SECTION 4.11.  Assistant Secretaries.  Except as may be otherwise provided in these Bylaws, 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, the Chief Executive Officer, the President, the Chief Operating Officer, any Vice President or the Secretary, and in the absence of the Secretary or in the event of his or her 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 4.12.  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, the Chief Executive Officer, the President, the Chief Operating Officer, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his or her 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 or her office and for the restoration to the Corporation, in case of his or her death or incapacity, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the Corporation.

SECTION 4.13.  Other Officers.  Such other officers as the Board of Directors may from to time elect shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors.  The Board of Directors may delegate to any other officer of the Corporation the power to appoint such other officers and to prescribe their respective duties and powers.

SECTION 4.14.  Voting Securities Owned by the Corporation.  Subject to the control of the Board of Directors, 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 Chief Executive Officer, the President, the Chief Operating Officer, the Executive Vice President, the Chief Financial Officer or any other Vice President and any such officer may, in the name of and on behalf of the Corporation, take all such action such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation or other entity in which the Corporation may own securities

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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.

ARTICLE 5

STOCK CERTIFICATES AND TRANSFERS

SECTION 5.01.  Certificates.  Shares of the Corporation’s capital stock may be certificated or uncertificated, as determined by the Board of Directors.  Any certificates of stock of the Corporation shall be in such form as may be determined by the Board of Directors, shall be numbered and shall be entered in the books of the Corporation as they are issued.  Any such certificates shall exhibit the holder’s name and be signed by or in the name of the Corporation (i) by the Chairman, the Chief Executive Officer, the President, the Chief Operating Officer 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 5.02.  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 or she were such officer, transfer agent or registrar at the date of issue.

SECTION 5.03.  Lost Certificates.  The Corporation may issue a new certificate for stock in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such stockholder’s legal representative, to give the Corporation a bond sufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate.

SECTION 5.04.  Book Entry Shares.  Shares of the Corporation’s capital stock may, if so authorized by the Board of Directors, be evidenced by registration in the holder’s name in uncertificated, book-entry form on the books of the Corporation.  Except as expressly provided by applicable law, the rights and obligations of the holders of shares represented by certificates and the rights and obligations of the holders of uncertificated shares of the same class and series shall be identical.

SECTION 5.01.  Transfers.  Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for stock of the Corporation duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer or, if the relevant stock certificate is claimed to have been lost, stolen or destroyed, upon compliance with the provisions of Section 5.03 of these By-laws, and upon payment of applicable taxes with respect to such transfer, and in compliance with any restrictions on transfer applicable to such stock certificate or the shares represented thereby of which the Corporation shall have notice and subject to such rules and regulations as the Board of Directors may from time to time deem advisable

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concerning the transfer and registration of stock certificates, the Corporation shall issue a new certificate or certificates for such stock to the person entitled thereto, cancel the old certificate and record the transaction upon its books.  Transfers of stock shall be made only on the books of the Corporation by the registered holder thereof or by such holder’s attorney or successor duly authorized as evidenced by documents filed with the Secretary or transfer agent of the Corporation.  Whenever any transfer of stock shall be made for collateral security, and not absolutely, it shall be so expressed in the entry of transfer if, when the certificate or certificates representing such stock are presented to the Corporation for transfer, both the transferor and transferee request the Corporation to do so.

SECTION 5.02.  Additional Rules and Regulations.  The Board of Directors may make such additional rules and regulations as it may deem expedient, and not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificated or uncertificated shares of capital stock of the Corporation.  All references to stock or shares in these Bylaws shall refer to either stock or shares represented by certificates or uncertificated shares, and no such reference shall be construed to require certificated shares or to grant additional or different rights or obligations as between the holders of certificated and uncertificated shares of the Corporation.

SECTION 5.03.  Stockholders of Record.  The Corporation shall be entitled to treat the holder of record of any stock of the Corporation as the holder thereof and shall not be bound to recognize any equitable or other claim to or interest in such stock on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by the laws of the State of Delaware.

ARTICLE 6

NOTICES

SECTION 6.01.  Manner of Notice.  Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, whenever notice is required to be given to any stockholder, director or member of any committee of the Board of Directors, such notice may be given by (i) personal delivery, (ii) depositing it, in a sealed envelope, in the United States mails, first class, postage prepaid, addressed, (iii) delivering to a company for overnight or second day mail or delivery, (iv) delivering it to a telegraph company, charges prepaid, for transmission, or by transmitting it via telecopier, or (v) any other reliable means permitted by applicable law (including, subject to the second paragraph of this Section 6.01, electronic transmission) to such stockholder, director or member, either at the address of such stockholder, director or member as it appears on the records of the Corporation or, in the case of such a director or member, at his or her business address; and such notice shall be deemed to be given at the time when it is thus personally delivered, deposited, delivered or transmitted, as the case may be.  Such requirement for notice shall also be deemed satisfied, except in the case of stockholder meetings, if actual notice is received orally or by other writing by the person entitled thereto as far in advance of the event with respect to which notice is being given as the minimum notice period required by law or these Bylaws.

Without limiting the foregoing, any notice to stockholders given by the Corporation pursuant to these Bylaws shall be effective if given by a form of electronic transmission

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consented to by the stockholder to whom the notice is given.  Any such consent shall be revocable by the stockholder by written notice to the Corporation and shall also be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary of the Corporation, the transfer agent or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.  Notice given by a form of electronic transmission in accordance with these Bylaws shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of such posting and the giving of such separate notice; and (iv) if by another form of electronic transmission, when directed to the stockholder.

SECTION 6.02.  Dispensation with Notice.  Whenever notice is required to be given by law, the Certificate of Incorporation or these Bylaws to any stockholder to whom (i) notice of two consecutive annual meetings of stockholders and all notices of meetings of stockholders or of the taking of action by stockholders by written consent without a meeting to such stockholder during the period between such two consecutive annual meetings or (ii) all, and at least two, payments (if sent by first class mail) of dividends or interest on securities of the Corporation during a twelve-month period, have been mailed addressed to such stockholder at the address of such stockholder as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required.  Any action or meeting which shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given.  If any such stockholder shall deliver to the Corporation a written notice setting forth the then current address of such stockholder, the requirement that notice be given to such stockholder shall be reinstated.

Whenever notice is required to be given by law, the Certificate of Incorporation or these Bylaws to any person with whom communication is unlawful, the giving of such notice to such person shall not be required, and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person.  Any action or meeting which shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given.

SECTION 6.03.  Waiver of Notice.  Any written waiver of notice, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice.  Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee or directors need be specified in any written waiver of notice.

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ARTICLE 7

GENERAL PROVISIONS

SECTION 7.01.  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 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 7.02.  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 7.03.  Fiscal Year.  The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.

SECTION 7.04.  Corporate Seal.  The Board of Directors may provide a corporate seal which shall have the name of the Corporation inscribed thereon and shall be in such form as may be approved from time to time by the Board of Directors.  The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.

ARTICLE 8

INDEMNIFICATION

SECTION 8.01.  Power to Indemnify in Actions, Suits or Proceedings other than those by or in the Right of the Corporation.  Subject to Section 8.03, 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 such person is or was a director or officer of the Corporation on or after January 26, 2009, or is or was a director or officer of the Corporation on or after January 26, 2009 serving or having served 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 (including attorneys’ fees paid in settlement) actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner 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 such person’s 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 such person reasonably believed to be in

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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 such person’s conduct was unlawful.

SECTION 8.02.  Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation.  Subject to Section 8.03, 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 such person is or was a director or officer of the Corporation on or after January 26, 2009, or is or was a director or officer of the Corporation on or after January 26, 2009 serving or having served 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 such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner such person 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 excuses which the Court of Chancery or such other court shall deem proper.

SECTION 8.03.  Authorization of Indemnification.  Any indemnification under this Article 8 (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of such person is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 8.01 or Section 8.02, as the case may be. Such determination shall be made with respect to a person who is a director or officer at the time of such determination, (i) by the Board of Directors by a majority vote of the directors who were not parties to such action, suit or proceeding (the “Uninvolved Directors”) even though less than a quorum, or (ii) by a committee of such Uninvolved Directors designated by majority vote of the Uninvolved Directors, even though less than a quorum, or (iii) if there are no Uninvolved Directors, or if the Uninvolved Directors so direct, by independent legal counsel in a written opinion, or (iv) 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, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.

SECTION 8.04.  Good Faith Defined.  For purposes of any determination under Section 8.03, a person shall be deemed to have acted in good faith and in a manner such person 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 such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person 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

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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 8.04 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 8.04 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 Section 8.01 or 8.02, as the case may be.

SECTION 8.05.  Indemnification by a Court.  Notwithstanding any contrary determination in the specific case under Section 8.03, 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 8.01 and 8.02.  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 Section 8.01 or 8.02, as the case may be. Neither a contrary determination in the specific case under Section 8.03 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 8.05 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 8.06.  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 such person is not entitled to be indemnified by the Corporation as authorized in this Article 8.

SECTION 8.07.  Nonexclusivity of Indemnification and Advancement of Expenses.  The indemnification and advancement of expenses provided by or granted pursuant to this Article 8 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any Bylaw, 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 such person’s 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 Section 8.01 and 8.02 shall be made to the fullest extent permitted by law.  The provisions of this Article 8 shall not be deemed to preclude the indemnification of, and advancement of expenses to, any person who is not specified in Sections 8.01 or 8.02 of this Article 8 but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL, or otherwise.

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SECTION 8.08.  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 such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions of this Article 8.

SECTION 8.09.  Certain Definitions.  For purposes of this Article 8, references to “the Corporation” shall include, in addition to the Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger (including, without limitation, Smurfit-Stone Container Corporation, a Delaware corporation incorporated on August 4, 1989 under the name “SIBV/MS Holdings, Inc.”, which was merged into the Corporation on June 30, 2010) 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 8 with respect to the resulting or surviving corporation as such person would have had with respect to such constituent corporation if its separate existence had continued.  For purposes of this Article 8, 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 such person 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 8.

SECTION 8.10.  Survival of Indemnification and Advancement of Expenses.  The indemnification and advancement of expenses obligations set forth in this Article 8 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 8 nor adoption of any provision of the Certificate of Incorporation or of these Bylaws which is inconsistent with the provisions of this Article 8 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 8.11.  Limitation on Indemnification.  Notwithstanding anything contained in this Article 8 to the contrary, except for proceedings to enforce rights to indemnification and rights to advancement of expenses (which shall be governed by Section 8.06), the Corporation shall not be obligated to indemnify, or advance expenses to, any director or officer in connection

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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.

SECTION 8.12.  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 and its subsidiaries and joint venture entities similar to those conferred in this Article 8 to directors and officers of the Corporation.

ARTICLE 9

AMENDMENTS

SECTION 9.01.  Except as set forth below, these Bylaws may be amended, altered or repealed and new Bylaws adopted by (i) the stockholders, by the affirmative vote of the holders of a majority of the voting power of the shares of capital stock issued and outstanding and entitled to vote generally in the election of directors (voting together as a single class) at a meeting of the stockholders (provided notice of the proposed amendment shall be included in the notice of the meeting) or (ii) the Board of Directors, by a majority vote of the entire Board of Directors at any meeting, including any bylaw adopted by the stockholders; provided, however, that the stockholders may from time to time specify particular provisions of the Bylaws which shall not be amended by the Board of Directors.

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EX-10.1

Exhibit 10.1

AGREEMENT AND PLAN OF MERGER

OF

SMURFIT-STONE CONTAINER CORPORATION

(a Delaware corporation)

INTO

SMURFIT-STONE CONTAINER ENTERPRISES, INC.
(a Delaware corporation)

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made as of June 30, 2010, by and between SMURFIT-STONE CONTAINER CORPORATION, a Delaware corporation (“SSCC”), and SMURFIT-STONE CONTAINER ENTERPRISES, INC., a Delaware corporation (“SSCE”).

W I T N E S S E T H:

WHEREAS, SSCC is a corporation duly incorporated and validly existing under the laws of the State of Delaware;

WHEREAS, SSCE is a corporation duly incorporated and validly existing under the laws of the State of Delaware;

WHEREAS, the United States Bankruptcy Court for the District of Delaware, by order dated as of June 21, 2010 (the “Confirmation Order”) confirming the Modified Joint Plan of Reorganization for Smurfit-Stone Container Corporation and its Debtor Subsidiaries and Plan of Compromise and Arrangement for Smurfit-Stone Container Canada Inc. and Affiliated Canadian Debtors (the “Plan”) filed pursuant to Section 1121(a) of Chapter 11 of Title 11 of the United States Code, has directed that SSCC be merged with and into SSCE (the “Merger”) pursuant to Sections 251 and 303 of the Delaware General Corporation Law on the terms and subject to the conditions hereinafter set forth; and

WHEREAS, SSCC and SSCE intend that the Merger qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended and that this Agreement constitutes a “plan of reorganization” within the meaning of the Treasury Regulation promulgated thereunder.

NOW, THEREFORE, the parties hereby agree as follows:

ARTICLE I

1.1           Merger of SSCC into SSCE.  SSCC shall be merged with and into SSCE, in accordance with Section 251 of the Delaware General Corporation Law.  The separate existence of SSCC shall thereupon cease and SSCE shall be the surviving corporation (the

“Surviving Corporation”).  The Merger shall become effective upon the Effective Date of the Plan (the “Effective Date”).

1.2           Effect of Merger.  The Merger shall have the effect specified in the Delaware General Corporation Law.  Without limiting the generality of the foregoing, in the Merger, all of the rights, duties and obligations (other than any obligations discharged pursuant to the Plan) of SSCC shall be vested in the Surviving Corporation.

ARTICLE II

2.1           Certificate of Incorporation.  The certificate of incorporation of SSCE in effect immediately prior to the Effective Date shall be the certificate of incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law (including the adoption of the Amended and Restated Certificate of Incorporation provided for in the Plan); provided, however, that upon the Merger becoming effective, the certificate of incorporation of the Surviving Corporation shall be amended to change the name of the Surviving Corporation to “Smurfit-Stone Container Corporation”.

2.2           Bylaws.  The bylaws of SSCE in effect immediately prior to the Effective Date shall be the bylaws of the Surviving Corporation until same shall be altered, amended or repealed as provided therein or by applicable law (including the adoption of the Amended and Restated Bylaws provided for in the Plan).

2.3           Directors and Officers.  The directors and officers of SSCC on the Effective Date shall be and become the directors and officers of the Surviving Corporation and shall continue in office until the next annual meeting of stockholders and until their successors shall have been elected and qualified or as otherwise provided by law (including the appointment of certain new and replacement officers and directors as provided for in the Plan).

ARTICLE III

3.1           Treatment of Equity Interests.  The treatment of the outstanding shares of capital stock of SSCC and SSCE, respectively, shall be as follows:

(a)           All issued shares of common and preferred stock of SSCC shall be converted into the right to receive shares of common stock of the Surviving Corporation as provided in the Plan.  As of the Effective Date, all issued shares of common and preferred stock of SSCC, and all rights in respect thereof, shall be cancelled, and each holder of shares of common and preferred stock of SSCC shall cease to have any rights with respect thereto, except the right to receive the consideration specified in the immediately preceding sentence, in each case as provided in the Plan.

(b)           All issued shares of common stock of SSCE and all rights in respect thereof shall be cancelled on the Effective Date (it being understood that, on the Effective Date, new shares of common stock of the Surviving Corporation will be issued pursuant to the Plan).

ARTICLE IV

4.1           Assumption and Performance of SSCC Obligations.  Upon the occurrence of the Effective Date, the Surviving Corporation expressly agrees to assume and perform all of

[Signature Page Follows]

the obligations of SSCC, whether in contract or otherwise (other than obligations discharged pursuant to the Plan), as successor thereto, and all such obligations shall be binding upon the Surviving Corporation.

IN WITNESS WHEREOF, each of SSCC and SSCE, pursuant to the authority granted by the Confirmation Order, has caused this Agreement to be executed in its name by its duly authorized officer as of the day and year aforesaid.

SMURFIT-STONE CONTAINER CORPORATION
By:	/s/ Patrick J. Moore
Patrick J. Moore
Chairman and Chief Executive Officer
SMURFIT-STONE CONTAINER ENTERPRISES, INC.
By:	/s/ Patrick J. Moore
Patrick J. Moore
Chief Executive Officer

EX-10.2

Exhibit 10.2

ASSET PURCHASE AGREEMENT

BETWEEN

SMURFIT-STONE CONTAINER CANADA INC.

AND

MBI LIMITED/LIMITÉE

AND

SMURFIT-MBI

AND

FRANCOBEC COMPANY

AND

B.C. SHIPPER SUPPLIES LTD.

AND

SMURFIT-STONE CONTAINER CANADA, L.P.

MADE AS OF

June 30, 2010

TABLE OF CONTENTS

ARTICLE 1 - INTERPRETATION		1
1.01	Definitions	1
1.02	Headings	6
1.03	Extended Meanings	6
1.04	Statutory References	6
1.05	Currency	6
1.06	Schedules	6
ARTICLE 2 - TRANSFER OF ASSETS		7
2.01	Transfer of Acquired Assets	7
2.02	Excluded Assets	8
2.03	Purchase Price	9
2.04	Excluded Liabilities	9
2.05	Tax Elections	10
2.06	Transfer Taxes	11
2.07	Amounts Received After Effective Time	11
2.08	Non-Assignable Contracts and Commitments	11
2.09	CAAFs	12
2.10	Authorizations	12
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES		12
3.01	Sellers’ Representations and Warranties	12
3.02	Purchaser’s Representations and Warranties	13
ARTICLE 4 - COVENANTS		14
4.01	Employees	14
4.02	Pension and Benefits	14
4.03	Environmental Matters	14
4.04	Cooperation on Tax Matters	15
ARTICLE 5 - GENERAL		15
5.01	Further Assurances	15
5.02	Benefit of the Agreement	15
5.03	Entire Agreement	16
5.04	Amendments and Waivers	16
5.05	Assignment	16
5.06	Notices	16
5.07	Plan Prevails	17
5.08	Governing Law	17
5.09	Attornment	17
5.10	Counterparts	17
5.11	Electronic Transmission	17

ASSET PURCHASE AGREEMENT

THIS AGREEMENT is made as of June 30, 2010

BETWEENSMURFIT-STONE CONTAINER CANADA INC., a company existing under the laws of the Province of Nova Scotia (“SSC Canada”); MBI LIMITED/LIMITÉE, a corporation existing under the laws of the Province of New Brunswick (“MBI”); SMURFIT-MBI, a limited partnership existing under the laws of the Province of Ontario (“Smurfit-MBI”), acting and represented by its general partner, MBI; FRANCOBEC COMPANY, an unlimited company existing under the laws of the Province of Nova Scotia (“Francobec”); and B.C. SHIPPER SUPPLIES LTD., a corporation existing under the laws of the Province of British Columbia (“BCSS”) (collectively, the “Sellers”); and

SMURFIT-STONE CONTAINER CANADA, L.P., a limited partnership existing under the laws of the Province of Ontario (the “Purchaser”), herein acting by 3242795 Nova Scotia Limited, its general partner (the “General Partner”);

WHEREAS the Sellers wish to sell, convey, transfer and assign the Acquired Assets (as hereinafter defined) to the Purchaser, and the Purchaser wishes to acquire the Acquired Assets from the Sellers, upon and subject to the terms and conditions set out in this Agreement;

NOW THEREFORE, in consideration of the covenants and agreements herein contained, the parties agree as follows:

ARTICLE 1 - - INTERPRETATION

1.01Definitions

(1)           In this Agreement, unless something in the subject matter or context is inconsistent therewith:

“Acquired Assets” has the meaning set out in Section 2.01.

“Administrative Expense Claims” has the meaning set out in the Plan.

“Affected Unsecured Creditors” has the meaning set out in the Plan.

“Agreement” means this asset purchase agreement, including its preamble and schedules, as amended from time to time.

“Applicable Law” means:

(i)any domestic or foreign law including any statute or subordinate legislation as enacted and enforceable at the Effective Time; and

(ii)any guideline, directive, rule, standard, requirement, policy, order, judgment, injunction, award or decree of a Governmental Authority having the force of law at the Effective Time.

“Assumed Contracts” has the meaning set out in Section 2.01(1)(h).

“Assumed Liabilities” means the following liabilities of the Sellers: (i) all existing and future obligations of SSC Canada and Smurfit-MBI under the Canadian Collective Bargaining Agreements (excluding, for greater certainty, Non-Transferred CBAs); (ii) all existing and future obligations of SSC Canada and Smurfit-MBI under the Canadian Pension Plans (including all unfunded liabilities thereunder) as set out in Section 4.02; (iii) all existing and future obligations of SSC Canada and Smurfit-MBI under the Canadian Employee Benefit Plans; (iv) accrued liabilities relating to the wages and benefits of Employees employed by the Purchaser pursuant to Section 4.01(1) except to the extent specifically indicated as an Excluded Liability; (v) outstanding severance obligations of the Sellers to Employees and former employees of Sellers at the Effective Time; (vi) obligations relating to the Assumed Contracts that constitute Post-Filing Claims that are not otherwise satisfied pursuant to the Plan; (vii) obligations regarding any Authorizations relating to the Acquired Assets; (viii) all obligations arising in the ordinary course of the Sellers to their customers, vendors and suppliers to the extent such obligations constitute Post-Filing Claims that have not been otherwise satisfied under the Plan; (ix) all liabilities with respect to the Acquired Assets arising after the Effective Time; and (x) the liabilities set forth in Schedule 1.01(1). For greater certainty, any Liability which is an Excluded Liability is not an Assumed Liability. In the event of a contradiction between the definition of Excluded Liabilities and Assumed Liabilities, the definition of Excluded Liabilities shall prevail and Assumed Liabilities shall be interpreted in consequence.

“Authorization” means, with respect to any Person, any order, permit, approval, consent, waiver, licence, certificate, certificate of authorization, registration, franchise, right, privilege, quota, exemption or similar authorization of any Governmental Authority having jurisdiction over the Person.

“BCSS” has the meaning set out in the preamble.

“CAAF” means a timber supply and forest management agreement (contrat d’approvisionnement et d’aménagement forestier), as such term is used in the Forest Act (Québec), all those to which the Sellers have rights being set out in Schedule 2.09.

“Canadian Collective Bargaining Agreements” has the meaning set out in the Plan.

“Canadian Debtor(s)” means, individually or collectively, SSC Canada, Stone Container Finance Company of Canada II, 3083527 Nova Scotia Company, MBI, Smurfit-MBI, 639647 British Columbia Ltd., BCSS, Specialty Containers Inc., SLP Finance General Partnership, Francobec and 605681 N.B. Inc.

“Canadian Employee Benefit Plans” has the meaning set out in the Plan.

“Canadian Pension Plans” has the meaning set out in the Plan.

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“CCAA Charges” has the meaning set out in the Plan.

“Claim” has the meaning set out in the Plan.

“Contract” means any contract, agreement, commitment, promise or undertaking (whether written or oral) that is legally binding and which relates to a Seller or the Acquired Assets and to which any of the Sellers is a party or by which any of the Sellers is bound.

“Effective Time” means the time (Eastern Time) at which the final Monitor’s Certificate is delivered under the Vesting Orders.

“Employees” means all of the employees of the Sellers at the Effective Time, including employees on leave who return within the period prescribed by Applicable Law based on the nature of the leave.

“Encumbrance” means any lien, encumbrance, security interest, pledge, servitude, easement, lease, charge, preemptive right, right of first refusal, option to purchase, encroachments and imperfections of title in regard to real property, mortgage, hypothecation, restriction on transfer of title, adverse claim, title retention agreement of any nature or kind, or other encumbrance.

“Environmental Authorities” means all Governmental Authorities charged with enforcing any of the Environmental Laws.

“Environmental Authorizations” means all Authorizations listed in Schedule 2.01(1)(l) issued or granted to any of the Sellers by Environmental Authorities pursuant to any Environmental Laws.

“Environmental Laws” means all Applicable Laws in respect of the environment and the protection of the environment.

“Excluded Assets” has the meaning set out in Section 2.02.

“Excluded Contracts” has the meaning set out in Section 2.02(i).

“Excluded Liabilities” has the meaning set out in Section 2.04.

“Francobec” has the meaning set out in the preamble.

“General Partner” has the meaning set out in the preamble.

“Governmental Authority” means any Canadian federal, provincial, municipal or local government, or any other governmental, regulatory or administrative authority, or any agency, board, department, commission, court, tribunal or instrumentality thereof.

“GST” has the meaning set out in Section 2.05(1).

“Intellectual Property” means intellectual property of any nature and kind including all domestic and foreign trade-marks, business names, trade names, domain names, trading styles, patents, trade secrets, software, industrial designs and copyrights, whether registered or

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unregistered, and all applications for registration thereof, and inventions, formulae, recipes, product formulations, processes and processing methods, technology and techniques and know-how.

“Intercompany Claims” has the meaning set out in the Plan.

“Inventories” means all inventories of finished goods, work-in-progress, materials, supplies, tooling, service parts, spare parts, fuels and other goods used by the Sellers.

“Leased Properties” has the meaning set out in Section 2.01(1)(b).

“Liability” means, with respect to any Person, any liability or obligation of such Person whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether matured or unmatured, and whether or not required under generally accepted accounting principles to be accrued on the financial statements of such Person.

“Litigation Claims” has the meaning set out in the Plan.

“MBI” has the meaning set out in the preamble.

“Monitor” means Deloitte & Touche Inc., the court appointed Monitor of the Sellers.

“Monitor’s Certificate” means each certificate required pursuant to a Vesting Order to be issued by the Monitor in order for Acquired Assets to be vested in the Purchaser and/or the General Partner.

“Non-Qualified Employee Benefit Plans” has the meaning set out in the Plan.

“Non-Transferred CBA” means a Canadian Collective Bargaining Agreement in respect of former employees of any Seller whose employment related primarily to: (i) the Excluded Assets; or (ii) any business of the Sellers which has ceased operations or been sold to a third party prior to the Effective Time.

“Other Secured Claim” has the meaning set out in the Plan.

“Partnership Agreement” means the limited partnership agreement in respect of the Purchaser dated March 17, 2010, as amended or restated from time to time.

“Permitted Encumbrances” has the meaning set out in Section 3.01(d).

“Person” means any individual, corporation, partnership, association, joint stock company, joint venture, limited liability company, limited liability partnership, trust, estate, unincorporated organization or other entity, or any domestic or foreign government, governmental agency, or any subdivision, department or other instrumentality thereof.

“Petition Date” has the meaning set out in the Plan.

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“Plan” means the joint plan of reorganization for Smurfit-Stone Container Corporation and its debtor subsidiaries and plan of arrangement for SSC Canada and affiliated Canadian Debtors dated January 29, 2010, including all exhibits, supplements, appendices and schedules thereto, as the same may be amended, modified or supplemented from time to time in accordance with the terms thereof and the terms of the CCAA Creditors’ Meeting Order and includes, for purposes of the CCAA Proceedings, the CCAA Plan that is incorporated into such joint plan of reorganization.

“Post-Filing Claims” has the meaning set out in the Plan.

“Prepetition Canadian Revolving Loans” has the meaning set out in the Plan.

“Prepetition Canadian Term Loans” has the meaning set out in the Plan.

“Prepetition Credit Agreement” has the meaning set out in the Plan.

“Purchase Price” has the meaning set out in Section 2.03.

“Purchaser” has the meaning set out in the preamble.

“QST” has the meaning set out in Section 2.05(1).

“Sellers” has the meaning set out in the preamble.

“Smurfit-MBI” has the meaning set out in the preamble.

“Smurfit-MBI Distribution Pool” has the meaning set out in the Plan.

“SSC Canada” has the meaning set out in the preamble.

“SSC Canada Distribution Pool” has the meaning set out in the Plan.

“Tax” means (a) any foreign, federal, provincial, state, municipal, school, county or local income, capital, sales and use, value added (including GST, Harmonized Sales Tax and QST), excise, franchise, real and personal property, land transfer, gross receipt, capital stock, production, business and occupation, disability, employment, payroll, severance or withholding tax or other tax, duty, fee, assessment, deficiency, imposition, Liability or charge imposed by any taxing authority, including any Canada, Québec or other government pension plan premium or contribution, social security or employment insurance premium, deductions at source, withholding tax, and any interest, penalties or fines related thereto or in addition thereto, and (b) any Liability for the payment of any amounts of the type described in clause (a) of this definition of “Tax” as a result of any express obligation to indemnify any other Person or as a result of any obligations under any agreement or arrangements with any other Person with respect to such amounts.

“Tax Act” means the Income Tax Act (Canada).

“Transfer Taxes” has the meaning set out in Section 2.06.

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“Vesting Order” has the meaning set out in Section 5.03.

(2)           Capitalized terms used herein that are not otherwise defined shall have the meanings attributed to them in the Plan.

1.02Headings

The division of this Agreement into Articles and Sections and the insertion of a table of contents and headings are for convenience of reference only and do not affect the construction or interpretation of this Agreement.  The terms “hereof”, “hereunder” and similar expressions refer to this Agreement and not to any particular Article, Section or other portion hereof.  Unless something in the subject matter or context is inconsistent therewith, references herein to Articles, Sections and Schedules are to Articles and Sections of and Schedules to this Agreement.

1.03Extended Meanings

In this Agreement, words importing the singular number include the plural and vice versa and words importing any gender include all genders.  The term “including” means “including without limiting the generality of the foregoing” and the term “third party” means any Person other than the Sellers and the Purchaser.

1.04Statutory References

In this Agreement, unless something in the subject matter or context is inconsistent therewith or unless otherwise herein provided, a reference to any statute is to that statute as now enacted and includes any regulations made thereunder.

1.05Currency

All references to currency herein are to lawful money of Canada, except as otherwise indicated.

1.06Schedules

The following are the Schedules to this Agreement:

Schedule 1.01(1)	-	Certain Assumed Liabilities;
Schedule 2.01(1)(a)	-	Owned Real Properties;
Schedule 2.01(1)(b)	-	Leased Properties;
Schedule 2.01(1)(g)	-	Owned Intellectual Property;
Schedule 2.01(1)(i)	-	Schiffenhaus Canada Inc. Shares;
Schedule 2.01(1)(j)	-	Aspamill, Rollcraft and Rosenbloom Group Shares;
Schedule 2.01(1)(l)	-	Environmental Authorizations and Other Authorizations;
Schedule 2.01(1)(n)	-	Certain Litigation Claims;
Schedule 2.02(i)	-	Excluded Contracts;
Schedule 2.02(j)	-	Excluded Assets;
Schedule 2.03(2)	-	Purchase Price Allocation (Seller and Asset Class);

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Schedule 2.09	-	CAAFs; and
Schedule 3.01(d)	-	Permitted Encumbrances.

ARTICLE 2 - - TRANSFER OF ASSETS

2.01Transfer of Acquired Assets

(1)           Upon and subject to the terms and conditions hereof, as of and with effect from the Effective Time, each of the Sellers hereby sells, conveys, transfers and assigns to the Purchaser, and the Purchaser hereby acquires from the Sellers, the universality of the personal and movable and real and immovable property of each of the Sellers, other than the Excluded Assets, (the “Acquired Assets”) including all rights, title, benefit and interest of each of the Sellers in and to the following:

(a)the immovable and real properties described in Schedule 2.01(1)(a);

(b)all rights as lessee in the immovable and real properties set out in Schedule 2.01(1)(b) (the “Leased Property”);

(c)all machinery, equipment, vehicles, tools, handling equipment, furniture, furnishings, computer hardware and peripheral equipment, supplies and accessories owned, leased or otherwise used by the Sellers;

(d)all Inventories;

(e)all cash on hand or held in bank accounts of the Sellers;

(f)all accounts receivable, trade accounts, credits, notes receivable (other than Intercompany Claims), book debts and any other debts and amounts due or accruing to the Sellers with respect to their business and operations as at the Effective Time;

(g)all Intellectual Property owned by the Sellers, including the Intellectual Property listed in Schedule 2.01(1)(g);

(h)all Contracts other than the Excluded Contracts, including the Contracts listed in Exhibit 11 to the Plan (the “Assumed Contracts”);

(i)the shares in the share capital of Schiffenhaus Canada Inc. held by Smurfit-MBI, as set out in Schedule 2.01(1)(i);

(j)the shares in the share capitals of Aspamill Inc., Rollcraft Inc. and Rosenbloom Group Inc. held by SSC Canada, as set out in Schedule 2.01(1)(j);

(k)all Intercompany Claims held by Canadian Debtors that are Sellers;

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(l)all Authorizations required to carry on the operations of the Sellers in the usual and ordinary course, including the Environmental Authorizations listed in Schedule 2.01(1)(l), the whole to the extent transferable by Applicable Law;

(m)the goodwill related to the operations of the Sellers;

(n)all Litigation Claims of the Sellers, including those set out in Schedule 2.01(1)(n);

(o)all prepaid expenses and deposits of the Sellers including all prepaid Taxes (other than income Taxes) and water rates, all prepaid purchases of gas, oil and electricity and all prepaid lease payments;

(p)all personnel records, inspection records and other records, books, documents and data bases recorded or stored by means of any device, including in electronic form, as are in the possession or under the control of the Sellers; and

(q)all assets held in connection with the Canadian Pension Plans as set out in Section 4.02, including all agreements pursuant to which the assets of the Canadian Pension Plans are held, and all contracts for service relating to the Canadian Pension Plans.

(2)           Title to, and ownership and possession of, the Acquired Assets shall pass to the Purchaser at the Effective Time.

2.02Excluded Assets

The Acquired Assets shall not include any of the following owned by any Seller (collectively, the “Excluded Assets”):

(a)shares in the share capital of St. Laurent Display and Packaging Inc.;

(b)shares in the share capital of Celgar Investments, Inc.;

(c)shares in the share capital of Stone Venepal (Celgar) Pulp, Inc.;

(d)shares in the share capital of Serpac Containers Limited;

(e)shares in the share capital of 639647 British Columbia Ltd.;

(f)shares in the capital of Specialty Containers Inc.;

(g)the shares in the share capital of 3083527 Nova Scotia Company;

(h)all shares, units or other equity interests held by any Seller in the capital of any other Seller;

(i)the Contracts set out in Schedule 2.02(i) and any Contracts with respect to any business or assets which have ceased operations or have been sold to a third party prior to the Effective Time (the “Excluded Contracts”); and

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(j)any of the assets or property set out in Schedule 2.02(j).

2.03Purchase Price

(1)The purchase price agreed by the Sellers and the Purchaser for the sale, conveyance, transfer and assignment of the Acquired Assets by the Sellers to the Purchaser shall be the aggregate of the following (the “Purchase Price”) and shall be paid as follows on the date of this Agreement:

(a)the payment of cash in the amount of US$393,646,808.20, being the amount necessary to repay the principal amount of the Prepetition Canadian Revolving Loans and the Prepetition Canadian Term Loans in full, plus any accrued but unpaid interest thereon payable at the non-default interest rate under the Prepetition Credit Agreement and all other amounts payable in connection therewith under the Plan;

(b)the payment of cash in the amount of US$64,451.00, being the amount necessary to pay the principal amount of all Other Secured Claims against the Sellers in full, plus any accrued but unpaid interest thereon required to be paid under Applicable Law;

(c)the payment of cash in the amount of US$7,979,222.00, being the amount necessary to satisfy in full all Administrative Expense Claims, Post-Filing Claims and CCAA Charges against the Canadian Debtors, including, without limitation, any monetary amounts by which each executory Contract and unexpired lease to be assigned to the Purchaser is in default;

(d)the payment of cash in the amount (i) of US$39,000,000.00 necessary to fund the SSC Canada Distribution Pool and the Smurfit-MBI Distribution Pool, which shall be available for distribution to Affected Unsecured Creditors of SSC Canada and Smurfit-MBI in accordance with Article IV of the Plan and (ii) US$110,000.00 for General Unsecured Claims with respect to BCSS; and

(e)the assumption and undertaking by the Purchaser to timely fulfil and perform all of the Assumed Liabilities.

(2)The payments set forth in Section 2.03(1) shall be (i) paid to or as directed by the Sellers and (ii) allocated among each of the Sellers as set forth in Schedule 2.03(2), and among each class of assets as set forth in such Schedule. Each of the Sellers and the Purchaser hereby agree to file their respective Tax returns in a manner consistent with the allocation set out in Schedule 2.03(2).

2.04Excluded Liabilities

The Purchaser will not assume or be liable for, and the Sellers will retain and remain responsible for, all of the Liabilities of the Sellers other than the Assumed Liabilities (and then only in accordance with the terms of, and to the extent of, the Assumed Liabilities), whether such

9

Liabilities are related to the Acquired Assets or otherwise (the “Excluded Liabilities”). Without limiting the foregoing, the Excluded Liabilities specifically include each of the following:

(i)all Liabilities of each of the Sellers for Taxes;

(ii)all Liabilities of, and Claims (including without limitation any grievance) against, any Seller or the Acquired Assets as of the Effective Time or arising thereafter but related to or arising out of the operations of any of the Sellers or the Acquired Assets prior to the Petition Date;

(iii)all Liabilities of each of the Sellers with respect to any business or assets which have ceased operations or have been sold to a third party prior to the Effective Time;

(iv)all Liabilities arising out of any violation of Applicable Laws, including Environmental Laws, by any Seller on or prior to the Petition Date;

(v)all Liabilities for debt or any other liability or obligation of any Seller that does not relate to, or arise from, the operations of the Sellers or the Acquired Assets;

(vi)all Liabilities of Employees who refuse the offer of employment by the Purchaser pursuant to Section 4.01(1);

(vii)any existing or future obligation of any Canadian Debtor under any Non-Qualified Employee Benefit Plan;

(viii)all Liabilities relating to the Excluded Assets; and

(ix)all Liabilities relating to bulk sales laws applicable to the transactions contemplated by this Agreement.

2.05Tax Elections

(1)Each of the Sellers and the Purchaser will jointly execute an election, in the prescribed form and containing the prescribed information, to have Section 167 of the Excise Tax Act (Canada) and, to the extent applicable, Sections 75 and 75.1 of An Act respecting the Québec Sales Tax apply to the conveyance, transfer and assignment of the Acquired Assets hereunder so that no tax is payable in respect of such conveyance, transfer and assignment under Part IX of the Excise Tax Act (Canada) (such tax is hereinafter referred to as “GST”) and Title I of An Act respecting the Québec Sales Tax (such tax is hereinafter referred to as “QST”). The Purchaser will file such elections with the applicable Governmental Authorities within the time prescribed by the Excise Tax Act (Canada) and An Act respecting the Québec Sales Tax.

(2)Each of the Sellers and the Purchaser will execute and file, on a timely basis and using the prescribed form, a joint election under Section 22 of the Tax Act and Section 184 of the Taxation Act (Québec) as to the sale of the accounts receivable conveyed, transferred and assigned under this Agreement, and prepare their respective Tax returns in a manner consistent

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with such joint election.  For the purposes of such joint election, the elected amount in respect of the accounts receivable will be consistent with the allocation set forth in Schedule 2.03(2) with respect to the accounts receivable.

(3)Each of the Sellers and the Purchaser will, if the Purchaser notifies such Seller, execute and file, on a timely basis and using any prescribed form, a joint election under Subsection 20(24) of the Tax Act and Section 157.10 of the Taxation Act (Québec) as to the assumption hereunder of prepaid obligations to deliver goods or provide services in the future, and prepare their respective Tax returns in a manner consistent with such joint election. To the extent such an election is filed, the Sellers acknowledge that each applicable Seller conveyed, transferred and assigned the Acquired Assets to the Purchaser in part as consideration for the Purchaser assuming prepaid obligations of each such Seller to deliver goods or provide services in the future.

2.06Transfer Taxes

The Purchaser will be liable for and will pay all transfer, land transfer or other similar Taxes properly payable under any Applicable Law (collectively, “Transfer Taxes”) on or with respect to the conveyance, transfer and assignment of the Acquired Assets under this Agreement to the extent no exemption from such Transfer Taxes is available by Applicable Law or court order.  The consideration payable by the Purchaser to Sellers hereunder does not include Transfer Taxes.

2.07Amounts Received After Effective Time

All amounts collected on or after the Effective Time or other amounts receivable relating to the Acquired Assets or the business conducted by the Sellers prior to the Effective Time or the Purchaser on or after the Effective Time shall belong to the Purchaser, and if received by any Seller shall be received for the benefit and the account of the Purchaser, and such Seller shall transfer and remit to the Purchaser all such amounts received by or paid to it on or after the Effective Time.

2.08Non-Assignable Contracts and Commitments

(1)The Sellers will use commercially reasonable efforts (other than the payment of money or assumption of obligations) to obtain any third party consents or waivers necessary to permit the assignment to, and assumption by, the Purchaser of all the Assumed Contracts that have not been obtained prior to the Effective Time.

(2)Nothing in this Agreement will constitute an agreement to assign or an attempted assignment of any Assumed Contract for which any requisite consent or waiver to the assignment thereof has not been obtained or otherwise ordered by a court of competent jurisdiction (including the Vesting Order). To the extent permitted by Applicable Law, if any requisite consent or waiver has not been obtained or ordered on or prior to the Effective Time, the applicable Assumed Contract will be held by the applicable Seller in trust for the benefit of the Purchaser and the Purchaser will perform the obligations of such Seller thereunder and be entitled to receive all money becoming due and payable under and other benefits derived from the Assumed Contract immediately after receipt by the applicable Seller; however, at the request,

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expense and direction of the Purchaser and in the name of the applicable Seller or otherwise as the Purchaser may specify, the applicable Seller will take all action and do or cause to be done all things that are, in the opinion of the Purchaser, necessary or proper in order that the obligations of such Seller may be performed in such a manner that the value of the Assumed Contract is preserved and enure to the benefit of the Purchaser, and that the collection of moneys due and payable to the Purchaser in and under the Assumed Contract are received by the Purchaser.

2.09CAAFs

The applicable Sellers and the Purchaser will use commercially reasonable efforts, including the provision of such notices and applicable information to Governmental Authorities as may be necessary or useful, to permit the Purchaser to enter into CAAFs and the biomass agreement on terms substantially similar to those of the CAAFs and agreement set out in Schedule 2.09.  The Sellers and the Purchaser shall provide each other with a copy of any written documents received or to be sent relating to the entering into by the Purchaser of such CAAFs and agreement.  The applicable Sellers hereby authorize the Purchaser to act on their behalf in order to do such things and perform such acts as may be necessary or useful to permit the Purchaser to enter into such CAAFs and agreement.

2.10Authorizations

The Sellers and the Purchaser will use commercially reasonable efforts, including the provision of such notices and applicable information to Governmental Authorities as may be necessary or useful, to permit the Purchaser to obtain such Authorizations as may be necessary to put into effect the transactions set out in this Agreement.  The Sellers and the Purchaser shall provide each other with a copy of any written documents received or to be sent relating to such Authorizations.  The Sellers hereby authorize the Purchaser to act on their behalf in order to do such things and perform such acts as may be necessary or useful to permit the Purchaser to obtain such Authorizations.

ARTICLE 3 - - REPRESENTATIONS AND WARRANTIES

3.01Sellers’ Representations and Warranties

The Sellers jointly and severally represent and warrant as follows to the Purchaser and acknowledge and agree that the Purchaser is relying upon the representations and warranties in connection with the transactions contemplated in this Agreement:

(a)Incorporation and Qualification.  Each of the Sellers (other than Smurfit-MBI) is a corporation incorporated and existing under the laws of its respective incorporating jurisdiction as set out in the preamble, and has the corporate power to own and operate its property, carry on its business and enter into and perform its obligations under this Agreement.  Smurfit-MBI has been formed and is existing as a limited partnership under the laws of Ontario and has the power to own and operate its property, carry on its business and perform its obligations under this Agreement.

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(b)Authorization.  The execution and delivery of and performance by the Sellers of this Agreement and the consummation of the transactions contemplated by it have been duly authorized by all necessary corporate action on the part of each of the Sellers and, in the case of Smurfit-MBI, all partnership action on its part and all necessary corporate action on the part of MBI in its capacity as general partner of Smurfit-MBI.

(c)Execution and Binding Obligation.  This Agreement has been duly executed and delivered by each of the Sellers, and constitutes a legal, valid and binding agreement of each of them, enforceable against each of them in accordance with its terms, subject only to any limitation under Applicable Laws relating to (i) bankruptcy, winding-up, insolvency, arrangement, fraudulent preference and conveyance, assignment and preference and other similar laws of general application affecting the enforcement of creditors’ rights, and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction.

(d)Title to the Acquired Assets.  Except for the Excluded Assets, the property and assets included in the Acquired Assets constitute all of the assets used by the Sellers in carrying on their operations.  The Sellers have legal and beneficial ownership of the Acquired Assets free and clear of all Encumbrances, except for the encumbrances set out in Schedule 3.01(d) (the “Permitted Encumbrances”).  No Person other than the Sellers owns any property or assets which are being used by the Sellers, except for the Leased Property.

(e)Residence.  None of the Sellers is a non-resident of Canada for the purposes of the Tax Act.

3.02Purchaser’s Representations and Warranties

The Purchaser represents and warrants as follows to the Sellers and acknowledges and agrees that the Sellers are relying upon the representations and warranties in connection with the transactions contemplated in this Agreement:

(a)Formation and Qualification.  The General Partner has the corporate power and capacity to own its property and assets, to conduct business as presently conducted, including the business of the Purchaser, and to enter into and perform the obligations of the Purchaser under the Partnership Agreement and under this Agreement.  The Purchaser has been formed and is existing as a limited partnership under the Limited Partnerships Act (Ontario) and the General Partner has registered the name of the Purchaser with the registrar under the Business Names Act (Ontario).

(b)Authorization.  The General Partner has taken all necessary corporate and partnership action to authorize the execution, delivery and performance by the Purchaser of this Agreement and the transactions contemplated by it.

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(c)Execution and Binding Obligation.  The General Partner has duly executed and delivered this Agreement on behalf of the Purchaser.  This Agreement is a legal, valid and binding obligation of the Purchaser, and is enforceable against it in accordance with its terms, subject only to any limitation under Applicable Laws relating to (i) bankruptcy, winding-up, insolvency, arrangement, fraudulent preference and conveyance, assignment and preference and other similar laws of general application affecting the enforcement of creditors’ rights, and (ii) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction.

ARTICLE 4 - - COVENANTS

4.01Employees

(1)The Purchaser will, effective at the Effective Time:

(a)offer employment or, as the case may be, continued employment to all of the Employees on the terms and conditions of employment that are in effect at the Effective Time for those Employees who are not covered by a Canadian Collective Bargaining Agreement; and

(b)be the successor to Sellers for those Employees who are covered by the Canadian Collective Bargaining Agreements other than Non-Transferred CBAs, and will be bound by and observe all of the terms, conditions, rights and obligations under such applicable Canadian Collective Bargaining Agreements, as the case may be, subject to Applicable Laws governing labour.

(2)The Purchaser will be responsible for and will discharge all obligations and liabilities in respect of all Employees, with the exception of the Excluded Liabilities contemplated in Section 2.04.

4.02Pension and Benefits

Effective as of the Effective Time, each Seller hereby assigns, and the Purchaser hereby assumes, all of the rights, obligations and benefits of such Seller in respect of (i) the Canadian Pension Plans, including all funding agreements pursuant to which the assets of the Canadian Pension Plans are held, and all contracts for service relating to the Canadian Pension Plans, and (ii) the Canadian Employee Benefit Plans.

4.03Environmental Matters

(1)The Sellers hereby authorize the Purchaser to act on their behalf in order to do such things and perform such acts as may be necessary or useful for the transfer, modification, issuance or re-issuance of any Environmental Authorizations. The Sellers will ensure that the Purchaser has access to all relevant information necessary for preparing and filing the documentation to effect such transfers.  The Sellers and the Purchaser shall provide each other

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with a copy of any written documents received or to be sent relating to the transfer of Environmental Authorizations.

(2)The Purchaser will immediately inform the Sellers upon receipt of any verbal or written notice, claim or remediation order in connection with transfer of Environmental Authorizations, including any letter concerning inspections from the Environmental Authorities, meetings or discussions relating to the transfer of the Environmental Authorizations or in connection with the transfer of the Acquired Assets. The Purchaser shall provide the Sellers with a copy of any such written notice, claim or remediation order within twenty-four (24) hours upon receipt.

4.04Cooperation on Tax Matters

The Sellers and the Purchaser will furnish or cause to be furnished to each other, each at its own expense, as promptly as practicable, such information and assistance, and provide additional information and explanations of any material provided, relating to the Acquired Assets as is reasonably necessary for the filing of any Tax returns, for the preparation of any audit, and for the prosecution or defence of any claim relating to any adjustment or proposed adjustment with respect to Taxes.

ARTICLE 5- GENERAL

5.01Further Assurances

(1)Each of the Sellers and the Purchaser will from time to time execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement, including to fully vest title to the Acquired Assets in the name of the Purchaser.

(2)Each of the Sellers hereby appoints the Purchaser as its non-exclusive agent in order to effect the transactions contemplated in this Agreement, including the transfer or re-issuance of or in respect of Environmental Authorizations, other Authorizations, CAAFs and benefit plans (including pension plans).

(3)The Purchaser may designate the General Partner as its nominee to hold registered title to, and/or, if applicable, legal or bare title to, any Acquired Assets, including immovable and real property, for and on behalf of the Purchaser.

5.02Benefit of the Agreement

This Agreement will enure to the benefit of and be binding upon the respective heirs, executors, administrators, other legal representatives, successors and permitted assigns of the parties.

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5.03Entire Agreement

This Agreement (read in conjunction with the provisions of the Plan applicable to the Purchaser and the Sellers) constitutes the entire agreement between the parties with respect to the subject matter hereof and cancels and supersedes any prior understandings and agreements among the parties with respect thereto.  There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, among the parties other than as expressly set forth in this Agreement and the applicable provisions of the Plan.  Notwithstanding the foregoing, the parties agree that the Acquired Assets are being sold, conveyed, transferred and assigned to the Purchaser, and the Assumed Liabilities are being assumed by the Purchaser, subject to and strictly in accordance with the terms of the approval of, and vesting orders issued by, the Ontario Superior Court of Justice (Commercial List) in respect of this Agreement (each a “Vesting Order”).

5.04Amendments and Waivers

No amendment to this Agreement will be valid or binding unless set forth in writing and duly executed by all of the parties.  No waiver of any breach of any provision of this Agreement will be effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided, will be limited to the specific breach waived.

5.05Assignment

This Agreement may not be assigned by a party without the prior written consent of the other parties.

5.06Notices

Any demand, notice or other communication to be given in connection with this Agreement must be given in writing and will be given by personal delivery, by registered mail or by electronic means of communication addressed to the recipient as follows:

To the Sellers:

Smurfit-Stone Container Canada Inc.
1035 Hodge Street, Suite A
Montreal, Quebec
Canada H4N 2B4

Attention:  Senior Counsel
Fax: 1 (866) 414-6954

To the Purchaser:

Smurfit-Stone Container Canada, L.P.
1035 Hodge Street, Suite A
Montreal, Quebec
Canada H4N 2B4

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Attention:  Senior Counsel
Fax: 1 (866) 414-6954

or to such other street address, individual or electronic communication number or address as may be designated by notice given by any party to the other.  Any demand, notice or other communication given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof and, if given by registered mail, on the third business day (in the jurisdiction of receipt) following the deposit thereof in the mail and, if given by electronic communication, on the day of transmittal thereof if given during the normal business hours of the recipient and on the business day (in the jurisdiction of receipt) during which such normal business hours next occur if not given during such hours on any day.  If the party giving any demand, notice or other communication knows or ought reasonably to know of any difficulties with the postal system that might affect the delivery of mail, any such demand, notice or other communication may not be mailed but must be given by personal delivery or by electronic communication.

5.07Plan Prevails

In the event of any inconsistency between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall prevail. In the event any term of this Agreement is ambiguous, the terms of the Plan may be used to try to resolve such ambiguity.

5.08Governing Law

This Agreement is governed by and will be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.

5.09Attornment

For the purpose of all legal proceedings this Agreement will be deemed to have been performed in the Province of Ontario and the courts of the Province of Ontario will have jurisdiction to entertain any action arising under this Agreement. The Sellers and the Purchaser each attorns to the non-exclusive jurisdiction of the courts of the Province of Ontario.

5.10Counterparts

This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which taken together will be deemed to constitute one and the same instrument.

5.11Electronic Transmission

Delivery of an executed signature page to this Agreement by any party by electronic transmission will be as effective as delivery of a manually executed copy of this Agreement by such party.

[Signature page follows.]

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IN WITNESS WHEREOF the parties have executed this Agreement.

SMURFIT–STONE CONTAINER CANADA INC.
Per:	/s/ Dean Jones
	Name:	Dean Jones
	Title:	Assistant Secretary
MBI LIMITED/LIMITÉE
Per:	/s/ Dean Jones
	Name:	Dean Jones
	Title:	Assistant Secretary
SMURFIT—MBI, herein acting by its general partner, MBI Limited/Limitée
Per:	/s/ Dean Jones
	Name:	Dean Jones
	Title:	Assistant Secretary
FRANCOBEC COMPANY
Per:	/s/ Dean Jones
	Name:	Dean Jones
	Title:	Assistant Secretary
B.C. SHIPPER SUPPLIES LTD.
Per:	/s/ Dean Jones
	Name:	Dean Jones
	Title:	Assistant Secretary

SMURFIT-STONE CONTAINER CANADA, L.P., herein acting by its general partner, 3242795 Nova Scotia Limited
Per:	/s/ Dean Jones
	Name:	Dean Jones
	Title:	Assistant Secretary

EX-10.3

Exhibit 10.3

SMURFIT-STONE CONTAINER CORPORATION

EQUITY INCENTIVE PLAN

I               INTRODUCTION

1.1          Purposes.  The purposes of the Smurfit-Stone Container Corporation Equity Incentive Plan (this “Plan”) are (i) to align the interests of the Company’s stockholders and the recipients of awards under this Plan by increasing the proprietary interest of such recipients in the Company’s growth and success, (ii) to advance the interests of the Company by attracting and retaining directors, officers, other employees and consultants and (iii) to motivate such persons to act in the long-term best interests of the Company and its stockholders.

1.2          Certain Definitions.

“Agreement” shall mean the written agreement evidencing an award hereunder between the Company and the recipient of such award.

“Bankruptcy Court” shall have the meaning set forth in Section 5.1.

“Bankruptcy Proceedings” shall mean the bankruptcy proceedings in the United States Bankruptcy Court for the District of Delaware with respect to In re: Smurfit-Stone Container Corp., Case No. 09-10235 (BLS).

“Board” shall mean the Board of Directors of the Company.

“Change in Control” shall have the meaning set forth in Section 5.8(b).

“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Committee” shall mean the Committee designated by the Board, consisting of two or more members of the Board, each of whom may be (i) a “Non-Employee Director” within the meaning of Rule 16b-3 under the Exchange Act, (ii) an “outside director” within the meaning of Section 162(m) of the Code and (iii) “independent” within the meaning of the rules of the principal national stock exchange on which the Common Stock is then traded.

“Common Stock” shall mean the common stock, par value $0.001 per share, of the Company, and all rights appurtenant thereto.

“Company” shall mean Smurfit-Stone Container Corporation, a Delaware corporation, or any successor thereto.

“Emergence Equity Awards” shall mean stock option, restricted stock or other equity compensation awards granted in connection with the Company’s emergence from bankruptcy following the confirmation of the Plan of Reorganization.

“Employment Agreement” shall mean the Employment Agreement or Employment Security Agreement, if any, (as amended, if applicable) between the Company and the recipient of an award.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Fair Market Value” shall mean the closing transaction price of a share of Common Stock as reported on the principal national stock exchange on which the Common Stock is traded on the date as of which such value is being determined or, if there shall be no reported transactions for such date, on the next preceding date for which transactions were reported; provided, however, that if the Common Stock is not listed on a national stock exchange or if Fair Market Value for any date cannot be so determined, Fair Market Value shall be determined by the Committee by whatever means or method as the Committee, in the good faith exercise of its discretion, shall at such time deem appropriate and in compliance with Section 409A of the Code; provided further that, with respect to the Emergence Equity Awards, Fair Market Value shall mean the average of the closing transaction prices of a share of Common Stock as reported on the principal national stock exchange on which the Common Stock is traded for the 30-day period commencing on the Listing Date.

“Free-Standing SAR” shall mean an SAR which is not granted in tandem with, or by reference to, an option, which entitles the holder thereof to receive, upon exercise, shares of Common Stock (which may be Restricted Stock) with an aggregate value equal to the excess of the Fair Market Value of one share of Common Stock on the date of exercise over the base price of such SAR, multiplied by the number of such SARs which are exercised.

“Incapacity” shall have the meaning set forth in the Employment Agreement; provided that if a recipient of an award is not a party to an Employment Agreement that contains such definition, then “Incapacity” shall mean an individual’s long-term disability as defined under the long-term disability plan of the Company that covers that individual; or if the individual is not covered by such a long-term disability plan, an individual’s disability as defined for purposes of eligibility for a disability award under the Social Security Act.

“Incentive Stock Option” shall mean an option to purchase shares of Common Stock that meets the requirements of Section 422 of the Code, or any successor provision, which is intended by the Committee to constitute an Incentive Stock Option.

“Listing Date” shall mean the date on which the Common Stock first becomes listed on a national stock exchange after the Company’s emergence from bankruptcy following the confirmation of the Plan of Reorganization.

“Non-Employee Director” shall mean any director of the Company who is not an officer or employee of the Company or any Subsidiary.

“Nonqualified Stock Option” shall mean an option to purchase shares of Common Stock which is not an Incentive Stock Option.

“Performance Measures” shall mean the criteria and objectives, established by the Committee and set forth in the Agreement, which shall be satisfied or met (i) as a condition to

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the grant or exercisability of all or a portion of an option or SAR or (ii) during the applicable Restriction Period or Performance Period as a condition to the vesting of the holder’s interest, in the case of a Restricted Stock Award, of the shares of Common Stock subject to such award, or, in the case of a Restricted Stock Unit Award, to the holder’s receipt of the shares of Common Stock subject to such award or of payment with respect to such award.  To the extent necessary for an award to be qualified performance-based compensation under Section 162(m) of the Code and the regulations thereunder, such criteria and objectives shall include one or more of the following corporate-wide or subsidiary, division, operating unit or individual measures, stated in either absolute terms or relative terms, such as rates of growth or improvement: the attainment by a share of Common Stock of a specified Fair Market Value for a specified period of time, earnings per share, return to stockholders (including dividends), return on assets, return on equity, earnings of the Company before or after taxes and/or interest, revenues, market share, cash flow or cost reduction goals, interest expense after taxes, return on investment, return on investment capital, economic value created, operating margin, net income before or after taxes, pretax earnings before interest, depreciation and/or amortization, pretax operating earnings after interest expense and before incentives, and/or extraordinary or special items, operating earnings, net cash provided by operations, and strategic business criteria, consisting of one or more objectives based on meeting specified market penetration, geographic business expansion goals, cost targets, customer satisfaction, reductions in errors and omissions, reductions in lost business, management of employment practices and employee benefits, supervision of litigation and information technology, quality and quality audit scores, productivity, efficiency, and goals relating to acquisitions or divestitures, or any combination of the foregoing.

“Performance Option” shall mean an Incentive Stock Option or Nonqualified Stock Option, the grant of which or the exercisability of all or a portion of which is contingent upon the attainment of specified Performance Measures within a specified Performance Period.

“Performance Period” shall mean any period designated by the Committee and set forth in the Agreement during which (i) the Performance Measures applicable to an award shall be measured and (ii) the conditions to vesting applicable to an award shall remain in effect.

“Performance Unit” shall mean a right to receive, contingent upon the attainment of specified Performance Measures within a specified Performance Period, a specified cash amount or, in lieu thereof, shares of Common Stock having a Fair Market Value equal to such cash amount.

“Performance Unit Award” shall mean an award of Performance Units under this Plan.

“Plan of Reorganization” shall mean the Plan of Reorganization approved and confirmed pursuant to the Bankruptcy Proceedings.

“Restricted Stock” shall mean shares of Common Stock which are subject to a Restriction Period and which may, in addition thereto, be subject to the attainment of specified Performance Measures within a specified Performance Period.

“Restricted Stock Award” shall mean an award of Restricted Stock under this Plan.

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“Restricted Stock Unit” shall mean a right to receive one share of Common Stock or, in lieu thereof, the Fair Market Value of such share of Common Stock in cash, which shall be contingent upon the expiration of a specified Restriction Period and which may, in addition thereto, be contingent upon the attainment of specified Performance Measures within a specified Performance Period.

“Restricted Stock Unit Award” shall mean an award of Restricted Stock Units under this Plan.

“Restriction Period” shall mean any period designated by the Committee and set forth in the Agreement during which (i) the Common Stock subject to a Restricted Stock Award may not be sold, transferred, assigned, pledged, hypothecated or otherwise encumbered or disposed of, except as provided in this Plan or the Agreement relating to such award, or (ii) the conditions to vesting applicable to a Restricted Stock Unit Award shall remain in effect.

“Retirement” shall have the meaning set forth in the Employment Agreement; provided that if an Agreement does not specify such definition, then “Retirement” shall mean an employee’s retirement from the Company after the attainment of age 55 and the completion of at least five years of service with the Company.

“SAR” shall mean a stock appreciation right which may be a Free-Standing SAR or a Tandem SAR.

“Stock Award” shall mean a Restricted Stock Award or a Restricted Stock Unit Award.

“Subsidiary” shall mean any corporation, limited liability company, partnership, joint venture or similar entity in which the Company owns, directly or indirectly, an equity interest possessing more than 50% of the combined voting power of the total outstanding equity interests of such entity.

“Tandem SAR” shall mean an SAR which is granted in tandem with, or by reference to, an option (including a Nonqualified Stock Option granted prior to the date of grant of the SAR), which entitles the holder thereof to receive, upon exercise of such SAR and surrender for cancellation of all or a portion of such option, shares of Common Stock (which may be Restricted Stock) with an aggregate value equal to the excess of the Fair Market Value of one share of Common Stock on the date of exercise over the base price of such SAR, multiplied by the number of shares of Common Stock subject to such option, or portion thereof, which is surrendered.

“Tax Date” shall have the meaning set forth in Section 5.5.

“Ten Percent Holder” shall have the meaning set forth in Section 2.1(a).

1.3          Administration.  This Plan shall be administered by the Committee. Any one or a combination of the following awards may be made under this Plan to eligible persons: (i) options to purchase shares of Common Stock in the form of Incentive Stock Options or Nonqualified Stock Options (which may include Performance Options), (ii) SARs in the form of Tandem SARs or Free-Standing SARs, (iii) Stock Awards in the form of Restricted Stock or

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Restricted Stock Units and (iv) Performance Units. The Committee shall, subject to the terms of this Plan, select eligible persons for participation in this Plan and determine the form, amount and timing of each award to such persons and, if applicable, the number of shares of Common Stock, the number of SARs, the number of Restricted Stock Units and the number of Performance Units subject to such an award, the exercise price or base price associated with the award, the time and conditions of exercise or settlement of the award and all other terms and conditions of the award, including, without limitation, the form of the Agreement evidencing the award.  The Committee may, in its sole discretion and for any reason at any time, subject to the requirements of Section 162(m) of the Code and regulations thereunder in the case of an award intended to be qualified performance-based compensation, take action such that (i) any or all outstanding options and SARs shall become exercisable in part or in full, (ii) all or a portion of the Restriction Period applicable to any outstanding Restricted Stock or Restricted Stock Units shall lapse, (iii) all or a portion of the Performance Period applicable to any outstanding Restricted Stock, Restricted Stock Units or Performance Units shall lapse and (iv) the Performance Measures (if any) applicable to any outstanding award shall be deemed to be satisfied at the target or any other level.  The Committee shall, subject to the terms of this Plan, interpret this Plan and the application thereof, establish rules and regulations it deems necessary or desirable for the administration of this Plan and may impose, incidental to the grant of an award, conditions with respect to the award, such as limiting competitive employment or other activities, which shall be set forth in the applicable Agreement.  All such interpretations, rules, regulations and conditions shall be conclusive and binding on all parties.

The Committee may delegate some or all of its power and authority hereunder to the Board or, subject to applicable law, to the Chief Executive Officer or other executive officer of the Company as the Committee deems appropriate; provided, however, that (i) the Committee may not delegate its power and authority to the Board or the Chief Executive Officer or other executive officer of the Company with regard to the grant of an award to any person who is a “covered employee” within the meaning of Section 162(m) of the Code or who, in the Committee’s judgment, is likely to be a covered employee at any time during the period an award hereunder to such employee would be outstanding and (ii) the Committee may not delegate its power and authority to the Chief Executive Officer or other executive officer of the Company with regard to the selection for participation in this Plan of an officer, director or other person subject to Section 16 of the Exchange Act or decisions concerning the timing, pricing or amount of an award to such an officer, director or other person.

No member of the Board or Committee, and neither the Chief Executive Officer nor any other executive officer to whom the Committee delegates any of its power and authority hereunder, shall be liable for any act, omission, interpretation, construction or determination made in connection with this Plan in good faith, and the members of the Board and the Committee and the Chief Executive Officer or other executive officer shall be entitled to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including attorneys’ fees) arising therefrom to the full extent permitted by law (except as otherwise may be provided in the Company’s Certificate of Incorporation and/or By-laws) and under any directors’ and officers’ liability insurance that may be in effect from time to time.

A majority of the Committee shall constitute a quorum. The acts of the Committee shall be either (i) acts of a majority of the members of the Committee present at any meeting at which

5

a quorum is present or (ii) acts approved in writing by all of the members of the Committee without a meeting.

1.4          Eligibility.  Participants in this Plan shall consist of such officers, other employees, consultants and nonemployee directors, and persons expected to become officers, other employees, consultants and nonemployee directors, of the Company and its Subsidiaries as the Committee in its sole discretion may select from time to time or as specified in the Plan of Reorganization.  The Committee’s selection of a person to participate in this Plan at any time shall not require the Committee to select such person to participate in this Plan at any other time.  For purposes of this Plan, references to employment by the Company shall also mean employment by a Subsidiary.

1.5          Shares Available.  Subject to adjustment as provided in Section 5.7 and to all other limits set forth in this Section 1.5, 8,695,652 shares of Common Stock shall be available for all awards under this Plan, reduced by the sum of the aggregate number of shares of Common Stock which become subject to outstanding options, outstanding Free-Standing SARs and outstanding Stock Awards and delivered upon the settlement of Performance Units.  To the extent that shares of Common Stock subject to an outstanding option, SAR or stock award granted under the Plan are not issued or delivered by reason of (i) the expiration, termination, cancellation or forfeiture of such award (excluding shares subject to an option cancelled upon settlement in shares of a related tandem SAR or shares subject to a tandem SAR cancelled upon exercise of a related option) or (ii) the settlement of such award in cash, then such shares of Common Stock shall again be available under this Plan.

Shares of Common Stock to be delivered under this Plan shall be made available from authorized and unissued shares of Common Stock, or authorized and issued shares of Common Stock reacquired and held as treasury shares or otherwise or a combination thereof.

To the extent necessary for an award to be qualified performance-based compensation under Section 162(m) of the Code and the regulations thereunder (i) the maximum number of shares of Common Stock with respect to which options or SARs or a combination thereof may be granted during any fiscal year of the Company to any person shall be 2% of the total outstanding shares of Common Stock determined as of the effective date of the Plan, subject to adjustment as provided in Section 5.7; (ii) the maximum number of shares of Common Stock with respect to which Stock Awards subject to Performance Measures may be granted during any fiscal year of the Company to any person shall be 2% of the total outstanding shares of Common Stock determined as of the effective date of the Plan, subject to adjustment as provided in Section 5.7, and (iii) the maximum amount that may be payable with respect to Performance Units granted during any fiscal year of the Company to any person shall be the cash equivalent of (x) 2% of the total outstanding shares of Common Stock determined as of the effective date of the Plan multiplied by (y) the Fair Market Value of a share of Common Stock determined as of the effective date of the Plan, subject to adjustment as provided in Section 5.7.

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II             STOCK OPTIONS AND STOCK APPRECIATION RIGHTS

2.1          Stock Options.  The Committee may, in its discretion, or shall, pursuant to the Plan of Reorganization, grant options to purchase shares of Common Stock to such eligible persons as may be selected by the Committee or as specified in the Plan of Reorganization. Each option, or portion thereof, that is not an Incentive Stock Option, shall be a Nonqualified Stock Option.  To the extent that the aggregate Fair Market Value (determined as of the date of grant) of shares of Common Stock with respect to which options designated as Incentive Stock Options are exercisable for the first time by a participant during any calendar year (under this Plan or any other plan of the Company, or any parent or Subsidiary) exceeds the amount (currently $100,000) established by the Code, such options shall constitute Nonqualified Stock Options.

Options shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem advisable or as approved in the Plan of Reorganization, and set forth in the applicable Agreement:

(a)           Number of Shares and Purchase Price.  The number of shares of Common Stock subject to an option and the purchase price per share of Common Stock purchasable upon exercise of the option shall be determined by the Committee and set forth in the Agreement; provided, however, that the purchase price per share of Common Stock purchasable upon exercise of a Nonqualified Stock Option or an Incentive Stock Option shall not be less than 100% of the Fair Market Value of a share of Common Stock on the date of grant of such option; provided further, that if an Incentive Stock Option shall be granted to any person who, at the time such option is granted, owns capital stock possessing more than 10 percent of the total combined voting power of all classes of capital stock of the Company (or of any parent or Subsidiary) (a “Ten Percent Holder”), the purchase price per share of Common Stock shall not be less than the price (currently 110% of Fair Market Value) required by the Code in order to constitute an Incentive Stock Option.

(b)           Option Period and Exercisability.  The period during which an option may be exercised shall be determined by the Committee and set forth in the Agreement; provided, however, that no Incentive Stock Option or Nonqualified Stock Option shall be exercised later than ten years after its date of grant; provided further, that if an Incentive Stock Option shall be granted to a Ten Percent Holder, such option shall not be exercised later than five years after its date of grant.  The Committee may, in its discretion, determine that an option is to be granted as a Performance Option and may establish and include in the Agreement an applicable Performance Period and Performance Measures which shall be satisfied or met as a condition to the grant of such option or to the exercisability of all or a portion of such option. The Committee shall determine whether an option shall become exercisable in cumulative or non-cumulative installments and in part or in full at any time. An exercisable option, or portion thereof, may be exercised only with respect to whole shares of Common Stock.

(c)           Method of Exercise.  An option may be exercised (i) by giving written notice to the Company specifying the number of whole shares of Common Stock to be purchased and accompanying such notice with payment therefor in full (or arrangement made for such payment to the Company’s satisfaction) either (A) in cash, (B) by delivery (either actual delivery or by

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attestation procedures established by the Company) of shares of Common Stock having a Fair Market Value, determined as of the date of exercise, equal to the aggregate purchase price payable by reason of such exercise, (C) authorizing the Company to withhold whole shares of Common Stock which would otherwise be delivered having an aggregate Fair Market Value, determined as of the date of exercise, equal to the amount necessary to satisfy such obligation, (D)  in cash by a broker-dealer acceptable to the Company to whom the optionee has submitted an irrevocable notice of exercise or (E) a combination of (A), (B) and (C), in each case to the extent set forth in the Agreement relating to the option, (ii) if applicable, by surrendering to the Company any Tandem SARs which are cancelled by reason of the exercise of the option and (iii) by executing such documents as the Company may reasonably request.  Any fraction of a share of Common Stock which would be required to pay such purchase price shall be disregarded and the remaining amount due shall be paid in cash by the optionee.  No shares of Common Stock shall be issued and no certificate representing Common Stock shall be delivered until the full purchase price therefor and any withholding taxes thereon, as described in Section 5.5, have been paid (or arrangement made for such payment to the Company’s satisfaction).

2.2          Stock Appreciation Rights.  The Committee may, in its discretion, or shall, pursuant to the Plan of Reorganization, grant SARs to such eligible persons as may be selected by the Committee or as specified in the Plan of Reorganization.  The Agreement relating to an SAR shall specify whether the SAR is a Tandem SAR or a Free-Standing SAR.

SARs shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem advisable or as approved in the Plan of Reorganization, and set forth in the applicable Agreement:

(a)           Number of SARs and Base Price.  The number of SARs subject to an award shall be determined by the Committee and set forth in the Agreement.  Any Tandem SAR related to an Incentive Stock Option shall be granted at the same time that such Incentive Stock Option is granted.  The base price of a Tandem SAR shall be the purchase price per share of Common Stock of the related option.  The base price of a Free-Standing SAR shall be determined by the Committee and set forth in the Agreement; provided, however, that such base price shall not be less than 100% of the Fair Market Value of a share of Common Stock on the date of grant of such SAR.

(b)           Exercise Period and Exercisability.  The period for the exercise of an SAR shall be determined by the Committee and set forth in the Agreement; provided, however, that no Tandem SAR shall be exercised later than the expiration, cancellation, forfeiture or other termination of the related option and no Free-Standing SAR shall be exercised later than ten years after its date of grant.  The Committee may, in its discretion, establish and include in the Agreement applicable Performance Measures which shall be satisfied or met as a condition to the grant of an SAR or to the exercisability of all or a portion of an SAR.  The Committee shall determine whether an SAR may be exercised in cumulative or non-cumulative installments and in part or in full at any time.  An exercisable SAR, or portion thereof, may be exercised, in the case of a Tandem SAR, only with respect to whole shares of Common Stock and, in the case of a Free-Standing SAR, only with respect to a whole number of SARs.  If an SAR is exercised for

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shares of Restricted Stock, a certificate or certificates representing such Restricted Stock shall be issued in accordance with Section 3.2(c), or such shares shall be transferred to the holder in book entry form with restrictions on the Shares duly noted, and the holder of such Restricted Stock shall have such rights of a stockholder of the Company as determined pursuant to Section 3.2(d). Prior to the exercise of an SAR, the holder of such SAR shall have no rights as a stockholder of the Company with respect to the shares of Common Stock subject to such SAR.

(c)           Method of Exercise.  A Tandem SAR may be exercised (i) by giving written notice to the Company specifying the number of whole SARs which are being exercised, (ii) by surrendering to the Company any options which are cancelled by reason of the exercise of the Tandem SAR and (iii) by executing such documents as the Company may reasonably request.  A Free-Standing SAR may be exercised (A) by giving written notice to the Company specifying the whole number of SARs which are being exercised and (B) by executing such documents as the Company may reasonably request.

2.3          Termination of Employment or Service.  All of the terms relating to the exercise, cancellation or other disposition of an option or SAR upon a termination of employment or service with the Company of the holder of such option or SAR, as the case may be, whether by reason of Incapacity, Retirement, death or any other reason, shall be determined by the Committee and set forth in the Agreement, Employment Agreement and/or any other agreement between the Company and the recipient of an award.

2.4          No Repricing.  Notwithstanding anything in this Plan to the contrary and subject to Section 5.7, without the approval of the stockholders of the Company, the Committee will not amend or replace any previously granted option or SAR in a transaction that constitutes a “repricing,” as such term is used in the listing rules of the applicable stock exchange on which shares of Common Stock are listed.

III            STOCK AWARDS

3.1          Stock Awards.  The Committee may, in its discretion, or shall, pursuant to the Plan of Reorganization, grant Stock Awards to such eligible persons as may be selected by the Committee or as specified in the Plan of Reorganization.  The Agreement relating to a Stock Award shall specify whether the Stock Award is a Restricted Stock Award or a Restricted Stock Unit Award.

3.2          Terms of Restricted Stock Awards.  Restricted Stock Awards shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem advisable or as approved in the Plan of Reorganization, and set forth in the applicable Agreement.

(a)           Number of Shares and Other Terms.  The number of shares of Common Stock subject to a Restricted Stock Award and the Restriction Period, Performance Period (if any) and Performance Measures (if any) applicable to a Restricted Stock Award shall be determined by the Committee and set forth in the Agreement.

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(b)           Vesting and Forfeiture.  The Agreement relating to a Restricted Stock Award shall provide, in the manner determined by the Committee, in its discretion, and subject to the provisions of this Plan, for the vesting of the shares of Common Stock subject to such award (i) if the holder of such award remains continuously in the employment of the Company during the specified Restriction Period and (ii) if specified Performance Measures (if any) are satisfied or met during a specified Performance Period, and for the forfeiture of the shares of Common Stock subject to such award (x) if the holder of such award does not remain continuously in the employment of the Company during the specified Restriction Period or (y) if specified Performance Measures (if any) are not satisfied or met during a specified Performance Period.  The Committee may, in its sole discretion, grant shares of Common Stock pursuant to the Plan that are not subject to any vesting or performance conditions.

(c)           Stock Issuance.  During the Restriction Period, the shares of Restricted Stock shall be held by a custodian in book entry form with restrictions on such shares duly noted or, alternatively, a certificate or certificates representing a Restricted Stock Award shall be registered in the holder’s name and may bear a legend, in addition to any legend which may be required pursuant to Section 5.6, indicating that the ownership of the shares of Common Stock represented by such certificate is subject to the restrictions, terms and conditions of this Plan and the Agreement relating to the Restricted Stock Award.  All such certificates shall be deposited with the Company, together with stock powers or other instruments of assignment (including a power of attorney), each endorsed in blank with a guarantee of signature if deemed necessary or appropriate, which would permit transfer to the Company of all or a portion of the shares of Common Stock subject to the Restricted Stock Award in the event such award is forfeited in whole or in part.  Upon termination of any applicable Restriction Period (and the satisfaction or attainment of applicable Performance Measures), subject to the Company’s right to require payment of any taxes in accordance with Section 5.5, the restrictions shall be removed from the requisite number of any shares of Common Stock that are held in book entry form, and all certificates evidencing ownership of the requisite number of shares of Common Stock shall be delivered to the holder of such award.

(d)           Rights with Respect to Restricted Stock Awards.  Unless otherwise set forth in the Agreement relating to a Restricted Stock Award, and subject to the terms and conditions of a Restricted Stock Award, the holder of such award shall have all rights as a stockholder of the Company, including, but not limited to, voting rights, the right to receive dividends and the right to participate in any capital adjustment applicable to all holders of Common Stock; provided, however, that a distribution with respect to shares of Common Stock, other than a regular cash dividend, shall be deposited with the Company and shall be subject to the same restrictions as the shares of Common Stock with respect to which such distribution was made.

3.3          Terms of Restricted Stock Unit Awards.  Restricted Stock Unit Awards shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem advisable or as approved in the Plan of Reorganization, and set forth in the applicable Agreement.

(a)           Number of Shares and Other Terms.  The number of shares of Common Stock subject to a Restricted Stock Unit Award and the Restriction Period, Performance Period (if any)

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and Performance Measures (if any) applicable to a Restricted Stock Unit Award shall be determined by the Committee and set forth in the Agreement.

(b)           Vesting and Forfeiture.  The Agreement relating to a Restricted Stock Unit Award shall provide, in the manner determined by the Committee, in its discretion, and subject to the provisions of this Plan, for the vesting of such Restricted Stock Unit Award (i) if the holder of such award remains continuously in the employment of the Company during the specified Restriction Period and (ii) if specified Performance Measures (if any) are satisfied or met during a specified Performance Period, and for the forfeiture of the shares of Common Stock subject to such award (x) if the holder of such award does not remain continuously in the employment of the Company during the specified Restriction Period or (y) if specified Performance Measures (if any) are not satisfied or met during a specified Performance Period.  The Committee may, in its sole discretion, grant units representing the right to receive shares of Common Stock that are not subject to any vesting or performance conditions.

(c)           Settlement of Vested Restricted Stock Unit Awards.  The Agreement relating to a Restricted Stock Unit Award shall specify (i) whether such award may be settled in shares of Common Stock or cash or a combination thereof and (ii) whether the holder thereof shall be entitled to receive, on a current or deferred basis, dividend equivalents, and, if determined by the Committee, interest on, or the deemed reinvestment of, any deferred dividend equivalents, with respect to the number of shares of Common Stock subject to such award.  Prior to the settlement of a Restricted Stock Unit Award, the holder of such award shall have no rights as a stockholder of the Company with respect to the shares of Common Stock subject to such award.

3.4          Termination of Employment or Service.  All of the terms relating to the satisfaction of Performance Measures and the termination of the Restriction Period or Performance Period relating to a Stock Award, or any forfeiture and cancellation of such award upon a termination of employment or service with the Company of the holder of such award, whether by reason of Incapacity, Retirement, death or any other reason, shall be determined by the Committee and set forth in the Agreement, Employment Agreement and/or any other agreement between the Company and the recipient of an award.

IV            PERFORMANCE UNIT AWARDS

4.1          Performance Unit Awards.  The Committee may, in its discretion, or shall, pursuant to the Plan of Reorganization, grant Performance Unit Awards to such eligible persons as may be selected by the Committee or as specified in the Plan of Reorganization.

4.2          Terms of Performance Unit Awards.  Performance Unit Awards shall be subject to the following terms and conditions and shall contain such additional terms and conditions, not inconsistent with the terms of this Plan, as the Committee shall deem advisable or as approved in the Plan of Reorganization and set forth in the applicable Agreement.

(a)           Number of Performance Units and Performance Measures.  The number of Performance Units subject to a Performance Unit Award and the Performance Measures and Performance Period applicable to a Performance Unit Award shall be determined by the Committee and set forth in the Agreement.

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(b)           Vesting and Forfeiture.  The Agreement relating to a Performance Unit Award shall provide, in the manner determined by the Committee, in its discretion, and subject to the provisions of this Plan, for the vesting of such Performance Unit Award if the specified Performance Measures are satisfied or met during the specified Performance Period and for the forfeiture of such award if the specified Performance Measures are not satisfied or met during the specified Performance Period.

(c)           Settlement of Vested Performance Unit Awards.  The Agreement relating to a Performance Unit Award shall specify whether such award may be settled in shares of Common Stock (including shares of Restricted Stock) or cash or a combination thereof.  If a Performance Unit Award is settled in shares of Restricted Stock, such shares of Restricted Stock shall be issued to the holder in book entry form or a certificate or certificates representing such Restricted Stock shall be issued in accordance with Section 3.2(c) and the holder of such Restricted Stock shall have such rights as a stockholder of the Company as determined pursuant to Section 3.2(d). Prior to the settlement of a Performance Unit Award in shares of Common Stock, including Restricted Stock, the holder of such award shall have no rights as a stockholder of the Company.

4.3          Termination of Employment or Service.  All of the terms relating to the satisfaction of Performance Measures and the termination of the Performance Period relating to a Performance Unit Award, or any forfeiture and cancellation of such award upon a termination of employment or service with the Company of the holder of such award, whether by reason of Incapacity, Retirement, death or any other reason, shall be determined by the Committee and set forth in the Agreement, Employment Agreement and/or any other agreement between the Company and the recipient of an award.

V             GENERAL

5.1          Effective Date and Term of Plan.  This Plan shall be submitted to the United States Bankruptcy Court for the District of Delaware (the “Bankruptcy Court”) for approval in connection with the Plan of Reorganization and, if approved, shall become effective as of the effective date of the Plan of Reorganization.  This Plan shall terminate as of the first annual meeting of the Company’s stockholders to occur on or after the tenth anniversary of its effective date, unless terminated earlier by the Board. Termination of this Plan shall not affect the terms or conditions of any award granted prior to termination.

Awards hereunder may be made at any time prior to the termination of this Plan, provided that no award may be made later than ten years after the effective date of this Plan. In the event that this Plan is not approved by the Bankruptcy Court, this Plan and any awards hereunder shall be void and of no force or effect.

5.2          Amendments.  The Board may amend this Plan as it shall deem advisable, subject to any requirement of stockholder approval required by applicable law, rule or regulation, including Section 162(m) of the Code and any rule of the principal national stock exchange on which the Common Stock is then traded; provided, however, that no amendment may impair the rights of a holder of an outstanding award without the consent of such holder.

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5.3          Agreement.  Each award under this Plan shall be evidenced by an Agreement setting forth the terms and conditions applicable to such award. No award shall be valid until approved by the Company or, with respect to the Emergence Equity Awards, the Bankruptcy Court.  Such award shall be effective as of the effective date set forth in the Agreement.

5.4          Non-Transferability.  No award shall be transferable other than by will, the laws of descent and distribution or pursuant to beneficiary designation procedures approved by the Company or, to the extent expressly permitted in the Agreement relating to such award, to the holder’s family members, a trust or entity established by the holder for estate planning purposes or a charitable organization designated by the holder.  Except to the extent permitted by the foregoing sentence or the Agreement relating to an award, each award may be exercised or settled during the holder’s lifetime only by the holder or the holder’s legal representative or similar person.  Except as permitted by the second preceding sentence, no award may be sold, transferred, assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by operation of law or otherwise) or be subject to execution, attachment or similar process.  Upon any attempt to so sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of any award, such award and all rights thereunder shall immediately become null and void.

5.5          Tax Withholding.  The Company shall have the right to require, prior to the issuance or delivery of any shares of Common Stock or the payment of any cash pursuant to an award made hereunder, payment by the holder of such award of any federal, state, local or other taxes which may be required to be withheld or paid in connection with such award.  An Agreement may provide that (i) the Company shall withhold whole shares of Common Stock which would otherwise be delivered to a holder, having an aggregate Fair Market Value determined as of the date the obligation to withhold or pay taxes arises in connection with an award (the “Tax Date”), or withhold an amount of cash which would otherwise be payable to a holder, in the amount necessary to satisfy any such obligation or (ii) the holder may satisfy any such obligation by any of the following means: (A) a cash payment to the Company, (B) delivery (either actual delivery or by attestation procedures established by the Company) to the Company of previously owned whole shares of Common Stock having an aggregate Fair Market Value, determined as of the Tax Date, equal to the amount necessary to satisfy any such obligation, (C) authorizing the Company to withhold whole shares of Common Stock which would otherwise be delivered having an aggregate Fair Market Value, determined as of the Tax Date, or withhold an amount of cash which would otherwise be payable to a holder, equal to the amount necessary to satisfy any such obligation, (D) in the case of the exercise of an option and except as may be prohibited by applicable law, a cash payment by a broker-dealer acceptable to the Company to whom the optionee has submitted an irrevocable notice of exercise or (E) any combination of (A), (B) and (C), in each case to the extent set forth in the Agreement relating to the award. Shares of Common Stock to be delivered or withheld may not have an aggregate Fair Market Value in excess of the amount determined by applying the minimum statutory withholding rate.  Any fraction of a share of Common Stock which would be required to satisfy such an obligation shall be disregarded and the remaining amount due shall be paid in cash by the holder.

5.6          Restrictions on Shares.  Each award made hereunder shall be subject to the requirement that if at any time the Company determines that the listing, registration or

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qualification of the shares of Common Stock subject to such award upon any securities exchange or under any law, or the consent or approval of any governmental body, or the taking of any other action is necessary or desirable as a condition of, or in connection with, the delivery of shares thereunder, such shares shall not be delivered unless such listing, registration, qualification, consent, approval or other action shall have been effected or obtained, free of any conditions not acceptable to the Company.  The Company may require that certificates evidencing shares of Common Stock delivered pursuant to any award made hereunder bear a legend indicating that the sale, transfer or other disposition thereof by the holder is prohibited except in compliance with the Securities Act of 1933, as amended, and the rules and regulations thereunder.

5.7          Adjustment.  In the event of any stock split, stock dividend, recapitalization, reorganization, merger, consolidation, combination, exchange of shares, liquidation, spin-off or other similar change in capitalization or event, or any distribution to holders of Common Stock other than a regular cash dividend, the number and class of securities available under this Plan, the number and class of securities subject to each outstanding option and the purchase price per security, the terms of each outstanding SAR, the terms of each outstanding Restricted Stock Award and Restricted Stock Unit Award, including the number and class of securities subject thereto, the terms of each outstanding Performance Unit, the maximum number of securities with respect to which options or SARs may be granted during any fiscal year of the Company to any one grantee and the maximum number of shares of Common Stock that may be awarded during any fiscal year of the Company to any one grantee pursuant to a Stock Award that is subject to Performance Measures shall be equitably adjusted by the Committee, such adjustments to be made in the case of outstanding options and SARs in accordance with Section 409A of the Code.  The decision of the Committee regarding any such adjustment shall be final, binding and conclusive. If any such adjustment would result in a fractional security being (a) available under this Plan, such fractional security shall be disregarded, or (b) subject to an award under this Plan, the Company shall pay the holder of such award, in connection with the first vesting, exercise or settlement of such award, in whole or in part, occurring after such adjustment, an amount in cash determined by multiplying (i) the fraction of such security (rounded to the nearest hundredth) by (ii) the excess, if any, of (A) the Fair Market Value on the vesting, exercise or settlement date over (B) the exercise or base price, if any, of such award.

5.8          Change in Control.

(a)           Notwithstanding any provision in this Plan or any Agreement, in the event of a Change in Control, (i) all outstanding options and SARs shall immediately become exercisable in full, (ii) the Restriction Period applicable to any outstanding Restricted Stock Award or Restricted Stock Unit Award shall lapse, (iii) the Performance Period applicable to any outstanding award shall lapse, (iv) the Performance Measures applicable to any outstanding award shall be deemed to be satisfied at the maximum level and (v) the Board (as constituted prior to such Change in Control) may, in its discretion:

(1)           require that shares of stock of the corporation resulting from such Change in Control, or a parent corporation thereof, be substituted for some or all of the shares of Common Stock subject to an outstanding award, with an appropriate and equitable

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adjustment to such award as shall be determined by the Board in accordance with Section 5.7; and/or

(2)           require outstanding awards, in whole or in part, to be surrendered to the Company by the holder, and to be immediately cancelled by the Company, and to provide for the holder to receive (A) a cash payment in an amount equal to (i) in the case of an option or an SAR, the number of shares of Common Stock then subject to the portion of such option or SAR surrendered multiplied by the excess, if any, of the Fair Market Value of a share of Common Stock as of the date of the Change in Control, over the purchase price or base price per share of Common Stock subject to such option or SAR, (ii) in the case of a Stock Award, the number of shares of Common Stock then subject to the portion of such award surrendered multiplied by the Fair Market Value of a share of Common Stock as of the date of the Change in Control, and (iii) in the case of a Performance Unit Award, the number of Performance Units then subject to the portion of such award surrendered; (B) shares of capital stock of the corporation resulting from such Change in Control, or a parent corporation thereof, having a fair market value not less than the amount determined under clause (A) above; or (C) a combination of the payment of cash pursuant to clause (A) above and the issuance of shares pursuant to clause (B) above.

(b)           For purposes of this Plan, a “Change in Control” shall have the meaning set forth in the Employment Agreement; provided that if the holder of any award is not party to an Employment Agreement that contains such definition, then “Change in Control” shall mean the occurrence of any one or more of the following events following the effective date of the Plan of Reorganization:

(1)           The “beneficial ownership” of securities representing more than 40% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Exchange Act, as modified, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (i), (ii) and (iii) of subparagraph (3) of this definition will not be a Change in Control under this subparagraph (1), and provided further that immediately prior to such accumulation, holding or acquisition, such person was not a direct or indirect beneficial owner of 40% or more of the Company Voting Securities; or

(2)           Individuals who, as of the day next following the effective date of the Plan of Reorganization, constitute the Board of Directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such

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individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(3)           Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (i) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors of (A) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (B) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (ii) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 40% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership of the Company existed prior to the Business Combination; and (iii) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(4)           Approval by the Company’s stockholders of a complete liquidation or dissolution of the Company;

(5)           The consummation of a reorganization under the U.S. Bankruptcy Code; or

(6)           The consummation of a complete liquidation or dissolution of the Company under the U.S. Bankruptcy Code.

However, in no event will a Change in Control be deemed to have occurred, with respect to a Participant’s award, if the Participant is part of a purchasing group that consummates the Change in Control transaction.  A Participant will be deemed “part of a purchasing group” for purposes of the preceding sentence if the Participant is an equity participant in the purchasing company or group (except: (i) passive ownership of less than 2% of the stock of the purchasing company; or (ii) ownership of equity participation in the purchasing company or group that is otherwise not

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significant, as determined prior to the Change in Control by a majority of the non-employee continuing directors).  For the avoidance of doubt, a Change in Control shall not include transactions pursuant to the Plan of Reorganization (as defined herein).

5.9          Deferrals.  The Committee may determine that the delivery of shares of Common Stock or the payment of cash, or a combination thereof, upon the exercise or settlement of all or a portion of any award (other than awards of Incentive Stock Options, Nonqualified Stock Options and SARs) made hereunder shall be deferred, or the Committee may, in its sole discretion, approve deferral elections made by holders of awards.  Deferrals shall be for such periods and upon such terms as the Committee may determine in its sole discretion and as set forth in the Agreement, subject to the requirements of Section 409A of the Code.

5.10        No Right of Participation, Employment or Service.  Unless otherwise set forth in an employment agreement, no person shall have any right to participate in this Plan.  Neither this Plan nor any award made hereunder shall confer upon any person any right to continued employment by or service with the Company, any Subsidiary or any affiliate of the Company or affect in any manner the right of the Company, any Subsidiary or any affiliate of the Company to terminate the employment of any person at any time without liability hereunder.

5.11        Rights as Stockholder.  No person shall have any right as a stockholder of the Company with respect to any shares of Common Stock or other equity security of the Company which is subject to an award hereunder unless and until such person becomes a stockholder of record with respect to such shares of Common Stock or equity security.

5.12        Designation of Beneficiary.  A holder of an award may file with the Committee a written designation of one or more persons as such holder’s beneficiary or beneficiaries (both primary and contingent) in the event of the holder’s death or incapacity.  To the extent an outstanding option or SAR granted hereunder is exercisable, such beneficiary or beneficiaries shall be entitled to exercise such option or SAR pursuant to procedures prescribed by the Committee.

Each beneficiary designation shall become effective only when filed in writing with the Committee during the holder’s lifetime on a form prescribed by the Committee.  The spouse of a married holder domiciled in a community property jurisdiction shall join in any designation of a beneficiary other than such spouse.  The filing with the Committee of a new beneficiary designation shall cancel all previously filed beneficiary designations.

If a holder fails to designate a beneficiary, or if all designated beneficiaries of a holder predecease the holder, then each outstanding option and SAR hereunder held by such holder, to the extent exercisable, may be exercised by such holder’s executor, administrator, legal representative or similar person.

5.13        Governing Law.  This Plan, each award hereunder and the related Agreement, and all determinations made and actions taken pursuant thereto, to the extent not otherwise governed by the Code or the laws of the United States, shall be governed by the laws of the State of Delaware and construed in accordance therewith without giving effect to principles of conflicts of laws.

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5.14        Foreign Employees.  Without amending this Plan, the Committee may grant awards to eligible persons who are foreign nationals on such terms and conditions different from those specified in this Plan as may in the judgment of the Committee be necessary or desirable to foster and promote achievement of the purposes of this Plan and, in furtherance of such purposes the Committee may make such modifications, amendments, procedures, subplans and the like as may be necessary or advisable to comply with provisions of laws in other countries or jurisdictions in which the Company or its Subsidiaries operates or has employees.

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EX-10.4

Exhibit 10.4

SMURFIT-STONE CONTAINER CORPORATION

2010 MANAGEMENT INCENTIVE PLAN

ARTICLE I
PURPOSE OF THE PLAN

The Smurfit-Stone Container Corporation 2010 Management Incentive Plan (the “Plan”) is hereby established by the Compensation Committee of Smurfit-Stone Container Corporation, effective as of the confirmation date of a plan of reorganization in the Bankruptcy Proceedings, or such earlier date as may be established by the Committee.  The Plan is designed to drive the Company’s financial performance to meet or exceed the Company’s short-term financial and operational goals by providing Employees with annual performance-based incentive payments for the attainment of those short-term goals.  Payments under the Plan are intended to be exempt from section 409A of the Internal Revenue Code of 1986, as amended, as “short-term deferrals” within the meaning of Treasury Regulation section 1.409A-1(b)(4).  The Plan shall not create any contractual right of any individual to any Award prior to the payment of such award, unless otherwise expressly set forth herein.

ARTICLE II
DEFINITIONS

For purposes of this Plan, the following terms, when capitalized, shall have the meanings set forth below:

Section 2.1.           “Award” means the annual cash incentive bonus awarded to an Employee under the Plan with respect to the Performance Periods in the Plan Year, which bonus is subject to the Company Achievement of the applicable Performance Targets and/or any other objective or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective criteria established by the Committee.

Section 2.2.           “Bankruptcy Proceedings” shall mean the bankruptcy proceedings in the United States Bankruptcy Court for the District of Delaware with respect to In re: Smurfit-Stone Container Corporation, et al., Case No. 09-10235 (BLS).

Section 2.3.           “Base Pay” means the Employee’s base salary in effect on the last day of the Plan Year.  Base Pay does not include any bonuses, incentive pay or other supplemental pay or benefits, in each case, as determined by the Committee.

Section 2.4.           “Cause” shall mean: (a) the refusal or continued failure by the Employee to perform substantially all his or her duties with the Company (other than any failure resulting from incapacity due to physical or mental illness) after the Company provides the Employee a demand for substantial performance identifying in reasonable detail the manner in which the Employee has not substantially performed his or her duties; (b) a plea of guilty or nolo contendere by the Employee, or conviction of the Employee, for a felony; or (c) the determination by the Committee in its sole discretion that the Employee has engaged in: (1) illegal conduct or gross misconduct in connection with the Employee’s job duties or the business of the Company; (2) a material breach of any written policy of the Company; (3) fraud or

material dishonesty in connection with the business of the Company; or (4) any violation of a statutory or common law duty of loyalty to the Company.

Section 2.5.           “Change in Control” means the occurrence of any one or more of the following:

(a)           The “beneficial ownership” of securities representing more than 20% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Exchange Act, as modified, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (i), (ii) and (iii) of subparagraph (c) of this definition will not be a Change in Control under this subparagraph (a), and provided further that immediately prior to such accumulation, holding or acquisition, such Person was not a direct or indirect beneficial owner of 20% or more of the Company Voting Securities; or

(b)           Individuals who, as of the first day following the confirmation of the Company’s plan of reorganization in the Bankruptcy Proceedings, constitute the Board of Directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board of Directors (the “Board”); provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(c)           Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all of the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (i) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors of (A) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (B) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (ii) no Person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination)

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beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership of the Company existed prior to the Business Combination; and (iii) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the Incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(d)           Approval by the Company’s stockholders of a complete liquidation or dissolution of the Company;

(e)           The consummation of a reorganization under the U.S. Bankruptcy Code (other than pursuant to the Bankruptcy Proceedings); or

(f)            The consummation of a complete liquidation or dissolution of the Company under the U.S. Bankruptcy Code.

However, in no event will a Change in Control be deemed to have occurred, with respect to an Employee’s Award, if the Employee is part of a purchasing group that consummates the Change in Control transaction.  An Employee will be deemed “part of a purchasing group” for purposes of the preceding sentence if the Employee is an equity participant in the purchasing company or group (except: (i) passive ownership of less than 2% of the stock of the purchasing company; or (ii) ownership of equity participation in the purchasing company or group that is otherwise not significant, as determined prior to the Change in Control by a majority of the continuing non-employee members of the Board).

Section 2.6.           “Committee” means the Compensation Committee of the Company, or any successor thereto or delegate thereof with the authority to act on behalf of the Committee with respect to this Plan.

Section 2.7.           “Company” means the Smurfit-Stone Container Corporation and includes any successor thereto, including pursuant to a plan of reorganization under the U.S. Bankruptcy Code.

Section 2.8.           “Company Achievement” means the percentage of the Performance Target achieved by the Company in a Performance Period, as determined by the Committee.

Section 2.9.           “Confirmation Date” means the confirmation date of a plan of reorganization in the Bankruptcy Proceedings.

Section 2.10.        “Disability” shall mean an individual’s long-term disability as defined under the long-term disability plan of the Company that covers that individual; or if the individual is not covered by such a long-term disability plan, an individual’s disability as defined for purposes of eligibility for a disability award under the Social Security Act.

Section 2.11.        “Emergence Date” means the date on which the Company’s plan of reorganization confirmed in the Bankruptcy Proceedings becomes effective.

Section 2.12.        “Employee” means an individual who is (a) a regular part-time or full-time employee of the Company or one of its subsidiaries or affiliates, other than an individual

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classified by his or her employer as a contractor or intern, and (b) designated by the Committee as eligible to participate in the Plan.

Section 2.13.        “Incentive Statement” means a letter or other writing (including in electronic format) provided by the Company to an Employee that sets forth the Award that an Employee may earn under the Plan (or otherwise describes an Employee’s eligibility to participate in the Plan), that also may describe the performance metrics and any other objective or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective performance criteria applicable to an Employee, in each case as established by the Committee.

Section 2.14.        “Payment Date” means the date on which an Award is paid to an Employee.

Section 2.15.        “Performance Period” means (i) January 1 through June 30, 2010, or (ii) July 1 through December 31, 2010, as the case may be.

Section 2.16.        “Performance Target” means the Company’s financial and/or operational goals for the Performance Period of January 1 through June 30, 2010, or July 1 through December 31, 2010, as the case may be, as established by the Committee.

Section 2.17.        “Plan Year” means the one year period commencing on January 1, 2010 and ending on December 31, 2010.

Section 2.18.        “Retirement” shall mean an employee’s retirement from the Company after the attainment of age 55 and the completion of at least five years of service with the Company.

Section 2.19.        “Target Incentive” means the percentage of an Employee’s Base Pay, as determined by the Committee based on the Employee’s position and as reflected in the Employee’s Incentive Statement (or otherwise approved by the Committee prior to the Confirmation Date), that, subject to the provisions of Sections 3.1 and 3.2 below, he or she will receive as an Award for the Plan Year if Company Achievement of each of the Performance Targets (and of any other objective or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective performance criteria established by the Committee) is equal to 100%.  In the case of an Employee who is designated by the Committee as eligible to participate in the Plan prior to the Effective Date of this Plan, the Committee (or the Company’s Chief Executive Officer and/or President with respect to each such Employee other than an officer of the Company under Section 16 of the Securities Exchange Act of 1934) has established and approved (a) a Target Incentive that shall be applicable with respect to the portion of the Plan Year from January 1, 2010 until the later of the Emergence Date or June 30, 2010 and (b) a separate Target Incentive (which may be lower) that shall be applicable with respect to the remainder of the Plan Year that begins on the later of the Emergence Date or June 30, 2010 until December 31, 2010.

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ARTICLE III

AWARD ELIGIBILITY

Section 3.1.           Eligibility.

(a)   Subject to Section 3.2, an individual shall be eligible to receive the portion of an Award that relates to a Performance Period during the Plan Year if he or she:

(1)was employed on or before September 30, 2010;

(2)was designated as an eligible Employee for the Performance Period; and

(3)is an Employee on the last day of the Plan Year,

in all cases as determined by the Committee.  The portion of an Award that relates to a Performance Period may be prorated, at the sole discretion of the Committee, to the extent the individual has not performed services as an active Employee for the entirety of such Performance Period.

(b)   In the event an Employee (i) transfers out of or otherwise assumes another position that is ineligible to participate in the Plan or (ii) transfers into or otherwise assumes another position that is (or remains, as the case may be) eligible to participate in the Plan, the Committee retains the sole discretion to determine what adjustments, if any, will be made to the Employee’s Target Incentive.

(c)   The Committee retains the discretion to reduce or eliminate an Award for any Employee who is not employed on the date on which payment of an Award is made or whose performance does not consistently meet expectations.  The Committee also retains the discretion to increase the Target Incentive of any Employee (other than an officer of the Company under Section 16 of the Securities Exchange Act of 1934) at any time during the Plan Year.

Section 3.2.           Ineligibility / Termination of Employment.

(a)   Notwithstanding anything herein to the contrary (but subject to Section 3.2(c)), except as otherwise determined by the Committee, if, prior to the date on which the payment of an Award is made, the employment of an Employee is terminated (whether not such termination occurs before or after the end of the Performance Period to which a portion of the Award relates), by reason of death, Disability or Retirement or without Cause, such Employee shall be eligible to receive part of the portion of an Award which relates to such Performance Period that shall be prorated on the basis of the calendar days in the Performance Period during which such Employee was employed by the Company and based on the Company’s actual performance during such Performance Period; provided, however, that such Employee was employed by the Company (or became employed in a position eligible to participate in the Plan) for at least three full calendar months during the Plan Year.

(b)   Notwithstanding anything herein to the contrary (but subject to Section 3.2(c)), except as otherwise determined by the Committee, if, prior to the date on which the payment of an Award is made, the employment of an Employee is terminated by the Employee for any reason other than Retirement or is terminated by the Company for Cause, such Employee shall not be eligible to receive any unpaid amounts under the Plan (even if such termination occurs

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subsequent to the last day of a Performance Period and/or Plan Year).

(c)   Notwithstanding anything herein to the contrary, in the case of an Employee with an employment agreement or similar agreement with the Company which addresses the Employee’s entitlement to an annual bonus which has not been paid as of the date of the Employee’s termination of employment with the Company, the amount, if any, of an Award which is payable to such Employee following the Employee’s termination of employment with the Company shall be determined by the terms of such agreement.

ARTICLE IV
CALCULATION OF AWARD

Section 4.1.           Performance Targets.  The Committee shall establish Performance Targets for each Performance Period.  Each Performance Target shall include a threshold level of performance below which no portion of an Award shall be payable, levels of performance at which specified percentages of the target Award shall be payable, and a maximum level of performance above which no additional Award shall be payable.  The Performance Target for a Performance Period, as well as the threshold and maximum levels of performance, may be changed by the Committee in the event of changed or unanticipated circumstances, as determined by the Committee in its discretion.

Section 4.2.           Semi-annual Performance Periods.  Awards under the Plan will include a portion which relates to each of the two semi-annual Performance Periods in the Plan Year.  The Company will establish two Performance Targets, one for each Performance Period in the Plan Year.  Subject to the provisions of Sections 3.1 and 3.2 above, an Employee is eligible to receive after the end of the Plan Year the portion of an Award which relates to each Performance Period during the Plan Year subject to the Company Achievement of the Performance Targets and any other applicable objective or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective performance criteria established by the Committee.

Section 4.3.           Awards.

(a)   The Company shall provide an Incentive Statement to each Employee as soon as practicable after this Plan becomes effective.  The Incentive Statement shall explain the Award that the Employee is eligible to earn for the Plan Year (or shall otherwise describe such Employee’s eligibility to participate in the Plan) and shall describe the Performance Targets applicable to the Performance Periods in the Plan Year as well as any other objective or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective performance criteria applicable to the individual Employee, as established by the Committee.  Subject to the provisions of Sections 3.1 and 3.2 above, payment of the portion of an Award which relates to a Performance Period shall be made only if and to the extent that a pre-determined threshold percentage of the Performance Target with respect to such Performance Period is attained, and all other objective or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective performance criteria applicable to the Employee have been met.  Unless otherwise provided in an Employee’s

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Incentive Statement, the actual amount of the Award payable to an Employee under the Plan shall be determined as a percentage of the Employee’s Target Incentive in accordance with Section 2.19, which percentage shall vary depending upon the extent to which the Performance Targets for the Performance Periods during the Plan Year have been attained and all other objectives or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective performance criteria applicable have been met.  The Award that an Employee is eligible to earn for the Plan Year may be changed by the Committee in the event of changed or unanticipated circumstances, as determined by the Committee in its discretion, provided that such change is not inconsistent with the terms of this Plan or the applicable Employee’s Incentive Statement.

(b)   The following will apply with respect to the calculation of the actual amount of the total Award that an Employee will receive for the Plan Year:  (i) 50% of the Employee’s applicable Target Incentive shall be paid for 85% achievement of the applicable Performance Target for the applicable Performance Period; (ii) 100% of the Employee’s applicable Target Incentive shall be paid for 100% achievement of the applicable Performance Target for the applicable Performance Period performance; and (iii) 175% of the Employee’s applicable Target Incentive shall be paid for 140% achievement of the applicable Performance Target for the applicable Performance, provided that (A) this subsection (iii) shall not apply to Employees who were designated as “Tier III” participants under the Company’s 2009 Management Incentive Plan with respect to the portion of the Plan Year that precedes the Emergence Date (but shall apply on the Emergence Date and for the remainder of the Plan Year) and (B) with respect to the calculation of such portion of the Award for each Employee that relates to the period of time beginning on the Emergence Date through December 31, 2010, the foregoing 175% shall be increased to 200%.

Section 4.4.           Emergence from Bankruptcy / Liquidation.  In the event that during the Plan Year the United States Bankruptcy Court for the District of Delaware presiding over the Bankruptcy Proceedings, confirms a plan of reorganization for the Company the reorganized Company shall assume the Plan in connection with the confirmation and effectiveness of such a plan of reorganization.  In the event that during the Plan Year the Company consummates a liquidation pursuant to Section 2.5(d) or (f), then each Employee shall receive the portion of an Award which relates to any completed Performance Period and a part of the portion of an Award which relates to the Performance Period in which the liquidation is consummated, which part shall be determined by (a) prorating on the basis of the calendar days during which such Employee shall have been employed by the Company during such Performance Period and (b) based on the Company’s actual performance through the date of liquidation measured as a percentage of the Company’s financial/operational targets prorated on the basis of the calendar days elapsed during such Performance Period.

ARTICLE V
PAYMENT OF AWARDS

Section 5.1.           Time of Payment.  Payment of Awards shall be made within a reasonable period after the end of the Plan Year, but in no event later than March 15, 2011.

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Section 5.2.           Form of Payment.  Awards shall be paid in the form of a lump sum cash payment.

ARTICLE VI
ADMINISTRATION

Section 6.1.           The Plan shall be administered by the Committee, which shall have full power and authority to interpret, construe and administer the Plan in accordance with the provisions set forth herein, including without limitation the authority to: (i) select the Employees to whom Awards may from time to time be granted hereunder; (ii) determine the terms and conditions of each Award, consistent with the terms of the Plan; and (iii) determine the Award formula for every Employee in each Performance Period consistent with the terms of the Plan, subject to the Company Achievement and the Company’s satisfaction of any and all other objective or (except in the case of an officer of the Company under Section 16 of the Securities Exchange Act of 1934) subjective performance criteria established by the Committee.  In this connection, the Committee may delegate to any corporation, committee or individual(s), regardless of whether any such individuals are employees of the Company, the duty to act for the Committee hereunder.

Section 6.2.           Decisions of the Committee shall be final, conclusive and binding on all persons or entities, including the Company and any Employee.  A majority of the members of the Committee may determine its actions.

Section 6.3.           No officer or employee of the Company shall be liable to any person for any action taken or omitted in connection with the interpretation and administration of the Plan unless attributable to his or her own willful misconduct or lack of good faith.

Section 6.4.           The expenses of administering the Plan shall be paid by the Company and shall not be charged against the Plan.

ARTICLE VII
MISCELLANEOUS

Section 7.1.           Successors.  All obligations of the Company under the Plan will be binding on any successor to the Company, whether the existence of the successor results from a Change in Control or otherwise.  In the event that the Company’s successor, including the reorganized Company following the assumption of the Plan in connection with the confirmation of a plan of reorganization (other than in the Bankruptcy Proceedings), terminates the Plan prior to December 31, 2010, then each Employee who is actively employed on the date of such termination of the Plan shall receive the portion of an Award which relates to any completed Performance Period and a part of the portion of an Award which relates to the Performance Period in which the Plan is terminated, which part shall be determined by (a) prorated on the basis of the calendar days during which such Employee shall have been employed by the Company during such Performance Period and (b) based on the Company’s actual performance through the date of Plan termination measured as a percentage of the Company’s

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financial/operational targets prorated on the basis of the calendar days elapsed during such Performance Period.

Section 7.2.           Nontransferability.  No Award payable hereunder, nor any right to receive any future Award hereunder, may be assigned, alienated, sold, transferred, anticipated, pledged, encumbered, or subjected to any charge or legal process, and if any such attempt is made, or a person eligible for any Award hereunder becomes bankrupt, the Award under the Plan which would otherwise be payable with respect to such person may be terminated by the Committee which, in its sole discretion, may cause the same to be held or applied for the benefit of one or more of the dependents of such person or make any other disposition of such Award that it deems appropriate.

Section 7.3.           Beneficiary Designation.  Each Employee may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any Award under the Plan is to be paid in case the Employee should die before receiving any or all of his or her Award.  Each beneficiary designation will revoke all prior designations by the same Employee with respect to this Plan, must be in a form prescribed by the Committee, and must be made during the Employee’s lifetime.  If the Employee’s designated beneficiary predeceases the Employee or no beneficiary has been designated, any Award remaining unpaid at the Employee’s death may, in the sole discretion of the Committee, (a) be paid to the Employee’s estate or to one or more of the dependents of the Employee or (b) be disposed of in any other manner that the Committee deems appropriate.

Section 7.4.           Claim to Awards and Employment Rights.  Nothing in this Plan shall require the Company to segregate or set aside any funds or other property for purposes of paying all or any portion of an Award hereunder.  No person shall have any right, title or interest in or to any Award hereunder (or any portion of such award, including but not limited to any Surplus Award) prior to the actual payment thereof, nor to any property of the Company.  Eligibility for an Award in one year or Performance Period does not entitle an individual to be eligible for an Award in any other year or Performance Period.  Neither the adoption of the Plan nor the continued operation thereof shall confer upon any Employee any right to continue in the employ of the Company or shall in any way affect the right and power of the Company to dismiss or otherwise terminate the employment of any Employee at any time for any reason, with or without cause.

Section 7.5.           Income Tax Withholding/Rights of Offset.  The Company shall have the right to deduct and withhold from all Awards all federal, state and local taxes as may be required by law.  In addition to the foregoing, the Company shall have the right to set off against the amount of any Award which would otherwise be payable hereunder, the amount of any debt, judgment, claim, expense or other obligation owed at such time by the Employee to the Company, as permitted by law.

Section 7.6.           Effective Date of Plan.  The Plan shall be effective as of the confirmation date of a plan of reorganization in the Bankruptcy Proceedings, or such earlier date as may be established by the Committee.

Section 7.7.           Termination of Plan.  The Plan may be terminated at any time and for any reason by the Committee.

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Section 7.8.           Severability.  If any provision of the Plan is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provision had not been included.

Section 7.9.           Governing Law.  All questions pertaining to the construction, validity and effect of the Plan shall be determined in accordance with the laws of the State of Delaware.

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EX-10.5

Exhibit 10.5

SMURFIT-STONE CONTAINER CORPORATION

2009 LONG-TERM INCENTIVE PLAN

ARTICLE I
PURPOSE OF THE PLAN

The Smurfit-Stone Container Corporation 2009 Long-Term Incentive Plan (the “Plan”) is hereby established by the Compensation Committee of Smurfit-Stone Container Corporation (the “Company”), effective as of the confirmation date of a plan of reorganization in the Bankruptcy Proceedings or such earlier date as established by the Committee.  The Plan is designed to align the interests of the recipients of awards under this Plan with the interests of the key economic stakeholders in the Company by providing to such recipients incentive compensation based on the Company’s achievement of its 2009-2010 financial performance and restructuring goal.  Payments under the Plan are intended to be exempt from section 409A of the Internal Revenue Code of 1986, as amended, as “short-term deferrals” within the meaning of Treasury Regulation section 1.409A-1(b)(4).  The Plan shall not create any contractual right of any individual to any amount prior to the payment of such amount.

ARTICLE II
DEFINITIONS

For purposes of this Plan, the following terms, when capitalized, shall have the meanings set forth below:

Section 2.1.           “Award Statement” means a letter or other writing (including in electronic format) provided by the Company to a Participant that sets forth, among other things, the LTIP Incentive Bonus that the Participant is eligible to earn under the Plan, the Financial Performance Goal and the Restructuring Goal.

Section 2.2.           “Bankruptcy Proceedings” shall mean the bankruptcy proceedings in the United States Bankruptcy Court for the District of Delaware with respect to In re: Smurfit-Stone Container Corporation, et al., Case No. 09-10235 (BLS).

Section 2.3.           “Board” means the Board of Directors of the Company.

Section 2.4.           “Cause” shall mean: (a) the refusal or continued failure by the Participant to perform substantially all his or her duties with the Company (other than any failure resulting from incapacity due to physical or mental illness) after the Company provides the Participant a demand for substantial performance identifying in reasonable detail the manner in which the Participant has not substantially performed his or her duties; (b) a plea of guilty or nolo contendere by the Participant, or conviction of the Participant, for a felony; or (c) the determination by the Committee in its sole discretion that the Participant has engaged in: (1) illegal conduct or gross misconduct in connection with the Participant’s job duties or the business of the Company; (2) a material breach of any written policy of the Company; (3) fraud or material dishonesty in connection with the business of the Company; or (4) any violation of a statutory or common law duty of loyalty to the Company.

Section 2.5.           “Change in Control” means the occurrence of any one or more of the following:

(a)           The “beneficial ownership” of securities representing more than 20% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Exchange Act, as modified, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (i), (ii) and (iii) of subparagraph (c) of this definition will not be a Change in Control under this subparagraph (a), and provided further that immediately prior to such accumulation, holding or acquisition, such person was not a direct or indirect beneficial owner of 20% or more of the Company Voting Securities; or

(b)           Individuals who, as of January 1, 2009, constitute the Board of Directors (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board; or

(c)           Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially of all the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (i) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors of (A) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (B) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (ii) no person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership of the Company existed prior to the Business Combination; and (iii) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

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(d)           The consummation of a complete liquidation or dissolution of the Company approved by the Company’s stockholders;

(e)           The consummation of a reorganization under the U.S. Bankruptcy Code; or

(f)            The consummation of a complete liquidation or dissolution of the Company under the U.S. Bankruptcy Code.

However, in no event will a Change in Control be deemed to have occurred, with respect to a Participant’s Award, if the Participant is part of a purchasing group that consummates the Change in Control transaction.  A Participant will be deemed “part of a purchasing group” for purposes of the preceding sentence if the Participant is an equity participant in the purchasing company or group (except: (i) passive ownership of less than 2% of the stock of the purchasing company; or (ii) ownership of equity participation in the purchasing company or group that is otherwise not significant, as determined prior to the Change in Control by a majority of the non-employee continuing directors).

Section 2.6.           “Committee” means the Compensation Committee of the Company, or any successor thereto or delegate thereof with the authority to act on behalf of the Committee with respect to this Plan.

Section 2.7.           “Company” means the Smurfit-Stone Container Corporation and includes any successor thereto, including pursuant to a plan of reorganization under the U.S. Bankruptcy Code.

Section 2.8.           “Disability” means an individual’s long-term disability as defined under the long-term disability plan of the Company that covers that individual; or if the individual is not covered by such a long-term disability plan, an individual’s disability as defined for purposes of eligibility for a disability award under the Social Security Act.

Section 2.9.           “Effective Date” shall mean the confirmation date of a plan of reorganization in the Bankruptcy Proceedings or such earlier date as established by the Committee.

Section 2.10.        “Financial Performance Goal” means financial performance goals established by the Committee based on achievement of (a) the Company’s 2009 DCA Adjusted EBITDAR and (b) the Company’s budgeted EBITDAR for calendar year 2010 (pro-rated as appropriate for any partial 2010 calendar year).

Section 2.11.        “LTIP Incentive Bonus Award” means the cash incentive bonus awarded to a Participant under the Plan, which bonus is subject to the Company’s achievement of the Financial Performance Goal and the Restructuring Goal, with the total amount of such bonus, as determined by the Committee, to be payable with respect to (a) the achievement of the Financial Performance Goal, based upon 50% of the Participant’s LTIP Incentive Bonus Target and (b) the achievement of the Restructuring Goal, based upon the remaining 50% of the Participant’s LTIP Incentive Bonus Target, in each case as described in Article IV of this Plan.

Section 2.12.        “LTIP Incentive Bonus Target” means the amount, as determined by the Committee, that a Participant will receive if the Company achieves the Financial Performance Goal at 100% of target, multiplied by two.

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Section 2.13.        “Participant” means an employee of the Company who satisfies the requirements of Section 3.1 for eligibility to participate in the Plan.

Section 2.14.        “Payment Date” means the date on which all or a portion of the LTIP Incentive Bonus Award is paid to a Participant.

Section 2.15.        “Plan” means this Smurfit-Stone Container Corporation 2009 Long-Term Incentive Plan, as amended from time to time.

Section 2.16.        “Restructuring Goal” shall mean that the weighted average of the closing trading prices of the Debtors’ series of five publicly traded bonds over the 30-calendar-day period preceding the Effective Date is not less than fifty cents ($0.50).

Section 2.17.        “Retirement” shall mean (i) in the case of a Participant with an employment agreement or comparable agreement with the Company, the Participant’s “retirement” as defined in such agreement, and (ii) in the case of a Participant with no employment agreement or comparable agreement with the Company, the termination of the Participant’s employment with the Company at or after the attainment of age 55 and completion of at least 5 years of service with the Company.

ARTICLE III

ELIGIBILITY

Section 3.1.           Eligibility Requirements.

(a)   Subject to Section 3.2, an individual shall be entitled to participate in the Plan only if he or she:

(1)was employed on or before April 28, 2009, or such later date as determined by the Committee on a case by case basis;

(2)is designated by the Committee as an eligible Participant; and

(3)is an employee of the Company or one of its subsidiaries or affiliates on the Payment Date with respect to all or a portion of the LTIP Incentive Bonus Award,

in all cases as determined by the Committee.

(b)   In the event a Participant transfers into or otherwise assumes another position that participates in the Plan (or does not participate in the Plan, as the case may be), the Committee retains the sole discretion to determine what adjustments, if any, will be made to the Participant’s LTIP Incentive Bonus Target and/or LTIP Incentive Bonus Award.

Section 3.2.           Effect of Termination of Employment.

(a)   Notwithstanding anything herein to the contrary, a Participant shall not be entitled to receive the Financial Performance Goal or Restructuring Goal portion of the LTIP Incentive Bonus Award if, prior to the Payment Date for such portion, he or she resigns from his or her employment or is terminated by the Company for Cause, in each case as determined by the Committee.

(b)   If a Participant’s employment is terminated by the Company without Cause on or

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after January 1, 2010, any portion of the LTIP Incentive Bonus Award earned by such Participant as if he or she had remained employed through the Effective Date or, if applicable, December 31, 2010, and shall be prorated on the basis of the number of calendar days during which such Participant has been employed by the Company between January 1, 2009 and the Payment Date for such portion of the LTIP Incentive Bonus Award.

(c)   Unless determined otherwise by the Committee and set forth in the Participant’s Award Statement or a written agreement between the Participant and the Company, if a Participant’s employment is terminated prior to the Payment Date for either the Financial Performance Goal or Restructuring Goal portion of the LTIP Incentive Bonus Award by reason of death, Disability, or Retirement on or after January 1, 2010, the Participant will receive a prorated payout (to be prorated on the basis of the number of calendar days during which such Participant has been employed by the Company between January 1, 2009 and the Payment Date for such portion of the LTIP Incentive Bonus Award) of such portion of the LTIP Incentive Bonus Award earned by such Participant as if he or she had remained employed through the Effective Date or, if applicable, December 31, 2010.  Payment of an earned portion of the LTIP Incentive Bonus Award shall be made as provided in Section 5.1.

ARTICLE IV
CALCULATION OF AWARD

Section 4.1.           Plan Components.  The Plan will contain two components — the Financial Performance Goal component and the Restructuring Goal component.  Each of the Financial Performance Goal and Restructuring Goal components of a Participant’s LTIP Incentive Bonus Award will be determined based upon 50% of the Participant’s LTIP Incentive Bonus Target, in each case as determined by the Committee.

Section 4.2.           Financial Performance Goal Component.  The Committee shall establish the Financial Performance Goal, and the Company’s EBITDAR for calendar years 2009 and 2010 shall be measured against a scale that includes a threshold level of performance below which no payment shall be made with respect to the Financial Performance Goal portion of the LTIP Incentive Bonus Target, levels of performance at which specified percentages of the Financial Performance Goal portion of the LTIP Incentive Bonus Target shall be paid, and a maximum level of performance above which no additional Financial Performance Goal portion of the LTIP Incentive Bonus Target shall be paid.  The Financial Performance Goal may be changed by the Committee in the event of changed or unanticipated circumstances, as determined by the Committee in its discretion.

Section 4.3.           Restructuring Goal Component.  If the Restructuring Goal is achieved, each Participant shall be paid 175% of 50% of his or her total LTIP Incentive Bonus Target as the Restructuring Goal portion of his or her LTIP Incentive Bonus Award.  If the Restructuring Goal is not achieved, no Participant shall be paid any amounts with respect to the Restructuring Goal.

Section 4.4.           Award Statements.  The Company shall provide an Award Statement to each Participant as soon as practicable after the Effective Date.  Each Award Statement shall be subject to the terms of the Plan and shall specify:  (i) the LTIP Incentive Bonus Target that such

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Participant is eligible to receive; (ii) the Financial Performance Goal; (iii) the Restructuring Goal; (iv) the impact of the attainment of various levels of the Financial Performance Goal on the amounts to be paid to the Participant with respect to such Financial Performance Goal; and (v) the impact of the attainment of the Restructuring Goal on the amounts to be paid to the Participant with respect to such Restructuring Goal, as determined by the Committee and to the extent not inconsistent with the Company’s plan of reorganization confirmed by the United States Bankruptcy Court for the District of Delaware presiding over the Bankruptcy Proceeding (the “Court”) or the Court’s confirmation order with respect thereto (the “Confirmation Order”).

Section 4.5.           Emergence from Bankruptcy / Liquidation.  In the event that the Court confirms a plan of reorganization for the Company prior to December 31, 2010, then each Participant shall, on or within 60 days after the Effective Date,  receive (a) a pro-rata amount (based on the ratio of the number of calendar days that occurred during the period beginning January 1, 2009 and ending on the Effective Date) of the Financial Performance Goal portion of the LTIP Incentive Bonus Award, based on the Company’s actual achievement of the Financial Performance Goal (pro-rated as appropriate for any partial 2010 calendar year) and (b) if the Restructuring Goal has been achieved, the full amount of the Restructuring Goal portion of the LTIP Incentive Bonus Award (without any pro-ration) as set forth in Section 4.3 above.

ARTICLE V
PAYMENT OF AWARDS

Section 5.1.           Time of Payment.  Payment of the Financial Performance Goal portion of the LTIP Incentive Bonus Award shall, unless paid earlier pursuant to Section 4.5, be made on or within the 30-day period following December 31, 2010.  Payment of the Restructuring Goal portion of the LTIP Incentive Bonus Award shall be made within the 60-day period following the Effective Date, if the Restructuring Goal has been achieved.

Section 5.2.           Form of Payment.  The Financial Performance Goal portion and the Restructuring Goal portion of the LTIP Incentive Bonus Award shall each be paid in the form of a lump sum cash payment.

ARTICLE VI
ADMINISTRATION

Section 6.1.           The Plan shall be administered by the Committee, which shall have full power and authority to interpret, construe and administer the Plan in accordance with the provisions set forth herein and to the extent not inconsistent with the Company’s plan of reorganization confirmed by the Court or the Confirmation Order, including without limitation the authority to: (i) select the Participants who are eligible to participate in the Plan; (ii) determine, consistent with the terms of the Plan, (A) the terms and conditions of each Award Statement, (B) the LTIP Incentive Bonus Target that each Participant is eligible to receive, (C) the Financial Performance Goal, (D) the level at which the Financial Performance Goal is attained, (E) whether the Restructuring Goal has been achieved, and (F) the impact of the attainment of various levels of the Financial Performance Goal on the amounts to be paid to Participants with respect to the Financial Performance Goal portion of the LTIP Incentive Bonus

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Award; and (iii) make any other determination and take any other action that the Committee deems necessary or desirable for administration of the Plan.  The Committee may also delegate to any corporation, committee or individual, regardless of whether the individual is an employee of the Company, the duty to act for the Committee hereunder.

Section 6.2.           Decisions of the Committee shall be final, conclusive and binding on all persons or entities, including the Company and any Participant.  A majority of the members of the Committee may determine its actions.

Section 6.3.           No officer or employee of the Company shall be liable to any person for any action taken or omitted in connection with the interpretation and administration of the Plan unless attributable to his or her own willful misconduct or lack of good faith.

Section 6.4.           The expenses of administering the Plan shall be paid by the Company and shall not be charged against the Plan.

ARTICLE VII
MISCELLANEOUS

Section 7.1.           Successors.  All obligations of the Company under the Plan will be binding on any successor to the Company, whether the existence of the successor results from a Change in Control or otherwise.

Section 7.2.           Nontransferability.  Unless the Committee provides for the transferability of a particular LTIP Incentive Bonus and such transferability is specified in the Award Statement or in a document prepared by the Committee and relating to the LTIP Incentive Bonus Target or LTIP Incentive Bonus Award, no LTIP Incentive Bonus Award or any rights thereto shall be transferable other than by will or the laws of descent and distribution or pursuant to any beneficiary designation procedures as may be approved by the Committee for such purpose.  Except to the extent permitted by the foregoing sentence, no LTIP Incentive Bonus Award payable hereunder may be assigned, alienated, sold, transferred, anticipated, pledged, encumbered, or subjected to any charge or legal process, and if any such attempt is made, or a person eligible for any LTIP Incentive Bonus Award hereunder becomes bankrupt, the amount under the Plan which would otherwise be payable with respect to such person may be eliminated by the Committee which, in its sole discretion, may cause the same to be held or applied for the benefit of one or more of the dependents of such person or make any other disposition of such amount that it deems appropriate.

Section 7.3.           Beneficiary Designation.  Each Participant may, from time to time, name any beneficiary or beneficiaries (who may be named contingently or successively) to whom any amount payable under the Plan is to be paid in case the Participant should die before receiving such amount.  Each beneficiary designation will revoke all prior designations by the same Participant with respect to this Plan, must be in a form prescribed by the Committee, and must be made during the Participant’s lifetime.  If the Participant’s designated beneficiary predeceases the Participant or no beneficiary has been designated, any amount remaining unpaid at the Participant’s death may, in the sole discretion of the Committee, (i) be paid to the Participant’s estate or to one or more of the dependents of the Participant or (ii) be disposed of in any other manner that the Committee deems appropriate.

Section 7.4.           Claim to LTIP Incentive Bonus Award and Employment Rights.  Nothing

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in this Plan shall require the Company to segregate or set aside any funds or other property for purposes of paying all or any portion of a LTIP Incentive Bonus Award hereunder.  Neither the adoption of the Plan nor the continued operation thereof shall confer upon any Participant any right to continue in the employ of the Company or shall in any way affect the right and power of the Company to dismiss or otherwise terminate the employment of any Participant at any time for any reason, with or without cause.

Section 7.5.           Income Tax Withholding/Rights of Offset.  The Company shall have the right to deduct and withhold from any amounts paid pursuant to the Plan all federal, state, local and other taxes as may be required by law.  In addition to the foregoing, the Company shall have the right to set off against any amount which would otherwise be payable hereunder, the amount of any debt, judgment, claim, expense or other obligation owed at such time by the Participant to the Company, to the extent permitted by law.

Section 7.6.           Effective Date of Plan.  The Plan shall take effect on the Effective Date.

Section 7.7.           Rights as a Creditor.  No Participant shall have any interest in any particular assets of the Company by reason of the right to receive a benefit under the Plan and any such Participant shall have only the rights of a general unsecured creditor of the Company with respect to any rights under the Plan

Section 7.8.           Severability.  If any provision of the Plan is held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan will be construed and enforced as if the illegal or invalid provision had not been included.

Section 7.9.           Governing Law.  All questions pertaining to the construction, validity and effect of the Plan, and all questions pertaining to any amount payable hereunder, shall be determined in accordance with the laws of the State of Delaware.

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EX-10.6

Exhibit 10.6

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT OF PATRICK J. MOORE

This Amended and Restated Employment Agreement (the “Agreement”) by and between Patrick J. Moore (the “Executive”) and Smurfit-Stone Container Corporation (the “Company”) shall be deemed to have been made and entered into as of the date of the order of confirmation entered by the United States Bankruptcy Court for the District of Delaware with respect to the Company’s plan of reorganization in the matter of In re: Smurfit-Stone Container Corp., Case No. 09-10235 (BLS) (the “Chapter 11 Cases”) (such plan, the “Plan of Reorganization” and such date, the “Confirmation Date”), and shall become effective as of the effective date of the Plan of Reorganization (the “Effective Date”).

WHEREAS, the Executive currently is employed as the Company’s Chief Executive Officer (“CEO”) and was Chairman of the Company’s Board of Directors prior to the Effective Date (the Company’s pre- and post-Effective Date Boards of Directors hereinafter collectively referred to herein as the “Board”) and the Company desires to continue to employ the Executive upon and subject to the terms and conditions set forth herein, and the Executive wishes to accept such employment upon and subject to such terms and conditions;

WHEREAS, the Company and the Executive are parties to that certain employment agreement effective as of April 1, 1999, which was amended effective as of January 4, 2002, July 25, 2006 and January 1, 2008 (such employment agreement, together with subsequent amendments, referred to herein as the “Predecessor Agreement”);

WHEREAS, the Company and the Executive desire to enter into the Agreement and, in so doing, to amend and restate the Predecessor Agreement in its entirety;

WHEREAS, the Company has adopted and implemented an Equity Incentive Plan (“Equity Incentive Plan”), as of the Confirmation Date, pursuant to the Plan of Reorganization; and

WHEREAS the Executive is a participant in the Jefferson Smurfit Corporation Supplemental Income Pension Plan II (“SIPP II”), which was not assumed pursuant to the Company’s Plan of Reorganization and therefore is of no further force and effect;

NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the parties hereby agree as follows:

1.Employment Period and Positions.Subject to the terms and conditions of this Agreement (including without limitation Section 5):

(a)the Company shall employ the Executive as its CEO from the Effective Date until the nine (9) month anniversary of the Effective Date (hereinafter referred to as the “Retirement Date”), provided that the Retirement Date may be accelerated to an earlier date (i) by the Board for any reason other than Cause upon thirty (30) calendar days’ advance written notice to the Executive specifying such accelerated Retirement Date (ii) by the Executive if he

terminates his employment with the Company for Good Reason or following a Change in Control (as such terms are defined in Section 5 of this Agreement) in accordance with Section 5 of this Agreement; or (iii) due to the Executive’s death (in which case, the Retirement Date shall be the date of the Executive’s death); and

(b) on the Retirement Date, the Executive shall retire voluntarily (or, as applicable, be deemed to have retired voluntarily) from his positions and from his employment with the Company (hereinafter referred to as the Executive’s “Retirement”), at which time his employment with and service to the Company shall terminate (such period of the Executive’s employment from the Effective Date until Retirement Date (or such earlier effective date of the termination of his employment for Cause or without Good Reason pursuant to Section 5) herein after referred to as the “Employment Period”); provided that upon the Executive’s Retirement or other termination of his employment, the Board shall, in accordance with its normal procedures for election, retention and removal of directors, determine whether the Executive shall continue his service as a member of the Board.

2.Duties and Responsibilities.

(a)During the Employment Period, the Executive (i) shall perform the duties assigned to him by the Board from time to time (provided that the Executive shall not be assigned tasks inconsistent with those of CEO) faithfully, with the utmost loyalty, to the best of his abilities and in the best interests of the Company; (ii) shall devote his full business time, attention and effort to the affairs of the Company, except that the Executive may continue to serve on corporate boards (in addition to the Board) and/or (y) civic or charitable boards or committees, in either case as long as such activities do not, individually or in the aggregate, interfere with the performance of the Executive’s employment duties and responsibilities or harm the business or reputation of the Company or any of its Affiliates; and (iii) shall not engage in any other business activities (whether or not for gain, profit, or other pecuniary advantage) or any other actions which he knows or reasonably should know could harm the business or reputation of the Company or any of its affiliates or other related entities. The time involved in such activities shall not be treated as vacation time.  The Executive shall be entitled to keep any amounts paid to him in connection with such activities (e.g., directors fees and honoraria).   For purposes of this Agreement, “Affiliates” shall mean any entity that, directly or indirectly, is controlled by the Company, and any entity in which the Company has a 20% or greater equity interest.

(b)The Executive shall act in conformity with the Company’s written and oral policies and within the limits, budgets and business plans set by the Company.  The Executive will at all times during the Employment Period strictly adhere to and obey all of the rules and regulations in effect from time to time relating to the conduct of Company executives.  Except as provided in Section 2(a), the Executive shall not engage in consulting work or any trade or business for his own account or for or on behalf of any other person, firm or company that competes, conflicts or interferes with the performance of his duties hereunder in any material way.

(c)The Executive covenants, represents and warrants that:  (i) the execution, delivery and complete performance of this Agreement by him does not and will not breach,

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violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which he is bound; and (ii) he is not a party to or bound by any employment or services agreement, confidentiality agreement, noncompetition agreement, other restrictive covenant, or other obligation or agreement that would or could prohibit or restrict him from being employed by the Company or from performing any of his duties under this Agreement.

(d)The Executive shall not, at any time during or after his employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Company or any of its Affiliates or any members of their respective boards of directors or managements, or any of their respective business affairs or performance.  The Company, members of its Board and its senior executives shall not, at any time during or after the Executive’s employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Executive.

3.Compensation and Benefits.

(a)Base Salary.  During the Employment Period, subject to the terms and conditions of this Agreement, the Company shall pay to the Executive an annual base salary at the gross rate of $1,107,000 (the “Base Salary”), payable in installments in accordance with the Company’s executive payroll policy (but not less frequently than monthly).

(b)Incentive Compensation.  During the Employment Period, the Executive shall be eligible to participate in the Company’s annual incentive plan(s), including without limitation the Company’s Management Incentive Plan (“MIP”), with an initial target level incentive bonus percentage for the 2010 MIP equal to 125% of the Executive’s Base Salary and a subsequent target level incentive bonus percentage for the 2010 MIP (that shall become effective at such time as set forth in, and in accordance with, the terms of the 2010 MIP) equal to 115% of the Executive’s Base Salary, provided that the gross amount of any such annual incentive bonus payment to the Executive under the 2010 MIP shall be reduced by $30,000 at the time that such bonus is paid, and further provided that such reduction in such 2010 MIP bonus payment shall not be considered, and shall be excluded, for purposes of determining any other amounts to which the Executive is or may be entitled under any other provision of this Agreement (including without limitation Sections 4 and 8) or otherwise.

(c)Special Annual Incentive and Change-in-Control Payments.  Subject to the terms and conditions of this Agreement (including without limitation Section 11) and provided that the Executive complies with his obligations under this Agreement (including without limitation those contained in Sections 2, 6, 9 and 10) and the Executive’s employment has not terminated for Cause or without Good Reason (each as defined in this Agreement):

(i)the Company shall pay the Executive a special annual incentive payment (the “Special Annual Incentive Payment”) in the amount of (A) $3,500,000 reduced by (B) that portion of the Executive’s target level incentive bonus under the Company’s 2009 Long-Term Incentive Plan approved in the Chapter 11 Cases (the “2009 LTIP”) that was (i) based only upon the Company’s financial performance (and not any restructuring goals under the 2009

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LTIP) and (ii) earned in 2010 (the “2010 LTIP Credit”).  The 2010 LTIP Credit is calculated as those number of full calendar months between January 1, 2010 and the Effective Date divided by the twenty-four (24) months in the 2009 LTIP plan cycle.  The Special Annual Incentive Payment is payable in a lump sum on the earlier of (X) the sixtieth (60th) calendar day after the Retirement Date or (Y) March 15, 2011, which amount of the Special Annual Incentive Payment the Executive acknowledges and agrees is in lieu of the Executive’s receipt of any grant of equity in the Company pursuant to the Company’s Plan of Reorganization or the Equity Incentive Plan;

(ii)in the event (A) of a Change in Control (as defined in this Agreement) during the Employment Period or (B) that, at any time prior to the Retirement Date, the Company receives an offer from a third party to purchase the Company or enter into any other transaction(s) that would constitute a Business Combination (as defined in this Agreement) that results in a Change in Control at any time within fifteen months after the Effective Date (and provided that the Executive participated in the efforts to sell the Company or to otherwise effectuate the Business Combination), the Company shall pay to the Executive, within thirty calendar (30) days after the Change in Control, an additional lump sum amount equal to (X) the monetary value of equity that the individual holding the positions of President and Chief Operating Officer (“COO”) of the Company as of the Effective Date would receive if all of the equity-based compensation that such President and COO received pursuant to and in accordance with the Company’s Plan of Reorganization (i.e., that pursuant to the Plan of Reorganization, the President and COO will receive 0.9% of the common shares of the Company issued on the Effective Date on a fully diluted basis, allocated in a restricted stock unit award with respect to 0.22% of such common shares and in an award granting options to acquire 0.68% of such common shares) were fully vested and liquidated at the Change in Control Value (as defined below) reduced by (Y) the amount of the Special Annual Incentive Payment; and

(iii)for purposes of Section 3(c)(ii):  (A) “Change in Control Value” means the consideration paid or payable or the value received or receivable with respect to a share of common stock of the Company in connection with the Change in Control (as reasonably determined by the Company), multiplied by the number of shares of common stock, common stock units, or common stock equivalents held by the President and COO of the Company as of the Effective Date; and (B) in the case of an option, stock appreciation right or the equivalent, “Change in Control Value” means the amount described in the preceding Section 3(c)(iii)(A), reduced by the exercise price or strike price of the option, stock appreciation right or the equivalent.

(d)Employee Benefits.  During the Employment Period, the Executive shall be eligible to participate in such employee benefit plans (including group medical and dental), and to receive such other fringe benefits and perquisites (including but not limited to reimbursement for annual income tax return preparation and tax counseling up to $25,000 per year), as the Company may make available to senior executives generally, subject to all present and future terms and conditions of such benefit plans and other fringe benefits and perquisites.  If the Executive elects to pay the entire premium for long-term disability coverage with after-tax dollars, the Company will reimburse the Executive for the amount of such premium.  The Company reserves the right in its sole discretion to alter, suspend, amend, or discontinue any and all of its employee and fringe benefits, perquisites, benefit plans, policies and procedures, in whole or in part, at any time with or without notice, provided that the Company will not make

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any change to the Executive’s employee or fringe benefits that it does not also make on a consistent basis for other senior executives of the Company.

(e)Executive Plans and Programs.  During the Employment Period, the Executive shall be entitled to participate on substantially the same basis as the Company’s other senior executive officers in any executive benefit plans offered by the Company, provided that the Executive shall not be entitled to receive any emergence equity grant pursuant to the Company’s Plan of Reorganization or Equity Incentive Plan.

(f) Vacation.  The Executive shall be entitled to accrue vacation in accordance with the Company’s vacation policy for senior executive officers as in effect or amended from time to time, but in no event less than five (5) weeks per calendar year.

(g) Expense Reimbursement.  The Company shall reimburse the Executive for all reasonable and necessary business expenses incurred by him in connection with his duties hereunder (including, without limitation, Section 10) after the Executive’s timely presentation of IRS-acceptable itemized and documented accounts of such expenditures, provided that the Executive shall secure the Board’s approval before incurring any extraordinary expenses, and provided further that such reimbursement for reasonable and necessary business expenses is subject to the Company’s expense reimbursement policy.

(h)Withholdings and Deductions.  Any and all payments to the Executive under this Agreement shall be reduced by required or authorized withholding and deductions.

(i)Clawback.  In the event that the Board determines in good faith that the amount of any incentive and/or performance based compensation based in whole or in part on the financial performance of the Company (or any division thereof) paid or granted to the Executive was materially incorrect because the performance criteria were applied incorrectly, within sixty (60) days after receiving written notice from the Board, the Executive shall repay to the Company the portion of any cash payments or return and forfeit the portion of any such grant, as the case may be, that the Executive received that he was not entitled to receive due to such incorrect application of the performance criteria (which such amount(s) to be repaid or returned shall be reduced by the Net Tax Costs (as defined below)), provided that the foregoing written notice from the Board is received by the Executive no later than the earlier of (i) ninety (90) days after the date on which the Company becomes aware of the incorrect application of the performance criteria and (ii) the second anniversary of the payment, vesting or delivery, as applicable, of the compensation.  “Net Tax Costs” shall mean the net amount of any federal, state or local income and employment taxes paid by the Executive in respect to the portion of the compensation subject to repayment or return, after taking into account any and all available deductions, credits or other offsets allowable to the Executive (including without limit, any deductions permitted under the claim of right doctrine), and regardless of whether the Executive would be required to amend any prior income or other tax returns.

4.Payments Upon Retirement.

Upon and subject to his Retirement from his employment and separation from service with the Company as set forth in Section 1 above (including due to any acceleration of

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the Retirement Date as set forth therein), subject to the terms and conditions of this Agreement (including without limitation Sections 6 and 11), provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and that the applicable statutory revocation period with respect to such Release Agreement has expired, and further provided that the Executive remains in compliance with his obligations under this Agreement (including without limitation those contained in Sections 9 and 10), the Company’s sole obligation under this Agreement shall be to:

(a)pay to the Executive a new supplemental pension benefit that shall be determined and payable in accordance with the applicable terms and conditions of, and formula(s) set forth in, the SIPP II, as though the SIPP II had continued in effect after the Effective Date (the “Supplemental Pension Benefit”), provided that, notwithstanding anything to the contrary in the SIPP II, the Supplemental Pension Benefit shall (i) be determined using the Executive’s total service credit with the Company, its Affiliates and their respective predecessors, which service credit shall include the Executive’s service with any such predecessor(s) of the Company or any of its Affiliates from January 1, 1987 through and including the Retirement Date, (ii) be payable in such manner and at such time(s) as it would have been paid under the SIPP II, pursuant to the Executive’s election thereunder, had the SIPP II continued in effect after the Effective Date, and (iii) include as necessary for purposes of calculating the Executive’s final average earnings under the SIPP II such compensation received by the Executive prior to the Effective Date (including prior to the commencement of the Chapter 11 Cases) and thereafter, further provided, however, that the Executive acknowledges and agrees that such final average earnings calculation excludes any cash long-term incentive plan payments made to the Executive after the filing of the Chapter 11 Cases and the payments set forth in Section 3(c) of this Agreement;

(b)provide the Executive with reasonable office space and secretarial support at the Company’s offices in the St. Louis, Missouri metropolitan area, at the Company’s expense, through the period ending on December 31 of the second year following the Retirement Date (except in the case of the Executive’s death), provided that the Executive’s entitlement to the foregoing shall cease upon his full-time employment by another employer;

(c)pay the Executive the Special Annual Incentive Payment and any payment due pursuant to the terms and conditions of Section 3(c)(ii), in the amount(s) and at the time(s) described in Section 3(c) to the extent not theretofore paid;

(d)in the event the Retirement Date occurs on or prior to December 31, 2010, pay the Executive (i) an amount equal to the difference between $1,107,000 and the portion of the Base Salary that the Executive already has earned as of the effective date of the termination, payable in a lump sum on the sixtieth (60th) calendar day after the Retirement Date; and (ii) an additional amount equal to difference between (A) the total actual annual incentive bonus(es) under the Company’s 2010 MIP that the Executive would have earned during the 2010 MIP plan year had he remained employed and been entitled to receive such bonus(es) for the entire 2010 MIP plan year (including the reduction thereto as set forth in Section 3(b) of this Agreement) and (B) the portions of any such annual incentive bonus(es) already earned by the Executive during

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the 2010 MIP plan year, which amount of such difference shall be paid at such time(s) as provided in such 2010 MIP for participants who have not had a separation from service;

(e)in the event that the Retirement Date occurs during calendar year 2011, a pro-rated portion of the annual incentive bonus(es) that the Executive would have earned for the performance period(s) in 2011 as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s), divided by the number of full calendar months in the applicable performance period(s), which payment(s) shall be paid at such time(s) as provided in such 2011 annual incentive plan as though the Executive had remained employed through the entire applicable performance period(s);

(f)determine the Executive’s age and service with the Company with respect to the amount of benefits under the Company’s executive benefit plans based upon the Executive’s actual age and service as of the Retirement Date;

(g)pay to the Executive the amounts set forth in Section 8(a) of this Agreement to the extent that such amounts do not duplicate any amount(s) set forth in Section 4(a); and

(h)pay the employer portion of the costs of continued health coverage at the Executive’s then-current level under the Company’s health, dental, life, disability and other welfare benefit plans (the Executive to pay the employee’s portion at regular employee rates) for a period of three (3) years following the Retirement Date; provided that if the Executive cannot participate in any benefit plan because he is not actively performing services for the Company, the Company may provide such benefits under an alternate arrangement, such as through the purchase of an individual insurance policy that provides similar benefits.  The amount of such continued coverage shall be determined, if applicable, by adding 36 additional months of age and service to the Executive’s actual age and service as of the Executive’s Retirement Date and as if the Executive earned compensation during such 36-month period at the rate in effect during the twelve (12) month period immediately preceding his Retirement Date.  The Executive’s eligibility for any retiree medical or life coverage following such Retirement Date shall also be determined by adding 36 additional months of age and service to the Executive’s actual age and service as of the Retirement Date.  Notwithstanding the foregoing, the Executive shall not be entitled to the benefits provided in this Section 4(h) to the extent that he becomes eligible for coverage under another employer’s benefit plans.

The Executive acknowledges and agrees that under no circumstances will he receive, or be entitled to receive, any of the benefits set forth in Section 8 of this Agreement due to his Retirement as defined in Section 1 of this Agreement, except as expressly set forth in Section 4(f) above.  In the event that the termination of the Executive’s employment is due to Retirement as set forth in Section 1, the Executive agrees to execute (without revoking) and return to the Company a waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) as a condition of receiving the payments and benefits set forth in this Section 4, and provided that the

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applicable statutory revocation period with respect to such Release Agreement has expired, subject to the terms and conditions of this Agreement, such payments in this Section 4 shall be made at later of (A) such times of payment specified in the applicable subsections of this Section 4 and (B) the sixtieth (60th) calendar day following the Retirement Date.

5.Termination of Employment Prior to the Retirement Date.

(a)Termination by the Company for Cause.  Notwithstanding anything to the contrary herein, the Company may terminate the Executive’s employment for Cause (as defined herein) at any time immediately upon written notice.  For purposes of this Agreement, “Cause” shall mean any of the following:  (i) the Executive’s willful and continued failure to substantially perform his duties as an executive of the Company (other than any such failure resulting from inability due to physical or mental illness or Incapacity) after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties, and which gives the Executive at least thirty (30) days to cure such alleged deficiencies, (ii) the Executive’s willful misconduct, which is demonstrably and materially injurious to the Company, monetarily or otherwise, or (iii) the Executive’s engaging in egregious misconduct involving serious moral turpitude to the extent that his credibility and reputation no longer conforms to the standard of senior executive officers of the Company.  The Company and the Executive acknowledge and agree that an acceleration of the Retirement Date by the Company pursuant to Section 1 of this Agreement alone shall not be deemed a termination for Cause.

(b)Voluntary Resignation by the Executive With or Without Good Reason.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company for Good Reason (as defined herein) at any time by written notice to the Company, in which case his termination shall be a Retirement.  At any time after the ninetieth (90th) calendar day after the Effective Date, the Executive may terminate his employment with the Company upon sixty (60) calendar days’ advance written notice without Good Reason (provided that this Section 5(b) shall not apply to the Executive’s Retirement as set forth in Sections 1 and 4).  The Executive’s employment shall terminate effective as of the effective date of any such notice or such later effective termination date as the Executive may specify in the notice (which shall in no event be later than sixty (60) calendar days after the notice is given unless otherwise agreed to in writing by the Board).  For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following without the Executive’s consent:  (i) assigning the Executive duties that are materially inconsistent with those of a CEO for similar companies in similar industries; (ii) requiring the Executive to report other than to the Company’s Board; (iii) a material breach of this Agreement by the Company; (iv) requiring the Executive to relocate his principal business office to a location not within fifty (50) miles of either the Company’s principal business office located in the St. Louis, Missouri metropolitan area or the Chicago, Illinois metropolitan area (provided that the Company’s requiring the Executive to relocate his principal office from the Chicago, Illinois metropolitan area to the St. Louis, Missouri metropolitan area, or from the St. Louis, Missouri metropolitan area to the Chicago, Illinois metropolitan area, will not constitute Good Reason); and (v) the Agreement is not assigned to a successor to the Company pursuant to the Plan of Reorganization; provided, however, that an occurrence that otherwise may constitute Good Reason hereunder shall not constitute Good Reason unless the Executive (y) provides to the Company, at least thirty (30)

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calendar days prior to the Executive’s contemplated resignation for Good Reason, a written notice containing reasonable detail setting forth the basis for the Executive’s claim that an occurrence constitutes Good Reason, and (z) the Company fails to cure or otherwise remedy such occurrence within thirty (30) calendar days after receiving such notice from the Executive.  The Executive acknowledges and agrees that the restructuring events that have taken place or will take place solely pursuant to the Company’s Plan of Reorganization shall not constitute Good Reason for purposes of this Agreement.

(c)Voluntary Termination Following a Company Change in Control.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company following a Company Change in Control (as defined herein), at any time during the Employment Period, upon thirty (30) calendar days’ advance written notice to the Company. Such a termination shall be a Retirement. Neither a Change in Control with respect to any affiliate of the Company nor an assignment of this Agreement to any reorganized entity of the Company pursuant to the Plan of Reorganization shall constitute a Change in Control for the purposes of this Agreement.  “Change in Control” shall mean the occurrence of any one or more of the following:

(i)The “beneficial ownership” of securities representing more than 20% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (A), (B) and (C) of subparagraph (iii) of this definition will not be a Change in Control under this subparagraph (i), and provided further that immediately prior to such accumulation, holding or acquisition, such person was not a direct or indirect beneficial owner of 20% or more of the Company Voting Securities;

(ii)Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(iii)Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (A) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of

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directors of (i) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (ii) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (B) no person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership of the Company existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(iv)Approval by the Company’s stockholders of a complete liquidation or dissolution of the Company; or

(v)The consummation of a reorganization, complete liquidation, or dissolution under the U.S. Bankruptcy Code subsequent to the Effective Date (and excluding the Plan of Reorganization and the Chapter 11 Cases as defined herein).

6.The Executive’s Duties After Notice of Retirement or Termination.  For any period in which the Executive gives or is given notice prior to the effective date of the Executive’s termination of employment (including due to any acceleration of the Retirement Date), the Executive shall be expected and required to continue performing the Executive’s duties and responsibilities in accordance with Section 2 of this Agreement for the notice period up to the effective date of the termination of the Executive’s employment.

7.Removal from Positions.  Unless otherwise determined by the Board, any termination of the Executive’s employment (including because of the Executive’s Retirement) shall automatically effectuate the Executive’s removal from the officer positions that the Executive then holds with the Company and its Affiliates and any employee benefit plans, as of the effective termination date.

8.Payments Upon Termination of Employment Other Than Due to Retirement.

(a)The parties acknowledge and agree that except as expressly provided in Sections 4 and 8(b) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive (i) any earned but unpaid Base Salary through the effective date of the termination; (ii) any earned but unpaid bonus (if any) under the Company’s annual incentive plan pursuant to, and in

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accordance with, the terms and conditions of such plan; (iii) an amount equal to the Supplemental Pension Benefit, at the time and in the amount set forth in Section 4(a) of this Agreement, provided that such amount shall be calculated as though the Executive had retired as of the effective termination date of his employment; (iv) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect; and (v) any unreimbursed expenses pursuant to Section 3(g) of this Agreement existing at that time.

(b)In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 5(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation under this Agreement shall be to pay to the Executive:  (i) such amounts due to him pursuant to Section 8(a) of this Agreement; and (ii) a pro-rated portion of any annual incentive bonus(es) that the Executive would have earned for the performance period(s) in which the effective termination date of his employment occurred as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s), divided by the number of full calendar months in the applicable performance period(s) and shall be paid at such time(s) as provided in such annual incentive plan as though Executive had remained in employment.

(c)The Executive acknowledges and agrees that under no circumstance will he receive or be entitled to receive payments pursuant to more than one of Sections 4 and 8 of this Agreement and that there shall be no “double” payments pursuant to such Sections in the event of the termination of the Executive’s employment as forth therein; and further acknowledges and agrees that for purposes of Section 8 of this Agreement, “annual incentive bonus” shall mean the Executive’s incentive bonus under the Company’s MIP then in effect or such other similar annual incentive bonus plan or program then in effect.

(d)Timing of Payments.  Subject to the terms and conditions of this Agreement (including without limitation Section 11), the payments and benefits in Sections 8(a) and 8(b) will be paid or commence (as applicable) at such times and in such manner as set forth in the individual provisions of this Agreement referenced therein or the applicable Company policy and plan documents.

(e)Release.  Notwithstanding the foregoing, the Execute agrees to execute (without revoking) a Release Agreement within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) as a condition of receiving the payments and benefits set forth in Sections 8(a)(iii) and 8(b)(ii).

9.Confidentiality, Intellectual Property and Restrictive Covenants.  The Company and the Executive agree that, in each of his various senior management positions with the Company and otherwise by virtue of his unique relationship with the Company (including pursuant to this Agreement), the Executive has and will acquire and have access to, and has and will continue to develop substantial and intimate knowledge of, the Company’s Confidential Information (defined below), and has and will also continue to develop a unique and comprehensive familiarity with the Company and the Business Conducted by the Company or

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any of its Affiliates, which the Executive would not have otherwise had but for his employment with the Company, and which the Executive acknowledges are valuable assets of the Company.  Accordingly, the Executive agrees, in exchange for the consideration and mutual covenants contained in this Agreement, to undertake the following obligations, which he acknowledges are reasonably designed to protect the legitimate business interests of the Company, without unreasonably restricting his post-employment opportunities:

(a)Confidential Information.  The Executive acknowledges that during his employment with the Company he has had and will continue to have, and may continue to have during the Non-Compete Period (as defined below), access to Confidential Information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions.  All Confidential Information is of irreplaceable value to the Company, its Affiliates and such third parties.  Except as required to perform the Executive’s responsibilities for the Company and its Affiliates, to comply with law or regulation, or as authorized in writing in advance by the Company, the Executive shall not, at any time, use, disclose, or take any action which may result in the use or disclosure of any Confidential Information.  For purposes of this Agreement, “Confidential Information” shall mean all confidential and proprietary information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions, and includes, but is not limited to, actual and prospective customer and client lists and pricing information, business plans, programs and tactics, research and development information (including without limitation information relating to the formulation, testing, registration, use, safety, efficacy and/or effects of marketed products and compounds under development), personnel information, and all other information unique to the Company and not readily available to the public, including designs, improvements, inventions, formulas, compilations, methods, strategies, capabilities, forecasts, software programs, processes, know-how, data, operating methods and techniques, “Inventions or Developments” (as defined below), and all business costs, profits, vendors, markets, sales, products, marketing, sales or other financial or business information, and any modifications or enhancements of any of the foregoing.

(b) Inventions or Developments.  The Executive agrees that he will, now and in the future, promptly and fully disclose to the Company all discoveries, improvements, inventions, formulas, ideas, processes, designs, techniques, know-how, data and computer programs (whether or not patentable, copyrightable or susceptible to any other form of protection), that are or have been made, conceived, reduced to practice or developed by the Executive, either alone or jointly with others, during his employment with the Company, that are related in any way to the past, current or future business or products of the Company or any of its Affiliates or are devised, made, developed, reduced to practice or perfected utilizing equipment or facilities of the Company or any of its Affiliates (collectively, the “Inventions or Developments”).  All Inventions or Developments shall be the sole property of the Company, including all patents, copyrights, intellectual property or other rights related thereto and the Executive assigns to the Company all rights (if any) that the Executive may have or acquire in such Inventions or Developments.  Notwithstanding the foregoing, this Section 9(b) shall not apply to any Inventions or Developments for which no equipment, supplies, facility or trade secret information of the Company or its Affiliates were used and which were developed entirely on the Executive’s own time, unless:  (i) the Inventions or Developments relate to the Business

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Conducted by the Company or any of its Affiliates or the actual or demonstrably anticipated research or development of the Company or any of its Affiliates; or (ii) the Inventions or Developments result from any work performed by the Executive for the Company or any of its Affiliates.

(c) Restrictive Covenants.  The Executive agrees that during the Executive’s employment and for the two (2) year period following the effective date of any termination of the Executive’s employment for any reason (the “Non-Compete Period”), unless the Company gives its advance written consent, the Executive shall not:

(i) participate or engage in, directly or indirectly (whether as an owner, agent, representative, partner, employee, officer, director, independent contractor, consultant, advisor, or in any other capacity calling for the rendition of services, advice, or acts of management, operation or control), any business that, during the Non-Compete Period, is competitive with the Business Conducted by the Company or any of its Affiliates anywhere in the United States, Canada, Mexico, or China (hereinafter, the “Geographic Area”) and which business the Company was engaged (either actively as a going concern or in the process of developing to market) during the two (2) year period preceding his termination of employment;

(ii) directly or indirectly solicit any current employee of the Company or any of its Affiliates, or any individual who becomes an employee of the Company or any of its Affiliates during the Non-Compete Period, to leave such employment and join or become affiliated with any business that is, during the Non-Compete Period, competitive with the Business Conducted by the Company or any of its Affiliates within the Geographic Area; or

(iii)directly or indirectly solicit, seek to divert or dissuade from continuing to do business with or entering into business with the Company or any of its Affiliates, any supplier, customer, or other person or entity with which the Company had, or was actively planning or pursuing, a business relationship at any time during the two (2) year period preceding his termination of employment.

For purposes of this Agreement, during the Executive’s employment, “Business Conducted by the Company or any of its Affiliates” shall mean (a) all businesses conducted by the Company or any of its Affiliates and (b) any material new line of business in which the Company or any of its Affiliates is contemplating engaging in, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board.  For purposes of this Agreement, for two-year period following the effective date of any termination of the Executive’s employment, “Business Conducted by the Company or any of its Affiliates” shall mean (a) all business conducted by the Company or any of its Affiliates as of the effective date of the Executive’s termination of employment and (b) any material new line of business in which the Company or any of its Affiliates engages within the one-year period following the effective date of the Executive’s termination of employment, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board prior to the effective date of the Executive’s termination of employment and while the Executive was a member of the Board.

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(d)No Diversion of Business Opportunities and Prospects.  The Executive agrees that during his employment with the Company:  (i) the Executive shall not directly or indirectly engage in any employment, consulting or other business activity that is competitive with the Business Conducted by the Company or any of its Affiliates; (ii) the Executive shall promptly disclose to the Company all business opportunities that are presented to the Executive in his capacity as an employee of the Company; and (iii) the Executive shall not usurp or take advantage of any such business opportunity without first offering such opportunity to the Company.

(e)Return of Property.  The Executive acknowledges and agrees that immediately upon his termination of employment with the Company (including due to his Retirement) he will promptly return (without retaining any copies) all property of the Company, its Affiliates or any third parties that is within his possession, custody or control by virtue of his employment with the Company.  Property to be returned to the Company shall include without limitation any and all documents and other things (whether in tangible or electronic format and whether such documents or things contain information that reflect or contain any Confidential Information or proprietary information) in the Executive’s possession, custody or control, further including without limitation all computer programs, passwords, files, and diskettes, all written and printed files, manuals, contracts, memoranda, forms, notes, records and charts (and any and all copies of, or extracts from, any of the foregoing), vehicles, keys, cell phones, credit cards and other equipment and materials furnished to him by the Company; provided, however, that (i) the Executive shall be entitled to keep his home office equipment; and (ii) the Company and the Executive shall work together to ensure that any Confidential Information, Inventions or Developments, or other Company business information is removed from such home office equipment.

(f) Irreparable Harm.  The Executive acknowledges that:  (i) the covenants contained in Sections 2(d) and 9 are reasonable in scope and duration, will not unduly restrict the Executive’s ability to engage in his livelihood, and the Executive’s compliance with Sections 2(d) and 9 is necessary to preserve and protect the Confidential Information, Inventions or Developments, and other legitimate business interests of the Company; (ii) any failure by the Executive to comply with the provisions of Sections 2(d) and 9 will result in irreparable and continuing injury to the Company for which there will be no adequate remedy at law; and (iii) in the event that the Executive should fail to comply with the terms and conditions of Sections 2(d) and 9, in addition to the Company’s right to set off any actual monetary damages to the Company that are a consequence of such failure to comply against any payments and benefits due to the Executive pursuant to Sections 4 or 8 (but excluding Sections 4(a) and 8(a)(iii)) (provided that any such set offs first shall be taken from amounts not subject to Section 409A of the Code (as defined in Section 11 below), and if such amounts are insufficient, any additional set off shall not be taken until the time an amount subject to Section 409A of the Code would otherwise be paid pursuant to the terms of this Agreement), the Company shall be entitled, in addition to and without limiting such other relief as may be proper, to all types of equitable relief (including but not limited to the issuance of an injunction and/or temporary restraining order) as may be necessary to cause the Executive to comply with Sections 2(d) and 9, to restore to the Company its property, and to make the Company whole.  The Company and Executive acknowledge and agree that the Company or the Executive’s failure to enforce or insist on its or his rights under Sections 2(d) and 9 shall not constitute a waiver or abandonment of any such

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rights or defense to enforcement of such rights.  If the provisions of Sections 2(d) and 9 are ever deemed by a court to exceed the limitations permitted by applicable law, the Executive and the Company agree that such provisions shall be, and are, automatically reformed to the maximum lesser limitations permitted by such law.

10.Cooperation.  At the request and upon reasonable advance notice where practicable and at the sole expense of the Company, whether during or at any time after the Executive’s employment with the Company or any of its Affiliates, the Executive shall cooperate fully with the Company and its Affiliates (a) in investigating, defending, prosecuting, litigating, filing, initiating or asserting any claims or potential claims (including without limitation in connection with any legal proceeding of any kind) that may be made by or against the Company or any of its Affiliates, to the extent that such claims may relate to or arise out of the Executive’s employment with the Company or any of its Affiliates or with respect to which the Executive has knowledge and (b) without in any way limiting subsection (a) above, to secure any trade name, patent, trademark, copyright or intellectual property protection or other similar rights in the United States and/or in foreign countries, including without limitation, the execution and delivery of assignments, patent applications and other documents or papers.  If such cooperation is provided during the Executive’s employment with the Company or any of its Affiliates, the Executive shall not receive any additional compensation from the Company for such cooperation.  If the Executive no longer is employed by the Company or any of its Affiliates, the Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with his other business obligations.  If the Executive spends in excess of ten (10) hours in compliance with this Section 10 after he is no longer employed by the Company or any of its Affiliates, the Company shall compensate the Executive at an hourly rate equal to the amount determined by dividing (x) the Executive’s Base Salary as of the first day of the fiscal year of the Company within which the Executive’s employment is terminated by (y) 2000, and shall reimburse the Executive for any reasonable expenses incurred as a direct result of his providing such cooperation in accordance with Section 3(g) of this Agreement.  The Company shall provide such compensation for the Executive’s cooperation within thirty (30) calendar days after receiving from the Executive a written statement stating the number of hours for which he seeks payment and brief description of the cooperation provided, provided that the Executive submits such statement within thirty (30) calendar days after the end of the calendar month in which the Executive provided such cooperation.  The Executive’s obligation to cooperate hereunder shall include, without limitation, meeting with such persons at such times and in such places as the Company or its Affiliates may require, and giving evidence and testimony and executing and delivering to the Company and any of its Affiliates any papers requested by any of them (including without limitation joint defense agreements and affidavits).  The Executive shall provide immediate notice to the Company of any subpoena or other legal document that he receives that relates in any way to the Company or any of its Affiliates, along with a copy of such subpoena or other legal document.

11.Compliance with Section 409A.  All references in this Agreement to the Executive’s termination of employment shall mean his separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury regulations promulgated thereunder.  To the extent this Agreement provides for compensation that is deferred compensation subject to Section 409A of the Code, it is intended that the Executive not be subject to the imposition of taxes and penalties (“409A Penalties”)

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under Section 409A of the Code, and shall be construed in accordance with that intent.  In the event the terms of this Agreement would subject the Executive to 409A Penalties, the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible.  Notwithstanding any other provision in this Agreement, if as of the date on which the Executive’s employment terminates, the Executive is a “specified employee” as determined by the Company, then to the extent any amount payable or benefit provided under this Agreement that the Company reasonably determines would be nonqualified deferred compensation within the meaning of Section 409A of the Code, for which payment is triggered by Executive’s separation from service (other than on account of death), and that under the terms of this Agreement would be payable prior to the six-month anniversary of the Executive’s effective date of termination, such payment or benefit shall be delayed until the earlier to occur of (a) the six-month anniversary of such termination date or (b) the date of the Executive’s death.  In the case of taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment, may require the Executive to pay the full costs of such benefits during the period described in the preceding sentence and reimburse that Executive for said costs within thirty (30) calendar days after the end of such period.  With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred by the Executive.  The amount of any expenses eligible for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this Agreement during any calendar year (including without limitation pursuant to Sections 10 and 23) shall not affect the amount of expenses eligible for reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.  The Executive acknowledges and agrees that notwithstanding this Section 11 or any other provision of this Agreement, the Company and its Affiliates are not providing him with any tax advice with respect to Section 409A of the Code or otherwise and are not making any guarantees or other assurances of any kind to the Executive with respect to the tax consequences or treatment of any amounts paid or payable to the Executive under this Agreement.

12.Section 280G Gross-up.  To the extent permitted by applicable law:

(a)in the event it is determined that any payment or distribution by the Company to or for the benefit of the Executive after the date hereof pursuant to the terms of this Agreement or otherwise (including without limitation any deferred compensation plans), determined without regard to any additional payments required under this Section 12(a) (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect thereto are incurred by the Executive with respect to any such tax (any such tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Additional Tax”), then, subject to the Executive’s compliance with Section 12(c), the Executive shall be entitled to receive from the Company an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Additional Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Additional Tax imposed upon the Payments; provided, however, that notwithstanding the foregoing provisions of this Section 12(a), if it shall be determined that

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the Executive is entitled to a Gross-Up Payment, but that the amount of the aggregate Payments is less than 110% of the product of (A) three (3) times (B) the Executive’s Base Amount (as such term is defined in Section 280G of the Code), then no Gross-Up Payment shall be made to the Executive and the cash Payments provided in Section 8 of this Agreement shall first be reduced, and the non-cash Payments and benefits shall thereafter be reduced, until no amount of the Payments shall be subject to the exercise tax under Section 4999 of the Code;

(b)the parties are entering into this Agreement with the reasonable mutual understanding that the Payments are not subject to Additional Taxes, and the parties shall, subject to this Section 12(b), report such amounts in their federal tax returns for the appropriate periods in a manner consistent with such understanding.  Subject to the provisions of Section 12(c), all other determinations required to be made under this Section 12(b), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s public accounting firm (the “Accounting Firm”).  All fees and expenses of the Accounting Firm shall be borne solely by the Company.  Any Gross-Up Payment, as determined pursuant to this Section 12(b), shall be paid by the Company to the Executive within the earlier of five (5) business days after the Company’s receipt of the Accounting Firm’s determination and the end of the Executive’s taxable year next following the taxable year in which the Executive pays the Additional Taxes to which such Gross-Up Payment relates to the applicable taxing authority.  Any determination by the Accounting Firm shall be binding upon the Company and the Executive;

(c)the Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment.  Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid.  The Executive shall not pay such claim prior to the expiration of the 30-calendar-day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due).  If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Additional Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses.  Any amount the Company is obligated to pay or indemnify under this Section 12(c) shall be paid or indemnified on or before the last day of the calendar year following the calendar year in which the expense, cost or Additional Tax was incurred.  Without limitation on the foregoing provisions of this Section 12(c), the Company shall control all proceedings taken in connection with such contest and, at its

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sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided further, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Additional Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance.  The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority; and

(d)as a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service (“IRS”) or other agency will claim that a greater or lesser Additional Tax is due.  In the event that the Additional Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Additional Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Additional Tax and taxes imposed on the Gross-Up Payment being repaid by the Executive) plus interest on the amount of such repayment at 120% of the rate provided in Code Section 1274(b)(2)(B).  In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.  The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Additional Tax with respect to the total Payments.  The Company shall pay all fees and expenses of the Executive relating to a claim by the IRS or other agency.

13.Notices.  Notices given pursuant to this Agreement shall be in writing and shall be effective upon personal delivery, upon confirmation of receipt of facsimile transmission, upon the fourth day after mailing by certified mail, or upon the second day after sending by express courier service.  Notice to the Company shall be directed to:

Smurfit-Stone Container Corporation

Six CityPlace Drive

Creve Coeur, Missouri 63141

Attention:  General Counsel

Notices to or with respect to the Executive will be directed to the Executive, or to the Executive’s executors, personal representatives or distributees, if the Executive is deceased, or

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the assignees of the Executive, at the Executive’s home address on the records of the Company.  Either party may change the person and/or address to which the other party must give notice under this Section by providing written notice of such change, in accordance with the procedures described in this Section 13.

14.Assignment.  This Agreement is enforceable by the Company and its affiliates and other related entities and shall be assigned or transferred by the Company to, and shall be binding upon and inure to the benefit of, any parent, subsidiary or other Affiliate of the Company or any entity which at any time, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets, stock or business of the Company (including without limitation any successor and/or reorganized entit(ies) of the Company or any of its Affiliates upon the Effective Date).  The Executive and the Company agree that upon the Effective Date, this Agreement shall be assigned to and binding upon such successor entit(ies) of the Company as set forth in the Plan of Reorganization, provided that nothing herein shall limit or otherwise affect the Company’s right to further assign or transfer this Agreement after the Effective Date as set forth in the preceding sentence.  The Executive may not assign any of his rights or obligations under this Agreement during his life.  Upon the Executive’s death, this Agreement will inure to the benefit of the Executive’s heirs, legatees and legal representatives of the Executive’s estate.

15.Beneficiary.  If the Executive dies prior to receiving the amounts to which he is entitled under this Agreement (if any), subject to and in accordance with the terms and conditions of this Agreement, such amounts shall be paid to the beneficiary designated by the Executive in writing to the Company during his lifetime (“Beneficiary”), or if no such Beneficiary is designated, to the Executive’s estate.  Notwithstanding anything to the contrary herein, the Beneficiary shall not be entitled to receive any amounts pursuant to this Agreement that are conditioned upon a Release Agreement unless the Beneficiary and any other authorized representatives of the Executive’s estate execute a waiver and release of claims in accordance with the Executive’s obligations set forth in Section 4.  The Executive, without the consent of any prior Beneficiary, may change his designation of Beneficiary or Beneficiaries at any time and from time to time by submitting to the Company a new designation in writing.

16.Severability.  Each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law.  The Executive and the Company agree that in the event that any provision of this Agreement is found to be unreasonable or otherwise unenforceable by a court, it is the purpose and intent of the parties that any such provision be deemed modified or limited, so that as modified or limited, such provision may be enforced to the fullest extent possible.  If any provision of this Agreement is held invalid or unenforceable for any reason (after any such modification or limitation pursuant to the preceding sentence, as applicable), such provision will be effective only to the extent of such invalidity or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement.

17.Entire Agreement, Amendment and Waiver.  Except as otherwise provided herein, this Agreement embodies the entire agreement and understanding of the parties hereto with regard to the matters described herein and supersedes any and all prior and/or contemporaneous agreements and understandings, oral or written, between said parties regarding such matters.  The Executive and the Company acknowledge and agree that this Agreement

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amends and restates the Predecessor Agreement in its entirety and that as of the Effective Date the provisions of this Agreement shall replace each and every provision of the Predecessor Agreement, at which time the provisions of the Predecessor Agreement shall be null and void, and shall be of no further force or effect.  Except as set forth in Sections 9(f) and 16, this Agreement may be modified only in a written agreement signed by both the Executive and the Company’s authorized representative.  Any party’s failure to enforce this Agreement in the event of one or more events which violate this Agreement shall not constitute a waiver of any right to enforce this Agreement against subsequent violations.

18.Forum Selection.  The parties hereby irrevocably consent to, and agree not to object or assert any defense or challenge to, the jurisdiction and venue of the state and federal courts sitting in Chicago, Illinois, and agree that any claim under this Agreement may be brought in any such court.  In any action or proceeding to enforce this Agreement, the non-prevailing party shall pay for any and all costs and expenses (including without limitation reasonable attorneys’ fees) of the prevailing party to the maximum extent permissible by applicable law.

19.Governing Law.  This Agreement shall be governed by the internal laws of the state of Illinois, without regard to its conflict of laws rules.

20.Headings.  The Section headings used herein are for convenience of reference only and are not to be considered in construction of the provisions of this Agreement.

21.Release of SIPP II and Predecessor Claims.  The consideration offered herein is accepted by the Executive as being in full accord, satisfaction, compromise and settlement of any and all claims that the Executive may have against the Company that existed on or prior to the Effective Date arising out of or concerning amounts that are or may have been due and owing to him pursuant to the SIPP II or the Predecessor Agreement, and the Executive expressly agrees that he is not entitled to and will not receive any payments, benefits, or other compensation or recovery of any kind from the Company with respect to the SIPP II or the Predecessor Agreement.

22.Survival.  Sections 2(d) and 4 through 24 herein shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period or the Executive’s employment.

23.Attorneys’ Fees for Negotiating This Agreement.  The Company shall pay within thirty (30) calendar days after receipt of the Invoices (as described below) the reasonable fees and expenses of the Executive’s outside legal counsel, accountants, and other advisors in connection with the negotiation and execution of this Agreement and the terms and conditions of his employment in an amount not to exceed $100,000, provided that the Company receives from the Executive or his advisors invoices for services provided to the Executive in connection with the negotiation and execution of this Agreement (“Invoices”) within sixty (60) days after the Effective Date.

24.Counterparts.  This Agreement may be executed in two counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument.

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THE PARTIES ACKNOWLEDGE BY SIGNING BELOW THAT THEY HAVE READ AND UNDERSTAND THE ABOVE AND INTEND TO BE BOUND THEREBY:

PATRICK J. MOORE		SMURFIT-STONE CONTAINER CORPORATION
/s/ Patrick J. Moore		By:	/s/ Ralph F. Hake
Date:	June 30, 2010	Position:	Chairman
		Date:	June 30, 2010

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EX-10.7

Exhibit 10.7

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT OF STEVEN J. KLINGER

This Amended and Restated Employment Agreement (the “Agreement”) by and between Steven J. Klinger (the “Executive”) and Smurfit-Stone Container Corporation (the “Company”) shall be deemed to have been made and entered into as of the date of the order of confirmation entered by the United States Bankruptcy Court for the District of Delaware with respect to the Company’s plan of reorganization in the matter of In re: Smurfit-Stone Container Corp., Case No. 09-10235 (BLS) (the “Chapter 11 Cases”) (such plan, the “Plan of Reorganization” and such date, the “Confirmation Date”), and shall become effective as of the effective date of the Plan of Reorganization (the “Effective Date”).

WHEREAS, the Executive currently is employed as the Company’s President and Chief Operating Officer (“COO”) and is a member of the Company’s Board of Directors (the Company’s pre- and post-Effective Date Boards of Directors hereinafter collectively referred to herein as the “Board”), and the Company desires to continue to employ the Executive upon and subject to the terms and conditions set forth herein, and the Executive wishes to accept such employment upon and subject to such terms and conditions;

WHEREAS, the Company and the Executive are parties to that certain employment agreement effective as of May 11, 2006, which was amended effective as of January 1, 2008 (such employment agreement, together with subsequent amendment, referred to herein as the “Predecessor Employment Agreement”);

WHEREAS, the Company and the Executive desire to enter into the Agreement and, in so doing, to amend and restate the Predecessor Employment Agreement in its entirety;

WHEREAS, the Company has adopted and implemented an Equity Incentive Plan (“Equity Incentive Plan”) as of the Confirmation Date, pursuant to the Plan of Reorganization; and

WHEREAS the Company and the Executive are parties to the Executive Retirement Agreement entered into on October 2, 2006, as amended (the “Predecessor Retirement Agreement”), which the Company did not assume pursuant to the Plan of Reorganization;

NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the parties hereby agree as follows:

1.Employment Period and Positions.

(a)The Company shall employ the Executive and the Executive hereby accepts such employment, subject to the terms and conditions of this Agreement (including without limitation Section 1(b)), commencing on the Effective Date until the second anniversary of the Effective Date unless the Executive’s employment is earlier terminated pursuant to Section 4 (such period referred to as the “Initial Term”).  The Initial Term shall automatically be extended on the same terms and conditions as set forth in this Agreement for successive two-year

periods unless and until either:  (i) a party gives the other party no less than ninety (90) calendar days’ advance written notice prior to the end of the Initial Term or any such two-year extension period (as applicable) that such party will not further extend the Initial Term or two-year extension period, or (ii) the Company or the Executive terminates the Executive’s employment in accordance with Section 4.  The Initial Term and any and all extensions thereof (or partial extension in the event of an earlier termination pursuant to Section 4), if any, shall be collectively referred to as the “Employment Period”).

(b)Subject to the terms of this Agreement (including without limitation Section 4), the Company shall employ the Executive as its President and COO.  No later than the earlier of (x) nine (9) months after the Effective Date or (y) thirty (30) days after the Company is on notice of the termination date of the Company’s current CEO’s employment (the earlier of such dates hereinafter referred to as the “Promotion Date”), (i) the Company shall consider the Executive for employment with the Company as its President and Chief Executive Officer (“CEO”) as of the Promotion Date, and (ii) to the extent that the Company has designated that its Chairman of the Board will be an executive of the Company, the Board shall consider offering the Chairman position to the Executive on, and effective as of, the later of the Promotion Date and the designation of such executive Chairman position.  The Executive shall have thirty (30) calendar days to accept such offer(s) or such other longer time period(s) as specified in writing by the Board (provided that Section 1(b)(ii) shall not apply if the Company has not designated that a Company executive will be its Chairman of the Board).  If the Company chooses to offer the Executive employment as President and CEO (or as President, CEO and Chairman of the Board, as the case may be), then the terms of any offer to become President and CEO (or President, CEO and Chairman of the Board, as the case may be) shall be subject to good faith negotiations between the Company and the Executive prior to the Promotion Date.  Upon the Executive’s acceptance of such offer and the execution and delivery of an agreement of employment, the Executive shall resign from his position as COO.  If (a) the Company does not offer the Executive a position as President and CEO prior to the Promotion Date, or (b) the Company has designated an executive Chairman position on or prior to the Promotion Date and does not offer the Executive the positions of President, CEO and Chairman of the Board prior to the Promotion Date, or (c) the Company offers the Executive a position as President and CEO (or as President, CEO and Chairman of the Board, as the case may be) prior to the Promotion Date but does so on terms that are not mutually agreeable to the Executive after good faith negotiations, or (d) the Company and the Executive are unable to mutually agree on the form of a mutually acceptable agreement of employment, then the Executive shall be entitled to resign for Good Reason in accordance with Section 4(b) hereof (without any opportunity for cure as otherwise provided in Section 4(b)), but shall, at the request of the Board, continue to work in his current capacities as President and COO for a period not to exceed six (6) months to facilitate an orderly transition of responsibilities to his successor.

(c)The Executive shall confirm his resignations and acceptances as set forth in this Section 1 by written notice no later than five (5) business days in advance of the effective dates of such resignations and acceptances.

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2.Duties and Responsibilities.

(a)During the Employment Period, the Executive (i) shall perform the duties assigned to him by the CEO and the Board from time to time (provided that the Executive shall not be assigned tasks inconsistent with those of President, COO, CEO, or Chairman of the Board (as applicable)) faithfully, with the utmost loyalty, to the best of his abilities and in the best interests of the Company; (ii) shall devote his full business time, attention and effort to the affairs of the Company, except that the Executive may serve on (x) corporate boards or committees with the prior written approval of the Board, and/or (y) civic or charitable boards or committees, in either case as long as such activities do not, individually or in the aggregate, interfere with the performance of the Executive’s employment duties and responsibilities or harm the business or reputation of the Company or any of its Affiliates; and (iii) shall not engage in any other business activities (whether or not for gain, profit, or other pecuniary advantage) or any other actions which he knows or reasonably should know could harm the business or reputation of the Company or any of its affiliates or other related entities.  For purposes of this Agreement, “Affiliates” shall mean any entity that, directly or indirectly, is controlled by the Company, and any entity in which the Company has a 20% or greater equity interest.

(b)The Executive shall act in conformity with the Company’s written and oral policies and within the limits, budgets and business plans set by the Company.  The Executive will at all times during the Employment Period strictly adhere to and obey all of the rules and regulations in effect from time to time relating to the conduct of Company executives.  Except as provided in Section 2(a), the Executive shall not engage in consulting work or any trade or business for his own account or for or on behalf of any other person, firm or company that competes, conflicts or interferes with the performance of his duties hereunder in any material way.

(c)The Executive covenants, represents and warrants that:  (i) the execution, delivery and complete performance of this Agreement by him does not and will not breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which he is bound; and (ii) he is not a party to or bound by any employment or services agreement, confidentiality agreement, noncompetition agreement, other restrictive covenant, or other obligation or agreement that would or could prohibit or restrict him from being employed by the Company or from performing any of his duties under this Agreement.

(d)Mutual Non-Disparagement.  The Executive shall not, at any time during or after his employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Company or any of its Affiliates or any members of their respective boards of directors or managements, or any of their respective business affairs or performance.  The Company, members of its Board and its senior executives shall not, at any time during or after the Executive’s employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Executive.

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3.Compensation and Benefits.

(a)Base Salary.  Subject to the terms and conditions of this Agreement, from the Effective Date until the Promotion Date, the Company shall pay to the Executive an annual base salary at the gross rate of $795,000 (“Base Salary”), payable in installments in accordance with the Company’s executive payroll policy (but not less frequently than monthly).  The Base Salary shall be subject to such additional adjustments, if any, as determined by the Board in its discretion, provided that in no event shall the Base Salary be reduced at any time without the Executive’s prior written consent.

(b)Incentive Compensation.  During the Employment Period, the Executive shall be eligible to participate in the Company’s annual incentive plan(s), long-term incentive plan(s), and any equity-based and/or other incentive compensation plans established or maintained by the Company in which its senior executive officers are eligible to participate, including without limitation the Company’s Management Incentive Plan (“MIP”) and Equity Incentive Plan (and/or any other similar long-term or equity-based incentive plan).  The Executive agrees that the gross amount of any 2010 MIP bonus that the Company pays to him under the Company’s 2010 MIP shall be reduced by a gross amount of $30,000 at the time that such bonus is paid, provided that such reduction in such 2010 MIP bonus payment shall not be considered, and shall be excluded, for purposes of determining any other amounts to which the Executive is or may be entitled under any other provision of this Agreement (including without limitation Section 7), the Executive Retirement Agreement or otherwise.

(c)Emergence Equity Grant.  The Company hereby agrees to grant the Executive nine-tenths of one percent (0.90%) on a fully diluted basis of the new common stock of the Company issued on the Effective Date in accordance with and pursuant to the Plan of Reorganization in (i) a stock option award with respect to approximately 0.68% of such shares of new common stock of the Company and (ii) a restricted stock unit award with respect to approximately 0.22% of such shares of new common stock of the Company (the “Emergence Equity Grants”), in accordance with and pursuant to the Company’s Plan of Reorganization and the terms and conditions of the Company’s Equity Incentive Plan, any applicable incentive plan documents, and/or any award statements or agreements (each an “Award Agreement”) and this Agreement (including without limitation with such Emergence Equity Grants to be made on, and effective as of, the dates set forth in the Plan of Reorganization).  The Award Agreements for the Emergence Equity Grants shall be in substantially the form set forth in Exhibit A hereto.

(d)Employee Benefits.  During the Employment Period, the Executive shall be eligible to participate in such employee benefit plans (including group medical and dental), and to receive such other fringe benefits and perquisites, as the Company may make available to senior executives generally, subject to all present and future terms and conditions of such benefit plans and other fringe benefits and perquisites.  The Company reserves the right in its sole discretion to alter, suspend, amend, or discontinue any and all of its employee and fringe benefits, perquisites, benefit plans, policies and procedures, in whole or in part, at any time with or without notice, provided that the Company will not make any change to the Executive’s employee or fringe benefits that it does not also make on a generally consistent basis for other senior executives of the Company.

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(e)Expense Reimbursement.  The Company shall reimburse the Executive for all reasonable and necessary business expenses incurred by him in connection with his duties hereunder (in each case, as determined by the Company) after the Executive’s timely presentation of IRS-acceptable itemized and documented accounts of such expenditures, provided that the Executive shall secure the Board’s approval before incurring any extraordinary expenses, and further provided that such reimbursement for reasonable and necessary business expenses is subject to the Company’s expense reimbursement policy.

(f)Executive Retirement Agreement.  The Company and the Executive hereby agree to execute the Executive Retirement Agreement substantially in the form attached hereto in Exhibit B (“Retirement Agreement”), which shall be effective as of the Effective Date of this Agreement and the parties agree amended and restates the Predecessor Retirement Agreement in its entirety.

(g)Withholdings and Deductions.  Any and all payments to the Executive under this Agreement shall be reduced by required or authorized withholding and deductions.

(h)Clawback.  In the event that the Board determines in good faith that the amount of any incentive and/or performance based compensation based in whole or in part on the financial performance of the Company (or any division thereof) paid or granted to the Executive was materially incorrect because the performance criteria were applied incorrectly, within sixty (60) days after receiving written notice from the Board, the Executive shall repay to the Company the portion of any cash payments or return and forfeit the portion of any such grant, as the case may be, that the Executive received that he was not entitled to receive due to such incorrect application of the performance criteria (which such amount(s) to be repaid or returned shall be reduced by the Net Tax Costs (as defined below)), provided that the foregoing written notice from the Board is received by the Executive no later than the earlier of (i) ninety (90) days after the date on which the Company becomes aware of the incorrect application of the performance criteria and (ii) the second anniversary of the payment, vesting or delivery, as applicable, of the compensation.  “Net Tax Costs” shall mean the net amount of any federal, state or local income and employment taxes paid by the Executive in respect to the portion of the compensation subject to repayment or return, after taking into account any and all available deductions, credits or other offsets allowable to the Executive (including without limit, any deductions permitted under the claim of right doctrine), and regardless of whether the Executive would be required to amend any prior income or other tax returns.

4.Termination of Employment.

(a)Termination for Cause.  Notwithstanding anything to the contrary herein, the Company may terminate the Executive’s employment for Cause (as defined herein) at any time immediately upon written notice.  For purposes of this Agreement, “Cause” shall mean any of the following:  (i) the Executive’s willful and continued failure to substantially perform his duties as an executive of the Company (other than any such failure resulting from inability due to physical or mental illness or Incapacity) after a written demand for substantial performance is delivered to the Executive by the Board, which demand specifically identifies the manner in which the Board believes that the Executive has not substantially performed his duties, and which gives the Executive at least thirty (30) days to cure such alleged deficiencies, (ii) the

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Executive’s willful misconduct, which is demonstrably and materially injurious to the Company, monetarily or otherwise, (iii) the Executive’s engaging in egregious misconduct involving serious moral turpitude to the extent that his credibility and reputation no longer conforms to the standard of senior executive officers of the Company, or (iv) the Executive’s material breach or threatened material breach of any provision of this Agreement, including without limitation Section 8 of this Agreement without the prior express written consent of a duly authorized member of the Board (other than the Executive).

(b)Voluntary Resignation by the Executive With or Without Good Reason.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company for Good Reason (as defined herein) at any time by written notice to the Company.  After the ninetieth (90th) calendar day after the Effective Date, the Executive may terminate his employment with the Company upon sixty (60) calendar days’ advance written notice without Good Reason, provided that if the Executive is promoted to and accepts the position of CEO, the foregoing ability to terminate employment without Good Reason upon sixty (60) calendar days’ notice shall be suspended for the first ninety (90) calendar days after such promotion.  The Executive’s employment shall terminate effective as of the effective date of any such notice or such later effective termination date as the Executive may specify in the notice (which shall in no event be later than sixty (60) calendar days after the notice is given unless otherwise agreed to in writing by the Board).  For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following without the Executive’s consent:  (i) assigning the Executive duties that are materially inconsistent with those of a President, COO, CEO and/or Chairman of the Board (as applicable) for similar companies in similar industries; (ii) requiring the Executive to report other than to the Chairman of the Board and CEO (while holding the President and/or COO position(s)) or other than to the Board (while holding the CEO position); (iii) failure of the Company to pay any portion of the Executive’s compensation within ten (10) days after the date such compensation is due or first may be paid pursuant to applicable law; (iv) requiring the Executive to relocate his primary residence in the absence of mutual agreement between the Executive and the Company as to the timing and location; (v) failure of the Company to continue in effect any broad-based bonus or incentive plan, welfare benefit, pension, retirement benefit or other benefit plan in which the Executive participates or becomes eligible to participate unless such discontinuance applies on a consistent basis to other senior executives of the Company, or a reduction by the Company of the Executive’s target level participation (as a percentage of the Executive’s Base Salary and on an annualized basis) in its annual incentive bonus plan from the lower of the two target levels established with respect to his participation in the Company’s 2010 MIP as approved by the Board prior to the Effective Date; (vi) failure of the Company to offer the Executive the position of CEO or the parties’ inability to negotiate a mutually acceptable agreement of employment for CEO under the circumstances and during the period(s) as set forth in Section 1(b); (vi) if applicable, failure of the Board to offer the Executive the position of Chairman of the Board under the circumstances as set forth in Section 1(b)(ii); (vii) the Agreement is not assigned to a successor to the Company pursuant to the Plan of Reorganization; or (viii) any material breach of this Agreement, the Retirement Agreement, or any Award Agreement applicable to an Emergence Equity Grant; provided, however, that an occurrence which otherwise may constitute Good Reason hereunder shall not constitute Good Reason unless the Executive (y) provides to the Company, at least thirty (30) calendar days prior to the Executive’s contemplated resignation for Good Reason, a written notice containing reasonable detail setting forth the basis for the Executive’s claim that an occurrence constitutes

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Good Reason, and (z) the Company fails to cure or otherwise remedy such occurrence within thirty (30) calendar days after receiving such notice from the Executive.  Notwithstanding anything to the contrary herein, the parties hereto acknowledge and agree that the Executive must exercise his right to terminate his employment for Good Reason within ninety (90) calendar days after the event that gives rise to such right, and that if the Executive fails to timely exercise such right and subsequently resigns, such resignation shall be deemed for all purposes of this Agreement to be without Good Reason.  The Executive acknowledges and agrees that the restructuring events that have taken place or will take place solely pursuant to the Company’s Plan of Reorganization shall not constitute Good Reason for purposes of this Agreement.

(c)Termination Due to Death or Incapacity.  Notwithstanding anything to the contrary herein, the Executive’s employment with the Company shall terminate automatically upon the Executive’s death, and the Company may immediately terminate the Executive’s employment with the Company by written notice at any time upon the Executive’s Incapacity (as defined below) effective as of the date of the Executive’s Incapacity.  For purposes of this Agreement, “Incapacity” shall mean such physical or mental condition of the Executive which renders and is expected to render the Executive incapable of performing the essential functions of his position hereunder with or without reasonable accommodation for ninety (90) consecutive calendar days, or for 120 calendar days (whether consecutive or not) within any 180-calendar-day period, as determined in good faith by the Board upon consultation with a physician selected by the Board in its discretion.  The Executive hereby agrees to submit to any reasonable medical examination(s) as may be recommended by the Board for the purpose of determining the existence or absence of Incapacity.

(d)Termination by the Company Other Than for Cause or Incapacity.  Notwithstanding anything to the contrary herein, the Company may terminate the Executive’s employment with the Company for any reason other than Cause or Incapacity or for no reason, at any time upon thirty (30) calendar days’ advance written notice to the Executive signed by a duly authorized representative of the Board, and such termination shall be effective upon the effective date of such notice or such later effective termination date as the Company may specify in the notice.

(e)Voluntary Termination Following a Company Change in Control.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company at any time within the 24-month period following a Company Change in Control (as defined herein) with or without Good Reason.  Neither a Change in Control with respect to any affiliate of the Company nor the assignment of this Agreement to any reorganized entity of the Company pursuant to the Plan of Reorganization shall constitute a Change in Control for the purposes of this Agreement.  “Change in Control” shall mean the occurrence of any one or more of the following:

(i)The “beneficial ownership” of securities representing more than 20% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the

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Company, or any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (A), (B) and (C) of subparagraph (iii) of this definition will not be a Change in Control under this subparagraph (i), and provided further that immediately prior to such accumulation, holding or acquisition, such person was not a direct or indirect beneficial owner of 20% or more of the Company Voting Securities;

(ii)Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(iii)Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (A) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors of (i) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (ii) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (B) no person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 20% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership of the Company existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(iv)Approval by the Company’s stockholders of a complete liquidation or dissolution of the Company; or

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(v)The consummation of a reorganization, complete liquidation, or dissolution under the U.S. Bankruptcy Code subsequent to the Effective Date (and excluding the Plan of Reorganization as defined herein).

5.The Executive’s Duties After Notice of Termination.  For any period in which the Executive gives or is given notice prior to the effective date of the Executive’s termination, the Executive shall be expected and required to continue performing the Executive’s duties and responsibilities in accordance with Section 2 of this Agreement for the notice period up to the effective date of the termination of the Executive’s employment.

6.Removal from Positions.  Any termination of the Executive’s employment shall automatically effectuate the Executive’s removal from the officer and/or Board positions that the Executive then holds with the Company and its Affiliates and any employee benefit plans, as of the effective termination date.

7.Payments Upon Termination of Employment.

(a)The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive (i) any accrued but unpaid Base Salary through the effective date of the termination; (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect; (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time; and (v) any benefits payable pursuant to the Retirement Agreement.

(b)In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive:  (i) all such amounts due to him pursuant to Section 7(a) of this Agreement; and (ii) pay to the Executive a pro-rated portion of any incentive bonus(es) (if any) under the annual incentive plan that the Executive would have earned for the performance period(s) in which the effective termination date of his employment occurred as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s) and paid at such time(s) as provided in such annual incentive plan.

(c)In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in

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compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:

(i)to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;

(ii)if the termination of the Executive’s employment is for Good Reason pursuant to Section 4(b)(vi), is a result of any other occurrence on or prior to the Promotion Date constituting Good Reason pursuant to Section 4(b), or is on or prior to the Promotion Date and is pursuant to Section 4(d), to pay to the Executive a lump sum payment equal to the greater of (A) $5,000,000 and (B) two (2) times the sum of the Executive’s then-current Base Salary plus the higher of the Executive’s (x) average annual incentive bonus for the three fiscal years preceding the effective termination date of his employment; and (y) actual annual incentive bonus paid with respect to the fiscal year immediately preceding the effective termination date of his employment;

(iii)if the Executive’s employment with the Company is terminated for Good Reason after the Promotion Date pursuant to Section 4(b) or without Cause after the Promotion Date pursuant to Section 4(d), and Section 7(c)(ii) above does not apply, to pay the Executive a lump sum payment equal to (A) two (2) times the sum of the Executive’s then-current Base Salary plus the higher of the Executive’s (x) average annual incentive bonus for the three fiscal years preceding the effective termination date of his employment; and (y) actual annual incentive bonus paid with respect to the fiscal year immediately preceding the effective termination date of his employment, if the Executive does not hold the position of CEO as of the effective date of such termination of his employment; or (B) 2.99 times the sum of the Executive’s then-current Base Salary plus the higher of the Executive’s (x) average annual incentive bonus for the three fiscal years preceding the effective termination date of his employment; and (y) actual annual incentive bonus paid with respect to the fiscal year immediately preceding the effective termination date of his employment, if the Executive holds the position of CEO as of the effective date of such termination of his employment;

(iv)to continue to provide benefit coverage under the Company’s health, dental, and vision plans for a period of either (A) two (2) years following the effective termination date of his employment if the Executive does not hold the position of CEO as of such effective date, or (B) three (3) years following the effective termination date of his employment if the Executive holds the position of CEO as of such effective date, provided that the Executive shall not be entitled to the benefits provided for in this Section 7(c)(iv) to the extent that he becomes eligible for coverage under another employer’s benefit plans;

(v)to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment;

(vi)to provide outplacement services through a firm of the Executive’s choosing in an amount equivalent to that provided to other similarly situated executives,

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provided that such amount may not exceed $50,000, and that such outplacement services must be used within the twelve (12) month period immediately following the effective termination date of the Executive’s employment; and

(vii)to continue to count for purposes of determining the Executive’s age, service with the Company, and benefits pursuant to the terms and conditions of the Retirement Agreement either (A) the two (2) year-period following the effective termination date of his employment if the Executive does not hold the position of CEO as of such effective date, or (B) three (3) year-period following the effective termination date of his employment if the Executive holds the position of CEO as of such effective date.

The Executive acknowledges and agrees that (a) under no circumstance will he receive or be entitled to receive payments pursuant to more than one of Sections 7(c)(ii), (iii)(A) and (iii)(B), and that there shall be no “double,” “triple,” or other multiple payments pursuant to such Sections in the event of the termination of the Executive’s employment as forth therein; and (b) for purposes of Section 7 of this Agreement, “annual incentive bonus” shall mean the Executive’s incentive bonus under the Company’s MIP then in effect or such other similar annual incentive bonus plan or program then in effect.

(d)In the event that the Executive dies or the Company terminates the Executive’s employment pursuant to Section 4(c) of this Agreement due to Incapacity, subject to the terms and conditions of this Agreement, the Company’s sole obligation under this Agreement shall be to:  (i) pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement; (ii) pay to the Executive a pro-rated portion of any annual incentive bonus(es) (if any) that the Executive would have earned for the performance period(s) in which the effective termination date of his employment occurred as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s) and paid at such time(s) as provided in such annual incentive plan; and (iii) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment.

(e)Timing of Payments.  Subject to the terms and conditions of this Agreement (including without limitation Section 10) and provided that the Executive executes (without revoking) a Release Agreement as set forth in Section 7(c) above (as applicable) and the applicable statutory revocation period with respect to such Release Agreement has expired, and further provided that the Executive remains in compliance with Sections 2(d), 5, 8 and 9 of this Agreement, any payments or benefits made available to the Executive by the Company pursuant to this Section 7 will be made or commence (as applicable) as follows:  (i) any payments made pursuant to Sections 7(c)(ii) or (iii) shall be paid in a lump sum on the sixtieth (60th) calendar day following the effective termination date of the Executive’s employment; and (ii) the payments and benefits in Section 7(a), 7(b), 7(c)(i), (iv), (v) and (vi), and 7(d) will be paid or commence

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(as applicable) at such times and in such manner as set forth in the applicable Company policy, plan documents, and the Retirement Agreement.

(f)Release.  Notwithstanding the foregoing, the Execute agrees to execute (without revoking) a Release Agreement within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) as a condition of receiving the payments and benefits set forth in Sections 7(a)(v) and 7(b)(ii).

8.Confidentiality, Intellectual Property and Restrictive Covenants.  The Company and the Executive agree that, in each of his various senior management positions with the Company and otherwise by virtue of his unique relationship with the Company (including pursuant to this Agreement), the Executive has and will acquire and have access to, and has and will continue to develop substantial and intimate knowledge of, the Company’s Confidential Information (defined below), and has and will also continue to develop a unique and comprehensive familiarity with the Company and the Business Conducted by the Company or any of its Affiliates, which the Executive would not have otherwise had but for his employment with the Company, and which the Executive acknowledges are valuable assets of the Company.  Accordingly, the Executive agrees, in exchange for the consideration and mutual covenants contained in this Agreement, to undertake the following obligations, which he acknowledges are reasonably designed to protect the legitimate business interests of the Company, without unreasonably restricting his post-employment opportunities:

(a)Confidential Information.  The Executive acknowledges that during his employment with the Company he has had and will continue to have, and may continue to have during the Non-Compete Period (as defined below), access to Confidential Information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions.  All Confidential Information is of irreplaceable value to the Company, its Affiliates and such third parties.  Except as required to perform the Executive’s responsibilities for the Company and its Affiliates, to comply with law or regulation, or as authorized in writing in advance by the Company, the Executive shall not, at any time, use, disclose, or take any action which may result in the use or disclosure of any Confidential Information.  For purposes of this Agreement, “Confidential Information” shall mean all confidential and proprietary information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions, and includes, but is not limited to, actual and prospective customer and client lists and pricing information, business plans, programs and tactics, research and development information (including without limitation information relating to the formulation, testing, registration, use, safety, efficacy and/or effects of marketed products and compounds under development), personnel information, and all other information unique to the Company and not readily available to the public, including designs, improvements, inventions, formulas, compilations, methods, strategies, capabilities, forecasts, software programs, processes, know-how, data, operating methods and techniques, “Inventions or Developments” (as defined below), and all business costs, profits, vendors, markets, sales, products, marketing, sales or other financial or business information, and any modifications or enhancements of any of the foregoing.

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(b)Inventions or Developments.  The Executive agrees that he will, now and in the future, promptly and fully disclose to the Company all discoveries, improvements, inventions, formulas, ideas, processes, designs, techniques, know-how, data and computer programs (whether or not patentable, copyrightable or susceptible to any other form of protection), that are or have been made, conceived, reduced to practice or developed by the Executive, either alone or jointly with others, during his employment with the Company, that are related in any way to the past, current or future business or products of the Company or any of its Affiliates or are devised, made, developed, reduced to practice or perfected utilizing equipment or facilities of the Company or any of its Affiliates (collectively, the “Inventions or Developments”).  All Inventions or Developments shall be the sole property of the Company, including all patents, copyrights, intellectual property or other rights related thereto and the Executive assigns to the Company all rights (if any) that the Executive may have or acquire in such Inventions or Developments.  Notwithstanding the foregoing, this Section 8(b) shall not apply to any Inventions or Developments for which no equipment, supplies, facility or trade secret information of the Company or its Affiliates were used and which were developed entirely on the Executive’s own time, unless:  (i) the Inventions or Developments relate to the Business Conducted by the Company or any of its Affiliates or the actual or demonstrably anticipated research or development of the Company or any of its Affiliates; or (ii) the Inventions or Developments result from any work performed by the Executive for the Company or any of its Affiliates.

(c)Restrictive Covenants.  The Executive agrees that during the Executive’s employment and for the two (2) year period following the effective date of any termination of the Executive’s employment for any reason (the “Non-Compete Period”), unless the Company gives its advance written consent, the Executive shall not:

(i)participate or engage in, directly or indirectly (whether as an owner, agent, representative, partner, employee, officer, director, independent contractor, consultant, advisor, or in any other capacity calling for the rendition of services, advice, or acts of management, operation or control), any business that, during the Non-Compete Period, is competitive with the Business Conducted by the Company or any of its Affiliates anywhere in the United States, Canada, Mexico, or China (hereinafter, the “Geographic Area”) and which business the Company was engaged (either actively as a going concern or in the process of developing to market) during the two (2) year period preceding his termination of employment;

(ii)directly or indirectly solicit any current employee of the Company or any of its Affiliates, or any individual who becomes an employee of the Company or any of its Affiliates during the Non-Compete Period, to leave such employment and join or become affiliated with any business that is, during the Non-Compete Period, competitive with the Business Conducted by the Company or any of its Affiliates within the Geographic Area; or

(iii)directly or indirectly solicit, seek to divert or dissuade from continuing to do business with or entering into business with the Company or any of its Affiliates, any supplier, customer, or other person or entity with which the Company had, or was actively planning or pursuing, a business relationship at any time during the two (2) year period preceding his termination of employment.

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For purposes of this Agreement, during the Executive’s employment, “Business Conducted by the Company or any of its Affiliates” shall mean (a) all businesses conducted by the Company or any of its Affiliates and (b) any material new line of business in which the Company or any of its Affiliates is contemplating engaging in, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board.  For purposes of this Agreement, for two-year period following the effective date of any termination of the Executive’s employment, “Business Conducted by the Company or any of its Affiliates” shall mean (a) all business conducted by the Company or any of its Affiliates as of the effective date of the Executive’s termination of employment and (b) any material new line of business in which the Company or any of its Affiliates engages within the one-year period following the effective date of the Executive’s termination of employment, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board prior to the effective date of the Executive’s termination of employment and while the Executive was a member of the Board.

(d)No Diversion of Business Opportunities and Prospects.  The Executive agrees that during his employment with the Company:  (i) the Executive shall not directly or indirectly engage in any employment, consulting or other business activity that is competitive with the Business Conducted by the Company or any of its Affiliates; (ii) the Executive shall promptly disclose to the Company all business opportunities that are presented to the Executive in his capacity as an employee of the Company or which is of a similar nature to the Business Conducted by the Company or any of its Affiliates or which the Company or its Affiliates have expressed an interest in engaging in the future; and (iii) the Executive shall not usurp or take advantage of any such business opportunity without first offering such opportunity to the Company.

(e)Return of Property.  The Executive acknowledges and agrees that immediately upon his termination of employment with the Company he will promptly return (without retaining any copies) all property of the Company, its Affiliates or any third parties that is within his possession, custody or control by virtue of his employment with the Company.  Property to be returned to the Company shall include without limitation any and all documents and other things (whether in tangible or electronic format and whether such documents or things contain information that reflect or contain any Confidential Information or proprietary information) in the Executive’s possession, custody or control, further including without limitation all computer programs, passwords, files, and diskettes, all written and printed files, manuals, contracts, memoranda, forms, notes, records and charts (and any and all copies of, or extracts from, any of the foregoing), vehicles, keys, cell phones, credit cards and other equipment and materials furnished to him by the Company; provided, however, that (i) the Executive shall be entitled to keep his home office equipment; and (ii) the Company and the Executive shall work together to ensure that any Confidential Information, Inventions or Developments, or other Company business information is removed from such home office equipment.

(f)Irreparable Harm.  The Executive acknowledges that:  (i) the covenants contained in Sections 2(d) and 8 are reasonable in scope and duration, will not unduly restrict the Executive’s ability to engage in his livelihood, and the Executive’s compliance with Sections 2(d) and 8 is necessary to preserve and protect the Confidential Information, Inventions or

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Developments, and other legitimate business interests of the Company; (ii) any failure by the Executive to comply with the provisions of Sections 2(d) and 8 will result in irreparable and continuing injury to the Company for which there will be no adequate remedy at law; and (iii) in the event that the Executive should fail to comply with the terms and conditions of Sections 2(d) and 8, in addition to the Company’s right to set off any actual monetary damages to the Company that are a consequence of such failure to comply against any payments and benefits due to the Executive pursuant to Section 7 (provided that any such set offs first shall be taken from amounts not subject to Section 409A of the Code (as defined in Section 10 below), and if such amounts are insufficient, any additional set off shall not be taken until the time an amount subject to Section 409A of the Code would otherwise be paid pursuant to the terms of this Agreement), the Company shall be entitled, in addition to and without limiting such other relief as may be proper, to all types of equitable relief (including but not limited to the issuance of an injunction and/or temporary restraining order) as may be necessary to cause the Executive to comply with Sections 2(d) and 8, to restore to the Company its property, and to make the Company whole.  The Company and Executive acknowledge and agree that the Company or the Executive’s failure to enforce or insist on its rights under Sections 2(d) and 8 shall not constitute a waiver or abandonment of any such rights or defense to enforcement of such rights.  If the provisions of Sections 2(d) and 8 are ever deemed by a court to exceed the limitations permitted by applicable law, the Executive and the Company agree that such provisions shall be, and are, automatically reformed to the maximum lesser limitations permitted by such law.

9.Cooperation.  At the request and upon reasonable advance notice where practicable and at the sole expense of the Company, whether during or at any time after the Executive’s employment with the Company or any of its Affiliates, the Executive shall cooperate fully with the Company and its Affiliates (a) in investigating, defending, prosecuting, litigating, filing, initiating or asserting any claims or potential claims (including without limitation in connection with any legal proceeding of any kind) that may be made by or against the Company or any of its Affiliates, to the extent that such claims may relate to or arise out of the Executive’s employment with the Company or any of its Affiliates or with respect to which the Executive has knowledge and (b) without in any way limiting subsection (a) above, to secure any trade name, patent, trademark, copyright or intellectual property protection or other similar rights in the United States and/or in foreign countries, including without limitation, the execution and delivery of assignments, patent applications and other documents or papers.  If such cooperation is provided during the Executive’s employment with the Company or any of its Affiliates, the Executive shall not receive any additional compensation from the Company for such cooperation.  If the Executive no longer is employed by the Company or any of its Affiliates, the Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with his other business obligations.  If the Executive spends in excess of ten (10) hours in compliance with this Section 9 after he is no longer employed by the Company or any of its Affiliates,  the Company shall compensate the Executive at an hourly rate equal to the amount determined by dividing (x) the Executive’s Base Salary as of the first day of the fiscal year of the Company within which the Executive’s employment is terminated by (y) 2000, and shall reimburse the Executive for any reasonable expenses incurred as a direct result of his providing such cooperation in accordance with Section 3(e) of this Agreement.  The Company shall provide such compensation for the Executive’s cooperation within thirty (30) calendar days after receiving from the Executive a written statement stating the number of hours for which he seeks payment and brief description of the cooperation provided, provided that the Executive submits

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such statement within thirty (30) calendar days after the end of the calendar month in which the Executive provided such cooperation.  The Executive’s obligation to cooperate hereunder shall include, without limitation, meeting with such persons at such times and in such places as the Company or its Affiliates may require, and giving evidence and testimony and executing and delivering to the Company and any of its Affiliates any papers requested by any of them (including without limitation joint defense agreements and affidavits).  The Executive shall provide immediate notice to the Company of any subpoena or other legal document that he receives that relates in any way to the Company or any of its Affiliates, along with a copy of such subpoena or other legal document.

10.Compliance with Section 409A.  All references in this Agreement to the Executive’s termination of employment shall mean his separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury regulations promulgated thereunder.  In the event the terms of this Agreement would subject the Executive to the imposition of taxes and penalties (“409A Penalties”) under Section 409A of the Code, the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible.  Notwithstanding any other provision in this Agreement, if as of the date on which the Executive’s employment terminates, the Executive is a “specified employee” as determined by the Company, then to the extent any amount payable or benefit provided under this Agreement that the Company reasonably determines would be nonqualified deferred compensation within the meaning of Section 409A of the Code, that under the terms of this Agreement would be payable prior to the six-month anniversary of the Executive’s effective date of termination, such payment or benefit shall be delayed until the earlier to occur of (a) the six-month anniversary of such termination date or (b) the date of the Executive’s death.  In the case of taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment, may require the Executive to pay the full costs of such benefits during the period described in the preceding sentence and reimburse that Executive for said costs within thirty (30) calendar days after the end of such period.  With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred by the Executive.  The amount of any expenses eligible for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this Agreement during any calendar year (including without limitation pursuant to Sections 9 and 22) shall not affect the amount of expenses eligible for reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.  The Executive acknowledges and agrees that notwithstanding this Section 10 or any other provision of this Agreement, the Company and its Affiliates are not providing him with any tax advice with respect to Section 409A of the Code or otherwise and are not making any guarantees or other assurances of any kind to the Executive with respect to the tax consequences or treatment of any amounts paid or payable to the Executive under this Agreement.

11.Section 280G Gross-up.  To the extent permitted by applicable law:

(a)in the event it is determined that any payment or distribution by the Company to or for the benefit of the Executive after the date hereof pursuant to the terms of this Agreement or otherwise (including without limitation any deferred compensation plans),

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determined without regard to any additional payments required under this Section 11(a) (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect thereto are incurred by the Executive with respect to any such tax (any such tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Additional Tax”), then, subject to the Executive’s compliance with Section 11(c), the Executive shall be entitled to receive from the Company an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Additional Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Additional Tax imposed upon the Payments; provided, however, that notwithstanding the foregoing provisions of this Section 11(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the amount of the aggregate Payments is less than 110% of the product of (A) three (3) times (B) the Executive’s Base Amount (as such term is defined in Section 280G of the Code), then no Gross-Up Payment shall be made to the Executive and the cash Payments provided in Section 7 of this Agreement shall first be reduced, and the non-cash Payments and benefits shall thereafter be reduced, until no amount of the Payments shall be subject to the exercise tax under Section 4999 of the Code;

(b)the parties are entering into this Agreement with the reasonable mutual understanding that the Payments are not subject to Additional Taxes, and the parties shall, subject to this Section 11(b), report such amounts in their federal tax returns for the appropriate periods in a manner consistent with such understanding.  Subject to the provisions of Section 11(c), all other determinations required to be made under this Section 11(b), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s public accounting firm (the “Accounting Firm”).  All fees and expenses of the Accounting Firm shall be borne solely by the Company.  Any Gross-Up Payment, as determined pursuant to this Section 11(b), shall be paid by the Company to the Executive within the earlier of five (5) business days after the Company’s receipt of the Accounting Firm’s determination and the end of the Executive’s taxable year next following the taxable year in which the Executive pays the Additional Taxes to which such Gross-Up Payment relates to the applicable taxing authority.  Any determination by the Accounting Firm shall be binding upon the Company and the Executive;

(c)the Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment.  Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid.  The Executive shall not pay such claim prior to the expiration of the 30-calendar-day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due).  If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time,

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including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Additional Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses.  Any amount the Company is obligated to pay or indemnify under this Section 11(c) shall be paid or indemnified on or before the last day of the calendar year following the calendar year in which the expense, cost or Additional Tax was incurred.  Without limitation on the foregoing provisions of this Section 11(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided further, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Additional Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance.  The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority; and

(d)as a result of the uncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service (“IRS”) or other agency will claim that a greater or lesser Additional Tax is due.  In the event that the Additional Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Additional Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Additional Tax and taxes imposed on the Gross-Up Payment being repaid by the Executive) plus interest on the amount of such repayment at 120% of the rate provided in Code Section 1274(b)(2)(B).  In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined.  The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Additional Tax with respect to the total Payments.  The Company shall pay all fees and expenses of the Executive relating to a claim by the IRS or other agency.

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12.Notices.  Notices given pursuant to this Agreement shall be in writing and shall be effective upon personal delivery, upon confirmation of receipt of facsimile transmission, upon the fourth day after mailing by certified mail, or upon the second day after sending by express courier service.  Notice to the Company shall be directed to:

Smurfit-Stone Container Corporation

Six CityPlace Drive

Creve Coeur, Missouri 63141

Attention:  General Counsel

Notices to or with respect to the Executive will be directed to the Executive, or to the Executive’s executors, personal representatives or distributees, if the Executive is deceased, or the assignees of the Executive, at the Executive’s home address on the records of the Company.  Either party may change the person and/or address to which the other party must give notice under this Section by providing written notice of such change, in accordance with the procedures described in this Section 12.

13.Assignment.  This Agreement is enforceable by the Company and its affiliates and other related entities and may be assigned or transferred by the Company to, and shall be binding upon and inure to the benefit of, any parent, subsidiary or other Affiliate of the Company or any entity which at any time, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets, stock or business of the Company (including without limitation any successor and/or reorganized entit(ies) of the Company or any of its Affiliates upon the Effective Date).  The Executive and the Company agree that upon the Effective Date, this Agreement shall be assigned to and binding upon such successor entit(ies) of the Company as set forth in the Plan of Reorganization, provided that nothing herein shall limit or otherwise affect the Company’s right to further assign or transfer this Agreement after the Effective Date as set forth in the preceding sentence.  The Executive may not assign any of his rights or obligations under this Agreement during his life.  Upon the Executive’s death, this Agreement will inure to the benefit of the Executive’s heirs, legatees and legal representatives of the Executive’s estate.

14.Beneficiary.  If the Executive dies prior to receiving the amounts to which he is entitled under this Agreement (if any), subject to and in accordance with the terms and conditions of this Agreement, such amounts shall be paid to the beneficiary designated by the Executive in writing to the Company during his lifetime (“Beneficiary”), or if no such Beneficiary is designated, to the Executive’s estate.  Notwithstanding anything to the contrary herein, the Beneficiary shall not be entitled to receive any amounts pursuant to Section 7 of this Agreement unless the Beneficiary and any other authorized representatives of the Executive’s estate execute an enforceable waiver and release of claims in accordance with the Executive’s obligations set forth in Section 7(c).  The Executive, without the consent of any prior Beneficiary, may change his designation of Beneficiary or Beneficiaries at any time and from time to time by submitting to the Company a new designation in writing.

15.Severability.  Each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law.  The Executive and the Company agree that in the event that any provision of this Agreement is found to be unreasonable or otherwise unenforceable by a court, it is the purpose and intent of the parties that any such provision be

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deemed modified or limited, so that as modified or limited, such provision may be enforced to the fullest extent possible.  If any provision of this Agreement is held invalid or unenforceable for any reason (after any such modification or limitation pursuant to the preceding sentence, as applicable), such provision will be effective only to the extent of such invalidity or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement.

16.Entire Agreement, Amendment and Waiver.  Except as otherwise provided herein, this Agreement embodies the entire agreement and understanding of the parties hereto with regard to the matters described herein and supersedes any and all prior and/or contemporaneous agreements and understandings, oral or written, between said parties regarding such matters, provided that nothing herein shall limit or otherwise affect any provision of the Retirement Agreement or any Emergence Equity Grant Award Agreement.  In the event of any conflict between any provision of this Agreement and (a) the Retirement Agreement or (b) any Emergence Equity Grant Award Agreement, the provisions of this Agreement shall govern.  The Executive and the Company acknowledge and agree that this Agreement amends and restates the Predecessor Employment Agreement in its entirety and that as of the Effective Date the provisions of this Agreement shall replace each and every provision of the Predecessor Employment Agreement, at which time the provisions of the Predecessor Employment Agreement shall be null and void, and shall be of no further force or effect.  The Executive and the Company further acknowledge and agree that the Retirement Agreement amends and restates the Predecessor Retirement Agreement in its entirety and that as of the Effective Date the provisions of this Retirement Agreement shall replace each and every provision of the Predecessor Retirement Agreement, at which time the provisions of the Predecessor Retirement Agreement shall be null and void, and shall be of no further force or effect.  Except as set forth in Sections 8(f) and 15, this Agreement may be modified only in a written agreement signed by both the Executive and the Company’s authorized representative.  Any party’s failure to enforce this Agreement in the event of one or more events which violate this Agreement shall not constitute a waiver of any right to enforce this Agreement against subsequent violations.

17.Forum Selection.  The parties hereby irrevocably consent to, and agree not to object or assert any defense or challenge to, the jurisdiction and venue of the state and federal courts sitting in Chicago, Illinois, and agree that any claim under this Agreement may be brought in any such court.  In any action or proceeding to enforce this Agreement, the non-prevailing party shall pay for any and all costs and expenses (including without limitation reasonable attorneys’ fees) of the prevailing party to the maximum extent permissible by applicable law.

18.Governing Law.  This Agreement shall be governed by the internal laws of the state of Illinois, without regard to its conflict of laws rules.

19.Headings.  The Section headings used herein are for convenience of reference only and are not to be considered in construction of the provisions of this Agreement.

20.Release of Claims Under Predecessor Agreements.  The consideration offered herein is accepted by the Executive as being in full accord, satisfaction, compromise and settlement of any and all amounts due and owing to him pursuant to any and all claims that the Executive may have against the Company that existed on or prior to the Effective Date arising

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out of or concerning either the Predecessor Employment Agreement or Predecessor Retirement Agreement, and the Executive expressly agrees that he is not entitled to and will not receive any further payments, benefits, or other compensation or recovery of any kind from the Company with respect to the Predecessor Employment Agreement or Predecessor Retirement Agreement.

21.Survival.  Sections 2(d) and 4 through 23 herein shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period or the Executive’s employment.

22.Attorneys’ Fees for Negotiating This Agreement.  Within thirty (30) calendar days after receipt of the Invoices (as described below), the Company shall reimburse the Executive for the reasonable fees and expenses of the Executive’s outside legal counsel, accountants, and other advisors in connection with the Chapter 11 cases, including, without limitation, the negotiation and execution of this Agreement, in an amount not to exceed $100,000, provided that the Company receives from the Executive within sixty (60) days after the Effective Date a copy of the invoices for services rendered and expenses incurred by such counsel, accountants, and other advisors (“Invoices”).

23.Counterparts.  This Agreement may be executed in two counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument.

THE PARTIES ACKNOWLEDGE BY SIGNING BELOW THAT THEY HAVE READ AND UNDERSTAND THE ABOVE AND INTEND TO BE BOUND THEREBY:

STEVEN J. KLINGER		SMURFIT-STONE CONTAINER CORPORATION
/s/ Steven J. Klinger		By:	/s/ Ralph F. Hake
Date:	June 30, 2010	Position:	Chairman
		Date:	June 30, 2010

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EXHIBIT A

EMERGENCE EQUITY AWARD AGREEMENT(S) OF STEVEN J. KLINGER

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EXHIBIT B

AMENDED AND RESTATED

EXECUTIVE RETIREMENT AGREEMENT OF STEVEN J. KLINGER

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EX-10.8

Exhibit 10.8

AMENDED AND RESTATED

EXECUTIVE RETIREMENT AGREEMENT

This Amended and Restated Executive Retirement Agreement (the “Agreement”) by and between Steven J. Klinger (the “Executive”) and Smurfit-Stone Container Corporation (the “Company”) shall be deemed to have been made and entered into as of the date of the order of confirmation entered by the United States Bankruptcy Court for the District of Delaware with respect to the Company’s plan of reorganization in the matter of In re: Smurfit-Stone Container Corp., Case No. 09-10235 (BLS) (such cases, the “Chapter 11 Cases” and such plan, the “Plan of Reorganization”), and shall become effective as of the effective date of the Plan of Reorganization (the “Effective Date”).

WHEREAS, the Executive is and will be rendering valuable services to the Company and its Affiliates, and the Company desires to receive the benefit of the Executive’s continued loyalty, service and counsel and to provide the Executive and/or the Executive’s eligible beneficiaries with benefits in the event of the Executive’s retirement or death;

WHEREAS, the Company and the Executive are parties to that certain Amended and Restated Employment Agreement effective as of the Effective Date of the Company’s Plan of Reorganization (the “Employment Agreement”);

WHEREAS, the Company and the Executive are parties to the Executive Retirement Agreement entered into on October 2, 2006, which was amended effective as of January 1, 2009 (the “Predecessor Retirement Agreement”), which the Company did not assume pursuant to the Plan of Reorganization; and

WHEREAS, the Company and the Executive desire to enter into the Agreement and, in so doing, to amend and restate the Predecessor Retirement Agreement in its entirety;

NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the parties hereby agree as follows:

1.Definitions

For purposes of this Agreement, the capitalized terms in this Agreement shall have the meanings set forth below:

(a)Actuarial Equivalent.  The term “Actuarial Equivalent” shall mean a benefit of equivalent value determined using the “applicable mortality table” and the “applicable interest rate” prescribed under Section 417(e)(3) of the Code or any successor provision of the Code as of the November 1 preceding the Plan Year in which the distribution is made.

(b)Affiliate.  The term “Affiliate” shall mean (A) any entity that directly or indirectly, is controlled by the Company, (B) any entity in which the Company has a significant equity interest, (C) the parent entity of the Company, and (D) any entity that is

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under common control with the Company.  For purposes of this Agreement, an Affiliate shall be considered an Affiliate only for periods during which the Affiliate meets this definition of Affiliate.

(c)Annuity Equivalent.  The term “Annuity Equivalent” of a given benefit shall mean an Actuarial Equivalent benefit in the Normal Form determined as of the Executive’s Retirement Benefit commencement date and based on the statutory restrictions on qualified plan benefits (if applicable) as in effect on the Executive’s Termination Date.

(d)Average Monthly Cash Salary.  The term “Average Monthly Cash Salary” shall mean the greater of (i) the Executive’s total Cash Salary for the highest four (4) consecutive calendar years during the last ten (10) calendar years of employment with the Company and its Affiliates divided by 48, or (ii) the Executive’s average monthly Cash Salary for the last forty-eight (48) calendar months of employment with the Company and its Affiliates (or, if fewer, all calendar months of his or her employment with the Company and its Affiliates which immediately precede the Executive’s Termination Date.

(e)Beneficiary.  The term “Beneficiary” shall mean the Executive’s Spouse at the time of the Participant’s death unless prior to his death, (i) the Executive has designated in writing another person(s) (which may include a trust or the Executive’s estate) as Beneficiary, and (ii) his Spouse at the time of such designation has consented in writing to such other Beneficiary.  If no Beneficiary has been effectively designated by the Executive at the time of his or her death and if the Executive has no Spouse at that time, any amounts payable to the Executive under this Agreement at the time of his death shall be payable to the Executive’s estate.

(f)Cash Salary.  The term “Cash Salary” shall mean base salary and annual incentive bonuses paid by the Company or its Affiliates, and any such cash salary or annual incentive bonus which the Executive elected to defer, and excludes, without limitation, severance payments or any payment made upon the termination of the Executive’s employment (regardless of whether such payment is characterized as a severance payment), compensation under any long-term incentive program, any bonus (other than the annual incentive bonus), and any other incentive compensation.  For purposes of this Agreement, the annual incentive bonus shall be counted in the year in which such annual incentive bonus is paid.

(g)Disabled.  The term “Disabled” shall mean “totally disabled” as defined under the long-term disability plan in effect generally for salaried employees of the Company at the Executive’s Termination Date (regardless of whether the Executive actually participates in that plan at the time), as determined by the administrator of such plan.

(h)Normal Form.  The term “Normal Form” shall mean a single life annuity.

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(i)Retirement Benefit.  The term “Retirement Benefit” shall mean a Full or Vested Retirement Benefit, as applicable, provided pursuant to the terms of this Agreement.

(j)Service.  The term “Service” shall mean a period of unbroken employment with the Company and/or its Affiliates and shall include the Executive’s service with the Company and/or its Affiliates from the date on which the Company hired the Executive through and including the effective termination date of his employment with the Company and any and all Affiliate(s) (including without limitation the Executive’s employment prior to the commencement of the Company’s Chapter 11 Cases), provided however that employment with any Affiliate shall be counted only for periods during which such entity (if any) satisfies the definition of Affiliate set forth in Paragraph 1(b) above.

(k)Spouse.  The term “Spouse” shall mean the person to whom the Executive is married (if any), as determined as of any date under applicable state law.

(l)Termination Date.  The term “Termination Date” shall mean the date the Executive incurs a separation from service with the Company and its affiliates (whether or not incorporated) that are under common control with the Company within the meaning of Section 414(c) of the Code, except that 50% shall be substituted for the 80% ownership level of such Code section.  For purposes of this Agreement, the Executive’s employment with the Company and its Affiliates “terminates” if the Executive has incurred a “separation from service.”  For purposes of this Agreement, “separation from service” shall have the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and Treasury Regulation § 1.409A-1(h).

2.Full Retirement Benefit

(a)The Executive shall be entitled to receive a Full Retirement Benefit if the Executive’s employment with the Company and its Affiliates terminates after the Executive having completed at least fifteen (15) years of Service, for reasons other than having become disabled.

(b)The Full Retirement Benefit shall commence on the first day of the seventh (7th) full month following the Executive’s Termination Date and shall be paid in five (5) substantially equal annual installments, the last four (4) annual installment payments to be made on the successive anniversary dates of the original installment payment.

(c)The Full Retirement Benefit payable shall be calculated as follows:

(1)Determine a benefit based on a monthly amount that equals fifty percent (50%) of the Executive’s Average Monthly Cash Salary, payable in the Normal Form;

(2)Subtract $30,678; and

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(3)Determine the single sum amount that is the Actuarial Equivalent of the Executive’s benefit resulting from the calculations above.

3.Vested Retirement Benefit

(a)The Executive shall be entitled to receive a Vested Retirement Benefit if the Executive’s employment with the Company and its Affiliates terminates for reason other than the Executive having become disabled, and such termination occurs prior to the Executive having completed fifteen (15) years of Service.

(b)The Vested Retirement Benefit shall commence on the later of (i) the first day of the seventh (7th) full month following the Executive’s Termination Date or (ii) the Executive’s attainment of the age of sixty-two (62) years, and shall be paid in five (5) substantially equal annual installments, the last four (4) annual installment payments to be made on the successive anniversary dates of the original installment payment.

(c)The Vested Retirement Benefit payable shall be calculated as follows:

(1)Determine the monthly amount under Paragraph 2(c)(1);

(2)Subtract $30,678;

(3)Multiply the result by a fraction, the numerator of which shall equal the number of the Executive’s completed years of Service at the Termination Date or fifteen (15), whichever is less, and the denominator of which shall be fifteen (15); and

(4)Determine the single sum amount that is the Actuarial Equivalent of the Executive’s benefit resulting from the calculations above.

4.Disability Retirement Benefit

(a)The Executive shall be entitled to receive a Disability Retirement Benefit if the Executive’s employment with the Company and its Affiliates terminates prior to the Executive’s attainment of the age of sixty-two (62) by reason of the Executive having become Disabled, and (ii) the Executive has completed at least one (1) year of Service (but has not completed at least 15 years of service).

(b)The Disability Retirement Benefit shall commence on the first day of the seventh (7th) full month following the Executive’s Termination Date and shall be paid in five (5) substantially equal annual installments, the last four (4) annual installment payments to be made on the successive anniversary dates of the original installment payment.

(c)The Disability Retirement Benefit payable shall be calculated as follows:

(1)Determine the Executive’s Full Retirement Benefit as provided in Paragraph 2(c)(1);

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(2)Multiply the result in subparagraph (1) by the appropriate early retirement commencement percentage as indicated below:

Age of the Executive
At Termination
Because of
Disability	Percentage
61	94%
60	88%
59	82%
58	76%
57	70%
56	64%
55	58%
54 and prior	50%

(3)Subtract $30,678; and

(4)Determine the single sum amount that is the Actuarial Equivalent of the Executive’s benefit resulting from the calculations in paragraphs (1), (2) and (3) immediately above.

5.Pre-Retirement Survivor Benefits

(a)A Pre-Retirement Survivor Benefit shall be paid to the Executive’s Beneficiary in accordance with this Paragraph 5 in the event of the Executive’s death prior to the commencement of his Full or Vested Retirement Benefit and after the Executive has completed at least one (1) year of Service.  The Pre-Retirement Survivor Benefit shall be paid to the Executive’s Beneficiary in a single sum on the first day of the month following the Executive’s date of death.

(b)The Pre-Retirement Survivor Benefit shall be calculated as follows:

(1)Determine the Executive’s Full Retirement Benefit or Vested Retirement Benefit, whichever applies based upon the Executive’s years of Service at the time of his death and as if the Executive had survived to age 62; and

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(2)Multiply the result by the appropriate early percentage as indicated below:

Age of the Executive
At Death	Percentage
62 or older	50%
61	47%
60	44%
59	41%
58	38%
57	35%
56	32%
55	29%
54 and prior	25%

6.Post-Retirement Survivor Benefit

In the event of the Executive’s death after payment to him of his Retirement Benefit has commenced, the remaining installments payable to the Executive shall be paid to his Beneficiary in a single sum on the first day of the month following the Executive’s date of death.

7.Source of Benefits

Nothing contained in this Agreement and no action taken pursuant to the provisions of this Agreement shall create or be construed to create a trust of any kind, or a fiduciary relationship between the Company and the Executive, or the Executive’s spouse, or any other person.  This Agreement does not create any escrow account, trust fund or any other form of asset segregation.  Any Retirement Benefits due under the provisions of this Agreement shall be paid from the general assets of the Company, except that in the discretion of the Company, any Retirement Benefit payment may be made from a grantor trust, if any, established by the Company for such purpose.

8.Restrictive Covenants

The Executive agrees that Section 8 (“Restrictive Covenants”) of his Employment Agreement, which is herein incorporated into this Agreement by reference, will apply to this Agreement.  The Executive further agrees that if the Executive violates any provision of Section 8 of the Employment Agreement, the Executive will not be eligible to receive, and will not receive, any payments and benefits under this Agreement.

9.Assignment; Successors

This Agreement shall inure to the benefit and be binding upon the Company and its successors.  The Company may not assign this Agreement without the Executive’s written consent, except that the Company’s obligations under this Agreement shall be the binding legal obligations of any successor to the Company by sale, and in the event of any transaction that results in the transfer of substantially all of the assets or business of the Company, the Company

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will use its best efforts to cause the transferee to assume the obligations of the Company under this agreement.  The Executive may not assign this Agreement during his life.  Upon the Executive death this Agreement will inure to the benefit of the Executive’s heirs, legatees, and legal representatives of the Executive’s estate.

10.Other Benefit Plans

The Retirement Benefits provided for by this Agreement shall not constitute “compensation” for purposes of computing compensation for any benefit plan maintained by the Company or its Affiliates.

11.Enforcement

All actions for the enforcement of any rights under, or interpretation of, this Agreement shall be brought in courts within Cook County, Illinois, and the Executive hereby consents and submits to the venue and jurisdiction of any local, state, or federal court located within Cook County, Illinois (to the extent that jurisdictional requirements permit).  The laws of the State of Illinois shall govern the validity, interpretation, construction and performance of this Agreement, without regard to the conflict of laws principles and shall be liberally construed to maximize protection of the Company’s rights in its trade secrets and confidential information.

12.Compliance with Code Section 409A

It is intended that this Agreement comply with the requirements of Section 409A(a)(2) through (4) of the Code and all regulations and guidance issued thereunder.  This Agreement shall be interpreted for all purposes in accordance with this intent and may be amended by the Company at any time if such amendment is deemed, in the Company’s sole discretion, necessary to satisfy this intent.

13.Notices

Notices given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered, or on the date of written confirmation of receipt by (i) overnight carrier, (ii) telecopy, (iii) registered or certified mail, return receipt requested, addressee only, postage prepaid, or (iv) such other method of delivery that provides a written confirmation of delivery.  Notice to the Company shall be directed to:

Smurfit-Stone Container Corporation
Six CityPlace Drive
Creve Coeur, Missouri 63141
Attention: General Counsel

The Company may change the person and/or address to whom the Executive must give notice under this Paragraph by giving the Executive written notice of such change, in accordance with the procedures described above.  Notices to or with respect to the Executive shall be directed to the Executive, or to the Executive’s executors, personal representatives or distributes, if the Executive is deceased, or the assignees of the Executive, at the Executive’s home address on the records of the Company.

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14.Withholding

The Company may withhold from any payment that it is required to make under this Agreement amounts sufficient to satisfy applicable withholding requirements under any federal, state or local law.

15.Amendment

This Agreement may be amended at any time by written agreement between the Company and the Executive.

16.Severability

Each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law.  The Executive and the Company agree that in the event that any provision of this Agreement is found to be unreasonable or otherwise unenforceable by a court, it is the purpose and intent of the parties that any such provision be deemed modified or limited, so that as modified or limited, such provision may be enforced to the fullest extent possible.  If any provision of this Agreement is held invalid or unenforceable for any reason (after any such modification or limitation pursuant to the preceding sentence, as applicable), such provision will be effective only to the extent of such invalidity or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement.

17.Entire Agreement

Except as otherwise provided herein, this Agreement embodies the entire agreement and understanding of the parties hereto with regard to the matters described herein and supersedes any and all prior and/or contemporaneous agreements and understandings, oral or written, between said parties regarding such matters, provided that nothing herein shall limit or otherwise affect any provision of the Employment Agreement or any Emergence Equity Grant Award Agreement.  In the event of any conflict between any provision of this Agreement and the Employment Agreement, the provisions of the Employment Agreement shall govern.  In the event of any conflict between any provision of this Agreement and an Emergence Equity Grant Award Agreement, the provisions of the Emergence Equity Grant Award shall govern.  The Executive and the Company acknowledge and agree that this Agreement amends and restates the Predecessor Retirement Agreement in its entirety and that as of the Effective Date the provisions of this Agreement shall replace each and every provision of the Predecessor Retirement Agreement, at which time the provisions of the Predecessor Retirement Agreement shall be null and void, and shall be of no further force or effect.  Any party’s failure to enforce this Agreement in the event of one or more events which violate this Agreement shall not constitute a waiver of any right to enforce this Agreement against subsequent violations.

18.Consultation With Counsel

The Executive acknowledges that he has had a full and complete opportunity to consult with counsel of the Executive’s own choosing concerning the terms, enforceability and implications of this Agreement, and the Company has made no representations or warranties to

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the Executive concerning the terms, enforceability or implications of this Agreement other than as are reflected in this Agreement.

19.No Waiver

No failure or delay by the Company or the Executive in enforcing or exercising any right or remedy hereunder shall operate as a waiver thereof.  No modification, amendment, or waiver of this Agreement nor consent to any departure by the Executive from any of the terms or conditions thereof, shall be effective unless in writing and signed by the Chairman of the Company’s Board of Directors.  Any such waiver or consent shall be effective only in the specific instance and for the purpose for which given.

20.Effect on Other Obligations

This Agreement shall supplement the Employment Agreement, the provisions of which shall continue in full force and effect.  Except as otherwise provided in a writing signed by the Executive and a duly authorized member of the Company’s Board of Directors, the payments and benefits herein provided to be paid to the Executive by the Company shall be made without regard to, and in addition to any other payments or benefits required to be paid the Executive at any time hereafter under the terms of the Employment Agreement or under any other policy of the Company relating to compensation, or retirement or other benefits.  Except as otherwise provided in a writing signed by the Executive and a duly authorized member of the Company’s Board of Directors, no payments or benefits provided the Executive hereunder shall be reduced by any amount the Executive may earn or receive from employment with another employer or from any other source.

21.Survival

All Paragraphs of this Agreement survive beyond the term of the Executive’s employment with the Company except as otherwise specifically stated.

22.Headings

The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning thereof.

23.Counterparts

The parties may execute this Agreement in one or more counterparts, all of which together shall constitute one Agreement.

24.Term of Employment

Nothing in this Agreement shall be construed as providing a term of employment or guaranteeing the Executive employment with the Company for any length or time or in a particular position(s).

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IN WITNESS WHEREOF, Smurfit-Stone Container Corporation has caused this Agreement to be executed by its duly authorized executive and the Executive has hereunto set his/her hand as of the date first above written.

SMURFIT-STONE CONTAINER CORPORATION
By:	/s/ Ralph F. Hake
Title:	Chairman
Date:	June 30, 2010
EXECUTIVE
/s/ Steven J. Klinger
Steven J. Klinger
June 30, 2010
Date Signed

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EX-10.9

Exhibit 10.9

AMENDED AND RESTATED

EMPLOYMENT SECURITY AGREEMENT OF CRAIG A. HUNT

This Amended and Restated Employment Security Agreement (the “Agreement”) by and between Craig A. Hunt (the “Executive”) and Smurfit-Stone Container Corporation (the “Company”) shall be deemed to have been made and entered into as of the date of the order of confirmation entered by the United States Bankruptcy Court for the District of Delaware with respect to the Company’s plan of reorganization in the matter of In re: Smurfit-Stone Container Corp., Case No. 09-10235 (BLS) (the “Chapter 11 Cases”) (such plan, the “Plan of Reorganization” and such date, the “Confirmation Date”), and shall become effective as of June 30, 2010, the effective date of the Plan of Reorganization (the “Effective Date”).

WHEREAS, the Executive currently is employed as the Company’s Senior Vice President, Secretary and General Counsel and the Company desires to continue to employ the Executive upon and subject to the terms and conditions set forth herein, and the Executive wishes to accept such employment upon and subject to such terms and conditions;

WHEREAS, the Company and the Executive are parties to that certain Employment Security Agreement effective as of July 16, 2008 (such agreement referred to herein as the “Predecessor Agreement”), which Predecessor Agreement was not assumed by the Company during the course of the Chapter 11 Cases;

WHEREAS, the Company and the Executive desire to enter into the Agreement and, in so doing, to amend and restate the Predecessor Agreement in its entirety; and

WHEREAS, the Company has adopted and implemented an Equity Incentive Plan (“Equity Incentive Plan”) as of the Confirmation Date, pursuant to the Plan of Reorganization; and

NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the parties hereby agree as follows:

1.Employment Period and Position.  The Company hereby agrees to employ the Executive as its Senior Vice President, Secretary and General Counsel (or such other position(s) as the Company may reasonably designate during the Employment Period (as defined below)) and the Executive hereby accepts such employment, subject to the terms and conditions of this Agreement, commencing on the Effective Date until the second anniversary of the Effective Date unless the Executive’s employment is earlier terminated pursuant to Section 4 (such period referred to as the “Initial Term”).  The Initial Term shall automatically be extended on the same terms and conditions as set forth in this Agreement for successive two-year periods unless and until either:  (a) a party gives the other party no less than ninety (90) calendar days’ advance written notice prior to the end of the Initial Term or any such two-year extension period (as applicable) that such party will not further extend the Initial Term or two-year extension period, or (b) the Company terminates the Executive’s employment in accordance with Section 4.  The Initial Term and any and all extensions thereof (or partial extension in the event of an earlier

termination pursuant to Section 4), if any, shall be collectively referred to as the “Employment Period”).

2.Duties and Responsibilities.

(a)           During the Employment Period, the Executive (i) shall perform the duties assigned to him by the Company (provided that the Executive shall not be assigned tasks inconsistent with his position as a senior executive of the Company or any of its Affiliates) faithfully, with the utmost loyalty, to the best of his abilities and in the best interests of the Company; (ii) shall devote his full business time, attention and effort to the affairs of the Company, except that the Executive may serve on (x) corporate boards or committees with the prior written approval of the Company’s Board of Directors (the Company’s pre- and post-Effective Date Boards of Directors hereinafter collectively referred to herein as the “Board”), and/or (y) civic or charitable boards or committees, in either case as long as such activities do not, individually or in the aggregate, interfere with the performance of the Executive’s employment duties and responsibilities or harm the business or reputation of the Company or any of its Affiliates; and (iii) shall not engage in any other business activities (whether or not for gain, profit, or other pecuniary advantage) or any other actions which he knows or reasonably should know could harm the business or reputation of the Company or any of its affiliates or other related entities.  For purposes of this Agreement, “Affiliates” shall mean any entity that, directly or indirectly, is controlled by the Company, and any entity in which the Company has a 20% or greater equity interest.

(b)           The Executive shall act in conformity with the Company’s written and oral policies and within the limits, budgets and business plans set by the Company.  The Executive will at all times during the Employment Period strictly adhere to and obey all of the rules and regulations in effect from time to time relating to the conduct of Company executives.  Except as provided in Section 2(a), the Executive shall not engage in consulting work or any trade or business for his own account or for or on behalf of any other person, firm or company that competes, conflicts or interferes with the performance of his duties hereunder in any material way.

(c)           The Executive covenants, represents and warrants that:  (i) the execution, delivery and complete performance of this Agreement by him does not and will not breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which he is bound; and (ii) he is not a party to or bound by any employment or services agreement, confidentiality agreement, noncompetition agreement, other restrictive covenant, or other obligation or agreement that would or could prohibit or restrict him from being employed by the Company or from performing any of his duties under this Agreement.

(d)           Mutual Non-Disparagement.  The Executive shall not, at any time during or after his employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Company or any of its Affiliates or any members of their respective boards of directors or managements, or any of their respective business affairs or performance.  The Company, members of its Board and its senior executives shall not, at any time during or after

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the Executive’s employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Executive.

3.Compensation and Benefits.

(a)           Base Salary.  During the Employment Period, subject to the terms and conditions of this Agreement, the Company shall pay to the Executive an annual base salary at the gross rate of $408,500 (the “Base Salary”), payable in installments in accordance with the Company’s executive payroll policy (but not less frequently than monthly).  The Base Salary shall be subject to such annual adjustments, if any, as determined by the Board in its discretion, provided that in no event shall the Base Salary be reduced at any time without the Executive’s prior written consent.

(b)           Incentive Compensation.  During the Employment Period, the Executive shall be eligible to participate in the Company’s annual incentive plan(s), long-term incentive plan(s), and any equity-based and/or other incentive compensation plans established or maintained by the Company in which its senior executive officers are eligible to participate, including without limitation the Company’s Management Incentive Plan (“MIP”) and Equity Incentive Plan (and/or any other similar long-term or equity-based incentive plan).

(c)           Emergence Equity Grant.  The Company hereby agrees to grant the Executive one hundred and fifty three thousandths of one percent (0.153%) on a fully diluted basis of the new common stock of the Company issued on the Effective Date in accordance with and pursuant to the Plan of Reorganization in (i) a stock option award with respect to approximately 0.116% of such shares of new common stock of the Company and (ii) a restricted stock unit award with respect to approximately 0.037% of such shares of new common stock of the Company (the “Emergence Equity Grants”), in accordance with and pursuant to the Company’s Plan of Reorganization and the terms and conditions of the Company’s Equity Incentive Plan, any applicable incentive plan documents, and/or any award statements or agreements (each an “Award Agreement”) and this Agreement (including without limitation with such Emergence Equity Grants to be made on, and effective as of, the dates set forth in the Plan of Reorganization).  The Award Agreements for the Emergence Equity Grants shall be in substantially the form set forth in Exhibit A hereto.

(d)           Employee Benefits.  During the Employment Period, the Executive shall be eligible to participate in such employee benefit plans (including group medical and dental), and to receive such other fringe benefits and perquisites, as the Company may make available to senior executives generally, subject to all present and future terms and conditions of such benefit plans and other fringe benefits and perquisites.  The Company reserves the right in its sole discretion to alter, suspend, amend, or discontinue any and all of its employee and fringe benefits, perquisites, benefit plans, policies and procedures, in whole or in part, at any time with or without notice, provided that the Company will not make any change to the Executive’s employee or fringe benefits that it does not also make on a generally consistent basis for other senior executives of the Company.

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(e)           Expense Reimbursement.  The Company shall reimburse the Executive for all reasonable and necessary business expenses incurred by him in connection with his duties hereunder (in each case, as determined by the Company) after the Executive’s timely presentation of IRS-acceptable itemized and documented accounts of such expenditures, provided that the Executive shall secure the Board’s approval before incurring any extraordinary expenses, and further provided that such reimbursement for reasonable and necessary business expenses is subject to the Company’s expense reimbursement policy.

(f)            Withholdings and Deductions.  Any and all payments to the Executive under this Agreement shall be reduced by required or authorized withholding and deductions.

(g)           Clawback.  In the event that the Board determines in good faith that the amount of any incentive and/or performance based compensation based in whole or in part on the financial performance of the Company (or any division thereof) paid or granted to the Executive was materially incorrect because the performance criteria were applied incorrectly, within sixty (60) days after receiving written notice from the Board, the Executive shall repay to the Company the portion of any cash payments or return and forfeit the portion of any such grant, as the case may be, that the Executive received that he was not entitled to receive due to such incorrect application of the performance criteria (which such amount(s) to be repaid or returned shall be reduced by the Net Tax Costs (as defined below)), provided that the foregoing written notice from the Board is received by the Executive no later than the earlier of (i) ninety (90) days after the date on which the Company becomes aware of the incorrect application of the performance criteria and (ii) the second anniversary of the payment, vesting or delivery, as applicable, of the compensation.  “Net Tax Costs” shall mean the net amount of any federal, state or local income and employment taxes paid by the Executive in respect to the portion of the compensation subject to repayment or return, after taking into account any and all available deductions, credits or other offsets allowable to the Executive (including without limit, any deductions permitted under the claim of right doctrine), and regardless of whether the Executive would be required to amend any prior income or other tax returns.

4.Termination of Employment.

(a)           Termination for Cause.  Notwithstanding anything to the contrary herein, the Company may terminate the Executive’s employment for Cause (as defined herein) at any time immediately upon written notice.  For purposes of this Agreement, “Cause” shall mean any of the following:  (i) the Executive’s willful and continued failure to substantially perform his duties as an executive of the Company (other than any such failure resulting from inability due to physical or mental illness or Incapacity), (ii) the Executive’s willful misconduct in the performance of the Executive’s duties or otherwise that results in injury to the Company, monetarily or otherwise, that is material or substantial, (iii) the Executive’s engaging in egregious misconduct to the extent that the Executive’s credibility and reputation no longer conforms to the standard of senior executive officers of the Company, or (iv) the Executive’s material breach or threatened material breach of any provision of this Agreement, including without limitation Section 8 of this Agreement, without the prior express written consent of a duly authorized member of the Board or the Chief Executive Officer of the Company; provided, however, that an occurrence which otherwise may constitute Cause hereunder shall not constitute Cause unless a notice is delivered to the Executive by the Board or the Chief Executive Officer

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of the Company that specifically identifies the conduct that the Board or the Company’s Chief Executive Officer believes constitutes Cause and, to the extent such conduct is reasonably capable of cure, the Company gives the Executive at least fifteen (15) days to cure such alleged conduct.

(b)           Voluntary Resignation by the Executive With or Without Good Reason.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company for Good Reason (as defined herein) at any time by written notice to the Company.  After the ninetieth (90th) calendar day after the Effective Date, the Executive may terminate his employment with the Company upon sixty (60) calendar days’ advance written notice without Good Reason, and the Executive’s employment shall terminate effective as of the effective date of any such notice or such later effective termination date as the Executive may specify in the notice (which shall in no event be later than sixty (60) calendar days after the notice is given unless otherwise agreed to in writing by the Board or the Chief Executive Officer of the Company).  For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following without the Executive’s consent:  (i) assigning the Executive duties that are materially inconsistent with the Executive’s then-current status as a senior executive of the Company; (ii) requiring the Executive to report other than to the Company’s Chief Executive Officer or President; (iii) failure of the Company to pay any portion of the Executive’s compensation within ten (10) days after the date such compensation is due or first may be paid pursuant to applicable law; (iv) failure of the Company to continue in effect any broad-based bonus or incentive plan, welfare benefit, pension, retirement benefit or other benefit plan in which the Executive participates or becomes eligible to participate unless such discontinuance applies on a consistent basis to other senior executives of the Company, or a reduction by the Company of the Executive’s target level participation (as a percentage of the Executive’s base salary and on an annualized basis) in its annual incentive bonus plan from the lower of such target levels of his participation in the Company’s 2010 MIP as approved by the Board prior to the Effective Date (unless such reduction is made on a consistent basis for other Company executives other than the Chief Executive Officer or President); (v) the Agreement is not assigned to a successor to the Company pursuant to the Plan of Reorganization; or (vi) any material breach of this Agreement or any Award Agreement applicable to an Emergence Equity Grant; provided, however, that an occurrence which otherwise may constitute Good Reason hereunder shall not constitute Good Reason unless the Executive (y) provides to the Company, at least thirty (30) calendar days prior to the Executive’s contemplated resignation for Good Reason, a written notice containing reasonable detail setting forth the basis for the Executive’s claim that an occurrence constitutes Good Reason, and (z) the Company fails to cure or otherwise remedy such occurrence within thirty (30) calendar days after receiving such notice from the Executive.  Notwithstanding anything to the contrary herein, the parties hereto acknowledge and agree that the Executive must exercise his right to terminate his employment for Good Reason within ninety (90) calendar days after the event that gives rise to such right, and that if the Executive fails to timely exercise such right and subsequently resigns, such resignation shall be deemed for all purposes of this Agreement to be without Good Reason.  The Executive acknowledges and agrees that the restructuring events that have taken place or will take place solely pursuant to the Company’s Plan of Reorganization shall not constitute Good Reason for purposes of this Agreement.

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(c)Termination Due to Death or Incapacity.  Notwithstanding anything to the contrary herein, the Executive’s employment with the Company shall terminate automatically upon the Executive’s death, and the Company may immediately terminate the Executive’s employment with the Company by written notice at any time upon the Executive’s Incapacity (as defined below) effective as of the date of the Executive’s Incapacity.  For purposes of this Agreement, “Incapacity” shall mean such physical or mental condition of the Executive which renders and is expected to render the Executive incapable of performing the essential functions of his position hereunder with or without reasonable accommodation for ninety (90) consecutive calendar days, or for 120 calendar days (whether consecutive or not) within any 180-calendar-day period, as determined in good faith by the Board upon consultation with a physician selected by the Board in its discretion.  The Executive hereby agrees to submit to any reasonable medical examination(s) as may be recommended by the Board for the purpose of determining the existence or absence of Incapacity.

(d)Termination by the Company Other Than for Cause or Incapacity.  Notwithstanding anything to the contrary herein, the Company may terminate the Executive’s employment with the Company for any reason other than Cause or Incapacity or for no reason, at any time upon thirty (30) calendar days’ advance written notice to the Executive signed by a duly authorized representative of the Board or the Company’s Chief Executive Officer, and such termination shall be effective upon the effective date of such notice or such later effective termination date as the Company may specify in the notice.

(e)Voluntary Termination Following a Company Change in Control.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company at any time within the 24-month period following a Company Change in Control (as defined herein) with or without Good Reason, provided that the Executive complies with notice requirements set forth in Section 4(b).  Neither a Change in Control with respect to any affiliate of the Company nor the assignment of this Agreement to any reorganized entity of the Company pursuant to the Plan of Reorganization shall constitute a Change in Control for the purposes of this Agreement.  “Change in Control” shall mean the occurrence of any one or more of the following:

(i)            The “beneficial ownership” of securities representing more than 40% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (A), (B) and (C) of subparagraph (iii) of this definition will not be a Change in Control under this subparagraph (i), and provided further that immediately prior to such accumulation, holding or acquisition, such person was not a direct or indirect beneficial owner of 40% or more of the Company Voting Securities;

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(ii)           Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(iii)          Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (A) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors of (i) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (ii) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (B) no person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 40% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership of the Company existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(iv)          Approval by the Company’s stockholders of a complete liquidation or dissolution of the Company; or

(v)           The consummation of a reorganization, complete liquidation, or dissolution under the U.S. Bankruptcy Code subsequent to the Effective Date (and excluding the Plan of Reorganization as defined herein).

5.             The Executive’s Duties After Notice of Termination.  For any period in which the Executive gives or is given notice prior to the effective date of the Executive’s termination, unless otherwise directed by the Company, the Executive shall be expected and required to continue performing the Executive’s duties and responsibilities in accordance with Section 2 of this Agreement for the notice period up to the effective date of the termination of the Executive’s employment.

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6.Removal from Positions.  Any termination of the Executive’s employment shall automatically effectuate the Executive’s removal from the officer and/or Board positions that the Executive then holds with the Company and its Affiliates and any employee benefit plans, as of the effective termination date.

7.Payments Upon Termination of Employment.

(a)The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive (i) any accrued but unpaid Base Salary through the effective date of the termination, (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time.

(b)In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement.

(c)In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:

(i)            to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;

(ii)           to pay to the Executive a gross amount equal to two (2) times the Executive’s then-current Base Salary, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;

(iii)          to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the annual incentive plan during the three (3) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;

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(iv)          to continue to pay the employer portion of the Executive’s premiums to continue his then-current coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and

(v)           to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment.

The Executive acknowledges and agrees that for purposes of Section 7 of this Agreement, “annual incentive bonus” shall mean the Executive’s incentive bonus under the Company’s MIP then in effect or such other similar annual incentive bonus plan or program then in effect.

(d)In the event that the Executive dies or the Company terminates the Executive’s employment pursuant to Section 4(c) of this Agreement due to Incapacity, subject to the terms and conditions of this Agreement, the Company’s sole obligation under this Agreement shall be to:  (i) pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement; (ii) pay to the Executive a pro-rated portion of any annual incentive bonus(es) (if any) that the Executive would have earned for the performance period(s) in which the effective termination date of his employment occurred as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s) and paid at such time(s) as provided in such annual incentive plan; and (iii) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment.

(e)Timing of Payments.  Subject to the terms and conditions of this Agreement (including without limitation Section 10) and provided that the Executive executes (without revoking) a Release Agreement as set forth in Section 7(c) above (as applicable) and the applicable statutory revocation period with respect to such Release Agreement has expired, and further provided that the Executive remains in compliance with Sections 5, 8 and 9 of this Agreement, any payments or benefits made available to the Executive by the Company pursuant to this Section will be made or commence (as applicable) as follows:  (i) any payments made pursuant to Sections 7(c)(ii) and (iii) will commence on the sixtieth (60th) calendar day following

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the effective termination date of the Executive’s employment; and (ii) the payments and benefits in Sections 7(a), 7(b), and 7(c)(i), (iv) and (v), and 7(d) will be paid or commence (as applicable) at such times and in such manner as set forth in the applicable Company policy and plan documents.

8.Confidentiality, Intellectual Property and Restrictive Covenants.  The Company and the Executive agree that, by virtue of his unique relationship with the Company (including pursuant to this Agreement), the Executive has and will acquire and have access to, and has and will continue to develop substantial and intimate knowledge of, the Company’s Confidential Information (defined below), and has and will also continue to develop a unique and comprehensive familiarity with the Company and the Business Conducted by the Company or any of its Affiliates, which the Executive would not have otherwise had but for his employment with the Company, and which the Executive acknowledges are valuable assets of the Company.  Accordingly, the Executive agrees, in exchange for the consideration and mutual covenants contained in this Agreement, to undertake the following obligations, which he acknowledges are reasonably designed to protect the legitimate business interests of the Company, without unreasonably restricting his post-employment opportunities:

(a)           Confidential Information.  The Executive acknowledges that during his employment with the Company he has had and will continue to have, and may continue to have during the Non-Compete Period (as defined below), access to Confidential Information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions.  All Confidential Information is of irreplaceable value to the Company, its Affiliates and such third parties.  Except as required to properly perform the Executive’s responsibilities for the Company and its Affiliates, to comply with law or regulation, or as authorized in writing in advance by the Company, the Executive shall not, at any time, use, disclose, or take any action which may result in the use or disclosure of any Confidential Information.  For purposes of this Agreement, “Confidential Information” shall mean all confidential and proprietary information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions, and includes, but is not limited to, actual and prospective customer and client lists and pricing information, business plans, programs and tactics, research and development information (including without limitation information relating to the formulation, testing, registration, use, safety, efficacy and/or effects of marketed products and compounds under development), personnel information, and all other information unique to the Company and not readily available to the public, including designs, improvements, inventions, formulas, compilations, methods, strategies, capabilities, forecasts, software programs, processes, know-how, data, operating methods and techniques, “Inventions or Developments” (as defined below), and all business costs, profits, vendors, markets, sales, products, marketing, sales or other financial or business information, and any modifications or enhancements of any of the foregoing.

(b)           Inventions or Developments.  The Executive agrees that he will, now and in the future, promptly and fully disclose to the Company all discoveries, improvements, inventions, formulas, ideas, processes, designs, techniques, know-how, data and computer programs (whether or not patentable, copyrightable or susceptible to any other form of protection), that are or have been made, conceived, reduced to practice or developed by the

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Executive, either alone or jointly with others, during his employment with the Company, that are related in any way to the past, current or future business or products of the Company or any of its Affiliates or are devised, made, developed, reduced to practice or perfected utilizing equipment or facilities of the Company or any of its Affiliates (collectively, the “Inventions or Developments”).  All Inventions or Developments shall be the sole property of the Company, including all patents, copyrights, intellectual property or other rights related thereto and the Executive assigns to the Company all rights (if any) that the Executive may have or acquire in such Inventions or Developments.  Notwithstanding the foregoing, this Section 8(b) shall not apply to any Inventions or Developments for which no equipment, supplies, facility or trade secret information of the Company or its Affiliates were used and which were developed entirely on the Executive’s own time, unless:  (i) the Inventions or Developments relate to the Business Conducted by the Company or any of its Affiliates or the actual or demonstrably anticipated research or development of the Company or any of its Affiliates; or (ii) the Inventions or Developments result from any work performed by the Executive for the Company or any of its Affiliates.

(c)Restrictive Covenants.  The Executive agrees that during the Executive’s employment and for the two (2) year period following the effective date of any termination of the Executive’s employment for any reason (the “Non-Compete Period”), unless the Company gives its advance written consent, the Executive shall not:

(i)            participate or engage in, directly or indirectly (whether as an owner, agent, representative, partner, employee, officer, director, independent contractor, consultant, advisor, or in any other capacity calling for the rendition of services, advice, or acts of management, operation or control), any business that, during the Non-Compete Period, is competitive with the Business Conducted by the Company or any of its Affiliates anywhere in the United States, Canada, Mexico, or China (hereinafter, the “Geographic Area”) and which business the Company was engaged (either actively as a going concern or in the process of developing to market) during the two (2) year period preceding his termination of employment;

(ii)           directly or indirectly solicit any current employee of the Company or any of its Affiliates, or any individual who becomes an employee of the Company or any of its Affiliates during the Non-Compete Period, to leave such employment; or

(iii)          directly or indirectly solicit, seek to divert or dissuade from continuing to do business with or entering into business with the Company or any of its Affiliates, any supplier, customer, or other person or entity with which the Company had, or was actively planning or pursuing, a business relationship at any time during the two (2) year period preceding his termination of employment.

Notwithstanding anything to the contrary in Section 8(c)(i), Section 8(c)(i) shall not apply to the Executive’s activities that constitute the practice of law with respect to a Business Conducted by the Company or any of its Affiliates.  At all times, whether or not the Executive is engaged in activity that constitutes the practice of law, the Executive acknowledges and agrees that he shall be bound by, and shall comply with, any and all applicable codes, rules and canons of professional conduct and/or responsibility (as may be amended from time to time) that are applicable to the Executive’s professional relationship or prior professional relationship (as

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applicable) with the Company and any and all of its Affiliates as a lawyer for the Company and its Affiliates.  For purposes of this Agreement, during the Executive’s employment, “Business Conducted by the Company or any of its Affiliates” shall mean (a) all businesses conducted by the Company or any of its Affiliates and (b) any material new line of business in which the Company or any of its Affiliates is contemplating engaging in, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board.  For purposes of this Agreement, for two-year period following the effective date of any termination of the Executive’s employment, “Business Conducted by the Company or any of its Affiliates” shall mean (a) all business conducted by the Company or any of its Affiliates as of the effective date of the Executive’s termination of employment and (b) any material new line of business in which the Company or any of its Affiliates engages within the one-year period following the effective date of the Executive’s termination of employment, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board prior to the effective date of the Executive’s termination of employment.

(d)           No Diversion of Business Opportunities and Prospects.  The Executive agrees that during his employment with the Company:  (i) the Executive shall not directly or indirectly engage in any employment, consulting or other business activity that is competitive with the Business Conducted by the Company or any of its Affiliates; (ii) the Executive shall promptly disclose to the Company all business opportunities that are presented to the Executive in his capacity as an employee of the Company or which is of a similar nature to the Business Conducted by the Company or any of its Affiliates or which the Company or its Affiliates have expressed an interest in engaging in the future; and (iii) the Executive shall not usurp or take advantage of any such business opportunity without first offering such opportunity to the Company.

(e)           Return of Property.  The Executive acknowledges and agrees that immediately upon his termination of employment with the Company he will promptly return (without retaining any copies) all property of the Company, its Affiliates or any third parties that is within his possession, custody or control by virtue of his employment with the Company.  Property to be returned to the Company shall include without limitation any and all documents and other things (whether in tangible or electronic format and whether such documents or things contain information that reflect or contain any Confidential Information or proprietary information) in the Executive’s possession, custody or control, further including without limitation all computer programs, passwords, files, and diskettes, all written and printed files, manuals, contracts, memoranda, forms, notes, records and charts (and any and all copies of, or extracts from, any of the foregoing), vehicles, keys, cell phones, credit cards and other equipment and materials furnished to him by the Company; provided, however, that (i) the Executive shall be entitled to keep his home office equipment and (ii) the Company and the Executive shall work together to ensure that any Confidential Information, Inventions or Developments, or other Company business information is removed from such home office equipment.

(f)            Irreparable Harm.  The Executive acknowledges that:  (i) the covenants contained in Sections 2(d) and 8 are reasonable in scope and duration, will not unduly restrict the Executive’s ability to engage in his livelihood, and the Executive’s compliance with Sections

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2(d) and 8 is necessary to preserve and protect the Confidential Information, Inventions or Developments, and other legitimate business interests of the Company; (ii) any failure by the Executive to comply with the provisions of Sections 2(d) and 8 will result in irreparable and continuing injury to the Company for which there will be no adequate remedy at law; and (iii) in the event that the Executive should fail to comply with the terms and conditions of Sections 2(d) and 8, in addition to the Company’s right to set off any actual monetary damages to the Company that are a consequence of such failure to comply against any payments and benefits due to the Executive pursuant to Section 7 to the extent permitted by applicable law (provided that any such set offs first shall be taken from amounts not subject to Section 409A of the Code (as defined in Section 10 below), and if such amounts are insufficient, any additional set off shall not be taken until the time an amount subject to Section 409A of the Code would otherwise be paid pursuant to the terms of this Agreement), the Company shall be entitled, in addition to and without limiting such other relief as may be proper, to all types of equitable relief (including but not limited to the issuance of an injunction and/or temporary restraining order) as may be necessary to cause the Executive to comply with Sections 2(d) and 8, to restore to the Company its property, and to make the Company whole.  The Company and Executive acknowledge and agree that the Company or the Executive’s failure to enforce or insist on its rights under Sections 2(d) and 8 shall not constitute a waiver or abandonment of any such rights or defense to enforcement of such rights.  If the provisions of Sections 2(d) and 8 are ever deemed by a court to exceed the limitations permitted by applicable law, the Executive and the Company agree that such provisions shall be, and are, automatically reformed to the maximum lesser limitations permitted by such law.

9.             Cooperation.  At the request and upon reasonable advance notice where practicable and at the sole expense of the Company, whether during or at any time after the Executive’s employment with the Company or any of its Affiliates, the Executive shall cooperate fully with the Company and its Affiliates (a) in investigating, defending, prosecuting, litigating, filing, initiating or asserting any claims or potential claims (including without limitation in connection with any legal proceeding of any kind) that may be made by or against the Company or any of its Affiliates, to the extent that such claims may relate to or arise out of the Executive’s employment with the Company or any of its Affiliates or with respect to which the Executive has knowledge and (b) without in any way limiting subsection (a) above, to secure any trade name, patent, trademark, copyright or intellectual property protection or other similar rights in the United States and/or in foreign countries, including without limitation, the execution and delivery of assignments, patent applications and other documents or papers.  If such cooperation is provided during the Executive’s employment with the Company or any of its Affiliates, the Executive shall not receive any additional compensation from the Company for such cooperation.  If the Executive no longer is employed by the Company or any of its Affiliates, the Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with his other business obligations.  If the Executive spends in excess of ten (10) hours in compliance with this Section 9 after he is no longer employed by the Company or any of its Affiliates, the Company shall compensate the Executive at an hourly rate equal to the amount determined by dividing (x) the Executive’s Base Salary as of the first day of the fiscal year of the Company within which the Executive’s employment is terminated by (y) 2000, and shall reimburse the Executive for any reasonable expenses incurred as a direct result of his providing such cooperation in accordance with Section 3(e) of this Agreement.  The Company shall provide such compensation for the Executive’s cooperation within thirty (30) calendar days after

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receiving from the Executive a written statement stating the number of hours for which he seeks payment and brief description of the cooperation provided, provided that the Executive submits such statement within thirty (30) calendar days after the end of the calendar month in which the Executive provided such cooperation.  The Executive’s obligation to cooperate hereunder shall include, without limitation, meeting with such persons at such times and in such places as the Company or its Affiliates may require, and giving evidence and testimony and executing and delivering to the Company and any of its Affiliates any papers requested by any of them (including without limitation joint defense agreements and affidavits).  The Executive shall provide immediate notice to the Company of any subpoena or other legal document that he receives that relates in any way to the Company or any of its Affiliates, along with a copy of such subpoena or other legal document.

10.          Compliance with Section 409A.  All references in this Agreement to the Executive’s termination of employment shall mean his separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury regulations promulgated thereunder.  In the event the terms of this Agreement would subject the Executive to the imposition of taxes and penalties (“409A Penalties”) under Section 409A of the Code, the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible.  Notwithstanding any other provision in this Agreement, if as of the date on which the Executive’s employment terminates, the Executive is a “specified employee” as determined by the Company, then to the extent any amount payable or benefit provided under this Agreement that the Company reasonably determines would be nonqualified deferred compensation within the meaning of Section 409A of the Code, that under the terms of this Agreement would be payable prior to the six-month anniversary of the Executive’s effective date of termination, such payment or benefit shall be delayed until the earlier to occur of (a) the six-month anniversary of such termination date or (b) the date of the Executive’s death.  In the case of taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment, may require the Executive to pay the full costs of such benefits during the period described in the preceding sentence and reimburse that Executive for said costs within thirty (30) calendar days after the end of such period.  With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred by the Executive.  The amount of any expenses eligible for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this Agreement during any calendar year (including without limitation pursuant to Sections 9, 11 and 17) shall not affect the amount of expenses eligible for reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.  The Executive acknowledges and agrees that notwithstanding this Section 10 or any other provision of this Agreement, the Company and its Affiliates are not providing him with any tax advice with respect to Section 409A of the Code or otherwise and are not making any guarantees or other assurances of any kind to the Executive with respect to the tax consequences or treatment of any amounts paid or payable to the Executive under this Agreement.

11.          Section 280G.  Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or Executive’s Employment Termination (whether pursuant to the terms of

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this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits being hereinafter called “Total Payments”) would be an “excess parachute payment” pursuant to Code Section 280G or any successor or substitute provision of the Code, with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code, or any interest or penalties are incurred by Executive with respect to such Total Payments (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 7 of this Agreement shall first be reduced, and the non-cash payments and benefits shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.  Notwithstanding the foregoing, no payments or benefits under this Agreement will be reduced unless: (i) the net amount of the Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the excess of (A) the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), over (B) the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments.

(a)           Subject to the provisions of paragraph (b) below, all determinations required to be made under this Section, and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that serves as the Company’s auditors (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there have been Total Payments, or such earlier time as is requested by the Company.  In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall designate another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder).  All fees and expenses of the Accounting Firm shall be borne solely by the Company.  If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty.  Any determination by the Accounting Firm shall be binding upon the Company and Executive, except as provided in paragraph (b) below.

(b)           As a result of the uncertainty in the application of Code Section 280G at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service (“IRS”) or other agency will claim that an Excise Tax, or a greater Excise Tax, is due, and thus the Company should have made a lesser amount of Total Payment than that determined pursuant to paragraph (a) above.  Executive shall notify the Company in writing of any claim by the IRS or other agency that, if successful, would require Executive to pay an Excise Tax or an additional Excise Tax.  If the IRS or other agency makes a claim that, if successful, could require Executive to pay an Excise Tax or an additional Excise Tax, the Company shall reduce or further reduce Executive’s payments and benefits in accordance with this Section 11 to the amount necessary to eliminate such Excise Tax or additional Excise Tax. 

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The Company shall pay all fees and expenses of the Executive relating to such a claim by the IRS or other agency.

12.Notices.  Notices given pursuant to this Agreement shall be in writing and shall be effective upon personal delivery, upon confirmation of receipt of facsimile transmission, upon the fourth day after mailing by certified mail, or upon the second day after sending by express courier service.  Notice to the Company shall be directed to:

Smurfit-Stone Container Corporation

Six CityPlace Drive

Creve Coeur, Missouri 63141

Attention:  Chief Executive Officer

Notices to or with respect to the Executive will be directed to the Executive, or to the Executive’s executors, personal representatives or distributees, if the Executive is deceased, or the assignees of the Executive, at the Executive’s home address on the records of the Company.  Either party may change the person and/or address to which the other party must give notice under this Section by providing written notice of such change, in accordance with the procedures described in this Section 12.

13.Assignment.  This Agreement is enforceable by the Company and its affiliates and other related entities and may be assigned or transferred by the Company to, and shall be binding upon and inure to the benefit of, any parent, subsidiary or other Affiliate of the Company or any entity which at any time, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets, stock or business of the Company (including without limitation any successor and/or reorganized entit(ies) of the Company or any of its Affiliates upon the Effective Date).  The Executive and the Company agree that upon the Effective Date, this Agreement shall be assigned to and binding upon such successor entit(ies) of the Company as set forth in the Plan of Reorganization, provided that nothing herein shall limit or otherwise affect the Company’s right to further assign or transfer this Agreement after the Effective Date as set forth in the preceding sentence.  The Executive may not assign any of his rights or obligations under this Agreement during his life.  Upon the Executive’s death, this Agreement will inure to the benefit of the Executive’s heirs, legatees and legal representatives of the Executive’s estate.

14.Beneficiary.  If the Executive dies prior to receiving the amounts to which he is entitled under this Agreement (if any), subject to and in accordance with the terms and conditions of this Agreement, such amounts shall be paid to the beneficiary designated by the Executive in writing to the Company during his lifetime (“Beneficiary”), or if no such Beneficiary is designated, to the Executive’s estate.  Notwithstanding anything to the contrary herein, the Beneficiary shall not be entitled to receive any amounts pursuant to Section 7 of this Agreement unless the Beneficiary and any other authorized representatives of the Executive’s estate execute an enforceable waiver and release of claims in accordance with the Executive’s obligations set forth in Section 7(c).  The Executive, without the consent of any prior Beneficiary, may change his designation of Beneficiary or Beneficiaries at any time and from time to time by submitting to the Company a new designation in writing.

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15.          Severability.  Each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law.  The Executive and the Company agree that in the event that any provision of this Agreement is found to be unreasonable or otherwise unenforceable by a court, it is the purpose and intent of the parties that any such provision be deemed modified or limited, so that as modified or limited, such provision may be enforced to the fullest extent possible.  If any provision of this Agreement is held invalid or unenforceable for any reason (after any such modification or limitation pursuant to the preceding sentence, as applicable), such provision will be effective only to the extent of such invalidity or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement.

16.          Entire Agreement, Amendment and Waiver.  Except as otherwise provided herein, this Agreement embodies the entire agreement and understanding of the parties hereto with regard to the matters described herein and supersedes any and all prior and/or contemporaneous agreements and understandings, oral or written, between said parties regarding such matters, provided that nothing herein shall limit or otherwise affect any provision of any Emergence Equity Grant Award Agreement.  In the event of any conflict between any provision of this Agreement and any Emergence Equity Grant Award Agreement, the provisions of this Agreement shall govern.  The Executive and the Company acknowledge and agree that this Agreement amends and restates the Predecessor Agreement in its entirety and that as of the Effective Date the provisions of this Agreement shall replace each and every provision of the Predecessor Agreement, at which time the provisions of the Predecessor Agreement shall be null and void, and shall be of no further force or effect.  Except as set forth in Sections 8(f) and 15, this Agreement may be modified only in a written agreement signed by both the Executive and the Company’s authorized representative.  Any party’s failure to enforce this Agreement in the event of one or more events which violate this Agreement shall not constitute a waiver of any right to enforce this Agreement against subsequent violations.

17.          Forum Selection.  The parties hereby irrevocably consent to, and agree not to object or assert any defense or challenge to, the jurisdiction and venue of the state and federal courts sitting in Chicago, Illinois, and agree that any claim under this Agreement may be brought in any such court.  In any action or proceeding to enforce this Agreement, the non-prevailing party shall pay for any and all costs and expenses (including without limitation reasonable attorneys’ fees) of the prevailing party to the maximum extent permissible by applicable law.

18.          Governing Law.  This Agreement shall be governed by the internal laws of the state of Illinois, without regard to its conflict of laws rules.

19.          Headings.  The Section headings used herein are for convenience of reference only and are not to be considered in construction of the provisions of this Agreement.

20.          Release of Claims Under Predecessor Agreement.  The consideration offered herein is accepted by the Executive as being in full accord, satisfaction, compromise and settlement of any and all amounts that are or may have been due and owing to him pursuant to any term or condition of the Predecessor Agreement, and the Executive expressly agrees that he is not entitled to and will not receive any further payments, benefits, or other compensation or

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recovery of any kind from the Company with respect to any such term or condition of the Predecessor Agreement.

21.          Survival.  Sections 2(d) and 4 through 22 herein shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period or the Executive’s employment.

22.          Counterparts.  This Agreement may be executed in two counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument.

THE PARTIES ACKNOWLEDGE BY SIGNING BELOW THAT THEY HAVE READ AND UNDERSTAND THE ABOVE AND INTEND TO BE BOUND THEREBY:

CRAIG A. HUNT		SMURFIT-STONE CONTAINER CORPORATION
/s/ Craig A. Hunt		By:	/s/ Patrick J. Moore
Date:	June 30, 2010	Position:			Chief Executive Officer
		Date:		June 30, 2010

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EXHIBIT A

EMERGENCE EQUITY AWARD AGREEMENTS FOR CRAIG A. HUNT

EX-10.10

Exhibit 10.10

AMENDED AND RESTATED

EMPLOYMENT SECURITY AGREEMENT OF STEVEN C. STRICKLAND

This Amended and Restated Employment Security Agreement (the “Agreement”) by and between Steven C. Strickland (the “Executive”) and Smurfit-Stone Container Corporation (the “Company”) shall be deemed to have been made and entered into as of the date of the order of confirmation entered by the United States Bankruptcy Court for the District of Delaware with respect to the Company’s plan of reorganization in the matter of In re: Smurfit-Stone Container Corp., Case No. 09-10235 (BLS) (the “Chapter 11 Cases”) (such plan, the “Plan of Reorganization” and such date, the “Confirmation Date”), and shall become effective as of June 30, 2010, the effective date of the Plan of Reorganization (the “Effective Date”).

WHEREAS, the Executive currently is employed as the Company’s Senior Vice President and General Manager, Corrugated Container Division and the Company desires to continue to employ the Executive upon and subject to the terms and conditions set forth herein, and the Executive wishes to accept such employment upon and subject to such terms and conditions;

WHEREAS, the Company and the Executive are parties to that certain Employment Security Agreement effective as of July 16, 2008 (such agreement referred to herein as the “Predecessor Agreement”), which Predecessor Agreement was not assumed by the Company during the course of the Chapter 11 Cases;

WHEREAS, the Company and the Executive desire to enter into the Agreement and, in so doing, to amend and restate the Predecessor Agreement in its entirety; and

WHEREAS, the Company has adopted and implemented an Equity Incentive Plan (“Equity Incentive Plan”) as of the Confirmation Date, pursuant to the Plan of Reorganization; and

NOW, THEREFORE, in consideration of the promises and mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by both parties, the parties hereby agree as follows:

1.Employment Period and Position.  The Company hereby agrees to employ the Executive as its Senior Vice President and General Manager, Corrugated Container (or such other position(s) as the Company may reasonably designate during the Employment Period (as defined below)) and the Executive hereby accepts such employment, subject to the terms and conditions of this Agreement, commencing on the Effective Date until the second anniversary of the Effective Date unless the Executive’s employment is earlier terminated pursuant to Section 4 (such period referred to as the “Initial Term”).  The Initial Term shall automatically be extended on the same terms and conditions as set forth in this Agreement for successive two-year periods unless and until either:  (a) a party gives the other party no less than ninety (90) calendar days’ advance written notice prior to the end of the Initial Term or any such two-year extension period (as applicable) that such party will not further extend the Initial Term or two-year extension period, or (b) the Company or the Executive terminates the Executive’s employment in accordance with Section 4.  The Initial Term and any and all extensions thereof (or partial

extension in the event of an earlier termination pursuant to Section 4), if any, shall be collectively referred to as the “Employment Period”.

2.Duties and Responsibilities.

(a)During the Employment Period, the Executive (i) shall perform the duties assigned to him by the Company (provided that the Executive shall not be assigned tasks inconsistent with his position as a senior executive of the Company or any of its Affiliates) faithfully, with the utmost loyalty, to the best of his abilities and in the best interests of the Company; (ii) shall devote his full business time, attention and effort to the affairs of the Company, except that the Executive may serve on (x) corporate boards or committees with the prior written approval of the Company’s Board of Directors (the Company’s pre- and post-Effective Date Boards of Directors hereinafter collectively referred to herein as the “Board”), and/or (y) civic or charitable boards or committees, in either case as long as such activities do not, individually or in the aggregate, interfere with the performance of the Executive’s employment duties and responsibilities or harm the business or reputation of the Company or any of its Affiliates; and (iii) shall not engage in any other business activities (whether or not for gain, profit, or other pecuniary advantage) or any other actions which he knows or reasonably should know could harm the business or reputation of the Company or any of its affiliates or other related entities.  For purposes of this Agreement, “Affiliates” shall mean any entity that, directly or indirectly, is controlled by the Company, and any entity in which the Company has a 20% or greater equity interest.

(b)The Executive shall act in conformity with the Company’s written and oral policies and within the limits, budgets and business plans set by the Company.  The Executive will at all times during the Employment Period strictly adhere to and obey all of the rules and regulations in effect from time to time relating to the conduct of Company executives.  Except as provided in Section 2(a), the Executive shall not engage in consulting work or any trade or business for his own account or for or on behalf of any other person, firm or company that competes, conflicts or interferes with the performance of his duties hereunder in any material way.

(c)The Executive covenants, represents and warrants that:  (i) the execution, delivery and complete performance of this Agreement by him does not and will not breach, violate or cause a default under any contract, agreement, instrument, order, judgment or decree to which the Executive is a party or by which he is bound; and (ii) he is not a party to or bound by any employment or services agreement, confidentiality agreement, noncompetition agreement, other restrictive covenant, or other obligation or agreement that would or could prohibit or restrict him from being employed by the Company or from performing any of his duties under this Agreement.

(d)Mutual Non-Disparagement.  The Executive shall not, at any time during or after his employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Company or any of its Affiliates or any members of their respective boards of directors or managements, or any of their respective business affairs or performance.  The Company, members of its Board and its senior executives shall not, at any time during or after

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the Executive’s employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Executive.

3.Compensation and Benefits.

(a)Base Salary.  During the Employment Period, subject to the terms and conditions of this Agreement, the Company shall pay to the Executive an annual base salary at the gross rate of $415,000 (the “Base Salary”), payable in installments in accordance with the Company’s executive payroll policy (but not less frequently than monthly).  The Base Salary shall be subject to such annual adjustments, if any, as determined by the Board in its discretion, provided that in no event shall the Base Salary be reduced at any time without the Executive’s prior written consent.

(b)Incentive Compensation.  During the Employment Period, the Executive shall be eligible to participate in the Company’s annual incentive plan(s), long-term incentive plan(s), and any equity-based and/or other incentive compensation plans established or maintained by the Company in which its senior executive officers are eligible to participate, including without limitation the Company’s Management Incentive Plan (“MIP”) and Equity Incentive Plan (and/or any other similar long-term or equity-based incentive plan).

(c)Emergence Equity Grant.  The Company hereby agrees to grant the Executive one hundred and fifty three thousandths of one percent (0.153%) on a fully diluted basis of the new common stock of the Company issued on the Effective Date in accordance with and pursuant to the Plan of Reorganization in (i) a stock option award with respect to approximately 0.116% of such shares of new common stock of the Company and (ii) a restricted stock unit award with respect to approximately 0.037% of such shares of new common stock of the Company (the “Emergence Equity Grants”), in accordance with and pursuant to the Company’s Plan of Reorganization and the terms and conditions of the Company’s Equity Incentive Plan, any applicable incentive plan documents, and/or any award statements or agreements (each an “Award Agreement”) and this Agreement (including without limitation with such Emergence Equity Grants to be made on, and effective as of, the dates set forth in the Plan of Reorganization).  The Award Agreements for the Emergence Equity Grants shall be in substantially the form set forth in Exhibit A hereto.

(d)Employee Benefits.  During the Employment Period, the Executive shall be eligible to participate in such employee benefit plans (including group medical and dental), and to receive such other fringe benefits and perquisites, as the Company may make available to senior executives generally, subject to all present and future terms and conditions of such benefit plans and other fringe benefits and perquisites.  The Company reserves the right in its sole discretion to alter, suspend, amend, or discontinue any and all of its employee and fringe benefits, perquisites, benefit plans, policies and procedures, in whole or in part, at any time with or without notice, provided that the Company will not make any change to the Executive’s employee or fringe benefits that it does not also make on a generally consistent basis for other senior executives of the Company.

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(e)Expense Reimbursement.  The Company shall reimburse the Executive for all reasonable and necessary business expenses incurred by him in connection with his duties hereunder (in each case, as determined by the Company) after the Executive’s timely presentation of IRS-acceptable itemized and documented accounts of such expenditures, provided that the Executive shall secure the Board’s approval before incurring any extraordinary expenses, and further provided that such reimbursement for reasonable and necessary business expenses is subject to the Company’s expense reimbursement policy.

(f)Withholdings and Deductions.  Any and all payments to the Executive under this Agreement shall be reduced by required or authorized withholding and deductions.

(g)Clawback.  In the event that the Board determines in good faith that the amount of any incentive and/or performance based compensation based in whole or in part on the financial performance of the Company (or any division thereof) paid or granted to the Executive was materially incorrect because the performance criteria were applied incorrectly, within sixty (60) days after receiving written notice from the Board, the Executive shall repay to the Company the portion of any cash payments or return and forfeit the portion of any such grant, as the case may be, that the Executive received that he was not entitled to receive due to such incorrect application of the performance criteria (which such amount(s) to be repaid or returned shall be reduced by the Net Tax Costs (as defined below)), provided that the foregoing written notice from the Board is received by the Executive no later than the earlier of (i) ninety (90) days after the date on which the Company becomes aware of the incorrect application of the performance criteria and (ii) the second anniversary of the payment, vesting or delivery, as applicable, of the compensation.  “Net Tax Costs” shall mean the net amount of any federal, state or local income and employment taxes paid by the Executive in respect to the portion of the compensation subject to repayment or return, after taking into account any and all available deductions, credits or other offsets allowable to the Executive (including without limit, any deductions permitted under the claim of right doctrine), and regardless of whether the Executive would be required to amend any prior income or other tax returns.

4.Termination of Employment.

(a)Termination for Cause.  Notwithstanding anything to the contrary herein, the Company may terminate the Executive’s employment for Cause (as defined herein) at any time immediately upon written notice.  For purposes of this Agreement, “Cause” shall mean any of the following:  (i) the Executive’s willful and continued failure to substantially perform his duties as an executive of the Company (other than any such failure resulting from inability due to physical or mental illness or Incapacity), (ii) the Executive’s willful misconduct in the performance of the Executive’s duties or otherwise that results in injury to the Company, monetarily or otherwise, that is material or substantial, (iii) the Executive’s engaging in egregious misconduct to the extent that the Executive’s credibility and reputation no longer conforms to the standard of senior executive officers of the Company, or (iv) the Executive’s material breach or threatened material breach of any provision of this Agreement, including without limitation Section 8 of this Agreement, without the prior express written consent of a duly authorized member of the Board or the Chief Executive Officer of the Company; provided, however, that an occurrence which otherwise may constitute Cause hereunder shall not constitute Cause unless a notice is delivered to the Executive by the Board or the Chief Executive Officer

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of the Company that specifically identifies the conduct that the Board or the Company’s Chief Executive Officer believes constitutes Cause and, to the extent such conduct is reasonably capable of cure, the Company gives the Executive at least fifteen (15) days to cure such alleged conduct.

(b)Voluntary Resignation by the Executive With or Without Good Reason.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company for Good Reason (as defined herein) at any time by written notice to the Company.  After the ninetieth (90th) calendar day after the Effective Date, the Executive may terminate his employment with the Company upon sixty (60) calendar days’ advance written notice without Good Reason, and the Executive’s employment shall terminate effective as of the effective date of any such notice or such later effective termination date as the Executive may specify in the notice (which shall in no event be later than sixty (60) calendar days after the notice is given unless otherwise agreed to in writing by the Board or the Chief Executive Officer of the Company).  For purposes of this Agreement, “Good Reason” shall mean the occurrence of any of the following without the Executive’s consent:  (i) assigning the Executive duties that are materially inconsistent with the Executive’s then-current status as a senior executive of the Company; (ii) requiring the Executive to report other than to the Company’s Chief Executive Officer or President; (iii) failure of the Company to pay any portion of the Executive’s compensation within ten (10) days after the date such compensation is due or first may be paid pursuant to applicable law; (iv) failure of the Company to continue in effect any broad-based bonus or incentive plan, welfare benefit, pension, retirement benefit or other benefit plan in which the Executive participates or becomes eligible to participate unless such discontinuance applies on a consistent basis to other senior executives of the Company, or a reduction by the Company of the Executive’s target level participation (as a percentage of the Executive’s base salary and on an annualized basis) in its annual incentive bonus plan from the lower of such target levels of his participation in the Company’s 2010 MIP as approved by the Board prior to the Effective Date (unless such reduction is made on a consistent basis for other Company executives other than the Chief Executive Officer or President); (v) the Agreement is not assigned to a successor to the Company pursuant to the Plan of Reorganization; or (vi) any material breach of this Agreement or any Award Agreement applicable to an Emergence Equity Grant; provided, however, that an occurrence which otherwise may constitute Good Reason hereunder shall not constitute Good Reason unless the Executive (y) provides to the Company, at least thirty (30) calendar days prior to the Executive’s contemplated resignation for Good Reason, a written notice containing reasonable detail setting forth the basis for the Executive’s claim that an occurrence constitutes Good Reason, and (z) the Company fails to cure or otherwise remedy such occurrence within thirty (30) calendar days after receiving such notice from the Executive.  Notwithstanding anything to the contrary herein, the parties hereto acknowledge and agree that the Executive must exercise his right to terminate his employment for Good Reason within ninety (90) calendar days after the event that gives rise to such right, and that if the Executive fails to timely exercise such right and subsequently resigns, such resignation shall be deemed for all purposes of this Agreement to be without Good Reason.  The Executive acknowledges and agrees that the restructuring events that have taken place or will take place solely pursuant to the Company’s Plan of Reorganization shall not constitute Good Reason for purposes of this Agreement.

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(c)Termination Due to Death or Incapacity.  Notwithstanding anything to the contrary herein, the Executive’s employment with the Company shall terminate automatically upon the Executive’s death, and the Company may immediately terminate the Executive’s employment with the Company by written notice at any time upon the Executive’s Incapacity (as defined below) effective as of the date of the Executive’s Incapacity.  For purposes of this Agreement, “Incapacity” shall mean such physical or mental condition of the Executive which renders and is expected to render the Executive incapable of performing the essential functions of his position hereunder with or without reasonable accommodation for ninety (90) consecutive calendar days, or for 120 calendar days (whether consecutive or not) within any 180-calendar-day period, as determined in good faith by the Board upon consultation with a physician selected by the Board in its discretion.  The Executive hereby agrees to submit to any reasonable medical examination(s) as may be recommended by the Board for the purpose of determining the existence or absence of Incapacity.

(d)Termination by the Company Other Than for Cause or Incapacity.  Notwithstanding anything to the contrary herein, the Company may terminate the Executive’s employment with the Company for any reason other than Cause or Incapacity or for no reason, at any time upon thirty (30) calendar days’ advance written notice to the Executive signed by a duly authorized representative of the Board or the Company’s Chief Executive Officer, and such termination shall be effective upon the effective date of such notice or such later effective termination date as the Company may specify in the notice.

(e)Voluntary Termination Following a Company Change in Control.  Notwithstanding anything to the contrary herein, the Executive may terminate his employment with the Company at any time within the 24-month period following a Company Change in Control (as defined herein) with or without Good Reason, provided that the Executive complies with notice requirements set forth in Section 4(b).  Neither a Change in Control with respect to any affiliate of the Company nor the assignment of this Agreement to any reorganized entity of the Company pursuant to the Plan of Reorganization shall constitute a Change in Control for the purposes of this Agreement.  “Change in Control” shall mean the occurrence of any one or more of the following:

(i)The “beneficial ownership” of securities representing more than 40% of the combined voting power of the then outstanding voting securities of the Company entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (A), (B) and (C) of subparagraph (iii) of this definition will not be a Change in Control under this subparagraph (i), and provided further that immediately prior to such accumulation, holding or acquisition, such person was not a direct or indirect beneficial owner of 40% or more of the Company Voting Securities;

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(ii)Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(iii)Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (A) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors of (i) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (ii) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (B) no person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 40% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership of the Company existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(iv)Approval by the Company’s stockholders of a complete liquidation or dissolution of the Company; or

(v)The consummation of a reorganization, complete liquidation, or dissolution under the U.S. Bankruptcy Code subsequent to the Effective Date (and excluding the Plan of Reorganization as defined herein).

5.The Executive’s Duties After Notice of Termination.  For any period in which the Executive gives or is given notice prior to the effective date of the Executive’s termination, unless otherwise directed by the Company, the Executive shall be expected and required to continue performing the Executive’s duties and responsibilities in accordance with Section 2 of this Agreement for the notice period up to the effective date of the termination of the Executive’s employment.

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6.Removal from Positions.  Any termination of the Executive’s employment shall automatically effectuate the Executive’s removal from the officer and/or Board positions that the Executive then holds with the Company and its Affiliates and any employee benefit plans, as of the effective termination date.

7.Payments Upon Termination of Employment.

(a)The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive (i) any accrued but unpaid Base Salary through the effective date of the termination, (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time.

(b)In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement.

(c)In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:

(i)to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;

(ii)to pay to the Executive a gross amount equal to two (2) times the Executive’s then-current Base Salary, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;

(iii)to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the annual incentive plan during the three (3) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;

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(iv)to continue to pay the employer portion of the Executive’s premiums to continue his then-current coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and

(v)to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment.

The Executive acknowledges and agrees that for purposes of Section 7 of this Agreement, “annual incentive bonus” shall mean the Executive’s incentive bonus under the Company’s MIP then in effect or such other similar annual incentive bonus plan or program then in effect.

(d)In the event that the Executive dies or the Company terminates the Executive’s employment pursuant to Section 4(c) of this Agreement due to Incapacity, subject to the terms and conditions of this Agreement, the Company’s sole obligation under this Agreement shall be to:  (i) pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement; (ii) pay to the Executive a pro-rated portion of any annual incentive bonus(es) (if any) that the Executive would have earned for the performance period(s) in which the effective termination date of his employment occurred as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s) and paid at such time(s) as provided in such annual incentive plan; and (iii) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment.

(e)Timing of Payments.  Subject to the terms and conditions of this Agreement (including without limitation Section 10) and provided that the Executive executes (without revoking) a Release Agreement as set forth in Section 7(c) above (as applicable) and the applicable statutory revocation period with respect to such Release Agreement has expired, and further provided that the Executive remains in compliance with Sections 5, 8 and 9 of this Agreement, any payments or benefits made available to the Executive by the Company pursuant to this Section will be made or commence (as applicable) as follows:  (i) any payments made pursuant to Sections 7(c)(ii) and (iii) will commence on the sixtieth (60th) calendar day following

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the effective termination date of the Executive’s employment; and (ii) the payments and benefits in Sections 7(a), 7(b), and 7(c)(i), (iv) and (v), and 7(d) will be paid or commence (as applicable) at such times and in such manner as set forth in the applicable Company policy and plan documents.

8.Confidentiality, Intellectual Property and Restrictive Covenants.  The Company and the Executive agree that, by virtue of his unique relationship with the Company (including pursuant to this Agreement), the Executive has and will acquire and have access to, and has and will continue to develop substantial and intimate knowledge of, the Company’s Confidential Information (defined below), and has and will also continue to develop a unique and comprehensive familiarity with the Company and the Business Conducted by the Company or any of its Affiliates, which the Executive would not have otherwise had but for his employment with the Company, and which the Executive acknowledges are valuable assets of the Company.  Accordingly, the Executive agrees, in exchange for the consideration and mutual covenants contained in this Agreement, to undertake the following obligations, which he acknowledges are reasonably designed to protect the legitimate business interests of the Company, without unreasonably restricting his post-employment opportunities:

(a)Confidential Information.  The Executive acknowledges that during his employment with the Company he has had and will continue to have, and may continue to have during the Non-Compete Period (as defined below), access to Confidential Information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions.  All Confidential Information is of irreplaceable value to the Company, its Affiliates and such third parties.  Except as required to properly perform the Executive’s responsibilities for the Company and its Affiliates, to comply with law or regulation, or as authorized in writing in advance by the Company, the Executive shall not, at any time, use, disclose, or take any action which may result in the use or disclosure of any Confidential Information.  For purposes of this Agreement, “Confidential Information” shall mean all confidential and proprietary information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions, and includes, but is not limited to, actual and prospective customer and client lists and pricing information, business plans, programs and tactics, research and development information (including without limitation information relating to the formulation, testing, registration, use, safety, efficacy and/or effects of marketed products and compounds under development), personnel information, and all other information unique to the Company and not readily available to the public, including designs, improvements, inventions, formulas, compilations, methods, strategies, capabilities, forecasts, software programs, processes, know-how, data, operating methods and techniques, “Inventions or Developments” (as defined below), and all business costs, profits, vendors, markets, sales, products, marketing, sales or other financial or business information, and any modifications or enhancements of any of the foregoing.

(b)Inventions or Developments.  The Executive agrees that he will, now and in the future, promptly and fully disclose to the Company all discoveries, improvements, inventions, formulas, ideas, processes, designs, techniques, know-how, data and computer programs (whether or not patentable, copyrightable or susceptible to any other form of protection), that are or have been made, conceived, reduced to practice or developed by the

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Executive, either alone or jointly with others, during his employment with the Company, that are related in any way to the past, current or future business or products of the Company or any of its Affiliates or are devised, made, developed, reduced to practice or perfected utilizing equipment or facilities of the Company or any of its Affiliates (collectively, the “Inventions or Developments”).  All Inventions or Developments shall be the sole property of the Company, including all patents, copyrights, intellectual property or other rights related thereto and the Executive assigns to the Company all rights (if any) that the Executive may have or acquire in such Inventions or Developments.  Notwithstanding the foregoing, this Section 8(b) shall not apply to any Inventions or Developments for which no equipment, supplies, facility or trade secret information of the Company or its Affiliates were used and which were developed entirely on the Executive’s own time, unless:  (i) the Inventions or Developments relate to the Business Conducted by the Company or any of its Affiliates or the actual or demonstrably anticipated research or development of the Company or any of its Affiliates; or (ii) the Inventions or Developments result from any work performed by the Executive for the Company or any of its Affiliates.

(c)Restrictive Covenants.  The Executive agrees that during the Executive’s employment and for the two (2) year period following the effective date of any termination of the Executive’s employment for any reason (the “Non-Compete Period”), unless the Company gives its advance written consent, the Executive shall not:

(i)participate or engage in, directly or indirectly (whether as an owner, agent, representative, partner, employee, officer, director, independent contractor, consultant, advisor, or in any other capacity calling for the rendition of services, advice, or acts of management, operation or control), any business that, during the Non-Compete Period, is competitive with the Business Conducted by the Company or any of its Affiliates anywhere in the United States, Canada, Mexico, or China (hereinafter, the “Geographic Area”) and which business the Company was engaged (either actively as a going concern or in the process of developing to market) during the two (2) year period preceding his termination of employment;

(ii)directly or indirectly solicit any current employee of the Company or any of its Affiliates, or any individual who becomes an employee of the Company or any of its Affiliates during the Non-Compete Period, to leave such employment; or

(iii)directly or indirectly solicit, seek to divert or dissuade from continuing to do business with or entering into business with the Company or any of its Affiliates, any supplier, customer, or other person or entity with which the Company had, or was actively planning or pursuing, a business relationship at any time during the two (2) year period preceding his termination of employment.

For purposes of this Agreement, during the Executive’s employment, “Business Conducted by the Company or any of its Affiliates” shall mean (a) all businesses conducted by the Company or any of its Affiliates and (b) any material new line of business in which the Company or any of its Affiliates is contemplating engaging in, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board.  For purposes of this Agreement, for two-year period following the effective date of any termination of the Executive’s employment, “Business Conducted by the Company or any of

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its Affiliates” shall mean (a) all business conducted by the Company or any of its Affiliates as of the effective date of the Executive’s termination of employment and (b) any material new line of business in which the Company or any of its Affiliates engages within the one-year period following the effective date of the Executive’s termination of employment, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board prior to the effective date of the Executive’s termination of employment.

(d)No Diversion of Business Opportunities and Prospects.  The Executive agrees that during his employment with the Company:  (i) the Executive shall not directly or indirectly engage in any employment, consulting or other business activity that is competitive with the Business Conducted by the Company or any of its Affiliates; (ii) the Executive shall promptly disclose to the Company all business opportunities that are presented to the Executive in his capacity as an employee of the Company or which is of a similar nature to the Business Conducted by the Company or any of its Affiliates or which the Company or its Affiliates have expressed an interest in engaging in the future; and (iii) the Executive shall not usurp or take advantage of any such business opportunity without first offering such opportunity to the Company.

(e)Return of Property.  The Executive acknowledges and agrees that immediately upon his termination of employment with the Company he will promptly return (without retaining any copies) all property of the Company, its Affiliates or any third parties that is within his possession, custody or control by virtue of his employment with the Company.  Property to be returned to the Company shall include without limitation any and all documents and other things (whether in tangible or electronic format and whether such documents or things contain information that reflect or contain any Confidential Information or proprietary information) in the Executive’s possession, custody or control, further including without limitation all computer programs, passwords, files, and diskettes, all written and printed files, manuals, contracts, memoranda, forms, notes, records and charts (and any and all copies of, or extracts from, any of the foregoing), vehicles, keys, cell phones, credit cards and other equipment and materials furnished to him by the Company; provided, however, that (i) the Executive shall be entitled to keep his home office equipment and (ii) the Company and the Executive shall work together to ensure that any Confidential Information, Inventions or Developments, or other Company business information is removed from such home office equipment.

(f)Irreparable Harm.  The Executive acknowledges that:  (i) the covenants contained in Sections 2(d) and 8 are reasonable in scope and duration, will not unduly restrict the Executive’s ability to engage in his livelihood, and the Executive’s compliance with Sections 2(d) and 8 is necessary to preserve and protect the Confidential Information, Inventions or Developments, and other legitimate business interests of the Company; (ii) any failure by the Executive to comply with the provisions of Sections 2(d) and 8 will result in irreparable and continuing injury to the Company for which there will be no adequate remedy at law; and (iii) in the event that the Executive should fail to comply with the terms and conditions of Sections 2(d) and 8, in addition to the Company’s right to set off any actual monetary damages to the Company that are a consequence of such failure to comply against any payments and benefits due to the Executive pursuant to Section 7 to the extent permitted by applicable law (provided

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that any such set offs first shall be taken from amounts not subject to Section 409A of the Code (as defined in Section 10 below), and if such amounts are insufficient, any additional set off shall not be taken until the time an amount subject to Section 409A of the Code would otherwise be paid pursuant to the terms of this Agreement), the Company shall be entitled, in addition to and without limiting such other relief as may be proper, to all types of equitable relief (including but not limited to the issuance of an injunction and/or temporary restraining order) as may be necessary to cause the Executive to comply with Sections 2(d) and 8, to restore to the Company its property, and to make the Company whole.  The Company and Executive acknowledge and agree that the Company or the Executive’s failure to enforce or insist on its rights under Sections 2(d) and 8 shall not constitute a waiver or abandonment of any such rights or defense to enforcement of such rights.  If the provisions of Sections 2(d) and 8 are ever deemed by a court to exceed the limitations permitted by applicable law, the Executive and the Company agree that such provisions shall be, and are, automatically reformed to the maximum lesser limitations permitted by such law.

9.Cooperation.  At the request and upon reasonable advance notice where practicable and at the sole expense of the Company, whether during or at any time after the Executive’s employment with the Company or any of its Affiliates, the Executive shall cooperate fully with the Company and its Affiliates (a) in investigating, defending, prosecuting, litigating, filing, initiating or asserting any claims or potential claims (including without limitation in connection with any legal proceeding of any kind) that may be made by or against the Company or any of its Affiliates, to the extent that such claims may relate to or arise out of the Executive’s employment with the Company or any of its Affiliates or with respect to which the Executive has knowledge and (b) without in any way limiting subsection (a) above, to secure any trade name, patent, trademark, copyright or intellectual property protection or other similar rights in the United States and/or in foreign countries, including without limitation, the execution and delivery of assignments, patent applications and other documents or papers.  If such cooperation is provided during the Executive’s employment with the Company or any of its Affiliates, the Executive shall not receive any additional compensation from the Company for such cooperation.  If the Executive no longer is employed by the Company or any of its Affiliates, the Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with his other business obligations.  If the Executive spends in excess of ten (10) hours in compliance with this Section 9 after he is no longer employed by the Company or any of its Affiliates, the Company shall compensate the Executive at an hourly rate equal to the amount determined by dividing (x) the Executive’s Base Salary as of the first day of the fiscal year of the Company within which the Executive’s employment is terminated by (y) 2000, and shall reimburse the Executive for any reasonable expenses incurred as a direct result of his providing such cooperation in accordance with Section 3(e) of this Agreement.  The Company shall provide such compensation for the Executive’s cooperation within thirty (30) calendar days after receiving from the Executive a written statement stating the number of hours for which he seeks payment and brief description of the cooperation provided, provided that the Executive submits such statement within thirty (30) calendar days after the end of the calendar month in which the Executive provided such cooperation.  The Executive’s obligation to cooperate hereunder shall include, without limitation, meeting with such persons at such times and in such places as the Company or its Affiliates may require, and giving evidence and testimony and executing and delivering to the Company and any of its Affiliates any papers requested by any of them (including without limitation joint defense agreements and affidavits).  The Executive shall

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provide immediate notice to the Company of any subpoena or other legal document that he receives that relates in any way to the Company or any of its Affiliates, along with a copy of such subpoena or other legal document.

10.Compliance with Section 409A.  All references in this Agreement to the Executive’s termination of employment shall mean his separation from service within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury regulations promulgated thereunder.  In the event the terms of this Agreement would subject the Executive to the imposition of taxes and penalties (“409A Penalties”) under Section 409A of the Code, the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible.  Notwithstanding any other provision in this Agreement, if as of the date on which the Executive’s employment terminates, the Executive is a “specified employee” as determined by the Company, then to the extent any amount payable or benefit provided under this Agreement that the Company reasonably determines would be nonqualified deferred compensation within the meaning of Section 409A of the Code, that under the terms of this Agreement would be payable prior to the six-month anniversary of the Executive’s effective date of termination, such payment or benefit shall be delayed until the earlier to occur of (a) the six-month anniversary of such termination date or (b) the date of the Executive’s death.  In the case of taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment, may require the Executive to pay the full costs of such benefits during the period described in the preceding sentence and reimburse that Executive for said costs within thirty (30) calendar days after the end of such period.  With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred by the Executive.  The amount of any expenses eligible for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this Agreement during any calendar year (including without limitation pursuant to Sections 9, 11 and 17) shall not affect the amount of expenses eligible for reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.  The Executive acknowledges and agrees that notwithstanding this Section 10 or any other provision of this Agreement, the Company and its Affiliates are not providing him with any tax advice with respect to Section 409A of the Code or otherwise and are not making any guarantees or other assurances of any kind to the Executive with respect to the tax consequences or treatment of any amounts paid or payable to the Executive under this Agreement.

11.Section 280G.  Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or Executive’s Employment Termination (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits being hereinafter called “Total Payments”) would be an “excess parachute payment” pursuant to Code Section 280G or any successor or substitute provision of the Code, with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code, or any interest or penalties are incurred by Executive with respect to such Total Payments (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as

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the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 7 of this Agreement shall first be reduced, and the non-cash payments and benefits shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.  Notwithstanding the foregoing, no payments or benefits under this Agreement will be reduced unless: (i) the net amount of the Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the excess of (A) the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), over (B) the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments.

(a)Subject to the provisions of paragraph (b) below, all determinations required to be made under this Section, and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that serves as the Company’s auditors (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there have been Total Payments, or such earlier time as is requested by the Company.  In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall designate another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder).  All fees and expenses of the Accounting Firm shall be borne solely by the Company.  If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty.  Any determination by the Accounting Firm shall be binding upon the Company and Executive, except as provided in paragraph (b) below.

(b)As a result of the uncertainty in the application of Code Section 280G at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service (“IRS”) or other agency will claim that an Excise Tax, or a greater Excise Tax, is due, and thus the Company should have made a lesser amount of Total Payment than that determined pursuant to paragraph (a) above.  Executive shall notify the Company in writing of any claim by the IRS or other agency that, if successful, would require Executive to pay an Excise Tax or an additional Excise Tax.  If the IRS or other agency makes a claim that, if successful, could require Executive to pay an Excise Tax or an additional Excise Tax, the Company shall reduce or further reduce Executive’s payments and benefits in accordance with this Section 11 to the amount necessary to eliminate such Excise Tax or additional Excise Tax.  The Company shall pay all fees and expenses of the Executive relating to such a claim by the IRS or other agency.

12.Notices.   Notices given pursuant to this Agreement shall be in writing and shall be effective upon personal delivery, upon confirmation of receipt of facsimile transmission, upon the fourth day after mailing by certified mail, or upon the second day after sending by express courier service.  Notice to the Company shall be directed to:

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Smurfit-Stone Container Corporation

Six CityPlace Drive

Creve Coeur, Missouri 63141

Attention:  General Counsel

Notices to or with respect to the Executive will be directed to the Executive, or to the Executive’s executors, personal representatives or distributees, if the Executive is deceased, or the assignees of the Executive, at the Executive’s home address on the records of the Company.  Either party may change the person and/or address to which the other party must give notice under this Section by providing written notice of such change, in accordance with the procedures described in this Section 12.

13.Assignment.  This Agreement is enforceable by the Company and its affiliates and other related entities and may be assigned or transferred by the Company to, and shall be binding upon and inure to the benefit of, any parent, subsidiary or other Affiliate of the Company or any entity which at any time, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets, stock or business of the Company (including without limitation any successor and/or reorganized entit(ies) of the Company or any of its Affiliates upon the Effective Date).  The Executive and the Company agree that upon the Effective Date, this Agreement shall be assigned to and binding upon such successor entit(ies) of the Company as set forth in the Plan of Reorganization, provided that nothing herein shall limit or otherwise affect the Company’s right to further assign or transfer this Agreement after the Effective Date as set forth in the preceding sentence.  The Executive may not assign any of his rights or obligations under this Agreement during his life.  Upon the Executive’s death, this Agreement will inure to the benefit of the Executive’s heirs, legatees and legal representatives of the Executive’s estate.

14.Beneficiary.  If the Executive dies prior to receiving the amounts to which he is entitled under this Agreement (if any), subject to and in accordance with the terms and conditions of this Agreement, such amounts shall be paid to the beneficiary designated by the Executive in writing to the Company during his lifetime (“Beneficiary”), or if no such Beneficiary is designated, to the Executive’s estate.  Notwithstanding anything to the contrary herein, the Beneficiary shall not be entitled to receive any amounts pursuant to Section 7 of this Agreement unless the Beneficiary and any other authorized representatives of the Executive’s estate execute an enforceable waiver and release of claims in accordance with the Executive’s obligations set forth in Section 7(c).  The Executive, without the consent of any prior Beneficiary, may change his designation of Beneficiary or Beneficiaries at any time and from time to time by submitting to the Company a new designation in writing.

15.Severability.   Each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law.  The Executive and the Company agree that in the event that any provision of this Agreement is found to be unreasonable or otherwise unenforceable by a court, it is the purpose and intent of the parties that any such provision be deemed modified or limited, so that as modified or limited, such provision may be enforced to the fullest extent possible.  If any provision of this Agreement is held invalid or unenforceable for any reason (after any such modification or limitation pursuant to the preceding sentence, as applicable), such provision will be effective only to the extent of such invalidity or

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unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement.

16.Entire Agreement, Amendment and Waiver.   Except as otherwise provided herein, this Agreement embodies the entire agreement and understanding of the parties hereto with regard to the matters described herein and supersedes any and all prior and/or contemporaneous agreements and understandings, oral or written, between said parties regarding such matters, provided that nothing herein shall limit or otherwise affect any provision of any Emergence Equity Grant Award Agreement.  In the event of any conflict between any provision of this Agreement and any Emergence Equity Grant Award Agreement, the provisions of this Agreement shall govern.  The Executive and the Company acknowledge and agree that this Agreement amends and restates the Predecessor Agreement in its entirety and that as of the Effective Date the provisions of this Agreement shall replace each and every provision of the Predecessor Agreement, at which time the provisions of the Predecessor Agreement shall be null and void, and shall be of no further force or effect.  Except as set forth in Sections 8(f) and 15, this Agreement may be modified only in a written agreement signed by both the Executive and the Company’s authorized representative.  Any party’s failure to enforce this Agreement in the event of one or more events which violate this Agreement shall not constitute a waiver of any right to enforce this Agreement against subsequent violations.

17.Forum Selection.  The parties hereby irrevocably consent to, and agree not to object or assert any defense or challenge to, the jurisdiction and venue of the state and federal courts sitting in Chicago, Illinois, and agree that any claim under this Agreement may be brought in any such court.  In any action or proceeding to enforce this Agreement, the non-prevailing party shall pay for any and all costs and expenses (including without limitation reasonable attorneys’ fees) of the prevailing party to the maximum extent permissible by applicable law.

18.Governing Law.   This Agreement shall be governed by the internal laws of the state of Illinois, without regard to its conflict of laws rules.

19.Headings.  The Section headings used herein are for convenience of reference only and are not to be considered in construction of the provisions of this Agreement.

20.Release of Claims Under Predecessor Agreement.  The consideration offered herein is accepted by the Executive as being in full accord, satisfaction, compromise and settlement of any and all amounts that are or may have been due and owing to him pursuant to any term or condition of the Predecessor Agreement, and the Executive expressly agrees that he is not entitled to and will not receive any further payments, benefits, or other compensation or recovery of any kind from the Company with respect to any such term or condition of the Predecessor Agreement.

21.Survival.   Sections 2(d) and 4 through 22 herein shall survive and continue in full force and effect in accordance with their respective terms, notwithstanding any termination of the Employment Period or the Executive’s employment.

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22.Counterparts.  This Agreement may be executed in two counterparts, each of which shall be deemed an original, and both of which together shall constitute one and the same instrument.

THE PARTIES ACKNOWLEDGE BY SIGNING BELOW THAT THEY HAVE READ AND UNDERSTAND THE ABOVE AND INTEND TO BE BOUND THEREBY:

STEVEN C. STRICKLAND		SMURFIT-STONE CONTAINER CORPORATION
/s/ Steven C. Strickland		By:	/s/ Patrick J. Moore
Date:	June 30, 2010	Position:			Chief Executive Officer
		Date:		June 30, 2010

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EXHIBIT A

EMERGENCE EQUITY AWARD AGREEMENTS FOR STEVEN C. STRICKLAND

EX-10.11

Exhibit 10.11

Amended and Restated Employment Security Agreement

This Amended and Restated Employment Security Agreement (the “Agreement”) by and between Paul Kaufmann (the “Executive”) and Smurfit-Stone Container Corporation (the “Company”) shall be deemed to have been made and entered into as of the date of the order of confirmation entered by the United States Bankruptcy Court for the District of Delaware with respect to the Company’s Plan of Reorganization (as defined below), and shall become effective as of June 30, 2010, the effective date of the Plan of Reorganization (the “Effective Date”).

WHEREAS, the Company and the Executive are parties to that certain Employment Security Agreement effective as of July 16, 2008 (such agreement referred to herein as the “Predecessor Agreement”) to, among other things, provide protection to the Executive in connection with a change in control of the Company; and

WHEREAS, the Company and the Executive desire to enter into this Agreement and, in so doing, to amend and restate the Predecessor Agreement in its entirety;

NOW, THEREFORE, it is hereby agreed by and between the parties, for good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, as follows:

1.Payments and Benefits Upon Employment Termination On or After a Change in Control.  If on or within two (2) years after a Change in Control (all capitalized terms as defined herein), the Company terminates the Executive’s employment with the Company and its Affiliates without Cause and for a reason other than death or Incapacity or the Executive voluntarily terminates such employment with Good Reason, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the Executive’s Date of Termination (as defined in Section 8 below)) and further provided that the Executive remains in compliance with Sections 8, 9 and 10 of this Agreement, the Company shall make the payments and provide the benefits as described below:

(a)Cash Payment.  The Company will pay to the Executive a gross amount equal to two (2) times the Executive’s Annual Compensation, payable in equal installments during the two (2) year period following the Executive’s Date of Termination.

(b)Welfare Benefit Plans.  With respect to each Welfare Benefit Plan, for the period beginning on the Executive’s Date of Termination and ending on the earlier of (i) two years following the Executive’s Date of Termination, or (ii) the date the Executive becomes eligible for coverage by a welfare benefit plan or program maintained by an entity other than the Company or an Affiliate that provides coverage or benefits at least comparable, in all material respects, to such Welfare Benefit Plan, the Company will continue to pay the employer portion of the Executive’s premiums to continue the Executive’s then-current coverage as of the

Date of Termination under such Welfare Benefit Plan (the Executive to continue paying the employee portion at regular employee rates), with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law).  The Executive shall report to the Company any coverage or benefits for which the Executive becomes eligible to receive from a Person other than the Company or any of its Affiliates.

(c)Equity Awards.  To the extent provided for in the Executive’s applicable award statements or agreements with respect to any awards under the Company’s Equity Incentive Plan (including without limitation, such awards made to the Executive pursuant to the Company’s Plan of Reorganization), the Company shall cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment to the extent (if any) that such awards are not already fully vested and exercisable (as applicable).

(d)Payment of Accrued Amounts.  The Company will pay the Executive (i) any accrued but unpaid base salary through the effective date of the Executive’s termination of employment, (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and (iv) for any unreimbursed expenses existing at that time in accordance with the Company’s policies then in effect.

2.Timing of Payments and Benefits.  Subject to the terms and conditions of this Agreement (including without limitation Section 5(c)) and provided that the Executive executes (without revoking) a Release Agreement as set forth in Section 1 above and the applicable statutory revocation period with respect to such Release Agreement has expired, and further provided that the Executive remains in compliance with Sections 8, 9 and 10 of this Agreement, any payments or benefits made available to the Executive by the Company pursuant to this Section will be made or commence (as applicable) as follows:  (a) any payments made pursuant to Section 1(a) will commence on the sixtieth (60th) calendar day following the Executive’s Date of Termination; and (b) the payments and benefits in Sections 1(b), (c) and (d) will be paid or commence (as applicable) at such times and in such manner as set forth in the applicable Company policy and plan documents.

3.Change in Control.  For purposes of this Agreement, “Change in Control” shall mean the occurrence of any one or more of the following:

(a)The “beneficial ownership” of securities representing more than 40% of the combined voting power of the then outstanding voting securities of the Company

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entitled to vote generally in the election of directors (the “Company Voting Securities”) is accumulated, held or acquired by a Person (as defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended, and used in Sections 13(d) and 14(d) thereof) other than the Company, any trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any corporation owned, directly or indirectly, by the Company’s stockholders in substantially the same proportions as their ownership of stock of the Company; provided, however, that any acquisition from the Company or any acquisition pursuant to a transaction that complies with clauses (A), (B) and (C) of subparagraph (c) of this definition will not be a Change in Control under this subparagraph (a), and provided further that immediately prior to such accumulation, holding or acquisition, such person was not a direct or indirect beneficial owner of 40% or more of the Company Voting Securities;

(b)Individuals who, as of the Effective Date, constitute the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the Board; provided, however, that an individual becoming a director subsequent to that date whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the directors then comprising the Incumbent Board will be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Board;

(c)Consummation by the Company of a reorganization, merger or consolidation, or sale or other disposition of all or substantially all the assets of the Company or the acquisition of assets or stock of another entity (a “Business Combination”), in each case, unless immediately following such Business Combination: (A) more than 60% of the combined voting power of then outstanding voting securities entitled to vote generally in the election of directors of (i) the corporation resulting from such Business Combination (the “Surviving Corporation”), or (ii) if applicable, a corporation that as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more subsidiaries (the “Parent Corporation”), is represented, directly or indirectly, by Company Voting Securities outstanding immediately prior to such Business Combination (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Business Combination), and such voting power among the holders thereof is in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Company Voting Securities; (B) no person (excluding any employee benefit plan (or related trust) of the Company or such corporation resulting from such Business Combination) beneficially owns, directly or indirectly, 40% or more of the combined voting power of the then outstanding voting securities eligible to elect directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) except to the extent that such ownership

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of the Company existed prior to the Business Combination; and (C) at least a majority of the members of the board of directors of the Parent Corporation (or, if there is no Parent Corporation, the Surviving Corporation) were members of the incumbent Board at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination;

(d)Approval by the Company’s stockholders of a complete liquidation or dissolution of the Company; or

(e)The consummation of a reorganization, complete liquidation, or dissolution under the U.S. Bankruptcy Code subsequent to the Effective Date (and excluding the Plan of Reorganization as defined herein).

Notwithstanding anything to the contrary herein, neither a Change in Control with respect to any Affiliate of the Company nor the assignment of this Agreement to any reorganized entity of the Company pursuant to the Plan of Reorganization shall constitute a Change in Control for the purposes of this Agreement.  In no event will a Change in Control be deemed to have occurred, with respect to the Executive, if the Executive is part of a purchasing group that consummates the Change in Control transaction.  The Executive will be deemed “part of a purchasing group” for purposes of the preceding sentence if the Executive is an equity participant in the purchasing company or group (except if the Executive’s passive ownership of less than two percent (2%) of the stock of the purchasing company or the Executive’s ownership of equity participation in the purchasing company or group that is otherwise not significant, as determined prior to the Change in Control by a majority of the non-employee continuing directors on the Board.)

4.Other Definitions.  For purposes of this Agreement:

(a)“Affiliate” shall mean any entity that, directly or indirectly, is controlled by the Company, and any entity in which the Company has a 20% or greater equity interest.

(b)“Amount Payable Under Any Annual Bonus Plans” shall mean the greater of:  (i) the average of the gross amounts earned by the Executive for the three complete fiscal years prior to the Executive’s Date of Termination under the MIP or any similar annual incentive bonus plan in which Executive participates as of the Executive’s Date of Termination, or (ii) the Executive’s actual bonus under the MIP or any similar annual incentive bonus plan in which the Executive participates for the fiscal year immediately preceding the fiscal year during which the Executive’s Date of Termination occurs.

(c)“Annual Compensation” shall mean the sum of:  (i) the Executive’s base salary in effect on the date of the Executive’s Date of Termination; and (ii) the Amount Payable Under Any Annual Bonus Plans in which the Executive participates.

(d)“Employment Termination” shall mean the Executive’s termination of employment for any reason.  For purposes of this Agreement, the Executive has terminated employment if the Executive has incurred a separation from service

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within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and Treasury Regulation §1.409A-1(h).

(e)“Cause” shall mean any of the following:  (i) the Executive’s willful and continued failure to substantially perform the Executive’s duties as an executive of the Company or any of its Affiliates (other than any such failure resulting from inability due to physical or mental illness or Incapacity), (ii) the Executive’s willful misconduct in the performance of the Executive’s duties or otherwise that results in injury to the Company, monetarily or otherwise, that is material or substantial, (iii) the Executive’s engaging in egregious misconduct to the extent that the Executive’s credibility and reputation no longer conforms to the standard of senior executive officers of the Company, or (iv) the Executive’s material breach or threatened material breach of any provision of this Agreement, including without limitation Section 9 of this Agreement, without the prior express written consent of a duly authorized member of the Board or the Chief Executive Officer of the Company; provided, however, that an occurrence which otherwise may constitute Cause hereunder shall not constitute Cause unless a notice is delivered to the Executive by the Board or the Chief Executive Officer of the Company that specifically identifies the conduct that the Board or the Company’s Chief Executive Officer believes constitutes Cause and, to the extent such conduct is reasonably capable of cure, the Company gives the Executive at least fifteen (15) days to cure such alleged conduct.

(f)“Incapacity” shall mean such physical or mental condition of the Executive which renders and is expected to render the Executive incapable of performing the essential functions of the Executive’s position hereunder with or without reasonable accommodation for ninety (90) consecutive calendar days, or for 120 calendar days (whether consecutive or not) within any 180-calendar-day period, as determined in good faith by the Board or the Company’s Chief Executive Officer upon consultation with a physician selected by the Board or the Company’s Chief Executive Officer in their discretion.  The Executive hereby agrees to submit to any reasonable medical examination(s) as may be recommended by the Board or the Company’s Chief Executive Officer for the purpose of determining the existence or absence of Incapacity.

(g)“Good Reason” shall exist if, without the Executive’s consent:

(i)The Executive’s assigned duties and responsibilities are significantly diminished from the level or extent of such duties and responsibilities that were associated with the Executive’s status as a senior executive of the Company or any of its Affiliates prior to the Change in Control including, without limitation, any material diminution of the powers associated with such status or any material diminution of the Executive’s reporting responsibilities, titles or offices as in effect immediately prior to the Change in Control (or, if applicable, in effect with respect to such other position(s) that the Executive agreed to assume within the two-year period after a Change in Control);

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(ii)On or within the two-year period after the Change in Control, there is (A) a material reduction in the Executive’s base salary in effect as of the Effective Date, or (B) a material reduction in the Executive’s Target Bonus Opportunity from the lower of the Executive’s Target Bonus Opportunities for the Company’s 2010 MIP as approved by the Board prior to the Effective Date (unless such reduction is made on a consistent basis for other Company executives other than the Chief Executive Officer or President); or

(iii)The Company fails to continue in effect after the Change in Control any broad-based bonus or incentive plan, welfare benefit, pension, retirement benefit or other benefit plan in which the Executive participates or becomes eligible to participate unless such discontinuance applies on a consistent basis to other Company executives that are at a similar level to the Executive;

provided, however, that an occurrence which otherwise may constitute Good Reason hereunder shall not constitute Good Reason unless the Executive (X) provides to the Company, at least thirty (30) calendar days prior to the Executive’s contemplated resignation for Good Reason, a written notice containing reasonable detail setting forth the basis for the Executive’s claim that an occurrence constitutes Good Reason, and (Y) the Company fails to cure or otherwise remedy such occurrence within thirty (30) calendar days after receiving such notice from the Executive.  Notwithstanding anything to the contrary herein, the parties hereto acknowledge and agree that the Executive must exercise the Executive’s right to terminate the Executive’s employment for Good Reason within ninety (90) calendar days after the event that gives rise to such right, and that if the Executive fails to timely exercise such right and subsequently resigns, such resignation shall be deemed for all purposes of this Agreement to be without Good Reason.  The Executive acknowledges and agrees that the restructuring events that have taken place or will take place solely pursuant to the Company’s Plan of Reorganization shall not constitute Good Reason for purposes of this Agreement.

(h)“Person” shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.

(i)“Plan of Reorganization” shall mean the Joint Plan of Reorganization for Smurfit-Stone Container Corporation and Its Debtor Subsidiaries and Plan of Compromise and Arrangement for Smurfit-Stone Container Canada Inc. and Affiliated Canadian Debtors filed in Case No. 09-10235 (BLS) pending in the United States Bankruptcy Court for the District of Delaware.

(j)“Target Bonus Opportunity” shall mean the bonus, as a percentage of the Executive’s base salary, that the Executive is eligible to earn on an annualized basis, at the target level, under the MIP or any similar annual incentive bonus plan in which the Executive participates on or after the Effective Date.

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(k)“Welfare Benefit Plan” shall mean the Company’s comprehensive medical and dental plans in which the Executive was participating as of the Executive’s Date of Termination.

5.Limitation on Payments and Benefits.  Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or Executive’s Employment Termination (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits being hereinafter called “Total Payments”) would be an “excess parachute payment” pursuant to Code Section 280G or any successor or substitute provision of the Code, with the effect that Executive would be liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code, or any interest or penalties are incurred by Executive with respect to such Total Payments (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then, after taking into account any reduction in the Total Payments provided by reason of Code Section 280G in such other plan, arrangement or agreement, the cash payments provided in Section 1 of this Agreement shall first be reduced, and the non-cash payments and benefits shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax.  Notwithstanding the foregoing, no payments or benefits under this Agreement will be reduced unless: (i) the net amount of the Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments) is greater than (ii) the excess of (A) the net amount of such Total Payments, without reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments), over (B) the amount of Excise Tax to which the Executive would be subject in respect of such unreduced Total Payments.

(a)Subject to the provisions of paragraph (b) below, all determinations required to be made under this Section, and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that serves as the Company’s auditors (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there have been Total Payments, or such earlier time as is requested by the Company.  In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive shall designate another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder).  All fees and expenses of the Accounting Firm shall be borne solely by the Company.  If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that failure to report the Excise Tax on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty.  Any determination by the Accounting Firm shall be binding upon the Company and Executive, except as provided in paragraph (b) below.

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(b)As a result of the uncertainty in the application of Code Section 280G at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service (“IRS”) or other agency will claim that an Excise Tax, or a greater Excise Tax, is due, and thus the Company should have made a lesser amount of Total Payment than that determined pursuant to paragraph (a) above.  Executive shall notify the Company in writing of any claim by the IRS or other agency that, if successful, would require Executive to pay an Excise Tax or an additional Excise Tax.  If the IRS or other agency makes a claim that, if successful, could require Executive to pay an Excise Tax or an additional Excise Tax, the Company shall reduce or further reduce Executive’s payments and benefits in accordance with this Section 5 to the amount necessary to eliminate such Excise Tax or additional Excise Tax.  The Company shall pay all fees and expenses of the Executive relating to such a claim by the IRS or other agency.

(c)All references in this Agreement to the Executive’s termination of employment shall mean the Executive’s separation from service within the meaning of Section 409A of the Code and Treasury regulations promulgated thereunder.  In the event the terms of this Agreement would subject the Executive to the imposition of taxes and penalties (“409A Penalties”) under Section 409A of the Code, the Company and the Executive shall cooperate diligently to amend the terms of the Agreement to avoid such 409A Penalties, to the extent possible.  Notwithstanding any other provision in this Agreement, if as of the date on which the Executive’s employment terminates, the Executive is a “specified employee” as determined by the Company, then to the extent any amount payable or benefit provided under this Agreement that the Company reasonably determines would be nonqualified deferred compensation within the meaning of Section 409A of the Code, that under the terms of this Agreement would be payable prior to the six-month anniversary of the Executive’s Date of Termination, such payment or benefit shall be delayed until the earlier to occur of (i) the six-month anniversary of such Date of Termination or (ii) the date of the Executive’s death.  In the case of taxable benefits that constitute deferred compensation, the Company, in lieu of a delay in payment, may require the Executive to pay the full costs of such benefits during the period described in the preceding sentence and reimburse that Executive for said costs within thirty (30) calendar days after the end of such period.  With respect to any reimbursements under this Agreement, such reimbursement shall be made on or before the last day of the Executive’s taxable year following the taxable year in which the expense was incurred by the Executive.  The amount of any expenses eligible for reimbursement or the amount of any in-kind benefits provided, as the case may be, under this Agreement during any calendar year (including without limitation pursuant to Sections 5(b) and 12) shall not affect the amount of expenses eligible for reimbursement or the amount of any in-kind benefits provided during any other calendar year. The right to reimbursement or to any in-kind benefit pursuant to this Agreement shall not be subject to liquidation or exchange for any other benefit.  The Executive acknowledges and agrees that notwithstanding this Section 5(c) or any other provision of this Agreement, the Company and its Affiliates are not providing the Executive with any tax advice with respect to Section 409A of the Code or otherwise and are not

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making any guarantees or other assurances of any kind to the Executive with respect to the tax consequences or treatment of any amounts paid or payable to the Executive under this Agreement.

6.Executive’s Death.  If the Executive dies after both a Change in Control and an Employment Termination have occurred, but before the complete payment of any amount or benefit required under this Agreement, the Company will pay the remainder of such amount or benefit to the Executive’s spouse, if living, or to the Executive’s estate.

7.Mitigation and Set-Off.  The Executive shall not be required to mitigate the Executive’s damages by seeking other employment or otherwise.  Except as expressly provided in Section 1(b) above, the Company’s obligations under this Agreement shall not be reduced in any way by reason of any compensation or benefits received (or foregone) by the Executive from sources other than the Company after the Executive’s Employment Termination, or any amounts that might have been received by the Executive in other employment had the Executive sought such other employment.  Except as expressly provided in Section 1(b) above, the Executive’s entitlement to benefits and coverage under this Agreement shall continue after, and shall not be affected by, the Executive’s obtaining other employment after the Executive’s Date of Termination, provided that any such benefit or coverage shall not be furnished if the Executive expressly waives the specific benefit or coverage by giving written notice of waiver to the Company.

8.Termination Procedures.

(a)Notice of Termination.  Any termination of the Executive’s employment shall be communicated by a written notice from one party to the other in accordance with Sections 4, 8 and 19 hereof (“Notice of Termination”).

(b)Date of Termination.  “Date of Termination,” with respect to any termination of the Executive’s employment will mean (i) if the Executive’s employment is terminated for Incapacity, the date of the Executive’s Incapacity, (ii) if the Executive’s employment is terminated due to death, the date of the Executive’s death, and (iii) if the Executive’s employment is terminated for any other reason, the date specified in the Notice of Termination (which, in the case of (A) a termination by the Company, shall not be less than thirty (30) days (except in the case of a termination for Cause or Incapacity) from the date such Notice of Termination is given, (B) a termination by the Executive without Good Reason, shall not be less than thirty (30) days nor more than sixty (60) days from the date such Notice of Termination is given, and (C) a termination by the Executive with Good Reason shall be determined in accordance with Section 4(g) hereof).

(c)Duties After Notice and Removal from Position(s).  For any period in which the Executive gives or is given notice prior to the effective Date of Termination, the Executive shall be expected and required to continue performing the Executive’s then-current duties and responsibilities (unless otherwise directed by the Company) for the notice period up to the effective Date of Termination.  Any termination of the Executive’s employment shall automatically effectuate the

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Executive’s removal from the officer and/or Board positions that the Executive then holds with the Company and its Affiliates and any employee benefit plans, as of the Date of Termination.

9.Restrictive Covenants.

In order to protect the Company’s and its Affiliates’ legitimate business interests and in exchange for the mutual covenants contained in this agreement, including, but not limited to, the Company’s or any of its Affiliates’ employment of or continued employment of the Executive and the disclosure to the Executive of Confidential Information as defined below, the Executive and the Company agree as follows:

(a)Definitions.  For purposes of this Agreement, the following terms will be defined as follows, except as otherwise provided below:

(i)“Confidential Information” shall mean all confidential and proprietary information of the Company, its Affiliates and, in certain situations, certain third parties who provide information to the Company subject to confidentiality and non-use restrictions, and includes, but is not limited to, actual and prospective customer and client lists and pricing information, business plans, programs and tactics, research and development information (including without limitation information relating to the formulation, testing, registration, use, safety, efficacy and/or effects of marketed products and compounds under development), personnel information, and all other information unique to the Company and not readily available to the public, including designs, improvements, inventions, formulas, compilations, methods, strategies, capabilities, forecasts, software programs, processes, know-how, data, operating methods and techniques, “Inventions or Developments” (as defined below), and all business costs, profits, vendors, markets, sales, products, marketing, sales or other financial or business information, and any modifications or enhancements of any of the foregoing.

(ii)“Business Conducted by the Company or any of its Affiliates” during the Executive’s employment, shall mean (A) all businesses conducted by the Company or any of its Affiliates and (B) any material new line of business in which the Company or any of its Affiliates is contemplating engaging in, provided that the plans for the Company or any of its Affiliates to engage in such material new line of business were presented to and not rejected by the Board.  For the two-year period following the Executive’s Date of Termination, “Business Conducted by the Company or any of its Affiliates” shall mean (X) all business conducted by the Company or any of its Affiliates as of the effective date of the Executive’s termination of employment and (Y) any material new line of business in which the Company or any of its Affiliates engages within the one-year period following the effective date of the Executive’s termination of employment.

(b)Inventions or Developments.  The Executive agrees that the Executive will promptly and fully disclose to the Company all discoveries, improvements, inventions, formulas, ideas, processes, designs, techniques, know-how, data and

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computer programs (whether or not patentable, copyrightable or susceptible to any other form of protection), made, conceived, reduced to practice or developed by the Executive, either alone or jointly with others, during the Executive’s employment with the Company or any of its Affiliates (collectively, the “Inventions or Developments”).  All Inventions and Developments shall be the sole property of the Company, including all patents, copyrights, intellectual property or other rights related thereto and Executive assigns to the Company all rights (if any) that the Executive may have or acquire in such Inventions or Developments.  Notwithstanding the foregoing, any right of the Company or assignment by the Executive as provided in this paragraph shall not apply to any Inventions or Developments for which no equipment, supplies, facility or trade secret information of the Company or its Affiliates were used and which were developed entirely on the Executive’s own time, unless: (i) the Inventions or Developments relate to the Business Conducted by the Company or any of its Affiliates or the actual or demonstrably anticipated research or development of the Company or any of its Affiliates; or (ii) the Inventions or Developments result from any work performed by the Executive for the Company or any of its Affiliates.

(c)Non-Disclosure of Confidential Information, Inventions or Developments.  The Executive acknowledges that the Executive has had and will have access to Confidential Information or Inventions or Developments of the Company and/or its Affiliates and agrees that, except as required to properly perform the Executive’s responsibilities for the Company and its Affiliates, to comply with law or regulation, or as authorized in writing in advance by the Company, the Executive shall not, at any time during or after the Executive’s employment with the Company or any of its Affiliates (and whether that termination is voluntary or involuntary), directly or indirectly use, divulge, furnish or make accessible to any person any Confidential Information or Inventions or Developments, but instead shall keep all such matters strictly and absolutely confidential.

(d)No Diversion of Business Opportunities and Prospects.  The Executive agrees that during the Executive’s employment with the Company or any of its Affiliates: (i) the Executive shall not directly or indirectly engage in any employment, consulting or other business activity that is competitive with the Business Conducted by the Company or any of its Affiliates; (ii) the Executive shall promptly disclose to the Company all business opportunities that are presented to the Executive in the Executive’s capacity as an employee of the Company or any of its Affiliates or which is of a similar nature to the Business Conducted by the Company or any of its Affiliates or which the Company or its Affiliates have expressed an interest in engaging in the future; and (iii) the Executive shall not usurp or take advantage of any such business opportunity without first offering such opportunity to the Company.  Nothing in this Section 9(d) or in any other provision of this Agreement limits, supersedes or restricts any other duties or obligations that Executive may have under any other agreement, plan or policy or under applicable law, including without limitation any fiduciary duty of loyalty or care to the Company and its Affiliates.

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(e)Actions Upon Termination.  The Executive acknowledges and agrees immediately upon the Executive’s termination of employment with the Company to promptly return (without retaining any copies) all property of the Company, its Affiliates or any third parties that is within the Executive’s possession, custody or control by virtue of the Executive’s employment with the Company.  Property to be returned to the Company shall include without limitation any and all documents and other things (whether in tangible or electronic format and whether such documents or things contain information that reflect or contain any Confidential Information or proprietary information) in the Executive’s possession, custody or control.

(f)Non-Competition.  The Executive agrees that so long as the Executive is employed by the Company or any of its Affiliates and for a period of two (2) years after the Executive’s Date of Termination for any reason and regardless of whether a Change in Control has occurred (such period of employment and the two-year period thereafter, collectively referred to herein as the “Period”), the Executive shall not, without the prior written consent of the Company, participate or engage in, directly or indirectly (as an owner, partner, employee, officer, director, independent contractor, consultant, advisor or in any other capacity calling for the rendition of services, advice, or acts of management, operation or control), any business that, during the Period, is competitive with the Business Conducted by the Company or any of its Affiliates within the United States, Canada, Mexico or China (hereinafter, the “Geographic Area”) and which business the Company or any of its Affiliates was engaged (either actively as a going concern or in the process of developing to market) within the two-year period preceding the Date of Termination.

(g)Non-Solicitation of Employees.  The Executive agrees that, during the Period, the Executive shall not, without the prior written consent of the Company, directly or indirectly solicit any current employee of the Company or any of its Affiliates, or any individual who becomes an employee during the Period, to leave such employment.

(h)Non-Solicitation of Suppliers or Customers.  The Executive agrees that, during the Period, the Executive shall not, without the prior written consent of the Company, directly or indirectly solicit, seek to divert or dissuade from continuing to do business with or entering into business with the Company or any of its Affiliates, any supplier, customer, or other person or entity that had a business relationship with or with which the Company or any of its Affiliates was actively planning or pursuing a business relationship at any time during the two (2) year period preceding the Date of Termination.

(i)Mutual Non-Disparagement.  The Executive shall not, at any time during or after his employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Company or any of its Affiliates or any members of their respective boards of directors or managements, or any of their

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respective business affairs or performance.  The Company, members of its Board and its senior executives shall not, at any time during or after the Executive’s employment with the Company, make or publish any derogatory, unfavorable, negative, disparaging, false, damaging or deleterious written or oral statements or remarks regarding the Executive.

(j)Irreparable Harm.  The Executive acknowledges that: (i) the Executive’s compliance with Section 9 of this Agreement is necessary to preserve and protect the Confidential Information, Inventions or Developments and the goodwill of the Company and its Affiliates, all recognized by the Executive as legitimate business interests of the Company and its Affiliates, as going concerns; (ii) any failure by the Executive to comply with the provisions of Section 9 will result in irreparable and continuing injury for which there will be no adequate remedy at law; and (iii) in the event that the Executive should fail to comply with the terms and conditions of this Section 9, in addition to the Company’s right to set off any actual monetary damages to the Company that are a consequence of such failure to comply against any payments and benefits due to the Executive pursuant to Section 1 to the extent permitted by applicable law (provided that any such set offs first shall be taken from amounts not subject to Section 409A of the Code, and if such amounts are insufficient, any additional set off shall not be taken until the time an amount subject to Section 409A of the Code would otherwise be paid pursuant to the terms of this Agreement), the Company shall be entitled, in addition to and without limiting such other relief as may be proper, to all types of equitable relief (including but not limited to the issuance of an injunction and/or temporary restraining order) as may be necessary to cause the Executive to comply with Section 9, to restore to the Company its property, and to make the Company whole.

(k)Survival.  This Agreement (including without limitation the provisions set forth in this Section, as noted) shall survive and continue in full force and effect in accordance with their terms, notwithstanding any termination of the Executive’s employment.

(l)Unenforceability.  Each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law.  The Executive and the Company agree that in the event that any provision of this Agreement is found to be unreasonable or otherwise unenforceable by a court, it is the purpose and intent of the parties that any such provision be deemed modified or limited, so that as modified or limited, such provision may be enforced to the fullest extent possible.  If any provision of this Agreement is held invalid or unenforceable for any reason (after any such modification or limitation pursuant to the preceding sentence, as applicable), such provision will be effective only to the extent of such invalidity or unenforceability without invalidating the remainder of such provision or the remaining provisions of this Agreement.

10.Cooperation.  At the request and upon reasonable advance notice where practicable and at the sole expense of the Company, whether during or at any time after the Executive’s

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employment with the Company or any of its Affiliates, the Executive shall cooperate fully with the Company and its Affiliates (a) in investigating, defending, prosecuting, litigating, filing, initiating or asserting any claims or potential claims (including without limitation in connection with any legal proceeding of any kind) that may be made by or against the Company or any of its Affiliates, to the extent that such claims may relate to or arise out of the Executive’s employment with the Company or any of its Affiliates or with respect to which the Executive has knowledge and (b) without in any way limiting subsection (a) above, to secure any trade name, patent, trademark, copyright or intellectual property protection or other similar rights in the United States and/or in foreign countries, including without limitation, the execution and delivery of assignments, patent applications and other documents or papers.  If such cooperation is provided during the Executive’s employment with the Company or any of its Affiliates, the Executive shall not receive any additional compensation from the Company for such cooperation.  If the Executive no longer is employed by the Company or any of its Affiliates, the Executive’s obligation to cooperate shall be reasonably limited so as not to unreasonably interfere with the Executive’s other business obligations.  If the Executive spends in excess of ten (10) hours in compliance with this Section 10 after the Executive is no longer employed by the Company or any of its Affiliates, the Company shall compensate the Executive at an hourly rate equal to the amount determined by dividing (x) the Executive’s base salary as of the first day of the fiscal year of the Company within which the Executive’s employment is terminated by (y) 2000, and shall reimburse the Executive for any reasonable expenses incurred as a direct result of the Executive’s providing such cooperation in accordance with the Company’s business expense policies then in effect.  The Company shall provide such compensation for the Executive’s cooperation within thirty (30) calendar days after receiving from the Executive a written statement stating the number of hours for which the Executive seeks payment and brief description of the cooperation provided, provided that the Executive submits such statement within thirty (30) calendar days after the end of the calendar month in which the Executive provided such cooperation.  The Executive’s obligation to cooperate hereunder shall include, without limitation, meeting with such persons at such times and in such places as the Company or its Affiliates may require, and giving evidence and testimony and executing and delivering to the Company and any of its Affiliates any papers requested by any of them (including without limitation joint defense agreements and affidavits).  The Executive shall provide immediate notice to the Company of any subpoena or other legal document that the Executive receives that relates in any way to the Company or any of its Affiliates, along with a copy of such subpoena or other legal document.

11.Forum Selection.  The parties hereby irrevocably consent to, and agree not to object or assert any defense or challenge to, the jurisdiction and venue of the state and federal courts sitting in Chicago, Illinois, and agree that any claim under this Agreement may be brought in any such court.

12.Legal Fees and Expenses.  In any action or proceeding to enforce this Agreement, the non-prevailing party shall pay for any and all costs and expenses (including without limitation reasonable attorneys’ fees) of the prevailing party to the maximum extent permissible by applicable law.

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13.Assignment; Successors.  This Agreement is enforceable by the Company and its affiliates and other related entities and may be assigned or transferred by the Company to, and shall be binding upon and inure to the benefit of, any parent, subsidiary or other Affiliate of the Company or any entity which at any time, whether by merger, purchase, or otherwise, acquires all or substantially all of the assets, stock or business of the Company (including without limitation any successor and/or reorganized entit(ies) of the Company or any of its Affiliates upon the Effective Date).  The Executive and the Company agree that upon the Effective Date, this Agreement shall be assigned to and binding upon such successor entit(ies) of the Company as set forth in the Plan of Reorganization, provided that nothing herein shall limit or otherwise affect the Company’s right to further assign or transfer this Agreement after the Effective Date as set forth in the preceding sentence.  This Agreement may not be assigned by the Executive during Executive’s life, and upon the Executive’s death will inure to the benefit of the Executive’s heirs, legatees and legal representatives of the Executive’s estate, provided that such heirs, legatees and legal representatives execute an enforceable waiver and release of claims in accordance with the Executive’s obligations set forth in Section 1 of this Agreement.

14.Interpretation.  The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Illinois, without regard to the conflict of law principles thereof.  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement.  The Section headings used herein are for convenience of reference only and are not to be considered in construction of the provisions of this Agreement.

15.Withholding.  The Company may withhold from any payment that it is required to make under this Agreement amounts sufficient to satisfy applicable withholding requirements under any federal, state or local law.

16.Amendment.  The Company and the Executive may amend this Agreement at any time by written agreement.

17.Financing.  Cash payments under this Agreement (not including any payments made from a qualified plan) are general obligations of the Company, and the Executive shall have only an unsecured right to payment thereof out of the general assets of the Company.  Notwithstanding the foregoing, the Company may, by agreement with one or more trustees the Company selects, create a trust on such terms as the Company shall determine to make payments to the Executive in accordance with the terms of this Agreement.

18.Severability.  Without limiting Section 9(l) of this Agreement, in the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force and effect.

19.Notices.  Notices given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered, or on the date of written confirmation of

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receipt by (i) overnight carrier, (ii) telecopy, (iii) registered or certified mail, return receipt requested, addressee only, postage prepaid, or (iv) such other method of delivery that provides a written confirmation of delivery.  Notice to the Company shall be directed to:

Smurfit-Stone Container Corporation

Six CityPlace Drive

Creve Coeur, Missouri 63141

Attention: General Counsel

The Company may change the person and/or address to whom the Executive must give notice under this Section by giving Executive written notice of such change, in accordance with the procedures described above.  Notices to or with respect to the Executive will be directed to the Executive, or the executors, personal representatives or distributees of a deceased Executive, or the assignees of the Executive, at the Executive’s home address on the records of the Company.

20.Entire Agreement.  This Agreement constitutes the entire understanding of the Executive and the Company with respect to the subject matter hereof and supersedes any and all prior understandings written or oral with respect to such subject matter, provided that nothing herein shall limit or otherwise affect any provision of any award agreement with respect to any equity grant made to the Executive pursuant to the Plan of Reorganization.  In the event of any conflict between any provision of this Agreement and any such award agreement, the provisions of this Agreement shall govern.  The Executive and the Company acknowledge and agree that this Agreement amends and restates the Predecessor Agreement in its entirety and that as of the Effective Date the provisions of this Agreement shall replace each and every provision of the Predecessor Agreement, at which time the provisions of the Predecessor Agreement shall be null and void, and shall be of no further force or effect.  The consideration offered herein is accepted by the Executive as being in full accord, satisfaction, compromise and settlement of any and all amounts that are or may have been due and owing to the Executive pursuant to any term or condition of the Predecessor Agreement, and the Executive expressly agrees that the Executive is not entitled to and will not receive any further payments, benefits, or other compensation or recovery of any kind from the Company with respect to any such term or condition of the Predecessor Agreement.

21.No Waiver.  No failure or delay on the part of the Company or the Executive in enforcing or exercising any right or remedy hereunder shall operate as a waiver thereof.

22.Counterparts.  This Agreement may be executed in one or more counterparts, all of which together shall constitute but one Agreement.

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THE PARTIES ACKNOWLEDGE BY SIGNING BELOW THAT THEY HAVE READ AND UNDERSTAND THE ABOVE AND INTEND TO BE BOUND THEREBY:

PAUL KAUFMANN		SMURFIT-STONE CONTAINER CORPORATION
/s/ Paul Kaufmann		By:	/s/ Patrick J. Moore
Date:	June 30, 2010	Position:	Chief Executive Officer
		Date:	June 30, 2010

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EX-99.1

Exhibit 99.1

News Release

Contact:	Sue Neumann (media), 314-656-5827
	Tim Griffith (investors), 314-656-5553
	www.smurfit-stone.com

SMURFIT-STONE COMPLETES FINANCIAL RESTRUCTURING

Emerges From Chapter 11 with Strong Capital Structure;

Announces New Board of Directors

CREVE COEUR, MO, and CHICAGO, June 30, 2010 – Smurfit-Stone Container Corporation today announced that it has successfully completed its financial restructuring and has officially emerged from Chapter 11 as a newly reorganized, publicly traded company that will begin trading on the New York Stock Exchange under the symbol SSCC effective July 1, 2010.

The company’s Plan of Reorganization (the “Plan”), which was confirmed by the U.S. Bankruptcy Court on June 21, 2010, and recognized by a Canadian court order, has become effective. All outstanding closing conditions have been satisfied or waived.

“This is an exciting day for Smurfit-Stone. We have successfully completed our financial restructuring in just 17 months and we exit Chapter 11 as a well-positioned industry leader with a healthier balance sheet and improved cost structure,” said Patrick J. Moore, chief executive officer. “We are re-energized, committed to serving the needs of our customers and achieving long-term profitable growth for our shareholders.”

Continued Moore, “I appreciate the hard work and dedication of our employees who worked tirelessly during the reorganization process and remained focused on providing outstanding value to our customers.”

In conjunction with the company’s completion of its financial restructuring, the company announced a new board of directors, including Ralph F. Hake, who has been appointed non-executive chairman of the Smurfit-Stone board of directors. Hake is the former chairman and CEO of Maytag Corporation. Additional board members include:

·Timothy J. Bernlohr, former president and CEO of RBX Industries, Inc.

·Terrell K. Crews, former EVP and chief financial officer of Monsanto

·Eugene I. Davis, chairman, CEO and chief restructuring officer for Pirinate Consulting Group, LLC

·Michael E. Ducey, former president and CEO of Compass Minerals International, Inc.

·Jonathan F. Foster, managing director, Current Capital LLC

·Ernst A. Häberli, former president, commercial operations, international, Gillette Company

Six CityPlace Drive, Creve Coeur, MO 63141 Phone: 314.656.5300 Web: smurfit-stone.com

·Arthur W. Huge, former president and CEO of Menasha Corporation

·Steven J. Klinger, president and COO, Smurfit-Stone

·Patrick J. Moore, CEO, Smurfit-Stone

·James J. O’Connor, former chairman and CEO of Unicom Corporation and the former Smurfit-Stone lead independent director

As previously announced, in accordance with the terms of the Plan, Smurfit-Stone’s previous common stock and preferred stock have been cancelled. However, the Plan provides that 2.25 percent of the New Smurfit-Stone Common Stock Pool will be distributed pro rata to the company’s previous preferred stockholders and 2.25 percent of the New Smurfit-Stone Common Stock Pool will be distributed pro rata to the company’s previous common stockholders.

Upon completion of all distributions to former creditors under the Plan (as well as holders of the former preferred stock and the former common stock), the company will have approximately 100 million shares of common stock issued and outstanding.

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Smurfit-Stone Container Corporation is one of the industry’s leading integrated containerboard and corrugated packaging producers, and one of the world’s largest paper recyclers. The company is a member of the Sustainable Forestry Initiative® and the Chicago Climate Exchange. Smurfit-Stone generated revenue of $5.57 billion in 2009; has led the industry in safety every year since 2001; and conducts its business in compliance with the environmental, health and safety principles of the American Forest & Paper Association.