EXHIBIT 3
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of November 18, 1998
(this "First Supplemental Indenture") among Jefferson Smurfit
Corporation, a Delaware corporation ("JSC"), Stone Container
Corporation, a Delaware corporation (the "Company"), and The Bank of
New York, a New York banking corporation, as Trustee (the "Trustee").
WITNESSETH
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture dated as of February 15, 1992 (the "Indenture"), pursuant to
which the Company has issued 6 3/4% Convertible Subordinated Debentures
due February 15, 2007 (the "Securities");
WHEREAS, on the date hereof, pursuant to an Agreement and Plan of
Merger dated as of May 10, 1998, as amended, among the Company, JSC
and JSC Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of JSC ("Merger Sub"), (i) Merger Sub is being merged
with and into the Company, with the Company continuing as the
surviving corporation (the "Merger"), and (ii) each outstanding share
of common stock, par value $0.01 per share, of the Company ("Common
Stock") (other than shares of Common Stock owned by JSC or any wholly
owned subsidiary of JSC, or shares of Common Stock owned by the
Company as treasury stock) is being converted into 0.99 of a
share of common stock, par value $0.01 per share, of JSC ("JSC Common
Stock");
WHEREAS, the Company has delivered to the Trustee, pursuant to
Section 7.01 of the Indenture, an Officers' Certificate and an Opinion
of Counsel, each stating that the Merger and this First Supplemental
Indenture comply with Article 7 of the Indenture and that all
conditions precedent in the Indenture relating to the Merger have been
complied with;
WHEREAS, Section 4.12 of the Indenture provides, among
other things, that in the case of any merger of the Company with
another Person, the Company shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right to convert such Security into the
kind and amount of shares of stock or other securities or property
receivable upon such merger by a Holder of the number of shares of
Common Stock into which such Security might have been converted
immediately prior to such merger;
WHEREAS, Section 11.01 of the Indenture permits the Company and the
Trustee, at any time and from time to time, without notice to or the
consent of any Holders of Securities, to enter into one or more
supplemental indentures for the purpose of making provisions with
respect to matters arising under the Indenture, provided that such
action does not adversely affect the interests of the Holders of
the Securities in any material respect; and
WHEREAS, JSC and the Company have requested that the Trustee execute
and deliver this First Supplemental Indenture pursuant to Section
11.01 of the Indenture, and all requirements necessary to make this
First Supplemental Indenture a valid instrument in accordance with its
terms have been performed and the execution and delivery of this First
Supplemental Indenture have been duly authorized in all respects by
each of JSC and the Company;
NOW, THEREFORE, JSC, the Company and the Trustee covenant and agree as
follows:
ARTICLE 1
AUTHORIZATION; DEFINITIONS
SECTION 1.01. First Supplemental Indenture. This First Supplemental
Indenture is supplemental to, and is entered into in accordance with
Sections 4.12 and 11.01 of, the Indenture, and except as modified,
amended and supplemented by this First Supplemental Indenture, the
provisions of the Indenture are in all respects ratified and confirmed
and shall remain in full force and effect.
SECTION 1.02. Definitions. Except as expressly provided in Section
2.01 of this First Supplemental Indenture below and unless the context
shall otherwise require, all terms which are defined in Section 1.01
of the Indenture shall have the same meanings, respectively, in this
First Supplemental Indenture as such terms are given in said Section
1.01 of the Indenture.
ARTICLE 2
AMENDMENTS TO THE INDENTURE
SECTION 2.01. Amendments to Section 1.01 of the Indenture. (a)
Section 1.01 of the Indenture is hereby amended by inserting the
following new definitions:
"First Supplemental Indenture" means the First Supplemental Indenture
dated as of November 18, 1998 among the Company, JSC and the Trustee
to the Indenture.
"JSC" means Jefferson Smurfit Corporation, a Delaware corporation.
"Successor Issuer" has the meaning specified in Section 4.14 of the
Indenture, as amended by the First Supplemental Indenture.
"Successor Securities" has the meaning specified in Section 4.14 of
the Indenture, as amended by the First Supplemental Indenture.
(b) The defined terms "Board of Directors," "Common Stock,"
"Officer," "Officers' Certificate," "Opinion of Counsel," "Senior
Indebtedness" and "Subsidiary" are hereby amended by adding the words
"or any Successor Issuer, as applicable" after the words "the Company"
in each place they appear in such defined terms.
SECTION 2.02. Amendments to Article 11 of the Indenture. (a) Section
11.01 of the Indenture is hereby amended by adding the words "any
Successor Issuer," after the words "the Company."
(b)Section 11.02 of the Indenture is hereby amended by adding the words
", any Successor Issuer" after the words "the Company" in the first
sentence of such Section.
(c)Section 11.02 of the Indenture is hereby further amended by
adding the words "or any Successor Issuer" after the words "the
Company" in the second sentence of such Section.
SECTION 2.03. Amendments to Article 4. (a) Article 4 of the
Indenture is hereby amended by adding the following new section after
Section 4.13:
Section 4.14. Additional Conversion Adjustments.
From and after the time the Holder of any Security then
outstanding that is convertible into Common Stock shall have the
right in accordance with Section 4.12 of this Indenture to convert
such Security into securities (the "Successor Securities") of any
Person other than the Company (a "Successor Issuer"), all
references in this Article 4 to the words "the Company" shall for all
purposes of this Indenture and such Security be deemed to be
references to the Successor Issuer and all references in this Article
4 to the words "Common Stock" or "shares of Common Stock"
shall for all purposes of this Indenture and such Security be deemed
to be references to the Successor Securities; provided, however, the
foregoing shall not apply (i) to the reference to "the Company" in
the parenthetical contained in the first sentence of Section 4.01 of
this Indenture, (ii) to the reference to "the Company" in the last
sentence of the third paragraph of Section 4.02 of this Indenture or
(iii) to the reference to "the Company" in the ninth line of the first
paragraph of Section 4.12.
(b)The first paragraph of Section 4.12 of the Indenture is
hereby amended by adding the words "and JSC" after the words "or such
successor or purchasing corporation, as the case may be" in the ninth
line of such Section.
ARTICLE 3
CONVERSION
SECTION 3.01. Conversion of Securities. In accordance with the
provisions of Section 4.12 of the Indenture, following the Merger, a
Holder of a Security shall have the right to convert such Security
into shares of JSC Common Stock at a price of $34.28 per share (the
"Adjusted Conversion Price").
SECTION 3.02. Certain Adjustments. In accordance with the provisions
of Section 4.12 of the Indenture, following the Merger, upon the
occurrence of an event with respect to JSC which would have required
an adjustment to the Conversion Price pursuant to Article 4 of the
Indenture if such event had occurred with respect to the Company prior
to the Merger, the Adjusted Conversion Price shall be adjusted in a
manner as nearly equivalent as may be practicable to the adjustment to
the Conversion Price which would have been required pursuant to
Article 4 of the Indenture if such event had occurred with respect to
the Company prior to the Merger.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Confirmation of Indenture. The Indenture, as
supplemented and amended by this First Supplemental Indenture, is in all
respects ratified and confirmed and the Indenture, this First Supplemental
Indenture and all indentures supplemental thereto shall be read, taken
and construed as one and the same instrument.
SECTION 4.02. Concerning the Trustee. The Trustee accepts the
Indenture, as supplemented by this First Supplemental Indenture, and
agrees to perform the same upon the terms and conditions set forth
therein as so supplemented. The Trustee shall not be responsible in
any manner whatsoever for or in respect of the validity or sufficiency
of the First Supplemental Indenture or the due execution hereof by the
Company or JSC or for or in respect of the recitals contained herein,
all of which are made by the Company and JSC solely.
SECTION 4.03. Governing Law. This First Supplemental Indenture, the
Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York without regard to
the principles of conflicts of laws.
SECTION 4.04. Separability. In case any one or more of the
provisions contained in this First Supplemental Indenture shall for
any reason be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect any other provisions of this First Supplemental Indenture, but
this First Supplemental Indenture shall be construed as if such
invalid, illegal or unenforceable provision had never been contained
herein.
SECTION 4.05. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and
the same instrument.
SECTION 4.06. Effectiveness. This First Supplemental Indenture shall
become effective upon the effectiveness of the Merger.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the day and year
first above written.
JEFFERSON SMURFIT CORPORATION
By:_/s/ ▇▇▇▇▇▇▇ ▇. Moore________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Chief Financial
Officer
STONE CONTAINER CORPORATION
By:_/s/ ▇▇▇▇▇ ▇. Stone________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the Board, President
and Chief Executive Officer
THE BANK OF NEW YORK, AS TRUSTEE
By:_/s/ ▇▇▇▇ LaGumina_______________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
