Exhibit 10.1


 


AGREEMENT AND GENERAL RELEASE OF
CLAIMS


 


This
Agreement and General Release of Claims (“Release Agreement”) is entered into
as of this 27th day of October, 2010 (the “Effective Date”),
by and between Steven J. Klinger (the “Executive”) and Smurfit-Stone Container
Corporation and its subsidiaries (collectively, the “Company”).


 


WHEREAS,
the Company and the Executive are parties to that certain Amended and Restated
Employment Agreement of Steven J. Klinger that became effective as of June 30,
2010 (the “Employment Agreement”), which requires that the Executive execute
and return to the Company an enforceable waiver and release agreement in a form
acceptable to the Company in order to receive certain separation benefits under
the Employment Agreement;


 


WHEREAS,
the Company and the Executive are parties to that certain Amended and Restated
Executive Retirement Agreement of Steven J. Klinger that became effective as of
June 30, 2010 (the “Retirement Agreement”);


 


WHEREAS,
the Company and the Executive are parties to that certain restricted stock unit
award agreement and that certain stock option award agreement that were issued
to the Executive in accordance with Section 3(c) of the Employment
Agreement and the Company’s plan of reorganization in its Chapter 11 bankruptcy
cases (the “Chapter 11 Cases”) (collectively, the “Emergence Equity Grant
Agreements”);


 


WHEREAS,
the Executive and the Company have agreed that the Executive shall separate
from his employment with the Company effective as of December 31, 2010; and


 


WHEREAS,
pursuant to the terms and conditions of the Employment Agreement, the Company
and the Executive desire to enter into this Release Agreement to, among other
things, set forth the terms of a release of claims against the Company by the
Executive.


 


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


 


1.                                       The Executive’s
Separation from Employment.  The Company and the Executive acknowledge and
agree that (a) the Executive shall separate from his employment and from
all officer positions with the Company and its affiliates, effective as of the
close of business on December 31, 2010 (the “Separation Date”); and (b) the
Executive hereby resigns from, and no longer shall serve as a member of, the
Company’s Board of Directors (the “Board”) effective as of the Separation Date,
in each case subject to any acceleration of the Separation Date pursuant to Section 2
of this Release Agreement.  The Company
and the Executive agree that upon the Separation Date, the Executive will incur
a “separation from service” within the meaning of Section 409A of the
Internal Revenue Code of 1986, as amended, and Treasury Regulation §1.409A-1(h) for
purposes of the Employment Agreement, the Retirement Agreement and this Release
Agreement.


 

















 


2.                                       Transition
Period.  Subject to the terms of this
Release Agreement and provided that the Executive complies with this Release
Agreement and does not revoke it pursuant to Section 9 herein, and
complies with his obligations under the Employment Agreement, the Executive
shall remain employed by the Company as its President and Chief Operating
Officer at his current base salary from the Effective Date through the
Separation Date, subject to, and in accordance with, the provisions of this
Release Agreement and the Employment Agreement (including without limitation,
the Company’s right to terminate the Executive’s employment prior to the
Separation Date pursuant to Section 4(a) of the Employment
Agreement).


 


3.                                       Supplemental
General Release Agreement.  The
Executive agrees to execute the Supplemental General Release Agreement (“Supplemental
Release Agreement”) attached hereto as Exhibit A within 21 calendar days
after (but not before) the Separation Date in consideration of the Company’s
undertakings in this Release Agreement and the Employment Agreement.


 


4.                                       Payments and
Benefits Due to the Executive.  The Company and the Executive acknowledge and
agree that, subject to the terms and conditions of this Release Agreement and
the Employment Agreement, and provided that the Executive signs and returns
this Release Agreement to the Company within 21 calendar days after his receipt
thereof, signs and returns the Supplemental Release Agreement to the Company as
set forth in Section 3 above, complies with this Release Agreement and the
Employment Agreement (including without limitation his post-employment
obligations set forth in Sections 2(d), 8 and 9 of the Employment Agreement),
and does not revoke this Release Agreement or the Supplemental Release
Agreement in accordance with their respective terms, the Executive shall
receive, subject to the terms of this Release Agreement and the applicable
provisions of the Employment Agreement, the payments and other benefits set
forth in Exhibit B of this Release Agreement, which is incorporated in,
and a part of, this Release Agreement. 
The Executive acknowledges and agrees that the amounts and benefits set
forth in Exhibit B hereto include all of the payments and benefits that
the Executive would be entitled to receive under the Employment Agreement in
connection with his separation of employment from the Company and that such
payments and benefits shall be made or provided (as applicable) at such time(s) as
set forth in, and otherwise in accordance with, the applicable provisions of
the Employment Agreement (including, without limitation, Sections 3(h) and
10 thereof), the Emergence Equity Grant Agreements, the Retirement Agreement
and/or the Company’s 2010 Management Incentive Plan (“2010 MIP”) (each as
applicable).  Notwithstanding anything to
the contrary in this Release Agreement or the Employment Agreement, the
Executive acknowledges and agrees that he shall not be entitled to receive the
payments and other benefits set forth in this Release Agreement or Section 7(c) of
the Employment Agreement if (a) prior to December 31, 2010, notice is
given of the termination of the Executive’s employment for Cause or of the
Executive’s resignation from his employment without Good Reason (each as
defined in the Employment Agreement); (b) he does not sign and return this
Release Agreement and the Supplemental Release Agreement as set forth herein; (c) he
signs and then later revokes either of them in accordance with their respective
terms; or (d) he fails to comply with his obligations under this Release
Agreement or the Employment Agreement. 
All amounts paid pursuant to this Release Agreement shall be reduced by
required or authorized withholding and deductions.


 


5.                                       Release of
Claims.  The Executive, on behalf of
himself and anyone claiming through him or on his behalf, agrees to release and
hereby releases the Company and the other 


 


2

















 


Released Parties (as defined in Section 6
below) with respect to any and all claims, whether currently known or unknown,
that the Executive now has, has ever had, or may ever have against any of the
Released Parties arising from or related to any agreement, act, omission, or
thing occurring or existing at any time prior to or on the date on which
Executive signs this Release Agreement. 
Without limiting the generality of the foregoing, the claims released by
the Executive hereunder include, but are not limited to:


 


(a)                                  all claims for
or related in any way to the Executive’s employment, compensation (including
without limitation, any incentive bonus compensation), other terms and conditions
of employment, or separation from employment with the Company or removal from
any and all officer and board of directors positions with any of the Released
Parties, including without limitation all claims that the Executive has or
could have asserted in the Company’s Chapter 11 Cases or pursuant to any
agreement (as amended from time to time) between the Executive and the Company
that was effective prior to the commencement of the Chapter 11 Cases;


 


(b)                                 all claims that
were or could have been asserted by the Executive or on his behalf: (i) in
any federal, state, or local court, commission, or agency; (ii) under any
common law theory; or (iii) under any employment, contract, tort, federal,
state, or local law, regulation, ordinance, or executive order; and


 


(c)                                  all claims that
were or could have been asserted by Executive or on his behalf arising under
any of the following laws, as amended from time to time:  the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
Employee Retirement Income Security Act, the Family and Medical Leave Act of
1993, United States Bankruptcy Code, the Illinois Human Rights Act, the Cook
County and Chicago Human Rights Ordinances, the Georgia Fair Employment Practices
Act of 1978 and the Missouri Human Rights Act.


 


Notwithstanding
the foregoing, this release does not apply
to any claims by the Executive (x) to enforce this Release Agreement, the
Retirement Agreement, or the Emergence Equity Grant Agreements, or (y) for
vested benefits that the Executive is otherwise entitled to under any
tax-qualified retirement plans or other employee benefit arrangements, in
accordance with the terms of those plans or arrangements.


 


6.                                       Released
Parties.  The term “Released Parties” as
used herein includes the Company and its divisions, subsidiaries, affiliates,
joint ventures and other related entities, and each of their respective past,
present, and future directors, officers, agents, employees, and attorneys and
the respective predecessors, successors, reorganized entities and assigns of
each of the foregoing individuals and entities, including without limitation in
connection with the Chapter 11 Cases.


 


7.                                       No Other
Proceedings Initiated.  The
Executive represents and warrants that: (a) he has not filed or initiated
any legal, equitable, administrative, or other proceeding(s) against any
of the Released Parties; (b) no such proceeding(s) have been
initiated against any of the Released Parties on his behalf; (c) he is the
sole owner of the actual or alleged claims, demands, rights, causes of action,
and other matters that are released in this Release Agreement; (d) the 


 


3

















 


same have not been transferred or assigned or caused
to be transferred or assigned to any other person, firm, corporation or other
legal entity; and (e) he has the full right and power to grant, execute,
and deliver the releases, undertakings, and agreements contained in this
Release Agreement.  Without limiting or
otherwise affecting any provision of this Release Agreement, the Executive
further represents and warrants that he has not had, and currently does not
have, any federal, state or local discrimination, workers’ compensation, or
other claims of any kind against any of the Released Parties.


 


8.                                       No Further
Recovery.  The
Executive acknowledges and agrees that he accepts the consideration offered
herein and provided pursuant to the terms and conditions in the Employment
Agreement (including without limitation under Section 7(c) thereof)
as being in full accord, satisfaction, compromise and settlement of any and all
claims or potential claims released in this Release Agreement, the Supplemental
Release Agreement and in Section 20 of the Employment Agreement, and the
Executive expressly agrees that he is not entitled to receive any further
payments, benefits, or other compensation or recovery of any kind from the
Company or any of the other Released Parties with respect to such released
claims.  The Executive further agrees
that in the event of any further proceedings whatsoever based upon any matter
released herein, the Company and each of the other Released Parties will have
no further monetary or other obligation of any kind to the Executive, including
without limitation any obligation for any costs, expenses and attorneys’ fees
incurred by or on behalf of the Executive.


 


9.                                       Age
Discrimination Act Acknowledgments. 
The Executive acknowledges that: (a) he has read and understands
the terms and effect of this Release Agreement, and that this is the full,
complete, and final release of all claims (as specified in Section 5
above) against the Released Parties through the date of his execution of this
Release Agreement; (b) he releases and waives claims under this Release
Agreement including those under the federal Age Discrimination in Employment
Act, knowingly and voluntarily, in exchange for consideration in addition to
anything of value to which he already is entitled; (c) he hereby is and
has been advised that he should have his attorney review this Release Agreement
before signing it; (d) he has had twenty-one (21) calendar days in which
to consider whether to execute this Release Agreement; and (e) within
seven (7) calendar days from the date on which the Executive signs this
Release Agreement, he may, at his sole option, revoke the Release Agreement
upon written notice to the Company’s General Counsel, Smurfit-Stone Container
Corporation, Six CityPlace Drive, Creve Coeur, Missouri 63141.  This Release Agreement will not become
effective until this seven-day revocation period has expired without any
revocation by the Executive; and if the Executive revokes this Release
Agreement, it shall be null and void.


 


10.                                 Non-Admission.  Nothing in this Release Agreement is intended
to or will be construed as an admission by the Company or any of the other
Released Parties that any of them violated any law, interfered with any right,
breached any obligation or otherwise engaged in any improper or illegal conduct
with respect to the Executive or otherwise. 
Each of the Released Parties expressly denies any such illegal or
wrongful conduct.


 


11.                                 Cancellation
and/or Survival of Other Agreements.  The Executive and the Company acknowledge and
agree that, notwithstanding any provision to the contrary in this Release
Agreement:  (a) the Employment
Agreement is hereby cancelled in its entirety, is null 


 


4

















 


and void, and shall be of no further force or effect
as of the Separation Date, provided that Sections 2(d), 3(h) and 6-23
(inclusive) of the Employment Agreement shall survive the termination of the
Employment Agreement and the Executive’s separation from his employment, and
further provided that the Executive shall remain subject to, and shall comply
with, all such surviving provisions of the Employment Agreement in accordance
with their terms; and (b) the Retirement Agreement and the Executive’s
Emergence Equity Grant Agreements shall continue in full force and effect in
accordance with their terms.


 


12.                                 Assignment.  This Release Agreement is enforceable by the
Company and its Affiliates 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 its emergence from bankruptcy). 
The Executive may not assign this Release Agreement during his
life.  Upon Executive’s death, this
Release Agreement will inure to the benefit of the Executive’s heirs, legatees
and legal representatives of the Executive’s estate.


 


13.                                 Severability.  Each provision of this Release Agreement will
be interpreted so as to be effective and valid under applicable law.  If any provision of this Release 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 ineffective only to the extent of such invalidity or unenforceability
without invalidating the remainder of such provision or the remaining
provisions of this Release Agreement.


 


14.                                 Entire
Agreement, Amendment, and Non-Waiver.  Except as otherwise provided in Sections 2, 4
and 11 hereof, this Release 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.  This Release 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 Release
Agreement in the event of one or more events which violate this Release
Agreement shall not constitute a waiver of any right to enforce this Release
Agreement against subsequent violations.


 


15.                                 Notice, Forum
Selection, Headings and Governing Law.  Any notices given pursuant to this Release
Agreement shall be provided as set forth in Section 12 of the Employment
Agreement (except as otherwise expressly set forth in Section 9 of this
Release Agreement).  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 Release
Agreement may be brought in any such court. 
In any action or proceeding to enforce this Release 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. 
The Section headings in this Release Agreement are for convenience
of reference only and are not to be considered in the construction or interpretation
of the provisions of this Release Agreement. This Release Agreement will be
construed and interpreted in accordance with the 


 


5

















 


internal laws of the State of Illinois, without
regard to its conflict of laws rules.  In
the event of a conflict between this Release Agreement and a surviving
provision of the Employment Agreement, the terms of the Employment Agreement
shall prevail.  In the event of a
conflict between this Release Agreement and the Retirement Agreement, the
Retirement Agreement shall prevail. In the event of a conflict between this
Release Agreement and an Emergence Equity Grant Agreement, such Emergence
Equity Grant Agreement shall prevail.


 


16.                                 Counterparts.  This Release Agreement may be executed in
counterparts, each of which taken together will constitute one and the same
instrument.


 


THE
PARTIES STATE THAT THEY HAVE READ THE FOREGOING, THAT THEY UNDERSTAND EACH OF
ITS TERMS, AND THAT THEY INTEND TO BE BOUND THERETO.


 


 


	
  STEVEN
  J. KLINGER 

  	
   

  	
  SMURFIT-STONE
  CONTAINER 

  
	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/
  Steven J. Klinger

  	
   

  	
  By:

  	
  /s/
  Ralph F. Hake

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:
  

  	
  October 27th, 2010

  	
   

  	
  Title:

  	
  Chairman

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
  October 27,
  2010

  



 


6

















 


EXHIBIT A


 


SUPPLEMENTAL GENERAL RELEASE AGREEMENT


 


This
Supplement General Release Agreement (“Supplemental Release Agreement”) is
entered into by and between Steven J. Klinger (the “Executive”) and
Smurfit-Stone Container Corporation and its subsidiaries (collectively, the “Company”).  In consideration of the mutual promises
herein and in the parties’ Agreement and General Release of Claims (“Release
Agreement”) and that certain Amended and Restated Employment Agreement of
Steven J. Klinger that became effective as of June 30, 2010 (the “Employment
Agreement”), and for other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, Executive and the Company agree as
follows:


 


1.                                       Release of
Claims.  The Executive, on behalf of
himself and anyone claiming through him or on his behalf, agrees to release and
hereby releases the Company and the other Released Parties (as defined in the
Release Agreement) with respect to any and all claims, whether currently known
or unknown, that the Executive now has, has ever had, or may ever have against
any of the Released Parties arising from or related to any agreement, act,
omission, or thing occurring or existing at any time prior to or on the date on
which Executive signs this Supplemental Release Agreement.  Without limiting the generality of the
foregoing, the claims released by the Executive hereunder include, but are not
limited to:  (a) all claims for or
related in any way to the Executive’s employment, compensation, other terms and
conditions of employment, or separation from employment with the Company or
removal from any and all officer and board of directors positions with any of
the Released Parties, including without limitation all claims that the
Executive has or could have asserted in the Company’s Chapter 11 bankruptcy
proceedings (“Chapter 11 Cases”) or pursuant to any agreement (as amended from
time to time) between the Executive and the Company that was effective prior to
the commencement of the Chapter 11 Cases; (b) all claims that were or could
have been asserted by the Executive or on his behalf: (i) in any federal,
state, or local court, commission, or agency; (ii) under any common law
theory; or (iii) under any employment, contract, tort, federal, state, or
local law, regulation, ordinance, or executive order; and (c) all claims
that were or could have been asserted by Executive or on his behalf arising
under any of the following laws, as amended from time to time:  the Age Discrimination in Employment Act,
Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act,
Employee Retirement Income Security Act, the Family and Medical Leave Act of
1993, United States Bankruptcy Code, the Illinois Human Rights Act, the Cook
County and Chicago Human Rights Ordinances, the Georgia Fair Employment
Practices Act of 1978 and the Missouri Human Rights Act.  Notwithstanding the foregoing, this release
does not apply to any claims by the Executive (x) to enforce the Release
Agreement, this Supplemental Release Agreement, the Retirement Agreement, or
the Emergence Equity Grant Agreements, or (y) for vested benefits that the
Executive is otherwise entitled to under any tax-qualified retirement plans or
other employee benefit arrangements, in accordance with the terms of those
plans or arrangements.


 


2.                                       No Other
Proceedings Initiated.  The
Executive represents and warrants that: (a) he has not filed or initiated
any legal, equitable, administrative, or other proceeding(s) against any
of the Released Parties; (b) no such proceeding(s) have been
initiated against any of the Released Parties on his behalf; (c) he is the
sole owner of the actual or alleged claims, 


 


A-1

















 


demands, rights, causes of action, and other matters that are released
in this Supplemental Release Agreement; (d) the same have not been
transferred or assigned or caused to be transferred or assigned to any other
person, firm, corporation or other legal entity; and (e) he has the full
right and power to grant, execute, and deliver the releases, undertakings, and
agreements contained in this Supplemental Release Agreement.  Without limiting or otherwise affecting any
provision of this Supplemental Release Agreement, the Executive further represents
and warrants that he has not had, and currently does not have, any federal,
state or local discrimination, workers’ compensation, or other claims of any
kind against any of the Released Parties.


 


3.                                       Non-Admission.  Nothing in this Supplemental Release
Agreement is intended to or will be construed as an admission by the Company or
any of the other Released Parties that any of them violated any law, interfered
with any right, breached any obligation or otherwise engaged in any improper or
illegal conduct with respect to the Executive or otherwise.  Each of the Released Parties expressly denies
any such illegal or wrongful conduct.


 


4.                                       Age
Discrimination Act Acknowledgments. 
The Executive acknowledges that: (a) he has read and understands
the terms and effect of this Supplemental Release Agreement, and that this is
the full, complete, and final release of all claims (as specified in Section 1
above) against the Released Parties through the date of his execution of this
Supplemental Release Agreement; (b) he releases and waives claims under this
Supplemental Release Agreement including those under the federal Age
Discrimination in Employment Act, knowingly and voluntarily, in exchange for
consideration in addition to anything of value to which he already is entitled;
(c) he hereby is and has been advised that he should have his attorney
review this Supplemental Release Agreement before signing it; (d) he has
had twenty-one (21) calendar days in which to consider whether to execute this
Supplemental Release Agreement; and (e) within seven (7) calendar
days from the date on which the Executive signs this Supplemental Release
Agreement, he may, at the his sole option, revoke the Supplemental Release
Agreement upon written notice to the Company’s General Counsel, Smurfit-Stone
Container Corporation, Six CityPlace Drive, Creve Coeur, Missouri 63141.  This Supplemental Release Agreement will not
become effective until this seven-day revocation period has expired without any
revocation by the Executive; and if the Executive revokes this Supplemental
Release Agreement, it shall be null and void.


 


5.                                       Entire
Agreement, Amendment, and Non-Waiver.  Except as otherwise provided in Sections 2, 4
and 11 of the Release Agreement, this Supplemental Release Agreement and the
Release Agreement embody 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. 
This Supplemental Release 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 Supplemental Release Agreement in the event of one or more events
which violate this Supplemental Release Agreement shall not constitute a waiver
of any right to enforce this Supplemental Release Agreement against subsequent
violations.


 


6.                                       Forum
Selection, Headings and Governing Law.  The parties hereby irrevocably consent to,
and agree not to object or assert any defense or challenge to, the jurisdiction
and 


 


A-2

















 


venue of the state and federal courts sitting in
Chicago, Illinois, and agree that any claim under this Supplemental
Release 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 attorneys’ fees) of the prevailing
party.  The Section headings in this
Supplemental Release Agreement are for convenience of reference only and are
not to be considered in the construction or interpretation of the provisions of
this Supplemental Release Agreement. This Supplemental Release Agreement will
be construed and interpreted in accordance with the internal laws of the State
of Illinois, without regard to its conflict of laws rules.  In the event of a conflict between this
Supplemental Release Agreement and a surviving provision of the Employment
Agreement, the terms of the Employment Agreement shall prevail.  In the event of a conflict between this
Supplemental Release Agreement and the Release Agreement, the terms of the
Release Agreement shall prevail.  In the
event of a conflict between this Supplemental Release Agreement and the
Retirement Agreement, the Retirement Agreement shall prevail. In the event of a
conflict between this Supplemental Release Agreement and an Emergence Equity
Grant Agreement, such Emergence Equity Grant Agreement shall prevail.


 


7.                                       Counterparts.  This Supplemental Release Agreement may be
executed in counterparts, each of which taken together will constitute one and
the same instrument.


 


THE
PARTIES STATE THAT THEY HAVE READ THE FOREGOING, THAT THEY UNDERSTAND EACH OF
ITS TERMS, AND THAT THEY INTEND TO BE BOUND THERETO.


 


 


	
  STEVEN
  J. KLINGER 

  	
   

  	
  SMURFIT-STONE
  CONTAINER 

  
	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:
  

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  



 


A-3

















 


EXHIBIT B


 


SUMMARY OF PAYMENTS AND BENEFITS TO BE PAID


OR PROVIDED TO THE EXECUTIVE IN CONNECTION


WITH HIS SEPARATION FROM HIS EMPLOYMENT(1)


 


a)              Payment for any accrued but
unpaid Base Salary as of the Separation Date;


 


b)             Payment for any accrued but
unused vacation time as of the Separation Date, as determined in accordance
with the Company’s policies in effect as of the Separation Date;


 


c)              Payment for any unreimbursed
expenses existing as of the Separation Date, pursuant to Section 3(e) of
the Employment Agreement;


 


d)             Payment of the amount that the
Executive would have earned under the Company’s 2010 MIP based upon the
Executive having been employed by the Company for the entire 2010 MIP plan
year, subject to a $30,000 reduction in accordance with the terms and
conditions of Section 3(b) of the Employment Agreement;


 


e)              $5,000,000 in a lump sum in
accordance with the terms and conditions of Section 7(c)(ii) of the
Employment Agreement;


 


f)                Continued benefit coverage
under the Company’s health, dental, and vision plans for the two-year period
following the Separation Date (unless the Executive becomes eligible for other
coverage as described in Section 7(c)(iv) of the Employment
Agreement);


 


g)             Outplacement services with a
value not to exceed $50,000 in accordance with the terms and conditions of Section 7(c)(vi) of
the Employment Agreement;


 


h)             Accelerated vesting with
respect to 247,826 of the shares of the Company’s common stock subject to the
Executive’s emergence equity Stock Option Award Agreement dated June 30,
2010;


 


i)                 Accelerated vesting with
respect to 78,261 of the shares of the Company’s common stock subject to the
Executive’s emergence equity Restricted Stock Unit Award Agreement dated June 30,
2010;


 


j)                 Two years of
continued credit under the Executive’s Retirement Agreement, in accordance with
the terms and conditions of Section 7(c)(vii) of the Employment 


 






(1) Such payments and benefits will be
payable and/or provided at such times as set forth in, and otherwise subject to
and in accordance with, the terms and conditions of the Release Agreement, the
Employment Agreement, the applicable Emergence Equity Grant Agreement, the
Retirement Agreement and/or the 2010 MIP (each as applicable).


 


B-1

















 


Agreement,
that will provide him with a total unfunded retirement benefit payable in five
equal installments starting April 1, 2021, with each installment estimated
based upon current interest rates to be approximately $353,000 (actual payments
shall be determined based upon the interest rate in effect at the payment
commencement date); and


 


k)              Any 280G
gross-up payments, to the extent provided for by Section 11 of the
Employment Agreement, in accordance with the terms and conditions of Section 11
of the Employment Agreement.


 


B-2