EXHIBIT 4.1


 


KAPSTONE
PAPER AND PACKAGING

2006 INCENTIVE PLAN


(amended
and restated as of March 25, 2010


 


1.    Purpose.  KapStone Paper and Packaging
Corporation, a Delaware corporation (“KapStone”), desires to attract and retain
the best available talent and to encourage the highest level of performance.
The KapStone Paper and Packaging 2006 Incentive Plan (the “Plan”) is intended
to contribute significantly to the attainment of these objectives by affording
eligible employees and independent contractors of KapStone and its Affiliates
(as defined in Section 20) (collectively, with KapStone, the “Company”)
the opportunity to acquire a proprietary interest in KapStone through the grant
of (i) stock options (“Options”) to purchase shares of common stock, $.001
par value per share, of KapStone (the “Common Stock”), (ii) restricted
shares or the right to receive shares of Common Stock (“Restricted Stock”) and (iii) stock
appreciation rights to receive a payment in Common Stock or cash equal to the
amount of the excess of the Fair Market Value of the Common Stock on the date
of exercise over the Fair Market Value of the Common Stock on the date of grant
(“Stock Appreciation Rights”; and collectively with Options and Restricted
Stock, “Awards”, and each individually an “Award”).


 


2.    Administration.


 


(a)


The Plan shall be
administered by a committee (the “Committee”) of not fewer than two members of
the board of directors of KapStone (the “Board”) who shall be appointed by and
serve at the pleasure of the Board. To the extent necessary to comply with Rule 16b-3
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and,
to the extent necessary to exclude Options and Stock Appreciation Rights
granted under the Plan from the calculation of the income tax deduction limit
under Section 162(m) of the Internal Revenue Code of 1986, as amended
(the “Code”), each member of the Committee shall be an “outside director”
within the meaning of Section 162(m) of the Code and Treasury
Regulations promulgated thereunder. A majority of the Committee shall
constitute a quorum.


 


(b)


The Committee
shall have and may exercise all of the powers of the Board under the Plan,
other than the power to appoint a director to Committee membership. The
Committee shall have plenary authority in its discretion, subject to and
consistent with the express provisions of the Plan, to direct the grants of
Awards; to determine the numbers of shares of Common Stock covered by each
Award, the purchase price, if any, of the Common Stock covered by each Award,
the individuals to whom an Award is given (each a “Grantee”), the time or times
at which the Award shall be granted or may vest; to prescribe, amend and
rescind rules and regulations relating to the Plan, including, without
limitation, such rules and regulations as it shall deem advisable so that
transactions involving Awards may qualify for exemption under such rules and
regulations as the Securities and Exchange Commission may promulgate from time
to time exempting transactions from Section 16(b) of the Exchange
Act; to determine the terms and provisions of, and to cause the Company to
enter into, agreements with Grantees in connection with Awards under the Plan (“Award
Agreements”), which Award Agreements may vary from one another, as the
Committee shall deem appropriate; to amend any Award Agreement from time to
time with the consent of the Grantee; and to make all other determinations the
Committee may deem necessary or advisable for the administration of the Plan.  The Committee shall have discretion to
include such provisions in the Award Agreements as it shall deem appropriate,
including those related to non-competition, non-solicitation of employees or
customers, the forfeiture of Awards or profits relating thereto upon a finding of
fraud or other material misconduct on the part of a Grantee, or such other
provisions, not inconsistent with law or the requirements of the Plan as it may
from time to time determine appropriate.  
Every action, decision, interpretation or determination made by the
Committee or the Board with respect to the application or administration of the
Plan shall be conclusive and binding upon the Company and any person having or
claiming any interest pursuant to any Award granted under the Plan.


 


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(c)


Except as
otherwise required by law, no member of the Board or the Committee shall be
liable for anything whatsoever in connection with the administration of the
Plan other than such member’s own willful misconduct. Under no circumstances
shall any member of the Board or the Committee be liable for any act or
omission of any other member of the Board or the Committee. The Board and the
Committee shall be entitled to rely, in the performance of its functions with
respect to the Plan, upon information and advice furnished by KapStone’s
officers, KapStone’s accountants, KapStone’s legal counsel and any other party
the Board and Committee deems necessary. No member of the Board or Committee
shall be liable for any action taken or not taken in reliance upon any such
advice.


 


(d)


Each Award under
the Plan shall be deemed to have been granted when the determination of the
Committee with respect to such Award is made. Once an Award has been granted,
all conditions and requirements of the Plan with respect to such Award shall be
deemed conditions on exercise, not grant.


 


(e)


Notwithstanding
the foregoing or any other provision of the Plan, the Committee shall have no
authority to issue Awards under the Plan under terms and conditions which would
cause such Awards to be considered nonqualified “deferred compensation” subject
to the provisions of Section 409A of the Code, including by way of example
but not limitation, no Options or Stock Appreciation Rights shall be issued
with an exercise price below Fair Market Value and all Restricted Stock shall
be issued and reported as income to the Grantee no later than the fifteenth (15th) day of the third calendar month after the end of the
calendar year in which the right to the shares covered by such Award becomes
vested.


 


3.    Eligible Persons.  Subject in the case of ISOs to Section 7(g)(i),
Awards may be granted to employees, officers and directors of, and consultants
and advisors to, the Company. In determining the persons to whom Awards shall
be made and the number of shares to be covered by each Award, the Committee
shall take into account the duties of the respective persons, their present and
potential contributions to the success of the Company and other factors deemed
relevant by the Committee in connection with accomplishing the purposes of the
Plan.


 


4.    Share Limitations under the Plan.


 


(a)


Subject to
adjustment as provided in Section 14 and the provisions of this Section 4,
a maximum of five million seven hundred thousand (5,700,000) shares of Common
Stock shall be reserved for issuance pursuant to Awards granted under the Plan.
If an Award is forfeited or expires without being exercised, or if Restricted
Stock is repurchased by the Company as provided in Section 8(e), the shares
of Common Stock subject to the Award shall be available for additional grants
under the Plan. If an Option is exercised in whole or in part by a Grantee
tendering previously owned shares of Common Stock, or if any shares are
withheld in connection with the exercise of an Option to pay the exercise price
or to satisfy the Grantee’s tax liability, the full number of shares in respect
of which the Option has been exercised shall be applied against the limit set
forth in this Section 4(a).


 


(b)


KapStone may grant
Options under the Plan in substitution for options held by employees of another
corporation who become employees of KapStone or an Affiliate as the result of a
merger or consolidation of the employing corporation with KapStone or an
Affiliate, or as a result of the acquisition by KapStone or an Affiliate of
property or stock of the employing corporation. Substitute Options shall be
granted on such terms as the Committee considers appropriate in the
circumstances and in compliance with Section 409A of the Code.  Substitute Options shall be in addition to
the limit set forth in Section 4(a).


 


(c)


The maximum
aggregate number of shares of Common Stock issuable pursuant to Awards that a
Grantee may be granted within one fiscal year of KapStone shall be five hundred
thousand (500,000).


 


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(d)


The aggregate
numbers set forth in this Section 4 shall be subject to adjustment as
provided in Section 14.


 


5.    Term of Award.  The term of each Award shall be
fixed by the Committee and specified in the applicable Award Agreement, but in
no event shall it be more than ten years from the date of grant. Subject in the
case of ISOs to Section 7(g), the term of an Award may be extended from
time to time by the Committee, provided that no extension shall extend the term
beyond ten years from the date of grant.


 


6.    Vesting.  The Committee shall determine the
vesting schedule applicable to a particular Award and specify the vesting
schedule in the applicable Award Agreement. Notwithstanding the foregoing the
Committee may accelerate the vesting of an Award at any time.


 


7.    Options.


 


(a)


Type
of Options.  Options
granted under the Plan may be either incentive stock options (“ISOs”) intended
to meet the requirements of Section 422 of the Code or nonqualified stock
options (“NSOs”) which are not intended to meet such Code requirements.


 


(b)


Rights
to Purchase.  The
Committee may grant Options to employees, officers and directors of, and
consultants and advisors to, the Company, in such amounts, and subject to such
terms and conditions as the Committee may determine in its sole discretion,
including such restrictions on transferability and other restrictions as the
Committee may impose, which restrictions may lapse separately or in combination
at such times, under such circumstances, in such installments, or otherwise, as
the Committee shall determine.


 


(c)


Option
Agreement.  The
terms and conditions of each Option shall be set forth in an Option Agreement
in the form approved by the Committee. Each Option Agreement shall, at a
minimum, specify (i) the number of shares of Common Stock subject to the
Option, (ii) whether the Option is intended to be an ISO or NSO, (iii) the
provisions related to vesting and exercisability of the Option, including the
Option exercise price, and (iv) that the Option is subject to the terms
and provisions of the Plan. Option Agreements may differ from one another.


 


(d)


Termination
of Relationship to the Company. 


 


i.


With respect to an
Option granted to an individual who is an employee of the Company at the time
of Option grant, unless the Option Agreement expressly provides to the
contrary, (i) the Option shall terminate immediately upon the Grantee’s
termination of employment for Cause (as defined in Section 20); (ii) subject
in the case of ISOs to Section 7(g), the Option shall terminate two years
following the Grantee’s termination of employment by reason of death or
Disability (as defined in Section 20); (iii) subject in the case of
ISOs to Section 7(g), the Option shall terminate two years after
Retirement (as defined in Section 20); (iv) the Option shall
terminate three months after the Grantee’s termination of employment for any
other reason; and (v) vesting of an Option will terminate in all cases
immediately upon termination of employment. In no event shall an Option remain
exercisable beyond the expiration date specified in the applicable Option
Agreement. An Option Agreement may contain such provisions as the Board shall
approve with reference to the determination of the date employment terminates
for purposes of the Plan and the effect of leaves of absence, which provisions
may vary from one another.


 


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ii.


With respect to an
Option granted to an individual who is not an employee of the Company at the
time of Option grant, the Board shall determine and specify in the applicable
Option Agreement the consequences, if any, of the termination of the Grantee’s
relationship with the Company.


 


(e)


Option
Price. Subject in
the case of ISOs to Section 7(g), the exercise price per share of Common
Stock covered by an Option shall be established by the Committee; provided,
however, that (a) the exercise price per share for any Option shall not be
less than one hundred percent (100%) of the Fair Market Value of a share of
Common Stock on the date the Option is granted and (b) no ISO granted to a
10% Shareholder (as defined in Section 7(g)) shall have an exercise price
per share less than one hundred ten percent (110%) of the Fair Market Value of
a share of Common Stock on the date the Option is granted. Notwithstanding the
foregoing, an Option (whether an ISO or NSO) may be granted with an exercise
price lower than the minimum exercise price set forth above if such Option is
granted pursuant to an assumption or substitution for another option in a
manner qualifying under the provision of Sections 409A and 424(a) of
the Code.


 


(f)


No
Stockholder Rights.
No Grantee shall have the rights of a stockholder with respect to shares
covered by an Option until such person becomes the holder of record of such
shares.


 


(g)


ISO
Provisions. 


 


i.


Employment
Requirement; Termination of Employment, Death or Disability. ISOs may only be awarded to employees
of KapStone or a corporation which, with respect to KapStone, is a “parent
corporation” or “subsidiary corporation” within the meaning of Sections 424(e) and
(f) of the Code. No ISO may be exercised unless, at the time of such exercise, the Grantee is, and
has been continuously since the date of grant of his or her option, employed by
the Company, except that:


 


(1)


an ISO may be
exercised within the period of three months after the date the Grantee ceases
to be an employee of the Company (or within such lesser period as may be specified
in the applicable Option Agreement), provided, that the Option Agreement may
designate a longer exercise period and that the exercise after such three-month
period shall be treated as the exercise of a NSO under the Plan;


 


(2)


if the Grantee
dies while in the employ of the Company, or within three months after the
Grantee ceases to be such an employee, the ISO may be exercised by the person
to whom it is transferred by will or the laws of descent and distribution
within the period of one year after the date of death (or within such lesser
period as may be specified in the applicable Option Agreement); provided, that
the Option Agreement may designate a longer exercise period and that the
exercise after such one-year period shall be treated as the exercise of a NSO
under the Plan; and


 


(3)


if while in the
employ of the Company the Grantee becomes disabled within the meaning of Section 22(e)(3) of
the Code or any successor provisions thereto, the ISO may be exercised within
the period of one year after the date the Grantee ceases to be such an employee
because of such disability (or within such lesser period as may be specified in
the applicable Option Agreement) provided, that the Option Agreement may
designate a longer exercise period and that the exercise after such one-year
period shall be treated as the exercise of a NSO under the Plan.


 


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For all purposes of the Plan and any Option granted
hereunder, “employment” shall be defined in accordance with the provisions of Section 1.421-7(h) of
the Income Tax Regulations (or any successor regulations). Notwithstanding the
foregoing provisions, no ISO may be exercised after its expiration date.


 


ii.


10%
Shareholders.  In
the case of an individual who at the time the Option is granted owns stock
possessing more than 10% of the total combined voting power of all classes of
the stock of KapStone or of a parent or subsidiary corporation of KapStone (a “10%
Shareholder”), (i) the Option exercise price of any ISO granted to such
person shall in no event be less than 110% of the Fair Market Value of the
Common Stock on the date the ISO is granted and (ii) the term of an ISO
granted to such person may not exceed five years from the date of grant.


 


iii.


$100,000
Limit.  The
aggregate Fair Market Value (determined at the time an ISO is granted) of the
Common Stock covered by ISOs exercisable for the first time by an employee
during any calendar year (under all plans of the Company) may not exceed
$100,000.


 


iv.


Options
Which Do Not Satisfy ISO Requirements.  To the extent that any Option which is
issued under the Plan exceeds the limit set forth in paragraph (c) or
otherwise does not comply with the requirements of Code Section 422, it
shall be treated as a NSO.


 


(h)


Cancellation
and New Grant of Options, Etc.  The Committee shall have the authority to
effect, at any time and from time to time, with the consent of the affected
Grantees, (i) the cancellation of any or all outstanding Options under the
Plan and the grant in substitution therefor of new Options under the Plan
covering the same or different numbers of shares of Common Stock and having an
Option exercise price per share which may be lower or higher than the exercise
price per share of the cancelled Options or (ii) the amendment of the
terms of any and all outstanding Options under the Plan to provide an Option
exercise price per share which is higher or lower than the then-current
exercise price per share of such outstanding options; provided, however, that
the Committee shall not take any of the actions described in (i) or (ii) hereof
without receiving the approval of KapStone ‘s stockholders. The provisions of
this Section 7(h) may not be altered or amended without stockholder
approval.


 


(i)


Buyout
Provisions.  The
Committee may at any time offer to buy out for a payment in cash or shares, an
Option previously granted, based on such terms and conditions as the Committee
shall establish and communicate to the Grantee at the time that such offer is
made.


 


(j)


No
Deferral Feature.  The
Option Agreement shall not provide for any deferral feature with respect to an
Option constituting a deferral of compensation under Section 409A of the
Code.


 


8.    Restricted Stock.


 


(a)


Type
of Restricted Stock.  Restricted
Stock granted under the Plan may be either restricted stock shares (“RS Shares”)
or restricted stock units (“RS Units”).  “RS
Shares” means Shares which are issued and awarded to Grantees subject to a
substantial risk of forfeiture and restrictions on transfer of such Shares
during a specified period as provided in subsection (b).  “RS Units” means bookkeeping units that
represent the right of a Grantee to receive the specified number of Shares upon
lapse of the substantial risk of forfeiture and other restrictions on such
Shares during the specified period as provided in subsection (b).


 


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(b)


Rights
to Purchase.  The
Committee may grant Restricted Stock to employees, officers and directors of,
and consultants and advisors to, the Company, in such amounts, and subject to
such terms and conditions as the Committee may determine in its sole
discretion, including such restrictions on transferability and other
restrictions as the Committee may impose, which restrictions may lapse
separately or in combination at such times, under such circumstances, in such
installments, or otherwise, as the Committee shall determine. Grantees shall
not be required to pay cash or other consideration for Restricted Stock granted
hereunder, other than in the form of services performed under such terms and
conditions as the Committee may determine.


 


(c)


Restricted
Stock Grant Agreement.  Restricted Stock shall be granted under a Restricted Stock
Grant Agreement that shall specify whether the Restricted Stock is an Award of
RS Shares or RS Units, the number of RS Shares or RS Units granted, and the
terms of the restrictions referred to in subsection (b).  If the Award is made in the form of RS
Shares, then (i) the Award shall be further evidenced by certificates or
other indicia of ownership for the Shares registered in the name of the Grantee
and referring to the terms, conditions, and restrictions applicable to such RS
Shares; (ii) the Award of RS Shares shall be entered upon the records of
the duly authorized transfer agent of the Company as soon as practicable after
the Award; but (iii) the Company may retain physical possession of any
such certificates, and the Company may require a Grantee awarded RS Shares to
deliver a stock power to the Company, endorsed in blank, relating to the RS
Shares for so long as the Restricted Stock is subject to risk of forfeiture.


 


(d)


Termination
of Employment Prior to Vesting of Restricted Stock.  Unless the Restricted Stock
Grant Agreement expressly provides to the contrary, immediately upon the
termination of the Grantee’s status as an employee, officer or director of, or
consultant or advisor to, the Company for any reason other than the death or
Disability of the Grantee, Restricted Stock granted to such Grantee that has
not vested prior to such time may no longer vest, and Grantee shall forfeit all
rights (and the Company shall have no further obligations) with respect to such
Restricted Stock. In the event of the death or Disability of the Grantee, the
Award shall immediately vest in full.


 


(e)


Repurchase
Right.  The
Committee may in its sole discretion provide that a Restricted Stock Grant
Agreement shall grant the Company the right to repurchase RS Shares upon the
termination for specified reasons or any reason of the purchaser’s status as an
employee, officer, director of, or consultant or advisor to, the Company.  The purchase price for the RS Shares
repurchased by the Company pursuant to such repurchase right and the rate at
which such repurchase right shall lapse (if any) shall be determined by the
Committee in its sole discretion and shall be set forth in the Restricted Stock
Grant Agreement.


 


(f)


Other
Provisions.  The
Restricted Stock Grant Agreement shall contain such other terms, provisions and
conditions not inconsistent with the Plan as may be determined by the Committee
in its sole discretion.


 


(g)


Rights
as a Shareholder.  Unless
otherwise provided in the Restricted Stock Grant Agreement:


 


i.              A Grantee awarded
RS Shares that have not been forfeited shall have the rights of a stockholder
with respect to such RS Shares from and after the date that the Award of RS
Shares is entered upon the records of the duly authorized transfer agent of the
Company, including without limitation the right to vote such RS Shares and the
right to receive dividends declared on the RS Shares; provided, however,
that any dividend in Shares on RS Shares shall be held subject to the same
restrictions and for the same period as the RS Shares to which they relate.


 


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ii.             A Grantee awarded
RS Units that have not been forfeited shall have no rights as a stockholder
(unless and until Shares are issued in respect of such RS Unites upon lapse of
the substantial risk of forfeiture), including without limitation no right to
vote Shares represented by such RS Units; provided,
however, that if dividends (other than dividends in Shares) are paid
on Shares represented by RS Units, then the Company will cumulate amounts
equivalent to the amount of dividends and pay to the Grantee such amount when
the restrictions lapse; and if dividends in Shares are paid on Shares, the
Company will credit the Grantee with additional RS Units equal to the per-share
dividend on RS Units that have not yet either vested or been forfeited, with
such additional RS Units being subject to the same restrictions and for the
same period as the RS Units to which they relate.


 


(h)


No
Deferral Provisions.  A
Restricted Stock Award shall not provide for any deferral of compensation
recognition after vesting with respect to Restricted Stock which would cause
the Award to constitute a deferral of compensation which is not in compliance
with Section 409A of the Code.


 


9.    Stock Appreciation Rights.


 


(a)


Rights
to Purchase.  The
Committee may grant Stock Appreciation Rights to employees, officers and
directors of, and consultants and advisors to, the Company, in such amounts,
and subject to such terms and conditions as the Committee may determine in its
sole discretion, including such restrictions on transferability and other
restrictions as the Committee may impose, which restrictions may lapse
separately or in combination at such times, under such circumstances, in such
installments, or otherwise, as the Committee shall determine. No Stock
Appreciation Rights shall be granted under the terms and conditions which would
cause such rights to be treated as deferred compensation subject to Section 409A
of the Code. Grantees shall not be required to pay cash or other consideration
for Stock Appreciation Rights granted hereunder, other than in the form of
services performed under such terms and conditions as the Committee may
determine.


 


(b)


Stock
Appreciation Rights Agreement.  Stock Appreciation Rights shall be
granted under a Stock Appreciation Rights Agreement. Each Stock Appreciation
Rights Agreement shall, at a minimum, specify (i) the number of shares of
Common Stock subject to the Stock Appreciation Right, (ii)  the provisions
related to vesting and exercisability of the Stock Appreciation Right,
including the base price, and (iii) that the Stock Appreciation Right is
subject to the terms and provisions of the Plan.  Stock Appreciation Rights Agreements may
differ from one another.


 


(c)


Termination
of Employment Prior to Vesting of Stock Appreciation Rights.


 


i.              With respect to a Stock
Appreciation Right granted to an individual who is an employee of the Company
at the time of Stock Appreciation Right grant, unless the Stock Appreciation
Rights Agreement expressly provides to the contrary, (i) the Stock
Appreciation Right shall terminate immediately upon the Grantee’s termination
of employment for Cause (as defined in Section 20); (ii) the Stock
Appreciation Right shall terminate two years following the Grantee’s
termination of employment by reason of death or Disability (as defined in Section 20);
(iii) the Stock Appreciation Right shall terminate two years after
Retirement (as defined in Section 20); (iv) the Stock Appreciation
Right shall terminate three months after the Grantee’s termination of
employment for any other reason; and (v) vesting of a Stock Appreciation
Right will terminate in all cases immediately upon termination of employment.
In no event shall a Stock Appreciation Right remain exercisable beyond the
expiration date specified in the applicable Stock Appreciation Rights
Agreement. A Stock Appreciation Rights Agreement may contain such provisions as
the Board shall approve with reference to the determination of the date
employment terminates for purposes of the Plan and the effect of leaves of
absence, which provisions may vary from one another.


 


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ii.             With respect to a Stock Appreciation Right granted to
an individual who is not an employee of the Company at the time of Stock
Appreciation Right grant, the Board shall determine and specify in the
applicable Stock Appreciation Rights Agreement the consequences, if any, of the
termination of the Grantee’s relationship with the Company.


 


(d)


Base
Price. The base
price per share of Common Stock covered by a Stock Appreciation Right shall be
established by the Committee; provided, however, that the base price per
share for any Stock Appreciation Right shall not be less than one hundred
percent (100%) of the Fair Market Value of a share of Common Stock on the date
the Stock Appreciation Right is granted. 
Notwithstanding the foregoing, a Stock Appreciation Right may be granted
with a base price lower than the minimum base price set forth above if such
Stock Appreciation Right is granted pursuant to an assumption or substitution
for another Stock Appreciation Right in a manner qualifying under the provision
of Sections 409A and 424(a) of the Code.


 


(e)


Other
Provisions.  The
Stock Appreciation Rights Agreement shall contain such other terms, provisions
and conditions not inconsistent with the Plan as may be determined by the
Committee in its sole discretion.


 


(f)


Rights
as a Shareholder.  No
Grantee shall have the rights of a stockholder with respect to shares covered
by a Stock Appreciation Right until such person becomes the holder of record of
such shares.


 


(g)


Cancellation
and New Grant of Stock Appreciation Rights, Etc.  The Committee shall have the authority to
effect, at any time and from time to time, with the consent of the affected
Grantees, (i) the cancellation of any or all outstanding  Stock Appreciation Rights under the Plan and
the grant in substitution therefor of new Stock Appreciation Rights under the
Plan covering the same or different numbers of shares of Common Stock and
having a base price per share which may be lower or higher than the base price
per share of the cancelled Stock Appreciation Rights or (ii) the amendment
of the terms of any and all outstanding Stock Appreciation Rights under the
Plan to provide a base price per share which is higher or lower than the
then-current base price per share of such outstanding Stock Appreciation
Rights; provided, however, that the Committee shall not take any of the actions
described in (i) or (ii) hereof without receiving the approval of
KapStone ‘s stockholders. The provisions of this Section 9(g) may not
be altered or amended without stockholder approval.


 


(h)


Buyout
Provisions.  The
Committee may at any time offer to buy out for a payment in cash or shares, a
Stock Appreciation Right previously granted, based on such terms and conditions
as the Committee shall establish and communicate to the Grantee at the time
that such offer is made.


 


(i)


No
Deferral Feature.  The
Stock Appreciation Rights Agreement shall not provide for any deferral feature
with respect to a Stock Appreciation Right constituting a deferral of
compensation under Section 409A of the Code.


 


10.    Exercise of Awards.


 


(a)


An Award other
than a Restricted Stock Award may be exercised at any time and from time to
time, in whole or in part, as to any or all full shares as to which such Award
is then exercisable. An Award may not be exercised with respect to a fractional
share. A Grantee (or other person who, pursuant to Section 11, may
exercise the Award) shall exercise the Award by delivering to KapStone in the
manner provided in the Award Agreement a written notice of exercise, stating
the number of shares of Common Stock with respect to which the exercise is
being made.  Upon receipt by KapStone of
any notice of exercise, the exercise of the Award as set forth in that notice
shall be irrevocable.


 


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(b)


Upon exercise of
an Option, the Grantee shall pay to KapStone the Option exercise price per
share of Common Stock multiplied by the number of full shares as to which the
Option is then exercised. A Grantee may pay the Option exercise price by (i) tendering
or causing to be tendered to KapStone cash, (ii) delivery or deemed
delivery of shares of Common Stock owned by the Grantee having a Fair Market
Value equal to the exercise price, (iii) authorizing KapStone to withhold
whole shares of Common Stock which would otherwise be delivered to the Grantee
having an aggregate Fair Market Value, determined as of the date of exercise,
equal to the exercise price, (iv) delivery of other property permitted by
law and acceptable to the Board or Committee, or (v) any other means which
the Board or Committee determines are consistent with the purpose of the Plan
and with applicable laws and regulations (including, without limitation, the
provisions of Rule 16b-3 and Regulation T promulgated by the Federal
Reserve Board).


 


(c)


The Company shall,
in its sole discretion, take any action reasonably believed by it to be
necessary to comply with local, state or federal tax laws relating to the
reporting and withholding of taxes. In the event a Grantee has exercised an
Award, a Grantee shall, upon notification of the amount due, promptly pay or
cause to be paid the amount determined by the Company as necessary to satisfy
all applicable tax withholding requirements. A Grantee may satisfy his or her
tax withholding requirement in any manner satisfactory to the Company.


 


(d)


Any certificates
or other indicia of ownership representing the shares as to which an Award has
been exercised shall refer to the restrictions applicable to such shares.


 


11.    Nontransferability.


 


(a)


Except as provided
in Section 11 (b), Awards granted under the Plan shall not be
assignable or transferable other than by will or the laws of descent and
distribution and Options and Stock Appreciation Rights may be exercised during
the lifetime of the Grantee only by the Grantee or by the Grantee’s guardian or
legal representative.  In the event of
any attempt by a Grantee to transfer, assign, pledge, hypothecate or otherwise
dispose of an Award or any right thereunder, except as provided for herein, or
in the event of the levy of any attachment, execution or similar process upon
the rights or interest hereby conferred, KapStone may terminate the Award
(making such Award null and void) or repurchase the RS Shares as provided in Section 8(e) by
notice to the Grantee.


 


(b)


Notwithstanding
paragraph (a), if (and on the terms) so provided in the applicable Option
Agreement, a Grantee may transfer a NSO, by gift or a domestic relations order,
to a Family Member (as defined in Section 20) of the Grantee. If a NSO is
transferred in accordance with this subparagraph, the Option shall be
exercisable solely by the transferee, but the determination of the
exercisability of the Option shall be based solely on the activities and state
of affairs of the Grantee. Thus, for example, if, after a transfer with respect
to an Option, the Grantee ceases to be an employee of the Company, such termination
shall trigger the provisions of Section 7(d) hereof. Conversely, if
after a transfer the transferee ceases to be an employee of the Company, such
termination shall not trigger the provisions of Section 7(d) hereof.


 


12.    Compliance with Law; Registration of Shares.


 


(a)


The Plan and any
grant hereunder shall be subject to all applicable laws, rules, and regulations
of any applicable jurisdiction or authority or agency thereof and to such
approvals by any regulatory or governmental agency which, in the opinion of
Company’s counsel, may be required or appropriate.


 


(b)


Notwithstanding
any other provision of the Plan or Award Agreements made pursuant hereto, the
Company shall not be required to issue or deliver any certificate or
certificates for shares of Common Stock under the 


 


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Plan prior to
fulfillment of all of the following conditions: 


 


i.


Effectiveness of
any registration or other qualification of such shares of the Company under any
law or regulation of any applicable jurisdiction or authority or agency thereof
which the Board shall, in its absolute discretion or upon the advice of
counsel, deem necessary or advisable; and


 


ii.


Grant of any other
consent, approval or permit from any applicable jurisdiction or authority or
agency thereof or securities exchange or quotation system which the Board
shall, in its absolute discretion or upon the advice of counsel, deem necessary
or advisable.


 


The Company shall use all reasonable efforts to obtain
any consent, approval or permit described above; provided, however, that except
to the extent as may be specified in an Award Agreement with respect to any
particular grant, the Company shall be under no obligation to register or
qualify any shares of Common Stock subject to an Award under any federal or
state securities law or on any exchange.


 


13.    Change in
Control.


 


(a)


In the event that a Change in Control occurs, the Board may determine
that (i) any Option shall be assumed, or a substantially equivalent Award
shall be substituted, by an acquiring or succeeding entity (or an affiliate
thereof) on such terms as the Board determines to be appropriate; (ii) upon
written notice to the Grantee, provide that the Award shall terminate
immediately prior to the consummation of the transaction unless exercised by
the Grantee within a specified period following the date of the notice; (iii) in
the event that the Change in Control is a sale or similar transaction under the
terms of which holders of Common Stock receive a payment for each share of
Common Stock surrendered in the transaction (the “Sales Price”), make or
provide for a payment to each Grantee equal to the amount by which (A) the
Sales Price times the number of shares of Common Stock subject to the Award (to
the extent such Award is then exercisable) exceeds (B) the aggregate
exercise or base price, if any, for all such shares of Common Stock; or (iv) may
make such other equitable adjustments as the Board deems appropriate.


 


(b)


“Change in Control” means the occurrence of any of the
following:  (i) any “person” (as
that term is used in Sections 13(d) and 14(d)(2) of the Exchange Act)
is or becomes the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) directly or indirectly, of securities representing 35% or more of
the combined voting power for election of directors of the then outstanding
securities of the Company or any successor of the Company; (ii) during any
period of two consecutive years or less, individuals who at the beginning of
such period constituted the Board cease, for any reason, to constitute at least
a majority of the Board, unless the election or nomination for election of each
new director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of the period; (iii) 
the consummation of the liquidation of the Company or the sale or other
disposition of 50% or more of the assets of the Company; or (iv) the
consummation of any merger or consolidation to which the Company is a party as
a result of which the persons who were share owners of the Company immediately
prior to the effective date of the merger or consolidation will have beneficial
ownership of less than 50% of the combined voting power for election of directors
of the surviving corporation following the effective date of such merger or
consolidation.


 


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14.    Adjustments upon Changes in Capitalization.


 


(a)


In the event of
any stock dividend or split, recapitalization, combination, exchange or similar
change affecting the Common Stock, or any other increase or decrease in the
number of issued shares of Common Stock effected without receipt of
consideration by the Company, the Committee shall make any or all of the
following adjustments as it deems appropriate to equitably reflect such event: (i) adjust
the aggregate number of shares (or such other security as is designated by the
Board) which may be acquired pursuant to the Plan, (ii) adjust the
purchase price to be paid for any or all such shares subject to the then
outstanding Awards, (iii) adjust the number of shares of Common Stock (or
such other security as is designated by the Board) subject to any or all of the
then outstanding Awards and (iv) make any other equitable adjustments or
take such other equitable action as the Board, in its discretion, shall deem
appropriate. For purposes hereof, the conversion of any convertible securities
of the Company shall not be deemed to have been “effected without receipt of
consideration.”


 


(b)


Any and all
adjustments or actions taken by the Board pursuant to this Section 14
shall be conclusive and binding for all purposes.


 


15.    No Right to Continued Employment.  Neither the
Plan nor any action taken hereunder shall be construed as giving any employee
or any independent contractor any right to continue in the employ of or to be
engaged as an independent contractor by the Company or affect the right of the
Company to terminate such person’s employment or other relationship with the
Company at any time.


 


16.    Amendment; Early Termination.  Subject to
Sections 7(h) and 9(g), the Board may at any time and from time to
time alter, amend, suspend or terminate the Plan in whole or in part; provided,
however, that no amendment requiring stockholder approval by law or by the rules of
any stock exchange, inter-dealer quotation system, or other market in which
shares of Common Stock are traded, shall be effective unless and until such
stockholder approval has been obtained in compliance with such rule or
law; and provided, further, that no such amendment shall materially adversely
affect the rights of a Grantee in any Award previously granted under the Plan
without the Grantee’s written consent.


 


17.    Effective Date.  The Plan shall be effective as of
the date of its adoption by the Board (the “Effective Date”), subject to the
approval thereof by the stockholders of KapStone entitled to vote thereon
within 12 months of such date. In the event that such stockholder approval
is not obtained within such time period, the Plan and any Awards granted under
the Plan on or prior to the expiration of such 12 month period shall be
void and of no further force and effect.


 


18.    Termination of Plan.  Unless terminated earlier by
the Board in accordance with Section 16 above, the Plan shall terminate
on, and no further Awards may be granted after, the tenth anniversary of the
Effective Date.


 


19.    Severability.  In the event that any one or more
provisions of the Plan or an Award Agreement, or any action taken pursuant to
the Plan or an Award Agreement, should, for any reason, be unenforceable or
invalid in any respect under the laws of the United States, any state of the
United States or any other jurisdiction, such unenforceability or invalidity
shall not affect any other provision of the Plan or Award Agreement, but in
such particular jurisdiction and instance the Plan and/or Award Agreement, as
applicable, shall be construed as if such unenforceable or invalid provision
had not been contained therein or if the action in question had not been taken
thereunder.


 


20.    Definitions.


 


(a)


Affiliate.  The term “Affiliate” means
any entity, whether or not incorporated, that directly or through one or more
intermediaries is controlled by KapStone.


 


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(b)


Cause.  The term “Cause” when used
herein in conjunction with termination of employment (or other service
relationship) means (i) if the Grantee is a party to an employment or
similar agreement with the Company which defines “cause” (or a similar term),
the meaning set forth in such agreement (other than death or disability), or (ii) otherwise,
termination by the Company of the employment (or other service relationship) of
the Grantee by reason of the Grantee’s (1) intentional failure to perform
reasonably assigned duties, (2) dishonesty or willful misconduct in the
performance of his duties, (3) involvement in a transaction which is
materially adverse to the Company, (4) breach of fiduciary duty involving
personal profit, (5) willful violation of any law, rule, regulation or
court order (other than misdemeanor traffic violations and misdemeanors not
involving misuse or misappropriation of money or property), (6) commission
of an act of fraud or intentional misappropriation or conversion of any asset
or opportunity of the Company, or (7) material breach of any provision of
the Plan, the Grantee’s Award Agreement or any other written agreement between
the Grantee and the Company, in each case as determined in good faith by the
Board, whose determination shall be final, conclusive and binding on all
parties.


 


(c)


Disability.  Except as otherwise
specified in the applicable Award Agreement or in the Grantee’s Employment
Agreement with the Company, the Grantee shall be deemed to have a “Disability”
if the Grantee is unable to engage in any substantial gainful activity by
reason of any medically determined physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last for
a continuous period of not less than twelve (12) months, as reasonably
determined by the Board in good faith and in its discretion.


 


(d)


Fair
Market Value.  As
used herein, the term “Fair Market Value” of a share of Common Stock as of a
specified date for the purposes of the Plan shall mean the value of a share of
Common Stock determined consistent with the requirements of Sections 422 and
409A of the Code as follows: the arithmetic mean of the high and low sales
prices of a share of Common Stock on the date of grant on the principal
securities exchange (including the Nasdaq National Market) on which such shares
are traded on the relevant date for which Fair Market Value is being
determined, or if the shares are not traded on a securities exchange, Fair
Market Value shall be deemed to be the average of the high bid and low asked
prices of the Common Stock on the date of grant in the over-the-counter market
on which such shares are traded on the relevant date for which Fair Market
Value is being determined. If the shares are not publicly traded, Fair Market
Value of a share of Common Stock (including, in the case of any repurchase of
shares, any distributions with respect thereto which would be repurchased with
the shares) shall be determined in good faith by the Board or the Committee. In
no case shall Fair Market Value be determined with regard to restrictions other
than restrictions which, by their terms, will never lapse.


 


(e)


Family
Member of the Grantee.  As used herein, “Family Member of the Grantee” means the
Grantee’s child, stepchild, grandchild, parent, stepparent, grandparent,
spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including
adoptive relationships, any person sharing the Grantee’s household (other than
a tenant or employee), a trust in which these persons have more than 50% of the
beneficial interest, a foundation in which these persons (or the Grantee)
control the management of assets, and any other entity in which these persons
(or the Grantee) own more than 50% of the voting interests.


 


(f)


Retirement.  As used herein, “Retirement”
means the termination of employment of a Grantee over the age of 64.


 


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