Exhibit 10.1


 


THIRD AMENDMENT TO


EMPLOYMENT AGREEMENT OF PATRICK
J. MOORE


 


This Amendment (the “Amendment” is effective as of January 1,
2008, by and between Smurfit-Stone Container Corporation (the “Company”) and
Patrick J. Moore (the “Executive”).


 


WHEREAS, the Company and the Executive entered into an
Employment Agreement (the “Agreement”) effective April 1, 1999, which has
previously been amended effective January 4, 2002, and July 25, 2006,
and the parties desire to further amend the Agreement to comply with the
requirements of section 409A of the Internal Revenue Code.


 


NOW, THEREFORE, in consideration of the mutual terms,
covenants and conditions stated in this Amendment, the Company and the
Executive hereby agree as follows:


 


1.             Section 4(b) is
amended to read as follows:


 


(b)           Incentive
Compensation.  The Executive 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, but not
limited to, the Management Incentive Plan and the Smurfit-Stone Container
Corporation 2004 Long-Term Incentive Plan. 
For the Company’s 2008 fiscal year, the Executive shall be eligible for
a target bonus under the Company’s annual incentive plan equal to 100% of his
Base Salary provided that all performance goals set by the Company are
met.  The Board (or appropriate Board
committee) will determine and communicate to the Executive his annual incentive
plan participation for subsequent fiscal years, no later than March 31 of
such fiscal year.


 


2              Section 4(e) is
amended by adding at the end thereof:


 


The amount of expenses eligible for reimbursement during any taxable
year of the Executive shall not affect the reimbursement during any other
taxable year.


 


3.             Section 4(h) is
amended by adding at the end thereof:


 


For purposes of this Section 4(h), the Executive’s employment
shall not be terminated until the earliest to occur of the above.


 


4.             Section 5(a) is
amended by adding at the end thereof:


 


For purposes of this Agreement, “termination of employment” means 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).


 


5.             Section 5(d)(iii) is
amended to read as follows:


 


(iii)          The Company will provide the Executive with
reimbursement of expenses relating to financial planning services and tax
return preparation through December 31 of the 


 

















 


calendar year that includes the second anniversary of the Executive’s
employment termination.  The Company will
bear the cost of such reimbursements at the same level in effect immediately
prior to the Executive’s employment termination.  The amount of expenses eligible for
reimbursement during any taxable year of the Executive shall not affect the
reimbursement during any other taxable year. 
Perquisites otherwise receivable by the Executive pursuant to this
paragraph shall be reduced to the extent comparable perquisites are actually
received by or made available to the Executive without cost during the 36 month
period following the Executive’s employment termination.  The Executive shall report to the Company any
such perquisites actually received or made available to the Executive.


 


6.             Section 5(d)(v) is
amended to read as follows:


 


(v)           Outplacement
services, as elected by the Executive (and with a firm selected by the
Executive), not to exceed $50,000 in any one taxable year.  The amount of expenses eligible for
reimbursement, or in-kind benefits provided, during any taxable year of the
Executive shall not affect the reimbursement, or in-kind benefits to be
provided, during any other taxable year.


 


7.             Section 5(e) is
amended to read as follows:


 


(e)           Good Reason.  For purposes of this Agreement, “Good Reason”
shall mean the occurrence of any of the following without the Executive’s
consent (i) assigning duties to the Executive that are materially
inconsistent with those of the position of Chairman and Chief Executive Officer
for similar companies in similar industries (except to the extent the Company
promotes the Executive to a higher executive position); (ii) requiring the
Executive to report to other than the Company’s Board; (iii) a material
breach of this Agreement by the Company; or (iv) the Company requires the
Executive to relocate his principal business office to a location not within 50
miles of either the Company’s principal business office located in the St.
Louis, Missouri metropolitan area, or the Company’s principal business office
located in the Chicago, Illinois metropolitan area (provided, that, the Company’s
requiring the Executive to relocate his principal office from Chicago to St.
Louis, or from St. Louis to Chicago, will not constitute Good Reason.  For purposes of this paragraph, “Company”
shall mean the Company and, following any Change in Control, the Surviving
Corporation or, if applicable, the Parent Corporation (as those terms are
defined in Section 6(d)).  The
Executive’s termination for Good Reason must occur within two years following
the initial existence of one or more of the preceding conditions, and must be
preceded by written notice to the Company within 90 days of the initial
existence of one or more of the preceding conditions, and the Company must have
at least 30 days to cure the alleged deficiencies.  For purposes of this paragraph, “Company”
shall mean the Company and, following any Change in Control, the Surviving
Corporation or, if applicable, the Parent Corporation (as those terms are
defined in Section 6(d)).


 


8.             Section 5(g) is
amended to read as follows:


 


(g)           Timing
of Payments.  All payments described
above shall be made in a lump sum cash payment as soon as practicable (but in
no event more than 10 days) following the Executive’s termination of employment.  If the total amount of annual bonus is not
determinable 


 

















 


on that date, the Company shall pay the amount of bonus that is
determinable and the remainder shall be paid in a lump sum cash payment within
10 days of the date that annual performance results are finalized, but in no
event later than March 15 of the year following the year in which
Executive’s termination of employment occurs. 
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.


 


9.             Section 6(a)(v) is
amended to read as follows:


 


(v)           The Company will
provide the Executive with reimbursement of expenses relating to financial
planning services and tax return preparation through December 31 of the
calendar year that includes the second anniversary of the Executive’s
employment termination.  The Company will
bear the cost of such reimbursements at the same level in effect immediately
prior to the Executive’s employment termination.  The amount of expenses eligible for
reimbursement during any taxable year of the Executive shall not affect the
reimbursement during any other taxable year. 
Perquisites otherwise receivable by the Executive pursuant to this
paragraph shall be reduced to the extent comparable perquisites are actually
received by or made available to the Executive without cost during the 36 month
period following the Executive’s employment termination.  The Executive shall report to the Company any
such perquisites actually received or made available to the Executive.


 


10.           Section 6(a)(vii) is
amended to read as follows:


 


(vii)         Outplacement services, as elected by the
Executive (and with a firm selected by the Executive), not to exceed $50,000 in
any one taxable year.  The amount of
expenses eligible for reimbursement, or in-kind benefits provided, during any
taxable year of the Executive shall not affect the reimbursement, or in-kind
benefits to be provided, during any other taxable year.


 


11.           Section 6(b) is
amended to read as follows:


 


(b)           Timing
of Payments.  All payments under
paragraphs (a)(i), (ii) and (iv) above, and paragraph (c) below,
shall be made in a lump sum cash payment as soon as practicable (but in no
event more than 10 days) following the Executive’s termination of
employment.  If the total amount of
annual bonus is not determinable on that date, the Company shall pay the amount
of bonus that is determinable and the remainder shall be paid in a lump sum
cash payment within 10 days of the date that annual performance results are
finalized, but in no event later than March 15 of the year following the
year in which Executive’s termination of employment occurs.  With
respect to any non-tax 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.


 

















 


12.           A
new Section 6(c)(iii) is added to read as follows:


 


(iii)   Any tax reimbursement payment under the
agreement that is subject to Section 409A of the Code shall be made by the
Company to the Executive by the end of the Executive’s taxable year next
following the Executive’s taxable year in which the Executive remits the
related taxes.  In the event the
Executive’s right to a tax reimbursement payment is incurred due to a tax audit
or litigation addressing the existence or amount of a tax liability, whether
Federal, state, local, or foreign, then payment shall be made by the Company to
the Executive by the end of the Executive’s taxable year following the
Executive’s taxable year in which the taxes that are the subject of the audit
or litigation are remitted to the taxing authority, or where as a result of such
audit or litigation no taxes are remitted, the end of the Executive’s taxable
year following the Executive’s taxable year in which the audit is completed or
there is a final and nonappealable settlement or other resolution of the
litigation.


 


13.           A new Section 21 is added to read as follows:


 


21.           Compliance
with Section 409A. 
Notwithstanding any provision in this agreement to the contrary, the
agreement shall be interpreted, construed and operated, to the extent
applicable, in accordance with Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”) and the regulations and other guidance issued
thereunder.  For purposes of determining
whether any payment made pursuant to the agreement results in a “deferral of
compensation” within the meaning of Section 409A of the Code and Treasury
Regulation §1.409A-1(b), the parties shall maximize the exemptions described in
such section.  Notwithstanding anything
contained in this Agreement to the contrary, if the Executive is a “specified
employee” (determined in accordance with Code Section 409A and Treasury
Regulation Section 1.409A-3(i)(2)) as of the date of Separation from
Service (other than a Separation from Service due to death), then any payment,
benefit or entitlement provided for in this Agreement that constitutes “deferred
compensation” within the meaning of Section 409A and that is payable
during the first six months following the date of Separation from Service shall
be paid or provided to the Executive in a lump sum cash payment to be made on
the earlier of (a) the Executive’s death or (b) the first business
day (or within 30 days after such first business day) of the seventh calendar
month immediately following the month in which the date of Separation from
Service occurs.


 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of January 1, 2008.


 


	
   

  	
  SMURFIT-STONE CONTAINER CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Craig A.
  Hunt

  
	
   

  	
   

  	
   

  
	
   

  	
  EXECUTIVE

  
	
   

  	
   

  
	
   

  	
  /s/ Patrick J.
  Moore

  
	
   

  	
  Patrick J. Moore