-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Blt7gAdECbxUc9F/yYK/pj+6sMMqF2sB7o0cdWwvZcBXRTaS3n9W9DS3EWdadXOZ AGGnM2PJNfqdeTU5c3y02Q== 0000902561-99-000547.txt : 19991117 0000902561-99-000547.hdr.sgml : 19991117 ACCESSION NUMBER: 0000902561-99-000547 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991116 EFFECTIVENESS DATE: 19991116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: US CAN CORP CENTRAL INDEX KEY: 0000895726 STANDARD INDUSTRIAL CLASSIFICATION: METAL CANS [3411] IRS NUMBER: 061094196 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-91031 FILM NUMBER: 99758649 BUSINESS ADDRESS: STREET 1: 900 COMMERCE DR STREET 2: SUITE 302 CITY: OAK BROOK STATE: IL ZIP: 60521 BUSINESS PHONE: 7085712500 MAIL ADDRESS: STREET 1: 900 COMMERCE DRIVE CITY: OAK BROOK STATE: IL ZIP: 60521 S-8 1 As filed with the Securities and Exchange Commission on November 16, 1999 File No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 U.S. CAN CORPORATION (Exact name of registrant as specified in its charter) Delaware 06-1094196 (State or other jurisdiction (I.R.S. Employer Identificaiton No.) of incorporation or organization) 900 Commerce Drive 60523 Oak Brook, Illinois (Zip Code) (Address of principal executive offices) U.S. CAN CORPORATION 1997 EQUITY INCENTIVE PLAN (Full title of the plan) Steven K. Sims Vice President, General Counsel and Secretary 900 Commerce Drive Oak Brook, Illinois 60523 (Name and Address of Agent for Service) (630) 571-2500 (Telephone Number, including area code, of Agent for Service) ------------------- CALCULATION OF REGISTRATION FEE =============================================================================== Proposed Proposed Maximum Maximum Amount Offering Aggregate Amount of Title of Securities to be Price Offering Registration to be Registered Registered(1) Per Share* Price* Fee - ------------------------------------------------------------------------------- Common Stock, $.01 par 258,600 par value................ Shares $19.09375 $4,937,644 $1,373 =============================================================================== * Pursuant to Rule 457(h)(1), the registration fee was computed on the basis of the average of the high and low prices for the Common Stock as reported on the New York Stock Exchange on November 10, 1999. (1) The number of shares of Common Stock to be registered may be adjusted in accordance with the provisions of the Plan in the event that, during the period that the Plan is in effect, the number of shares of Common Stock is increased or decreased or such shares are changed into or exchanged for a different number or kind of shares of stock or other securities of the Company through reorganization, merger or consolidation, recapitalization, stock split, split-up, spin-off, combination, exchange of shares, declaration of any Common Stock dividends or similar events without receipt of consideration by the Company. Accordingly, this Registration Statement covers, in addition to the number of shares of Common Stock stated above, an indeterminate number of shares which by reason of any such events may be issued in accordance with the provisions of the Plan. =============================================================================== PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents, which have heretofore been filed by U.S. Can Corporation (the "Company" or "Registrant") with the Securities and Exchange Commission, are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1998. (b) The Company's Quarterly Report on Form 10-Q for the quarterly periods ended April 4, 1999 and July 4, 1999. (c) The description of the common stock, $.01 par value per share, of the Company (the "Common Stock") contained in the Company's Registration Statement on Form 8-A (File No. 0-21314) filed with the Commission on March 8, 1993, pursuant to Section 12 of the Exchange Act. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and shall be deemed a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the shares of Common Stock offered hereby will be passed upon by Steven K. Sims, Vice President, General Counsel and Secretary of the Company. Mr. Sims owns 288 shares of Common Stock and holds options to purchase 25,000 shares of Common Stock. Item 6. Indemnification of Directors and Officers. The Company is incorporated under the laws of the State of Delaware. The General Corporation Law of the State of Delaware (the "Delaware Statute") provides for indemnification of directors, officers, and employees in certain situations. The Delaware Statute, by its terms, expressly permits indemnification where such a person acted in good faith and in a manner such person reasonably believed to be in, or not opposed to, the corporation's best interests, and, in a criminal action, if such person had no reasonable cause to believe that his or her conduct was unlawful. In the case of a claim by a third party (i.e., a party other than the corporation), the Delaware Statute expressly permits indemnifications for expenses, judgments, settlement payments, and other costs. In the case of a claim by or in the right of the corporation (including stockholder derivative suits), the Delaware Statute expressly provides for indemnification for expenses only, and not for amounts paid in judgment or settlement of such actions. Moreover, a corporation cannot, under the Delaware Statute, provide for indemnification against expenses in the case of an action by or in the right of the corporation if the person seeking indemnification is adjudged liable to the corporation, unless the indemnification is ordered by a court. The Delaware Statute also permits advancement of expenses to directors and officers upon receipt of an undertaking by such director or officer to repay all amounts advanced if it shall ultimately be determined that he or she is not entitled to be indemnified by the corporation. In addition, the Delaware Statute specifically provides that its terms shall not be deemed exclusive of any other right to indemnification to which a director, officer, or employee may be entitled under any by-law, agreement, or vote of stockholders or disinterested directors. The Company's Amended and Restated Certificate of Incorporation provides for indemnification to the full extent permitted by the laws of the State of Delaware against and with respect to threatened, pending or completed actions, suits or proceedings arising from or alleged to arise from a party's actions or omissions as a director, officer, employee or agent of the Company or of any subsidiary of the Company or of any other corporation, partnership, joint venture, trust or other enterprise which he has served in such capacity at the request of the Company if such acts or omissions occurred or were or are alleged to have occurred while said party was a director or officer of the Company. Any indemnification (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification is proper. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable and a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. The Company maintains a director and officer liability insurance policy which indemnifies directors and officers for certain losses arising from a claim by reason of a wrongful act, as defined under the policy, under certain circumstances where the Company does not provide indemnification. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. See Index to Exhibits which is incorporated herein by reference. Item 9. Undertakings. The undersigned Registrant hereby undertakes: 1. To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; provided that, notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; 2 provided, however, that paragraphs (i) and (ii) above do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. 2. That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to under Item 6, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Oak Brook, State of Illinois, on this 16th day of November, 1999. U.S. CAN CORPORATION By /s/ Paul W. Jones ---------------------------------- Paul W. Jones President, Chief Executive Officer and Chairman POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Paul W. Jones, John L. Workman and Steven K. Sims, and each of them, the true and lawful attorneys-in-fact and agents of the undersigned, with full power of substitution and resubstitution, for and in the name, place and stead of the undersigned, in any and all capacities, to sign any and all post-effective amendments to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as the undersigned might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his/her substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities indicated on the 16th day of November, 1999. /s/ Paul W. Jones /s/ John L. Workman - -------------------------------- ------------------------------------ Paul W. Jones, President, Chief John L. Workman, Executive Vice Executive Officer and Chairman President and Chief Finandial Officer /s/ Jack McGowan /s/ Calvin W. Aurand, Jr. - -------------------------------- ------------------------------------ Jack McGowan, Vice President Calvin W. Aurand, Jr. Director and Controller /s/ Banjamin F. Bailar /s/ Carl Ferenbach - -------------------------------- ------------------------------------ Benjamin F. Bailar, Director Carl Ferenbach, Director /s/ Ricardo Poma - --------------------------------- ------------------------------------ Ricardo Poma, Director Francisco A. Soler, Director /s/ Louis B. Susman /s/ Charles W. Gaillard - --------------------------------- ------------------------------------ /s/ Louis B. Susman, Director Charles W. Gaillard, Director INDEX TO EXHIBITS Exhibit Number Description of Document - ------- ----------------------- 5 Opinion of Steven K. Sims, Esq. 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Steven K. Sims (included in his opinion filed as Exhibit 5 hereto) 24 Power of Attorney (included with signature page to the registration statement) EX-5 2 OPINION OF STEVEN K. SIMS, ESQ. Exhibit 5 November 16, 1999 Board of Directors U.S. Can Corporation 900 Commerce Drive Oak Brook, Illinois 60523 Re: U.S. Can Corporation Registration Statement on Form S-8 Ladies and Gentlemen: I have acted as counsel to U.S. Can Corporation (the "Company") in connection with the adoption of the U.S. Can Corporation 1997 Equity Incentive Plan (the "1997 Incentive Plan"). I am familiar with the corporate proceedings relative to the adoption of the Plans and the proposed issuance of shares of common stock, par value $.01 per share, of the Company (the "Common Stock") pursuant to the Plan. I have examined such corporate and other records, instruments, certificates and documents as I considered necessary to enable me to express this opinion. Based on the foregoing, it is my opinion that the shares of Common Stock issuable pursuant to the Plan have been duly authorized for issuance and, when sold pursuant to the Plan, will be validly issued, fully paid, and non-assessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement on Form S-8 to be filed by the Company with respect to the shares of Common Stock issuable pursuant to the Plan and to the reference to me under the caption "Interests of Named Experts and Counsel" in such Registration Statement. Very truly yours, /s/ Steven K. Sims Steven K. Sims Vice President, General Counsel and Secretary EX-23.1 3 CONSENT OF ARTHUR ANDERSEN LLP Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 17, 1999 included in U.S. Can Corporation's Annual Report on Form 10-K for the year ended December 31, 1998 and to all references to our Firm included in this Registration Statement. /s/ ARTHUR ANDERSEN LLP - ------------------------- ARTHUR ANDERSEN LLP Chicago, Illinois November 16, 1999 -----END PRIVACY-ENHANCED MESSAGE-----