-----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, FXUMERGpOYxIsysPSlzmwZMTF32TdaaSMhHCGdfZsOGipyiTjJZYPod+OkCK/ovD 4FCvPYjb3QOTSa2TEIyFsg== 0001045638-98-000028.txt : 19980428 0001045638-98-000028.hdr.sgml : 19980428 ACCESSION NUMBER: 0001045638-98-000028 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980427 EFFECTIVENESS DATE: 19980427 SROS: NYSE 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: 333-51063 FILM NUMBER: 98601459 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 EQUITY PLAN S-8 As filed with the Securities and Exchange Commission on April 27, 1998 Registration No. 33-________ 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 36-2815480 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 900 Commerce Drive Oak Brook, Illinois 60523 (Address, of Principal Executive Offices)(Zip Code) U.S. Can Corporation 1998 Employee Stock Purchase Plan (Full Title of Plans) John R. McGowan Vice President, Chief Financial Officer, Controller and Secretary U.S. Can Corporation 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) Copies To: T. Stephen Dyer, Esq. Ross & Hardies 150 North Michigan Avenue Chicago, Illinois 60601 (312) 558-1000 CALCULATION OF REGISTRATION FEE
======================================================================================================== Proposed 457(h) Amount maximum Proposed Amount of Title of to be offering price aggregate registration Securities to be registered(4) registered(1)(4) per share(2) offering price(3) fee - -------------------------------------------------------------------------------------------------------- Common Stock, $.01 par value 150,000 $17.25 $2,587,500 $764.00 ========================================================================================================
(1) The securities being registered include a maximum of 150,000 shares issuable upon the exercise of options under the 1998 Employee Stock Purchase Plan of U.S. Can Corporation, assuming full participation of all employees under such plans. (2) This is the average maximum offering price determined by dividing the proposed aggregate offering price by the amount of shares to be registered. (3) Solely for the purpose of calculating the registration fee, the proposed aggregate offering price has been estimated in accordance with Rule 457(h) promulgated under the Securities Act of 1933 (the "Act") using $17.25, the average of the high and low prices for a share of Common Stock reported by the New York Stock Exchange on April 22, 1998. (4) In addition, pursuant to Rule 416(c) under the Act, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference U.S. Can Corporation (the "Company") and the U.S. Can Corporation 1998 Employee Stock Purchase Plan hereby incorporates by reference the following documents previously filed with the Securities and Exchange Commission (the "Commission"): (a) the Company's Annual Report on Form 10-K, for the fiscal year ended December 31, 1997, the Company's latest year for which audited financial statements have been filed; (b) all other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since December 31, 1997; (c) the description of the Company's Common Stock, $.01 par value, contained in the Company's Registration Statement on Form 8-A (File No. O-21314) filed with the Commission on March 8, 1993, pursuant to Section 12 of the Exchange Act; and (d) the Company's Proxy Statement, filed on March 24, 1998, for its annual meeting of stockholders held on April 24, 1998, except for the report of the Compensation Committee and the Performance Graph contained therein. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to filing of a post-effective amendment to the Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel A partner of Ross & Hardies, general counsel to the Company, beneficially owns 12,500 shares of Common Stock. Item 6. Indemnification of Officers and Directors Delaware General Corporation Law. The Company has statutory authority to indemnify its officers and directors. The applicable provisions of the General Corporation Law of the State of Delaware (the "GCL") state that, to the extent such person is successful on the merits or otherwise, a corporation may indemnify any person who was or is a party or who is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise ("such Person"), against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by such Person, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. In any threatened pending or completed action by or in the right of the corporation, a corporation also may indemnify any such Person for costs actually and reasonably incurred by him in connection with that action's defense or settlement, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation; however, no indemnification shall be made with respect to any claim, issue or matter as to which such Person shall have been adjudged to be liable to the corporation, unless and only to the extent that a court shall determine that such indemnity is proper. Under the applicable provisions of the GCL, any indemnification shall be made by the corporation only as authorized in the specific case upon a determination that the indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct. Such determination shall be made: (1) by the Board of Directors by a majority vote of a quorum consisting of directors who are not parties to such action, suit or proceeding; or (2) if such a quorum is not obtainable or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (3) by the affirmative vote of a majority of the shares entitled to vote thereon. 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. Generally, under Delaware law, indemnification will only be available where an officer or director can establish that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. 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. Exhibit Incorporation Number Description by Reference 4.1 Restated Certificate of Incorporation of the Company *4.3 4.2 By-laws of the Company **4.1 4.3 Indenture for 101/8 Notes @4.2 4.4 Amended and Restated Credit Agreement, dated April 25, 1997 +4.1 4.5 Amendment No. 1 to Credit Agreement ++10.3 4.6 Amendment No. 2 to Credit Agreement +++4.4 4.7 Shareholders Rights Agreement #4.1 - 2 - 5.1 Opinion of Ross & Hardies regarding legality of shares of Common Stock. 23.1 Consent of Arthur Andersen LLP. 23.2 Consent of Ross & Hardies (contained in opinion filed as Exhibit 5.1). 24.1 Power of Attorney. *** * Previously filed as exhibit to the Company's Form S-3 Registration Statement, filed on June 1, 1994 (Registration No. 33-79556) and incorporated herein by reference. ** Previously filed as an exhibit to the Company's Form S-8 Registration Statement, filed on March 23, 1994 (Registration No. 33-76742) and incorporated herein by reference thereto. @ Previously filed with the Form 10-Q Quarterly Report of the Company and United States Can Company ("U.S. Can") for the Quarterly Period ended September 29, 1996. + Previously filed with the Form 10-Q Quarterly Report of the Company for the Quarterly Period Ended April 6, 1997. ++ Previously filed with the Form 10-Q Quarterly Report of the Company for the Quarterly Period Ended October 5, 1997. +++ Previously filed with the Form 10-K Annual Report of the Company for the Year Ended December 31, 1997. # Previously filed with the Form 10-Q Quarterly Report of the Company and U.S. Can for the Quarterly Period Ended October 1, 1995. *** Power of attorney is contained in signatures. Item 9. Undertakings. (a) 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 this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities - 3 - 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% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement. (iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933 (the "Act"), each filing of the Registrant's annual report pursuant to Section 13(a) or Section 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 this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) The undersigned Registrant hereby undertakes that, insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, 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 Act 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 of whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. - 4 - 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 April 27, 1998 U.S. CAN CORPORATION By: /s/ Paul W. Jones Paul W. Jones President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints Paul W. Jones and John R. McGowan, 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 amendments (including post-effective amendments) to this Registration Statement, 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 in furtherance of the foregoing, 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 substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on April 27, 1998 Signature /s/ Paul W. Jones President, Chief Executive Officer and Director Paul W. Jones /s/ William J. Smith Chairman of the Board William J. Smith /s/ John R. McGowan Vice President, Chief Financial Officer, John R. McGowan Controller and Secretary /s/ Benjamin F. Bailar Director Benjamin F. Bailar /s/ Francisco A. Soler Director Francisco A. Soler /s/ Louis B. Susman Director Louis B. Susman Director Carl Ferenbach /s/ Ricardo Poma Director Ricardo Poma /s/ Calvin W. Aurand, Jr. Director Calvin W. Aurand, Jr. Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have 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 April 27, 1998. U.S. Can Corporation 1998 Employee Stock Purchase Plan By: /s/ Anthony F. Bonadonna Anthony F. Bonadonna SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 EXHIBITS FILED WITH FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 U.S. CAN CORPORATION U.S. CAN CORPORATION EXHIBIT INDEX Location Of Document in Sequential Exhibit Numbering No. Description System 5.1 Opinion of Ross & Hardies regarding 11 legality of shares of Common Stock. 23.1 Consent of Arthur Andersen LLP. 13 23.2 Consent of Ross & Hardies (contained 11 in opinion filed as Exhibit 5.1). 24.1 Power of Attorney.* 7 *Power of attorney is contained in signature. EX-5.1 2 ROSS & HARDIES OPINION Exhibit 5.1 April 27, 1998 U.S Can Corporation 900 Commerce Drive Oak Brook, Illinois 60521 Re: Registration Statement on Form S-8 Ladies and Gentlemen: You have requested our opinion with respect to the registration by U.S. Can Corporation (the "Company") pursuant to a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act"), of an aggregate of 150,000 shares of the Company's Common Stock, $.01 par value per share (the "Common Stock"), issuable upon the exercise of options (the "Options") to purchase Common Stock as issued pursuant to the U.S. Can Corporation 1998 Employee Stock Purchase Plan (the "Plan"). In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments and have conducted such other investigations of fact and law as we have deemed relevant and necessary to form a basis for the opinions hereinafter expressed. In conducting such examination, we have assumed (i) that all signatures are genuine, (ii) that all documents and instruments submitted to us as copies conform with the originals, and (iii) the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to any facts material to this opinion, we have relied upon statements and representations of officers and other representatives of the Company and certificates of public officials and have not independently verified such facts. Based upon the foregoing, it is our opinion that the Common Stock issuable upon the proper exercise of Options granted pursuant to the Plan will be validly issued, fully paid and non-assessable when issued in accordance with the Plan. We express no opinion as to the laws of any jurisdiction other than the State of Illinois, the United States of America, and, solely with respect to matters of corporate organization and U.S. Can Corporation April 27, 1998 Page 2 authority, the General Corporation Law of the State of Delaware. We are not admitted to the practice of law in the State of Delaware. Insofar as the foregoing opinion relates to matters that would be controlled by the substantive laws of any jurisdiction other than the United States of America, the General Corporation Law of the State of Delaware, with respect to matters of corporate organization and authority, or the State of Illinois, we have assumed that the substantive laws of such jurisdiction conform in all respects to the internal laws of the State of Illinois. We hereby consent to the reference to our firm in the Registration Statement relating to the registration of the shares of Common Stock issuable upon exercise of the Options described above. Very truly yours, ROSS & HARDIES By: /s/ Lawrence R. Samuels A Partner EX-23 3 AUDITOR'S CONSENT Exhibit 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our report dated February 18, 1998, included in the U.S. Can Corporation Annual Report on Form 10-K for the year ended December 31, 1997, and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP Arthur Andersen LLP Chicago, Illinois April 27, 1998 -----END PRIVACY-ENHANCED MESSAGE-----