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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 15
Certification and Notice of Termination of Registration
under Section 12(g) of the Securities Exchange Act of
1934 or Suspension of Duty to File Reports Under Sections 13 and 15(d)
of the Securities Exchange Act of 1934.
Commission File Number 1-6690
CONTINENTAL CAN COMPANY, INC.
(Exact name of registrant as specified in its charter)
301 Merritt 7 Corporate Park
Norwalk, Connecticut 06865
(203) 750-5900
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
Common Stock, Par Value $0.25 Per Share
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(Title of each class of securities covered by this Form)
None
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(Titles of all other classes of securities for which
a duty to file reports under section 13(a) or 15(d) remains)
Please place an X in the box(es) to designate the appropriate rule provision(s)
relied upon to terminate or suspend the duty to file reports:
Rule 12g-4(a)(1)(i) [X] Rule 12h-3(b)(1)(ii) [ ]
Rule 12g-4(a)(1)(ii) [ ] Rule 12h-3(b)(2)(i) [ ]
Rule 12g-4(a)(2)(i) [ ] Rule 12h-3(b)(2)(ii) [ ]
Rule 12g-4(a)(2)(ii) [ ] Rule 15d-6 [ ]
Rule 12h-3(b)(1)(i) [X]
Approximate number of holders of record as of
the certification or notice date: one (1)
Pursuant to the requirements of the Securities Exchange Act of 1934
Continental Can Company, Inc. has caused this certification/notice
to be signed on its behalf by the undersigned duly authorized person.
DATE: May 29, 1998 BY: /s/ Tracy L. Noll
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Name: Tracy L. Noll
Title: Vice President
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Suiza Foods Corporation
3811 Turtle Creek Blvd., Suite 1300
Dallas, Texas 75219
Exchange Agent Agreement
May 29, 1998
Harris Trust and Savings Bank
311 West Monroe Street
Chicago, IL 60690
Attention: Don Koslow, Vice President
Gentlemen:
Re: Exchange of Continental Can Company, Inc. Common Stock for
Suiza Foods Corporation Common Stock
Suiza Foods Corporation, a Delaware corporation (the "Company"), hereby
requests that you act as Exchange Agent with respect to the surrender of
certificates for shares of Common Stock, $0.25 par value per share (the "Old
Shares"), of Continental Can Company, Inc., a Delaware corporation
("Continental Can"), in exchange for a number of shares of Common Stock of the
Company, $0.01 par value per share, equal to (x) the number of Old Shares
issued and outstanding immediately prior to the merger of CC Acquisition
Corporation, a Delaware corporation and wholly-owned subsidiary of the Company
("Sub"), with and into Continental Can (the "Merger"), excluding Old Shares
held by Continental Can, the Company, Sub, or any of the Company's
subsidiaries, multiplied by (y) 0.629 (the "New Shares"), pursuant to Article
III of the Agreement and Plan of Merger (the "Merger Agreement"), dated as of
January 14, 1998, by and among the Company, Sub, and Continental Can. The
Merger is expected to become effective shortly after the special meeting of the
stockholders of Continental Can to be held on May 29, 1998 for the purpose of
approving the Merger. The time at which the Merger becomes effective is
referred to in the Merger Agreement and in this letter as the "Effective Time."
You will be informed of the Effective Time as soon as practicable.
The Company hereby appoints you to act as the Exchange Agent (the "Agent") in
connection with the Merger and authorizes you to act in such capacity, subject
to your acceptance hereof. You hereby agree that, in carrying out your duties
as Agent in connection with the Merger, you are acting as an agent for the
Company. You also hereby agree that your authority and actions as
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Agent shall be governed by the terms of the Letter of Transmittal and this
Agreement. In carrying out your duties as Agent, you shall act as follows:
1. Distribution of Materials. The Company shall make available to you on the
earliest date convenient a sufficient supply of the documents to be mailed to
the holders of the Old Shares ("Old Security Holders"), including all
amendments and supplements thereto, the Letter of Transmittal, letter to Old
Security Holders, and other related documents to comply with requests for
additional copies of such documents. You will cause these documents to be
mailed to each Old Security Holder as soon as practicable (but in no event
later than five business days) after the Effective Date.
2. Receipt of Old Securities and Related Materials. (a) In connection with the
exchange, you shall receive certificates from the Old Security Holders
representing the Old Shares, accompanied by Letters of Transmittal (or
facsimiles thereof), properly executed in accordance with the instructions
therein, and all other instruments and communications submitted to you in
connection with the exchange, and you shall preserve the same until delivered
to the Company or otherwise disposed of in accordance with the Company's
instructions.
(b) All Letters of Transmittal, facsimile transmissions, letters, and other
materials submitted to you, except certificates for Old Shares, shall be
stamped by you to show the date and time of receipt thereof.
(c) You will examine the Letters of Transmittal and certificates received by
you to ascertain whether they appear to have been completed and executed in
accordance with the instructions set forth in the Letter of Transmittal. For
any irregular items, you should follow your regular procedures to attempt to
cause any such irregularity to be corrected. As to any irregular items you
cannot resolve by following your regular procedures, you will consult with the
Company for instructions, who shall be solely responsible for deciding what
action, if any, to be taken. Upon making the exchange for Old Shares, you will
physically cancel the certificates representing such Old Shares and post them
to the stockholder records of the Company.
(d) Upon the exchange of Old Shares, you will cause to be issued only whole
shares of Common Stock. Any fractional shares of Common Stock will be paid in
cash in an amount equal to such fractional part of a share of Common Stock
multiplied by 58.3844. The Company will deposit with you in a special account
for the benefit of the surrendering holders, immediately available funds to
cover the payment of fractional shares. The wire transfer instructions for the
transfer of all funds are as follows: Harris Trust and Savings Bank, ABA #
071000288, as Exchange Agent for Suiza Foods Corporation /Continental Can
Company, Inc., Account Number 109-211-3, Attention: Gary Cowden.
(e) If payment is to be made by you to a person other than the person in whose
name a surrendered certificate is registered, you will make no payment until
the certificate so surrendered has been properly endorsed (or otherwise put in
proper form for transfer) and the person requesting such payment has paid any
transfer or other taxes or governmental charges required by reason of such
payment in a name other than that of the registered holder of the certificate
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surrendered or has established to your satisfaction that such tax or charge
either has been paid or is not payable. Any tax information with respect to
such payment which you are required to report pursuant to Section 4 of this
Agreement shall list the registered holder of the certificate as the payee.
(f) If any holder of Old Shares as of the Effective Time reports to you that
his failure to surrender a certificate representing any Old Shares registered
in his name at the Effective Time is due to the theft, loss or destruction of
his certificate, you shall require such holder to furnish an affidavit of such
theft, loss or destruction and a bond of indemnity in form and substance
satisfactory to you. Upon receipt of such affidavit and bond of indemnity and
compliance with any other applicable requirements, you may effect payment to
such holder as though he had surrendered his certificate.
(g) At or prior to the Effective Time, and for so long as this Agreement shall
be in effect, the Company will reserve for issuance a sufficient number of New
Shares for exchange for the Old Shares, respectively, outstanding at the
Effective Time, in accordance with the terms of the Merger Agreement.
(h) When Old Shares registered in the name of any name that appears on Exhibit
A hereto are surrendered you will:
(i) arrange for the issuance of New Shares in the name of any other
person only with the proper approval of the Company; and
(ii) issue in exchange therefor New Shares with a legend in the form
set forth on Exhibit B hereto applied to each of such certificates.
3. Information and Reports. You will forward to the Company, at the address
listed below, a periodic report of the items presented for exchange.
Tracy L. Noll, Secretary
Suiza Foods Corporation
3811 Turtle Creek Blvd., Suite 1300
Dallas, Texas 75219
Tel: (214) 528-9922
Fax: (214) 528-9929
4. Tax Reporting. (a) On or before January 31, 1999, you will prepare and mail
to each holder, other than holders who demonstrate their status as nonresident
aliens in accordance with United States Treasury Regulations, a Form 1099-B
reporting any cash payments, in accordance with Treasury regulations. You will
also prepare and file copies of such Forms 1099-B by magnetic tape with the
Internal Revenue Service, in accordance with Treasury Regulations.
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(b) If you have not received notice from the surrendering holder of that
holder's certified Taxpayer Identification Number, you shall deduct and
withhold backup withholding tax from any cash payment made pursuant to Internal
Revenue Code regulations.
(c) Should any issue arise regarding Federal income tax reporting or
withholding, you will take such action as the Company instructs you in writing.
5. Delivery of Checks and Certificates. All checks and certificates, other than
checks delivered at your window or to the Book-Entry Transfer Facilities, shall
be forwarded by first class mail, and all certificates shall be forwarded to or
upon the order of the holder (a) under a blanket surety bond protecting you and
the Company from loss or liability arising out of the nonreceipt or nondelivery
of such certificates or (b) registered mail, insured separately for the
replacement value of such certificates. However, it is understood that when
certificates are being transported by a common carrier, such carrier's
insurance policies may provide adequate coverage in lieu of such blanket bond
coverage.
6. Compensation of Exchange Agent. For your services as Agent hereunder, you
shall be entitled to compensation of $5,000. The Company will also reimburse
you for your reasonable out-of-pocket expenses (including, but not limited to,
reasonable counsel fees) in connection with your services hereunder.
7. Duties of Agent. As Agent hereunder you:
(a) shall have no duties or obligations other than those specifically set forth
herein or as may be subsequently agreed to in writing by you and the Company;
(b) shall not be regarded as making any representation as to, and shall have no
responsibility for the legality, validity, sufficiency, value or genuineness of
any certificates for Old Shares and you shall not be required to, and you shall
not, make any representations as to the legality, validity, sufficiency, value
or genuineness of the Merger;
(c) shall not be obligated to take any legal action hereunder which might in
your sole judgment require you to risk your own funds or incur any liability,
unless you shall have been furnished with indemnity satisfactory to you;
(d) may rely on and shall be protected in acting in reliance upon any
certificate, instrument, opinion, notice, letter, facsimile transmission,
telex, telegram or other document or security delivered to you and believed by
you to be genuine and to have been signed by the proper party or parties;
(e) may rely on and shall be protected in acting in reliance upon the oral or
written instructions of the Company or any other employee or representative of
the Company designated by the Company with respect to any matter relating to
your actions as Agent hereunder;
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(f) may consult with counsel satisfactory to you and the Company and the advice
or opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by you hereunder
in good faith and in accordance with such advice or opinion of such counsel;
(g) shall have no obligation to make any payment as the Agent unless the
Company shall have provided the necessary available funds to make such
payments;
(h) shall not be liable or responsible for any failure of the Company to comply
with any of its obligations relating to the Merger, including without
limitation, obligations under applicable securities laws; and
(i) shall not be liable for any error in judgment made in good faith by any
officer, director, employee, agent or attorney in the course of performance
under this Agreement, unless it shall be proven that such officer, director,
employee, agent or attorney was negligent or acted with willful misconduct.
8. Indemnity. The Company hereby covenants and agrees to indemnify and to hold
harmless you and your officers, directors, employees, affiliates, agents and
controlling persons from and against any and all losses, claims, damages and
liabilities to which any such person may become subject arising out of or in
connection with this Agreement or the performance of your duties hereunder or
any related transaction or any claim, litigation, investigation or proceeding
relating to any of the foregoing, whether or not any of such indemnified
parties are a party thereto, and to reimburse each of such indemnified parties
upon demand for any legal or other expenses incurred in connection with
investigating or defending any of the foregoing; provided that the foregoing
indemnity will not, as to any indemnified party, apply to losses, claims,
damages, liabilities or related expenses to the extent arising from the willful
misconduct or gross negligence of such indemnified party. In the event of the
assertion against any indemnified party of any such claim or the commencement
of any such action or proceeding you shall, promptly after receiving notice of
any assertion or the commencement of any such action or proceeding, notify the
Company by letter (or facsimile confirmed by letter) of the fact of such
assertion and/or commencement and failure to so notify shall not relieve the
Company of any liability for indemnification with respect to such assertion or
claim except to the extent the Company is prejudiced by such failure. In the
event of such assertion or commencement, the Company shall be entitled to
participate in such action or proceeding and in the investigation of such claim
and, after written notice from the Company to you, to assume the investigation
or defense of such claim, action or proceeding with counsel of the Company's
choice at the sole expense of the Company. Notwithstanding the Company's
election to assume the defense or investigation of such claim, action or
proceeding, you shall have the right to employ separate counsel, if, in the
written opinion of counsel to you, use of counsel of the Company's choice would
result in a conflict of interest. The provisions contained in this paragraph
shall remain in full force and effect and shall survive the termination of this
Agreement.
9. Termination of Agreement. Unless terminated earlier by the parties hereto,
this Agreement shall terminate either (a) upon the exchange of all Old Shares
or (b) at the option of
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the Company or the Agent. Upon any termination of this Agreement, the Agent
shall promptly deliver to the Company any certificates, funds or other property
then held by the Agent. After such time, any party entitled to such
certificates, funds or property shall look solely to the Company and not the
Agent therefor, and all liability of the Agent with respect thereto shall cease.
Sections 6, 7, and 8 hereof shall survive any termination of this Agreement.
10. Modification. The instructions contained herein may be modified or
supplemented in writing by an executive officer of the Company or any other
person identified to you by any such executive officer as being authorized to
give any notice, approval or waiver on its behalf.
11. Assignment. None of the parties hereto shall assign this Agreement or its
obligations hereunder, unless such party shall have obtained the prior written
consent of the other parties hereto. Subject to the foregoing, this Agreement
and the appointment as Agent hereunder shall inure to the benefit of, and the
obligations created thereby shall be binding upon, the successors and permitted
assigns of the parties hereto.
12. Interpretation. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS.
(b) Any inconsistency between this Agreement and the terms of the Merger
Agreement, as they may from time to time be amended, shall be resolved in favor
of the Merger Agreement, except with respect to the duties, liabilities and
indemnification of you as Agent.
(c) Section headings have been inserted herein for convenience of reference
only, are not a part of this Agreement, and shall not be used in any way in the
interpretation of any of the provisions hereof.
13. Counterparts. This Agreement may be executed in separate counterparts, each
of which when executed and delivered shall be an original, but all of which
shall together constitute but one and the same instrument.
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Please acknowledge receipt of this Agreement hereto and confirm the arrangements
herein provided by signing and returning the enclosed copy to the Company,
whereupon this Agreement and the terms and conditions herein provided shall
constitute a binding Agreement among us.
Very truly yours,
SUIZA FOODS CORPORATION
By: /s/ Tracy L. Noll
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Name: Tracy L. Noll
Title: Vice President and Chief Financial
Officer
Accepted and agreed to as
of the date first above written:
HARRIS TRUST AND SAVINGS BANK,
as Exchange Agent
By: /s/ Mark B. Zimkind
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Name: Mark B. Zimkind
Title: Vice President
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EXHIBIT A
Donald J. Bainton
Kenneth Bainton
Robert L. Bainton
Nils E. Benson
Charles F. DiGiovanna
Rainer Greeven
V. Henry O'Neill
John J. Serrell
R.A. Utting
A.E. Watson
Abdo Yazgi
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EXHIBIT B
"The securities represented by this certificate have been issued in a
transaction to which Rule 145 promulgated under the Securities Act of 1933
applies and may only be sold or otherwise transferred in compliance with the
requirements of Rule 145 or pursuant to a registration statement under said Act
or an exemption from such registration."
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