As filed with the Securities and Exchange Commission on February 17, 2000
Registration No. 333-____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------------
AMERICAN NATIONAL CAN GROUP, INC.
(Exact name of Registrant as specified in its charter)
Delaware 36-4287015
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
8770 W. Bryn Mawr Avenue
Chicago, IL 60631
(773) 399-3000
(Address, including zip code, and telephone number, including area code
of Registrant's principal executive offices)
----------------------
American National Can Group, Inc. Founder's Equity Plan
American National Can Group, Inc. Long-Term Stock Incentive Plan
American National Can Group, Inc. Stock Compensation Conversion Plan
American National Can Group, Inc. Directors Stock Plan
(Full titles of the Plans)
----------------------
William A. Francois, Esq.
Senior Vice President, General Counsel and Secretary
8770 W. Bryn Mawr Avenue
Chicago, IL 60631
(773) 399-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Per Aggregate Registration
Registered Registered Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share(1) 8,450,000(2) $10.8438(3) $91,630,110 $24,190.35
============================================================================================================================
</TABLE>
(1) This Registration Statement on Form S-8 relates to shares of common
stock, par value $.01 per share (the "Common Stock"), of American National Can
Group, Inc. (the "Registrant"). Such shares are issuable pursuant to the
American National Can Group, Inc. Founder's Equity Plan (the "Founder's Plan"),
the American National Can Group, Inc. Long-Term Stock Incentive Plan (the
"Long-Term Plan"), the American National Can Group, Inc. Stock Compensation
Conversion Plan (the "Conversion Plan"), and the American National Can Group,
Inc. Directors Stock Plan (the "Directors Plan").
(2) Includes 500,000 shares of Common Stock under the Founder's Plan,
7,000,000 shares of Common Stock under the Long-Term Plan, 550,000 shares of
Common Stock under the Conversion Plan, and 400,000 shares of Common Stock under
the Directors Plan.
(3) The offering price of the 8,450,000 shares registered hereunder of
$[10.8438] per share has been estimated solely for the purpose of determining
the registration fee pursuant to Rules 457(c) and 457(h), on the basis of the
average of the high and low prices of American National Can Group, Inc. Common
Stock, par value $0.01 per share, reported on the New York Stock Exchange on
February 15, 2000.
<PAGE>
2
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- ----------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), and the "Note" to Part I of Form S-8.
<PAGE>
3
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by the Registrant (or furnished to the Commission
by the Registrant) are hereby incorporated by reference into this Registration
Statement:
(a) The description of the Registrant's Common Stock
contained in the Registrant's Form 8-A filed with the Commission on
July 19, 1999 and the Registrant's Registration Statement on Form S-1
filed with the Commission pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on April 21,
1999;
(b) The Registrant's prospectus filed pursuant to Rule
424(b) under the Exchange Act included in the Registrant's Registration
Statement on Form S-1; and
(c) The Registrant's Quarterly Reports on Form 10-Q for
the quarters ended June 30, 1999 and September 30, 1999.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this Registration Statement which indicates that
all securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part thereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
<PAGE>
4
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law ("DGCL")
provides that a corporation may indemnify any person who was or is a party or 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 the person 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 the
person's conduct was unlawful. Section 145 further provides that a corporation
similarly may indemnify any such person serving in any such capacity who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor, against expenses (including attorneys' fees) actually and
reasonably incurred in connection with the defense or settlement of such action
or suit if the person acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of 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 the Delaware Court of Chancery or
such other court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include
in its certificate of incorporation a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
(relating to liability for unlawful payment of dividends and unlawful stock
purchase and redemption) or (iv) for any transaction from which the director
derived an improper personal benefit.
The Registrant's Certificate of Incorporation provides that
the Registrant's directors shall not be liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the fullest extent permitted by the DGCL as it existed on the date of, or is or
has been amended from time to time after, the filing of the Certificate of
Incorporation. The Certificate of Incorporation and the Registrant's By-laws
further provide that the Registrant shall indemnify its directors and officers
to the fullest extent permitted by the DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
<PAGE>
5
Item 8. Exhibits.
Please refer to the Exhibit Index on page 8.
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 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) That, for the purpose of determining any liability
under the Securities Act, 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; and
(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 further
undertakes that, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act 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.
(c) Insofar as indemnification for liabilities arising
under the Securities 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 Commission such
indemnification is against public policy as expressed in the Securities 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 whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
6
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant has duly caused this Registration Statement on Form S-8 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Chicago, State of Illinois on the 16th day of February, 2000.
AMERICAN NATIONAL CAN GROUP, INC.
(Registrant)
By:/s/Edward A. Lapekas
-------------------------------------
Edward A. Lapekas
Chairman of the Board and Chief
Executive Officer
American National Can Group, Inc.
POWER OF ATTORNEY
We, the undersigned directors and executive officers of
AMERICAN NATIONAL CAN GROUP, INC., hereby severally constitute William Francois
and Dennis Bankowski and each of them singly, our true and lawful attorneys with
full power to them and each of them to sign for us, and in our names in the
capacities indicated below, any and all amendments to this Registration
Statement filed with the Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys to any and all amendments
to said Registration Statement.
Pursuant to the requirements of the Securities Act, this
Registration Statement on Form S-8 has been signed by the following persons in
the capacities indicated on the 16th day of February, 2000.
Signature Title
- --------- -----
/s/Edward A. Lapekas Chairman of the Board and Chief Executive
- ------------------------------- Officer
Edward A. Lapekas
/s/Alan H. Schumacher Executive Vice President and Chief
- ------------------------------- Financial Officer
Alan H. Schumacher
/s/John G. LaBahn Vice President, Controller and Chief
- ------------------------------- Accounting Officer
John G. LaBahn
<PAGE>
7
- ------------------------------- Director
Christel Bories
/s/Frank W. Considine
- ------------------------------- Director
Frank W. Considine
/s/Ronald J. Gidwitz
- ------------------------------- Director
Ronald J. Gidwitz
/s/George D. Kennedy
- --------------------------- Director
George D. Kennedy
/s/Homer J. Livingston, Jr.
- ------------------------------- Director
Homer J. Livingston, Jr.
/s/Roland H. Meyer, Jr.
- ------------------------------- Director
Roland H. Meyer, Jr.
/s/James J. O' Connor
- ------------------------------- Director
James J. O' Connor
/s/Alain Pasquier
- ------------------------------- Director
Alain Pasquier
- ------------------------------- Director
Jean-Pierre Rodier
/s/Jean-Dominique Senard
- ------------------------------- Director
Jean-Dominique Senard
/s/James R. Thompson
- ------------------------------- Director
James R. Thompson
/s/Jack H. Turner
- ------------------------------- Director
Jack H. Turner
<PAGE>
8
Exhibit Index
Exhibit No. Description of Document
4.1 American National Can Group, Inc. Founder's Equity Plan.
4.2 American National Can Group, Inc. Long-Term Stock Incentive Plan.
4.3 American National Can Group, Inc. Stock Compensation Conversion Plan
4.4 American National Can Group, Inc. Directors Stock Plan
4.5 Restated Certificate of Incorporation of Registrant
(incorporated by reference and filed as Exhibit 3.1 to the
Registration Statement on Form S-1 dated April 21, 1999).
4.6 By-laws (incorporated by reference and filed as Exhibit 3.2 to the
Registration Statement on Form S-1 dated April 21, 1999).
5.1 Opinion of Shearman & Sterling regarding the legality of the Common
Stock being registered hereby.
23.1 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Shearman & Sterling (included in Exhibit 5.1).
24 Powers of Attorney (included on signature page).
AMERICAN NATIONAL CAN GROUP, INC.
FOUNDER'S EQUITY PLAN
Section 1- The Plan
Purpose. The purpose of the Founder's Equity Plan (the "Plan") is to provide a
means for American National Can Group, Inc. (the "Company") to celebrate its
initial public offering of shares of Company stock (the "IPO") with its
employees throughout the world, to thank them for their past efforts and
support, and their future contributions. Awards made under the Plan provide a
means for all eligible employees worldwide to acquire and maintain ownership in
the Company, strengthening employees interests in the long-term success of the
Company.
Effective Date. The Plan shall be effective in each country in which the Company
conducts business either (a) as of the IPO date or (b) as determined by the
Committee. The Plan was adopted by the Board on July 28, 1999. The Plan shall be
terminated and no further Awards or Stock may be granted under the Plan ten (10)
years following the Grant Date. Subject to the provisions of Section 6, the Plan
shall remain in effect until all Options granted under the Plan have been
exercised or have expired by reason of lapse of time or in accordance with the
provisions of the Plan.
Section 2- Defined Terms
The italicized words as defined in this Section 2 shall be applicable when used
in the Plan unless specifically modified by any paragraph:
"Affiliate" - with respect to any person (including without limitation the
Company), any corporation or other entity that, directly or indirectly, is
controlled by such person, or that is under common control with such person.
"Award" - individually or collectively, any Stock Option or Stock Appreciation
Right granted pursuant to the Plan.
"Board" - the board of directors of the American National Can Group, Inc.
"Cause" - as defined in any effective employment agreement between a Participant
and the Company, or as determined by the Committee, in its sole discretion
exercised in a nondiscriminatory manner, (i) serious misconduct or gross
negligence in the performance of the Participant's employment duties; (ii)
willful disobedience by the Participant of lawful directions received from the
senior management of the Company or the Participant's supervisors or policies
established by the Company; (iii) conviction by the Participant of a felony or
crime involving fraud or grossly negligent misconduct that can reasonably be
expected to have an adverse effect on the business, reputation or financial
situation of the Company.
"Change of Control" - a change in control of the Company, of a nature that would
be required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the U.S. Securities Exchange Act of 1934, as
amended (the "Exchange Act"), whether or not it is then subject to such
reporting requirement; provided that, without limitation, a Change of Control
shall be deemed to have occurred if (i) any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other entity, or
any syndicate or group deemed to be a person under Section 14(d)(2) of the
Exchange Act, is or becomes the "beneficial owner" (as defined in Rule 13d-3 of
the General Rules and Regulations under the Exchange Act), directly or
indirectly, of securities of the Company representing 25% or more of the
combined voting power of its then outstanding securities entitled to vote in the
election of directors; (ii) the stockholders of the Company approve a merger,
consolidation or other transaction involving the Company as a result of which
the stockholders of the Company immediately
1
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before the transaction will not own at least 50% of the surviving or resulting
entity; or (iii) during any period of two consecutive years individuals who at
the beginning of such period constituted the Board and any new directors, whose
election by the Board or nomination for election by the Company's stockholders
was approved by a vote of at least three-quarters (3/4) of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease for
any reason to constitute at least two-thirds thereof.
"Committee" - the Compensation Committee of the Board.
"Company" - American National Can Group, Inc., its Subsidiaries and Affiliates.
"Covered Shares" - Shares eligible to be purchased through the exercise of a
Stock Option granted under the Plan or the Shares eligible to be considered when
calculating the cash payment arising from a Stock Appreciation Right.
"Disability" - the Participant's inability to perform the major duties of his or
her position with the Company, as a result of illness or injury, for a period of
time exceeding 26 weeks. For purposes of the Plan, Disability will be treated as
a termination.
"Exercise Price" - the purchase price of one Share upon the exercise of a Stock
Option, as established on the Grant Date, or in the case of a Stock Appreciation
Right, that price, above which, any excess in the Share price will determine the
amount of the cash payable to the Participant.
"Expiration Date" - the date upon which the Award is no longer exercisable and
all rights to the Covered Shares are canceled. The Award shall not be
exercisable after the Company's close of business on the last business day that
occurs prior to the Expiration Date.
"Grant Date" - the date on which the Award is made to the Participant. Grant
Dates will be determined solely by the Committee and may vary based on
individual country requirements.
"Participant" - may include any current, full or part-time permanent employee of
companies or Subsidiaries that are majority owned by the Company on the Grant
Date, as determined by the Committee. The Committee, in its sole discretion,
shall determine who will participate in the Plan.
"Retirement" - termination from the Company at a time when the Participant is
immediately eligible to begin receiving pension benefits under the retirement
plans of the Company, whether or not he or she so elects to begin receiving
benefits.
"Share" - a share of the common stock of American National Can Group, Inc., par
value $0.01.
"Stock Appreciation Right" - upon exercise, the right of the Participant to
receive the cash value, in U.S. dollars, of the appreciation in the Share price
over the Exercise Price, during a stated period.
"Stock Option" - the right to purchase a specified number of Shares at a fixed
price during a stated period.
"Subsidiary" of a person (including without limitation the Company) - a
corporation with respect to which such person, directly or indirectly, has the
power, whether through the ownership of voting securities, by contract or
otherwise, to elect at least a majority of the members of such corporation's
board of directors.
"Termination Date" - the last day occurring on or after the Grant Date on which
the Participant is employed by the Company, regardless of the reason for the
termination of employment, provided that a
2
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termination of employment shall not be deemed to have occurred by reason of a
transfer of the Participant between Subsidiaries of the Company; and further
provided that the Participant's employment shall not be considered terminated
while the Participant is on a leave of absence from the Company approved by the
Participant's employer. If, as a result of a sale or other transaction, the
Participant's employer ceases to be a Subsidiary, and the Participant's employer
is or becomes an entity that is separate from the Company, the occurrence of
such transaction shall be treated as the Participant's Termination Date caused
by the Participant being discharged by the employer.
"Vesting Date" - the date, in accordance with the Plan, on which the Participant
can exercise their rights to the Covered Shares, or a portion thereof, by
exercising his or her Award.
Section 3 - Administration
Administration. The Plan shall be administered by the Committee. Subject to the
express provisions of the Plan, the Committee is authorized in its sole
discretion, to construe and interpret the Plan and the respective agreements
executed thereunder, to prescribe such rules and regulations relating to the
Plan as it may deem advisable to carry out the Plan, and to determine the terms,
restrictions and provisions of each Award. The Committee may correct any defect
or supply any omission or reconcile any inconsistency in any agreement relating
to an Award in the manner and to the extent it shall deem expedient to carry it
into effect. Any interpretation of the Plan by the Committee and any decision
made by it with respect to the Plan is final and binding on all persons.
Award Agreement. Awards under the Plan shall be subject to such terms and
conditions, not inconsistent with the Plan, as the Committee shall, in its sole
discretion, prescribe. The terms and conditions of any Award to any Participant
shall be reflected in a written document, the form of which will be determined
by the Committee. A copy of such document will be provided to the Participant,
and the Committee may, but need not require that the Participant sign a copy of
the document. Such document is referred to in the Plan as an "Award Agreement"
regardless of whether any Participant signature is required.
Award Prices. For the Plan purposes, all Awards shall have an Exercise Price
which shall reflect at least the average of the high and low price of a Share,
par value $0.01 per share, on the applicable date as determined by the
Committee, or if Shares are not traded on such date, the average price on the
next preceding day on which such stock is traded. The applicable date shall be
the date on which the Award is granted, except that the Committee may provide
that the applicable date may be, in the case of an Award granted retroactively,
in tandem with, or as a substitution for, another previously granted award, the
applicable date for such prior award. Except as provided for in Section 4,
Subsection - Corporate Transactions, the per Share Exercise Price of any Award
may not be decreased after the grant of the Award, and an Award may not be
surrendered as consideration in exchange for the grant of a new Award with a
lower per Share Exercise Price.
Section 4 - Shares Subject to the Plan
Maximum Shares Available for Delivery. The maximum number of Shares that may be
delivered to all Participants under the Plan shall be equal to the sum of
500,000. Any Shares covered by an Award (or portion of an Award) granted under
the Plan, which is forfeited or canceled, expires or is settled in cash, shall
be deemed not to have been delivered for purposes of determining the maximum
number of Shares available for delivery under the Plan. Likewise, if any Stock
Option is exercised by tendering Shares, either actually or by attestation, to
the Company as full or partial payment in connection with the exercise of a
Stock Option under this Plan or any prior plan of the Company, only the number
of Shares issued net of the Shares tendered or withheld to settle tax liability
shall be deemed delivered for purposes of determining the maximum number of
Shares available for delivery under the Plan. Further, Shares issued
3
<PAGE>
under the Plan through the settlement, assumption or substitution of outstanding
Awards shall not reduce the maximum number of Shares available for delivery
under the Plan.
Adjustments for Corporate Transactions. The Committee may determine that a
corporate transaction has affected the price per Share such that an adjustment
or adjustments to outstanding Awards are required to preserve (or prevent
enlargement of) the benefits or potential benefits intended at time of the
Award. For this purpose a corporate transaction will include, but is not limited
to, any stock dividend, stock split, extraordinary cash dividend,
recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination or exchange of shares, or other similar occurrence. In the event of
such a corporate transaction, the Committee may, in such manner as the Committee
deems equitable, adjust (i) the number and kind of shares which may be delivered
under the Plan pursuant to Sections 4; (ii) the number and kind of shares
subject to outstanding Awards; (iii) the Exercise Price of outstanding Awards;
(iv) any other adjustments the Committee determines to be equitable.
Section 5 - Awards
All Participants as of the Grant Date will receive a Stock Option to purchase
100 Shares as described below. In countries where it is not practical to issue
Stock Options, as determined solely by the Committee, the Company will instead
issue Stock Appreciation Rights.
Stock Option. A stock option represents a right to purchase a specified number
of Shares during a specified period at a price per Share which is no less than
that required by Section 3. The Shares covered by a Stock Option may be
purchased by means of a cash payment or such other means as the Committee may
from time-to-time permit, including (i) tendering (either actually or by
attestation) Shares valued using the market price at the time of exercise, (ii)
authorizing a third party to sell Shares (or a sufficient portion thereof)
acquired upon exercise of a Stock Option and to remit to the Company a
sufficient portion of the sale proceeds to pay for all the Shares acquired
through such exercise and any tax withholding obligations resulting from such
exercise; or (iv) any combination of the above.
Stock Appreciation Right. A stock appreciation right is a right to receive a
payment in cash, Shares or a combination, equal to the excess of the aggregate
market price at time of exercise over the aggregate Exercise Price of the
Covered Shares subject to the exercise of the Stock Appreciation Right.
Section 6 - Shares Awarded, Vesting, Termination and Expiration of Awards
Shares. The Shares to be issued upon exercise of this Stock Option will be
treasury or unissued common stock of American National Can Group, Inc., in the
sole discretion of the Company.
Vesting of Awards. Subject to the limitations of this Plan, the Awards shall be
exercisable according to the following schedule. Each installment shown in the
schedule may be exercised on or after the Vesting Date applicable to such
installment; provided, however, that in the event of a Change of Control of the
Company the Award shall immediately vest and become exercisable during the
remaining term of the Award as provided herein:
4
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- --------------------------------------- ----------------------------------------
INSTALLMENT VESTING DATE
- --------------------------------------- ----------------------------------------
30% of Covered Shares July 28, 2001
- --------------------------------------- ----------------------------------------
30% of Covered Shares July 28, 2002
- --------------------------------------- ----------------------------------------
40% of Covered Shares July 28, 2003
- --------------------------------------- ----------------------------------------
Following the Vesting Date, the Participant may exercise his or her rights to
purchase, or receive the appreciation arising from, all or any part in whole
numbers, of the Covered Shares to which he or she is entitled at any time or
from time to time during the applicable period.
Expiration of the Award. Except as provided in the section titled Termination
Provisions, the Award shall be canceled and all rights forfeited upon the
ten-year anniversary of the Grant Date.
Section 7 - Exercise Procedures
To exercise an Award, the Participant must give written notice to the Company or
its administrator of the number of Covered Shares to be purchased or exercised.
The date of the actual receipt by the Company or administrator of such notice
shall be deemed the exercise date with respect to Covered Shares being purchased
or valued. Stock certificates may be registered only in the name of the
Participant or in the Participant's name and the names of others as joint
tenants, where permitted by local law.
Payment for Shares with Cash. A notice shall be sent by the Participant if he or
she elects to purchase his or her Shares, subject to a Stock Option, for cash.
Such notice shall be accompanied by a check payable to the Company for the full
purchase price of such Shares.
Payment for Shares through a Cashless Exercise. The Participant may exercise a
Stock Option under a cashless exercise procedure, whereby the Covered Shares are
sold on behalf of and at the request of the Participant by a designated broker
and the Exercise Price are satisfied out of the sale proceeds and delivered to
the Company. The Participant will be required to notify the Company or its
administrator in the event of a cashless exercise.
If in any given country it is not permissable or practical to use the exercise
methods described above the Committee, in its sole discretion, can require
Participants in those countries to use an exercise method determined by it to be
appropriate and may require that the Participant receive payment only in cash
and not Shares.
The Award shall not be exercisable if, and to the extent the Company determines,
that such an exercise would violate applicable state, Federal or international
securities laws or the rules and regulations of any securities exchange on which
the Stock is traded. In making any determination hereunder, the Company may rely
on the opinion of counsel for the Company.
Section 8 - Tax Withholding
All deliveries and distributions under this Plan are subject to withholding of
all applicable taxes. Pursuant to the plan, the Company may deduct, from any
payment or distribution of Shares under the Plan, the amount of any tax required
by law to be withheld with respect to such payment, or may require the
Participant to pay such amount to the Company prior to, and as a condition of,
making such payment or
5
<PAGE>
distribution. Subject to rules and limitations established by the Committee, a
Participant may elect to satisfy the withholding required, in whole or in part,
either by having the Company withhold Shares from any payment under the plan or
by the Participant delivering Shares to the Company. Any election must be made
in writing on or before the date when the amount of taxes to be withheld is
determined. The portion of the withholding that is so satisfied will be
determined using the fair market value of the Share on the date when the amount
of taxes to be withheld is determined.
Section 9 - Non-Transferability
Except as otherwise provided in this paragraph, the Award is not transferable
other than as designated by the Participant by will or by the laws of descent
and distribution, and during the Participant's life, may be exercised only by
the Participant.
Section 10 - Termination Provisions and Acceleration of Vesting
Expiration Date Upon Termination. The Expiration Date will be the ten-year
anniversary of the Grant Date, provided however, that if the Participant
terminates for the reasons indicated below, prior to the ten-year anniversary of
the Grant Date, the Expiration Date shall be:
(a) For voluntary resignation or termination for Cause, the Termination
Date; or
(b) For death, the one-year anniversary of the Participant's death; or
(c) For Disability, the one-year anniversary of the Participant's date of
Disability; or
(d) For Retirement, the five-year anniversary of the Participant's
Termination Date; or
(e) For any other reason - the 90-day anniversary of the Participant's
Termination Date.
Exercise Following Termination Date. Except in the case of Retirement, an
installment shall not become exercisable on the otherwise applicable Vesting
Date if the Participant's Termination Date or date of Disability occurs on or
before such Vesting Date. Only that portion of the Award, which was exercisable
immediately prior to, or which became exercisable on the Termination Date or
date of Disability, in accordance with this section, may be exercised until the
applicable Expiration Date. Any portion of the Award that is not vested and
exercisable on the Termination Date or date of Disability will be canceled.
In the case of Retirement, the installments shall become exercisable on the
applicable Vesting Date.
Acceleration of Vesting. Notwithstanding the foregoing provisions of this
paragraph, the Award shall become exercisable with respect to all of the Covered
Shares (to the extent it is not then otherwise exercisable) in the following
events:
(a) Death - if the Participant's termination of employment occurs by
reason of the Participant's death, at such time that any portion of
the Award has not become vested, the Award shall immediately vest and
become fully exercisable upon the Participant's Termination Date and
the Participant's beneficiary, or if a beneficiary has not been named,
the Participant's estate shall have the right to purchase under the
Stock Option or in the case of a Stock Appreciation Right, receive the
appreciation associated with, the Covered Shares, at any time within
12 months following the date of death, but in no event later than the
10-year anniversary from the Grant Date;
6
<PAGE>
(b) Change of Control - the Award shall immediately vest and become fully
exercisable upon a Change of Control, provided that if the
Participant's Termination Date does not occur before the Change of
Control and the Participant shall have the right to exercise under the
Award, the Covered Shares, at any time until the Expiration Date of
the Award.
Section 11 - Rights of Holders in Stock
The Participant shall not have any rights of a shareholder with respect to the
Covered Shares, until a stock certificate has been duly issued following the
exercise of the Stock Option or Stock Appreciation Right as provided herein.
Participants receiving Stock Appreciation Rights shall not have any rights of a
shareholder with respect to the Covered Shares at any time unless the
Participant receives Shares upon settlement of the Stock Appreciation Rights.
Section 12 - Plan Amendment and Termination
Amendments. The Board may amend this Plan as it deems necessary and appropriate
to better achieve the Plan's purpose provided, however, that (i) the Share
limitations set forth in Section 4 cannot be increased and (ii) the minimum
Exercise Price set forth in Section 3 cannot be changed, unless such a plan
amendment is properly approved by the Company's shareowners.
Plan Suspensions and Terminations. The Board may suspend or terminate this Plan
at any time. Any such suspension or termination shall not of itself impair any
outstanding Award under the Plan or the applicable Participant's rights
regarding such Award.
Section 13 - Heirs and Successors
The Plan shall be binding upon, and inure to the benefit of, the Company and its
successors and assigns, and upon any person acquiring, whether by merger,
consolidation, purchase of assets or otherwise, all or substantially all of the
Company's assets and business.
Section 14 - Miscellaneous
Not an Employment Contract. The Plan does not constitute a contract of
employment, and selection as a Participant will not give any participating
employee the right to be retained in the employ of the Company or any
Subsidiary, nor any right or claim to any benefit under the Plan, unless such
right or claim has specifically accrued under the terms of the Plan. The Plan
will not interfere in any way with any right the Company or any of its
Subsidiaries or Affiliates would otherwise have to terminate or modify the terms
of a Participant's employment or other service at any time. This Award is not
includable for severance or pension purposes and is not a guarantee of future
awards. Neither a Participant nor any other person shall, by reason of
participation in the Plan, acquire any right in or title to any assets, funds or
property of the Company or any Subsidiary whatsoever, including, without
limitation, any specific funds, assets, or other property which the Company or
any Subsidiary, in their sole discretion, may set aside in anticipation of a
liability under the Plan. A Participant shall have only a contractual right to
the Covered Shares or amounts, if any, payable under the Plan, unsecured by any
assets of the Company or any Subsidiary, and nothing contained in the Plan shall
constitute a guarantee that the assets of the Company or any Subsidiary shall be
sufficient to pay any benefits to any person.
7
<PAGE>
Other Benefit and Compensation Programs. Unless otherwise specifically
determined by the Committee, settlements of Awards received by Participants
under the Plan shall not be deemed a part of a Participant's regular, recurring
compensation for purposes of calculating payments or benefits from any Company
benefit plan or severance program. Further, the Company may adopt other
compensation programs, plans or arrangements as it deems appropriate.
Evidence. Evidence required of anyone under the Plan may be by certificate,
affidavit, document or other information, which the person acting on it
considers pertinent and reliable, and signed, made or presented by the proper
party or parties.
Notices. Any notices provided for in this Plan shall be in writing and shall be
deemed sufficiently given if either hand delivered or if sent by fax or
overnight courier, or by postage paid first class mail. Notices sent by mail
shall be deemed received on the date of actual receipt. Notices shall be
directed, if to the Participant, at the Participant's address indicated by the
Company's records or at the address of the Company location at which the
Participant is employed, or if to the Company, at the Company's worldwide
headquarters.
No Fractional Shares. No fractional Shares shall be issued or delivered pursuant
to the Plan or any Award, and the Committee shall determine whether cash shall
be paid or transferred in lieu of any fractional Shares, or whether such
fractional Shares or any rights thereto shall be canceled.
Binding Arbitration. Any dispute or disagreement regarding participation and/or
a Participant's rights under the Plan shall be first referred to a mandatory
mediation dispute process using a mediator selected by the Company in its sole
discretion. Disputes that cannot be settled through mediation shall be settled
through final and binding arbitration in accordance with the applicable rules of
the American Arbitration Association. The Participant may select the arbitrator
from an approved listing supplied by the Company.
Applicable Law. The provisions of this Plan shall be construed in accordance
with the laws of the State of Illinois, U.S.A., without regard to the conflict
of law provisions of any state or country.
8
American National Can Group, Inc.
1999 Long-Term Stock Incentive Plan
1. The Plan
a) Purpose. The purpose of the Long-Term Stock Incentive Plan (the "Plan") is
to promote the longer-term financial success of American National Can
Group, Inc. (the "Company") by providing a means to attract, retain and
reward individuals who contribute to long-term success or who are selected
as having the future potential to contribute to long-term success. By using
stock-based compensation, the recipients of awards under the Plan will
further identify their interests with those of the Company's shareowners.
b) Effective Date. To serve this purpose, the Plan will become effective upon
its adoption by the Board and approval by the shareholders of the Company,
provided, however, that in no event shall the Plan become effective until
immediately prior to the occurrence of the initial public offering of the
Company's Common Stock.
2. Administration
a) Committee. The Plan shall be administered by the Compensation Committee of
the Board of Directors of the Company. All grants under the Plan shall be
made by a Grant Committee consisting of those members of the Compensation
Committee who are both "outside directors" as defined for purposes of
Section 162(m) of the Internal Revenue Code and regulations thereunder and
"non employee directors" as defined for purposes of Section 16 of the
Securities Exchange Act of 1934.
b) Powers and Authority. The Committee's powers and authority include, but are
not limited to, selecting individuals to participate in the Plan from among
the Eligible Employees (defined below); determining the types and terms and
conditions of all awards granted, including performance and other earnout
and/or vesting contingencies; permitting transferability of awards to third
parties; interpreting the Plan's provisions; and administering the Plan in
a manner that is consistent with its purpose. The Committee has authority
to modify the Plan where appropriate to meet international legal,
securities and/or labor regulations.
c) Eligible Employees. Includes any employee of the Company and any subsidiary
of the Company or other entity in which the Company has a significant
equity or other interest as determined by the Committee. An award may be
granted to an employee, in connection with hiring, retention or otherwise,
prior to the date the employee first performs services for the Company or
its subsidiaries, provided that such awards shall not become vested prior
to the date the employee first performs such services.
d) Award Agreement. An award under the Plan shall be subject to such terms and
conditions, not inconsistent with the Plan, as the Committee shall, in its
sole discretion, prescribe. The terms and conditions of any award to any
participant shall be reflected in a written document, the form of which
will be determined by the Committee. A copy of such document will be
provided to the participant, and the Committee may, but need not require
that the participant sign a copy of the document. Such document is referred
to in the Plan as an "Award Agreement" regardless of whether any
participant signature is required.
e) Award Prices. For Plan purposes, all stock options and stock appreciation
rights shall have an exercise price which shall reflect at least the
average traded price (which for purposes of this Plan shall be defined to
mean the average of the high and low trading prices on the applicable date)
of a share of the common stock of the Company, par value $0.01 per share
("Share") on the applicable date as determined by the Committee, or if
Shares are not traded
<PAGE>
on such date, the average price on the next preceding day on which such
stock is traded. The applicable date shall be the date on which the award
is granted, except that the Committee may provide that the applicable date
may be: (i) the day on which an award recipient was hired, promoted or such
similar singular event occurred, provided that the grant of such award
occurs within 90 days following such applicable date; or (ii) in the case
of a stock option or stock appreciation right granted retroactively in
tandem with, or as a substitution for, another previously granted stock
option or stock appreciation right, the applicable date for such prior
award. Except as provided for in Section 3(d), the per Share exercise price
of any stock option or stock appreciation right may not be decreased after
the grant of the award, and a stock option or stock appreciation right may
not be surrendered as consideration in exchange for the grant of a new
award with a lower per Share exercise price.
3. Shares Subject to the Plan
a) Maximum Shares Available for Delivery. Subject to Section 3(c), the maximum
number of Shares that may be delivered to participants and their
beneficiaries under the Plan shall be equal to the sum of (i) 7,000,000 and
(ii) up to 7,000,000 additional Shares, if authorized by the Company's
Board of Directors, which are reacquired in the open market or in a private
transaction after the effective date of this Plan using proceeds from stock
option exercises. In addition, any Shares granted under the Plan which are
forfeited back to the Company because of the failure to meet an award
contingency or condition shall again be available for delivery pursuant to
new awards granted under the Plan. Any Shares covered by an award (or
portion of an award) granted under the Plan, which is forfeited or
canceled, expires or is settled in cash, shall be deemed not to have been
delivered for purposes of determining the maximum number of Shares
available for delivery under the Plan. Likewise, if any stock option is
exercised by tendering Shares, either actually or by attestation, to the
Company as full or partial payment in connection with the exercise of a
stock option under this Plan or any prior plan of the Company, only the
number of Shares issued net of the Shares tendered or withheld to settle
tax liability shall be deemed delivered for purposes of determining the
maximum number of Shares available for delivery under the Plan. Further,
Shares issued under the Plan through the settlement, assumption or
substitution of outstanding awards or obligations to grant future awards as
a condition of the Company acquiring another entity shall not reduce the
maximum number of Shares available for delivery under the Plan.
b) Other Plan Limits. Subject to Section 3(c), the following additional
maximums are imposed under the Plan. The maximum number of Shares that may
be covered by stock options intended to comply with Section 422 of the
Internal Revenue Code ("incentive stock options") shall be 1,000,000. The
maximum number of Shares that may be issued in conjunction with awards
granted pursuant to Section 4(d) shall be 800,000 plus up to an additional
800,000 to the extent that such Shares are reacquired by the Company
pursuant to Section 3(a). The maximum number of shares that may be covered
by awards granted to any one individual pursuant to Sections 4(b) and 4(c)
shall be 800,000 during any consecutive three calendar years. The maximum
payment that can be made for awards granted to any one individual pursuant
to Sections 4(d) or 4(e) shall be $2,000,000 for any single or combined
performance goals established for a specified performance period. If a
payment under Sections 4(d) or 4(e) is made in Shares, the value of such
Shares for determining this maximum individual payment amount will be the
closing price of a Share on the first day of the applicable performance
period. A specified performance period for purposes of this performance
goal payment limit shall not exceed a sixty (60) consecutive month period.
<PAGE>
c) Payment Shares. Subject to the overall limitation on the number of Shares
that may be delivered under the Plan, the Committee may use available
Shares as the form of payment for compensation, grants or rights earned or
due under any other compensation plans or arrangements of the Company,
including the plan of any entity acquired by the Company.
d) Adjustments for Corporate Transactions. The Committee may determine that a
corporate transaction has affected the price per Share such that an
adjustment or adjustments to outstanding awards are required to preserve
(or prevent enlargement of) the benefits or potential benefits intended at
time of grant. For this purpose a corporate transaction will include, but
is not limited to, any stock dividend, stock split, extraordinary cash
dividend, recapitalization, reorganization, merger, consolidation,
split-up, spin-off, combination or exchange of shares, or other similar
occurrence. In the event of such a corporate transaction, the Committee
may, in such manner as the Committee deems equitable, adjust (i) the number
and kind of shares which may be delivered under the Plan pursuant to
Sections 3(a) and 3(b); (ii) the number and kind of shares subject to
outstanding awards; (iii) the exercise price of outstanding stock options
and stock appreciation rights; (iv) any other adjustments the Committee
determines to be equitable.
4. Types of Awards
a) General. An award may be granted singularly, in combination with another
award(s) or in tandem whereby exercise or vesting of one award held by a
participant cancels another award held by the participant. Subject to
Section 2(e), an award may be granted as an alternative to or replacement
of an existing award under the Plan or under any other compensation plans
or arrangements of the Company, including the plan of any entity acquired
by the Company. The types of awards that may be granted under the Plan
include:
b) Stock Option. A stock option represents a right to purchase a specified
number of Shares during a specified period at a price per Share which is no
less than that required by Section 2(e). A stock option may be in the form
of an incentive stock option or in a form, which does not qualify for
favorable federal tax treatment. The Shares covered by a stock option may
be purchased by means of a cash payment or such other means as the
Committee may from time-to-time permit, including (i) tendering (either
actually or by attestation) Shares valued using the market price at the
time of exercise, (ii) authorizing a third party to sell Shares (or a
sufficient portion thereof) acquired upon exercise of a stock option and to
remit to the Company a sufficient portion of the sale proceeds to pay for
all the Shares acquired through such exercise and any tax withholding
obligations resulting from such exercise; (iii) crediting towards the
purchase price amounts from individuals' deferred compensation account
balances, including accrued dividend equivalent balances; or (iv) any
combination of the above.
c) Stock Appreciation Right. A stock appreciation right is a right to receive
a payment in cash. Shares or a combination, equal to the excess of the
aggregate market price at time of exercise of a specified number of Shares
over the aggregate exercise price of the stock appreciation rights being
exercised.
d) Stock Award. A stock award is a grant of Shares or of a right to receive
Shares (or their cash equivalent or a combination of both) in the future.
Each stock award shall be subject to such conditions, restrictions and
contingencies as the Committee shall determine. These may include
continuous service and/or the achievement of performance goals. The
performance goals that may be used by the Committee for such awards shall
consist of cash generation targets, profit, revenue and market share
targets, profitability targets as measured by return
<PAGE>
ratios, and shareholder returns. The Committee may designate a single goal
criterion or multiple goal criteria for performance measurement purposes
with the measurement based on absolute Company or business unit performance
and/or on performance as compared with that of other publicly-traded
companies.
e) Cash Award. A cash award is a right denominated in cash or cash units to
receive a payment which may be in the form of cash, Shares or a
combination, based on the attainment of pre-established performance goals
and such other conditions, restriction and contingencies as the Committee
shall determine. The performance goals that may be used by the Committee
for such awards shall consist of cash generation targets, profits, revenue
and market share targets, profitability targets as measured by return
ratios and shareholder returns. The Committee may designate a single goals
criterion or multiple goals criteria for performance measurement purposes
with the measurement based on absolute Company or business unit performance
and/or on performance as compared with that of other publicly-traded
companies.
5. Award Settlements and Payments
a) Dividends and Dividend Equivalents. An award may contain the right to
receive dividends or dividend equivalent payments, which may be paid either
currently or credited to a participant's account. Any such crediting of
dividends or dividend equivalents or reinvestment in Shares may be subject
to such conditions, restrictions and contingencies as the Committee shall
establish, including the reinvestment of such credited amounts in Share
equivalents.
b) Payments. Awards may be settled through cash payments, the delivery of
Shares, the granting of awards or combination thereof as the Committee
shall determine. Any award settlement, including payment deferrals, may be
subject to such conditions, restrictions and contingencies as the Committee
shall determine. The Committee may permit or require the deferral of any
award payment. Subject to such rules and procedures as it may establish,
which may include provisions for the payment or crediting of interest, or
dividend equivalents, including converting such credits into deferred Share
equivalents.
6. Plan Amendment and Termination.
a) Amendments. The Company's Board of Directors may amend this Plan as it
deems necessary and appropriate to better achieve the Plan's purpose
provided, however, that (i) the Share limitations set forth in Sections
3(a) and 3(b) cannot be increased and (ii) the minimum stock option and
stock appreciation right exercise prices set forth in Section 2(e) cannot
be changed, unless such a plan amendment is properly approved by the
Company's shareowners.
b) Plan Suspensions and Terminations. The Board of Directors of the Company
may suspend or terminate this Plan at any time. Any such suspension or
termination shall not of itself impair any outstanding award grant under
the Plan or the applicable participant's rights regarding such award.
7. Miscellaneous
a) No Individual Rights. No person shall have any claim or right to be granted
an award under the Plan. Neither the Plan nor any action taken hereunder
shall be construed as giving any employee or other person any right to
continue to be employed by or to perform services for the Company, any
subsidiary or related entity. The right to terminate the employment of or
<PAGE>
performance of services by any Plan participant at any time and for any
reason is specifically reserved to the employing entity.
b) Binding Arbitration. Any dispute or disagreement regarding participation
and/or an award recipient's rights under the Plan shall be settled solely
by binding arbitration in accordance with the applicable rules of the
American Arbitration Association.
c) Unfunded Plan. The Plan shall be unfunded and shall not create (or be
construed to create) a trust or a separate fund or funds. The Plan shall
not establish any fiduciary relationship between the Company and any
participant or beneficiary of a participant. To the extent any person holds
any obligation of the Company by virtue of an award granted under the Plan,
such obligation shall merely constitute a general unsecured liability of
the Company and accordingly shall not confer upon such person any right,
title or interest in any assets of the Company.
d) Other Benefit and Compensation Programs. Unless otherwise specifically
determined by the Committee, settlements of awards received by participants
under the Plan shall not be deemed a part of a participant's regular,
recurring compensation for purposes of calculating payments or benefits
from any Company benefit plan or severance program. Further, the Company
may adopt other compensation programs, plans or arrangements as it deems
appropriate.
e) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any award, and the Committee shall determine
whether cash shall be paid or transferred in lieu of any fractional Shares,
or whether such fractional Shares or any rights thereto shall be canceled.
American National Can Group, Inc.
Stock Compensation Conversion Plan at the Initial Public Offering
1. The Plan
a) Purpose. The purpose of this Plan is to align the interests of employees
with shareholders of American National Can Group, Inc. (the "Company") by
allowing participants to obtain an immediate ownership position in the
Company.
b) Effective Date. The Plan will become effective upon its adoption by the
Company's Board of Directors, provided, however, that in no event shall the
Plan become effective until the occurrence of the IPO.
2. Definitions
a) Board - the Board of Directors of the Company.
b) Committee - the Compensation Committee of the Board.
c) Conversion Shares - grant of shares of stock or of a right to receive
shares of stock (or their cash equivalent or a combination of both) under
the provisions of this Plan.
d) Conversion Share Price - the price per share on the date of the IPO.
e) Fair Market Value - average of the high and low per share trading price on
a specific day.
f) IPO - Initial Public Offering of shares of the Company's stock.
g) Original Grants - SARs or stock options given to a participant under the
Pechiney Stock Option Plans of 1996, 1997 and 1998 or the American National
Can Company Long-Term Incentive Plans of 1997 and 1998 or the American
National Can Company Extraordinary Grant of 1999.
h) Pechiney - the former parent company of American National Can Company.
i) Plan - the Company's Stock Compensation Conversion Plan.
j) Restricted Period - that period of time during which the Conversion Shares
cannot be sold or transferred.
k) SAR - Stock Appreciation Right, the right of a participant to receive an
amount calculated as the difference between the grant price of the Original
Grant and the fair market value (average of the high and low trading
prices) of Pechiney stock on the date of exercise.
3. Administration
a) Committee. The Plan shall be administered by the Committee or such other
committee or entity as may be charged by the Board with responsibility for
administering the Plan.
b) Powers and Authority. The Committee shall have the power to interpret the
Plan and make all determinations necessary or desirable for its
administration. All actions taken, and determinations made, by the
Committee in respect of the Plan shall be conclusive and non-appealable.
c) Eligible Participants. Participants will include any employee of the
Company, or its subsidiaries, currently holding Pechiney stock options or
SARs distributed under any Original Grant.
d) Grant Agreement. The Conversion Shares shall be subject to such terms and
conditions, not inconsistent with the Plan, as the Committee shall, in its
sole discretion, prescribe. The terms and conditions shall be reflected in
a written document, the form of which will be determined by the Committee.
A copy of such
<PAGE>
document will be provided to the participant, and the Committee may, but
need not require that the participant sign a copy of the document.
4. Shares Subject to the Plan
The maximum number of Conversion Shares that may be delivered to
participants under the Plan shall be equal to the sum of 550,000. Any
Conversion Shares withheld in settlement of the participant's tax
liabilities will not be considered utilized. Only the number of Conversion
Shares issued net of the Conversion Shares tendered will be deemed
delivered for purposes of determining the maximum number of Conversion
Shares available for delivery under this Plan.
5. Stock Compensation Eligible for Conversion
a) SARs. All SARs eligible for conversion under the Plan will be immediately
canceled upon the date of the Company's IPO. The difference between the
grant price of the SARs and the Fair Market Value of the Pechiney American
Depositary Shares will be exchanged for Conversion Shares at the Conversion
Share Price.
b) Options. Participants may elect to convert Pechiney stock options they hold
at their discretion. The difference between the grant price of the Pechiney
stock option and the Fair Market Value of the Pechiney Share, as traded on
the Paris Bourse, will be translated to US dollars and exchanged for
Conversion Shares at the Conversion Share Price.
6. Restrictions and Dividends
a) Restricted Periods. All Conversion Shares will have a Restricted Period,
which approximates the vesting schedule of the Original Grant.
b) Dividends and Dividend Equivalents. During the Restricted Period
participants shall have no shareholder rights and no rights to receive
dividends or dividend equivalents. Upon the expiration of the Restricted
Periods, the participant will obtain full rights to all Conversion Shares
awarded under the Plan including voting rights and the right to receive
dividends or dividend equivalents. No dividends or dividend equivalents
shall be paid to the participant with respect to any Conversion Shares that
are forfeited by the participant for any reason.
7. Miscellaneous
a) No Guarantee of Employment. Neither the Plan nor any action taken hereunder
shall be construed as giving any employee or other person any right to
continue to be employed by or to perform services for the Company, any
subsidiary or related entity. The right to terminate the employment of, or
performance of services, by any participant at any time and for any reason
is specifically reserved to the employing entity.
b) Binding Arbitration. Any dispute or disagreement regarding participation
and/or an award recipient's rights under the Plan shall be settled solely
by binding arbitration in accordance with the applicable rules of the
American Arbitration Association. The Company's Board of Director's has the
sole right to select the arbitrator.
<PAGE>
c) Other Benefit and Compensation Programs. Unless otherwise specifically
determined by the Committee, Conversion Shares received by participants
under the Plan shall not be deemed a part of a participant's regular,
recurring compensation for purposes of calculating payments or benefits
from any Company benefit plan or severance program. Further, the Company
may adopt other compensation programs, plans or arrangements, as it deems
appropriate.
d) No Fractional Shares. No fractional shares shall be issued or delivered
pursuant to the Plan or any award, and the Committee shall determine
whether cash shall be paid or transferred in lieu of any fractional shares,
or whether such fractional shares or any rights thereto shall be canceled.
e) Governing Law. The Plan shall be governed by the laws of the State of
Illinois, U.S.A.
8. Plan Amendment and Termination.
The Committee may amend, suspend or terminate this Plan at any time. Any
such amendment, suspension or termination shall not of itself impair any
outstanding grant under the Plan or the applicable participant's rights
regarding such grant.
American National Can Group, Inc.
Directors Stock Plan
1. The Plan
a) Purpose. The purpose of the American National Can Group, Inc. Directors
Stock Plan (the "Plan") is to promote the longer-term financial success of
American National Can Group, Inc. (the "Company") by providing a means for
directors to own shares in the Company.
b) Effective Date. To serve this purpose, the Plan will become effective upon
its adoption by the Company's Board of Directors, but in no event shall the
Plan become effective until the occurrence of the initial public offering
of shares of the Company's stock.
2. Administration
a) Committee. The Plan shall be administered by the Compensation Committee of
the Board of Directors of the Company (the "Committee").
b) Powers and Authority. The Committee's powers and authority include
interpreting the Plan's provisions and administering the Plan in a manner
that is consistent with its purpose. All actions taken, and determinations
made, by the Committee in respect of the Plan shall be conclusive and
non-appealable.
c) Eligible Participants. Includes any member of the Board of Directors of the
Company who is not a current employee of the Company on the date of the
annual grants.
d) Award Agreement. An award under the Plan shall be subject to the terms and
conditions provided for in the Plan. The terms and conditions of any award
to any eligible participant shall be reflected in a written document, the
form of which will be determined by the Committee. A copy of such document
will be provided to the participant, and the Committee may, but need not
require that the participant sign a copy of the document. Such document is
referred to in the Plan as an "Award Agreement" regardless of whether any
participant signature is required.
e) Award Prices. For the Plan purposes, each stock option shall have an
exercise price which shall reflect at least the average traded price (which
for purposes of this Plan shall be defined to mean the average of the high
and low trading prices on the applicable date) of a share of the common
stock of the Company, par value $0.01 per share ("Share") on the applicable
grant date. The per Share exercise price of any stock option may not be
decreased after the grant of the award, and a stock option may not be
surrendered as consideration in exchange for the grant of a new award with
a lower per Share exercise price.
3. Shares Subject to the Plan
a) Maximum Shares Available for Delivery. The maximum number of Shares that
may be delivered to participants and their beneficiaries under the Plan
shall be equal to the sum of (i) 400,000 and (ii) up to 400,000 additional
Shares, if authorized by the Company's Board of Directors, which are
reacquired in the open market or in a private transaction after the
effective date of this Plan using proceeds from stock option exercises. In
addition, any Shares granted under the Plan which are forfeited back to the
Company because of the failure to meet an award contingency or condition
shall again be available for delivery pursuant to new awards granted under
the Plan. Any Shares covered by an award (or portion of an
<PAGE>
award) granted under the Plan, which is forfeited or canceled, expires or
is settled in cash, shall be deemed not to have been delivered for purposes
of determining the maximum number of Shares available for delivery under
the Plan. Likewise, if any stock option is exercised by tendering Shares,
either actually or by attestation, to the Company as full or partial
payment in connection with the exercise of a stock option under this Plan
or any prior plan of the Company, only the number of Shares issued net of
the Shares tendered or withheld to settle tax liability shall be deemed
delivered for purposes of determining the maximum number of Shares
available for delivery under the Plan. Further, Shares issued under the
Plan through the settlement, assumption or substitution of outstanding
awards or obligations to grant future awards as a condition of the Company
acquiring another entity shall not reduce the maximum number of Shares
available for delivery under the Plan.
b) Adjustments for Corporate Transactions. The Committee may determine that a
corporate transaction has affected the price per Share such that an
adjustment or adjustments to outstanding awards are required to preserve
(or prevent enlargement of) the benefits or potential benefits intended at
time of grant. For this purpose a corporate transaction will include, but
is not limited to, any stock dividend, stock split, extraordinary cash
dividend, recapitalization, reorganization, merger, consolidation,
split-up, spin-off, combination or exchange of shares, or other similar
occurrence. In the event of such a corporate transaction, the Committee
may, in such manner as the Committee deems equitable, adjust (i) the number
and kind of shares which may be delivered under the Plan; (ii) the number
and kind of shares subject to outstanding awards; (iii) the exercise price
of outstanding stock options; and (iv) any other adjustments the Committee
determines to be equitable.
4. Types, Terms and Amounts of Awards
The types of awards that may be granted under the Plan include:
a) Stock Option. A stock option represents a right to purchase a specified
number of Shares during a specified period at a price per Share which is no
less than that required by Section 2(e). A stock option shall only be in
the form of a non-qualified stock option, with a ten-year term. The options
shall vest immediately upon grant. The value of the annual stock option
award will be $30,000 per director and such value will be determined using
a modified Black-Scholes option-pricing model and the following
assumptions:
(i) Current price of the underlying stock will equal the fair market value
("FMV") of the stock on the date of grant. The FMV is defined by the
average of the high and the low trading prices on the grant date.
(ii) The exercise price of the option will remain the same through the term
of the option regardless of when it is exercised. As such, the price
must be discounted to reflect the present value. The discount rate
used will reflect the yield on a U.S. Treasury Bond of equal maturity
to the option.
(iii) Expected volatility of the stock price will reflect the volatility of
the company stocks in the Dow Jones Container and Packaging Index
during the previous 12 months until 2002. Beginning in 2002, the
volatility used in the calculation will reflect the Company's actual
stock price volatility for the previous 12 months.
(iv) Expected divided yield for 1999 will be the anticipated annualized
dividend to be paid by the Company during the 12 months following its
initial public offering. Beginning in 2000 the dividend yield will
reflect the most recent paid dividend on an annualized basis.
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(v) Expected life of the option will equal the maximum option term.
The Shares covered by a stock option may be purchased by means of a cash
payment or such other means as the Committee may from time-to-time permit,
including (i) tendering (either actually or by attestation) Shares valued
using the market price at the time of exercise, (ii) authorizing a third
party to sell Shares (or a sufficient portion thereof) acquired upon
exercise of a stock option and to remit to the Company a sufficient portion
of the sale proceeds to pay for all the Shares acquired through such
exercise; or (iii) any combination of the above.
b) Stock Award. A stock award is a grant of Shares or of a right to receive
Shares (or their cash equivalent or a combination of both) in the future.
Each stock award shall be subject to such conditions, restrictions and
contingencies as the Committee shall determine. An annual stock award will
be granted with a FMV of $15,000 to each qualified participant on the date
of grant.
5. Dividends and Dividend Equivalents
Stock awards granted under the plan include the right to receive dividends
or dividend equivalent payments. Stock options have no dividend or dividend
equivalent rights.
6. Plan Amendment, Suspensions and Termination.
The Company's Board of Directors may amend this Plan as it deems necessary
and appropriate to better achieve the Plan's purpose. The Board of
Directors of the Company may amend, suspend or terminate this Plan at any
time. Any such amendment, suspension or termination shall not of itself
impair any outstanding award grant under the Plan or the applicable
participant's rights regarding such award.
7. Miscellaneous
a) No Individual Rights. Neither the Plan nor any action taken hereunder shall
be construed as giving any director any right to continue to perform
services for the Company, any subsidiary or related entity.
b) Binding Arbitration. Any dispute or disagreement regarding participation
and/or a recipient's rights under the Plan shall be settled solely by
binding arbitration in accordance with the applicable rules of the American
Arbitration Association. The Company's Board of Director's has the sole
right to select the arbitrator.
c) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any award, and the Committee shall determine
whether cash shall be paid or transferred in lieu of any fractional Shares,
or whether such fractional Shares or any rights thereto shall be canceled.
d) Transferability. Except as otherwise provided by the Committee, awards
under the plan are not transferable other than as designated by the
participant by will or by the laws of descent and distribution.
e) Governing Law. The Plan shall be governed by the laws of the State of
Illinois, U.S.A.
EXHIBIT 5.1
LETTERHEAD OF SHEARMAN & STERLING
February 16, 2000
American National Can Group, Inc.
8770 W. Bryn Mawr Avenue
Chicago, IL 60631
Ladies and Gentlemen:
We have acted as special counsel to American National Can
Group, Inc., a Delaware corporation (the "Company"), in connection with the
Registration Statement on Form S-8 (the "Registration Statement") being filed by
the Company on [February 16],2000 with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, with respect to 8,450,000 shares
of common stock, par value $.01 per share, of the Company (the "Common Stock"),
to be issued from time to time pursuant to the American National Can Group, Inc.
Founder's Equity Plan, the American National Can Group, Inc. Long-Term Stock
Incentive Plan, the American National Can Group, Inc. Stock Compensation
Conversion Plan and the American National Can Group, Inc. Directors Stock Plan.
In so acting, we have examined the Registration Statement and
we have also examined and relied as to factual matters upon the representations
and warranties contained in originals, or copies certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates and other instruments as in our judgment are necessary or
appropriate to be able to render the opinion expressed below. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents, certificates and instruments submitted to us as originals and
the conformity with the originals of all documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that the
shares of Common Stock to which the Registration Statement relates have been
duly authorized and, when issued and delivered in accordance with the terms of
the applicable plan and paid for in full in accordance with the terms of the
applicable plan, will be validly issued, fully paid and non-assessable.
Our opinion expressed above is limited to the General
Corporation Law of the State of Delaware and we do not express any opinion
herein concerning any other law.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
SHEARMAN & STERLING
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 19, 1999 relating to the
combined financial statements of American National Can Group, Inc.
(the "Company"), which appears in the Prospectus dated July 28, 1999,
which is included in the Company's Registration Statement on Form S-1,
as amended through August 2, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Chicago, Illinois
February 16, 2000
