As filed with the Securities and Exchange Commission on May 20, 1997
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
U.S. Can Corporation
(Exact name of registrant as specified in its charter)
Delaware 36-2815480
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 Commerce Drive
Oak Brook, Illinois 60521
(Address, of Principal Executive Offices)(Zip Code)
1997 Employee Stock Purchase Plan of
U.S. Can Corporation
(Full Title of Plans)
Timothy W. Stonich
Executive Vice President-
Finance, Chief Financial Officer and Secretary
U.S. Can Corporation
900 Commerce Drive
Oak Brook, Illinois 60521
(Name and address of agent for service)
(630) 571-2500
(Telephone number, including area code, of agent for service)
Copies To:
T. Stephen Dyer, Esq.
Ross & Hardies
150 North Michigan Avenue
Chicago, Illinois 60601
(312) 558-1000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed 457(h)
Amount maximum Proposed Amount of
Title of to be offering price aggregate registration
Securities to be registered registered(1) per share(2) offering price(3) fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 216,667 $16.1875 $3,507,297 $1,210
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</TABLE>
(1) The securities being registered include a maximum of 216,667 shares
issuable upon the exercise of options under the 1997 Stock Option Plan of
U.S. Can Corporation, assuming full participation of all employees under
such plans.
(2) This is the average maximum offering price determined by dividing the
proposed aggregate offering price by the amount of shares to be
registered.
(3) Solely for the purpose of calculating the registration fee, the proposed
aggregate offering price has been estimated in accordance with Rule 457(h)
promulgated under the Securities Act of 1933 (the "Act"). Accordingly, the
aggregate offering price and the fee have been computed based on the
prices at which the options may be exercised.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
U.S. Can Corporation (the "Company") hereby incorporates by reference the
following documents previously filed with the Securities and Exchange Commission
(the "Commission"):
(a) the Company Annual Report on Form 10-K, for the fiscal year ended
December 31, 1996, the Company's latest year for which audited financial
statements have been filed;
(b) all other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since December
31, 1996;
(c) the description of the Company's Common Stock, $.01 par value,
contained in the Company's Registration Statement on Form 8-A (File No. O-21314)
filed with the Commission on March 8, 1993, pursuant to Section 12 of the
Exchange Act; and
(d) the Company's Proxy Statement, filed on March 26, 1997, for its annual
meeting of stockholders held on April 25, 1997, except for the report of the
Compensation Committee and the Performance Graph contained therein.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the effective date
of the Registration Statement and prior to filing of a post-effective amendment
to the Registration Statement which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
A partner of Ross & Hardies, general counsel to the Company, beneficially
owns 12,500 shares of Common Stock.
Item 6. Indemnification of Officers and Directors
Delaware General Corporation Law. The Company has statutory authority to
indemnify its officers and directors. The applicable provisions of the General
Corporation Law of the State of Delaware (the "GCL") state that, to the extent
such person is successful on the merits or otherwise, a corporation may
indemnify any person who was or is a party or who is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
("such Person"), against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement, actually and reasonably
<PAGE>
incurred by such Person, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In any threatened pending or completed action
by or in the right of the corporation, a corporation also may indemnify any such
Person for costs actually and reasonably incurred by him in connection with that
action's defense or settlement, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation; however, no indemnification shall be made with respect to any
claim, issue or matter as to which such Person shall have been adjudged to be
liable to the corporation, unless and only to the extent that a court shall
determine that such indemnity is proper.
Under the applicable provisions of the GCL, any indemnification shall be
made by the corporation only as authorized in the specific case upon a
determination that the indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who are not parties to such action, suit or proceeding; or
(2) if such a quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion; or
(3) by the affirmative vote of a majority of the shares entitled to vote
thereon.
The Company's Amended and Restated Certificate of Incorporation provides
for indemnification to the full extent permitted by the laws of the State of
Delaware against and with respect to threatened, pending or completed actions,
suits or proceedings arising from or alleged to arise from, a party's actions or
omissions as a director, officer, employee or agent of the Company or of any
subsidiary of the Company or of any other corporation, partnership, joint
venture, trust or other enterprise which he has served in such capacity at the
request of the Company if such acts or omissions occurred or were or are alleged
to have occurred, while said party was a director or officer of the Company.
Generally, under Delaware law, indemnification will only be available where an
officer or director can establish that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company.
The Company maintains a director and officer liability insurance policy
which indemnifies directors and officers for certain losses arising from a claim
by reason of a wrongful act, as defined under the policy, under certain
circumstances where the Company does not provide indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Incorporation
Number Description by Reference
4.1 Amended and Restated Certificate of
Incorporation of the Company *4.3
4.2 By-laws of the Company **4.1
4.3 Indenture, dated October 17, 1996, by @
and among the Company, United States
Can Company and Harris Trust and Savings
Bank
- 2 -
<PAGE>
5.1 Opinion of Ross & Hardies regarding legality of
shares of Common Stock.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ross & Hardies (contained in opinion filed
as Exhibit 5.1).
24.1 Power of Attorney. ***
* Previously filed as exhibit to the Company's Form S-3 Registration
Statement, filed on June 1, 1994 (Registration No. 33-79556) and
incorporated herein by reference.
** Previously filed as an exhibit to the Company's Form S-8 Registration
Statement, filed on March 23, 1994 (Registration No. 33-76742) and
incorporated herein by reference thereto.
@ Previously filed with the Quarterly Report of the Company and U.S. Can for
the quarter ended September 29, 1996.
*** Power of attorney is contained in signatures.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act
of 1933;
(ii) to reflect in the prospectus any facts
or events arising after the effective
date of this Registration Statement (or
the most recent post-effective amendment
thereof) which, individually or in
the aggregate, represent a fundamental
change in the information set forth in
this Registration Statement. Notwith-
standing the foregoing, any increase
or decrease in volume of securities
offered (if the total dollar value of
securities offered would not exceed that
which was registered) and any deviation
from the low or high end of the
estimated maximum offering range may be
reflected in the form of prospectus
filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the
changes in volume and price represent no
more than a 20% change in the maximum
aggregate offering price set forth in
the "Calculation of Registration Fee"
table in the effective Registration
Statement.
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in this
Registration
- 3 -
<PAGE>
Statement or any material change to such
information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form
S-8 or Form F-3, and the information
required to be included in a post-effective
amendment by those paragraphs is contained
in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are
incorporated by reference in this
Registration Statement.
(2) that, for the purpose of determining any
liability under the Securities Act of 1933,
each such post-effective amendment shall be
deemed to be a new registration statement
relating to the securities offered therein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933 (the
"Act"), each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes that, insofar
as indemnification for liabilities arising under the Act may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Oak Brook, State of Illinois, on May 20, 1997.
U.S. CAN CORPORATION
By: /s/ William J. Smith
William J. Smith
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints William J. Smith and Timothy W. Stonich, and each of them, the true
and lawful attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and hereby grants to
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in furtherance of the foregoing, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on May 20, 1997.
Signature
/s/ William J. Smith Chairman of the Board, President and
William J. Smith Chief Executive Officer
/s/ Timothy W. Stonich Executive Vice President-Finance,
Timothy W. Stonich Chief Financial Officer and Secretary
/s/ John R. McGowan Vice President and Controller
John R. McGowan
<PAGE>
/s/ Benjamin F. Bailar Director
Benjamin F. Bailar
/s/ Francisco A. Soler Director
Francisco A. Soler
/s/ Michael J. Zimmerman Director
Michael J. Zimmerman
/s/ Carl Ferenbach Director
Carl Ferenbach
Director
Ricardo Poma
/s/ Eugene B. Connolly, Jr. Director
Eugene B. Connolly, Jr.
/s/ Calvin W. Aurand, Jr. Director
Calvin W. Aurand, Jr.
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS FILED WITH
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
U.S. CAN CORPORATION
<PAGE>
U.S. CAN CORPORATION
EXHIBIT INDEX
Location Of
Document in
Sequential
Exhibit Numbering
No. Description System
5.1 Opinion of Ross & Hardies regarding 11
legality of shares of Common Stock.
23.1 Consent of Arthur Andersen LLP. 13
23.2 Consent of Ross & Hardies
(contained in opinion filed as Exhibit 5.1). 11
24.1 Power of Attorney.* 7
*Power of attorney is contained in signature.
EXHIBIT 5.1
May 20, 1997
U.S Can Corporation
900 Commerce Drive
Oak Brook, Illinois 60521
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion with respect to the
registration by U.S. Can Corporation (the "Company") pursuant to a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"), of an aggregate of 216,667 shares of the Company's
Common Stock, $.01 par value per share (the "Common Stock"), issuable upon the
exercise of options (the "Options") to purchase Common Stock as issued pursuant
to the 1997 Stock Option Plan of U.S. Can Corporation and the U.S. Can
Corporation Equity Incentive Plan, (the "Plans").
In so acting, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as we have deemed relevant
and necessary to form a basis for the opinions hereinafter expressed. In
conducting such examination, we have assumed (i) that all signatures are
genuine, (ii) that all documents and instruments submitted to us as copies
conform with the originals, and (iii) the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof. As to any facts material to this opinion, we have relied
upon statements and representations of officers and other representatives of the
Company and certificates of public officials and have not independently verified
such facts.
Based upon the foregoing, it is our opinion that the Common
Stock issuable upon the proper exercise of Options granted pursuant to the Plans
will be validly issued, fully paid and non-assessable when issued in accordance
with the Plans.
<PAGE>
U.S. Can Corporation
May 20, 1997
Page 2
We express no opinion as to the laws of any jurisdiction other
than the State of Illinois, the United States of America, and, solely with
respect to matters of corporate organization and authority, the General
Corporation Law of the State of Delaware. We are not admitted to the practice of
law in the State of Delaware. Insofar as the foregoing opinion relates to
matters that would be controlled by the substantive laws of any jurisdiction
other than the United States of America, the General Corporation Law of the
State of Delaware, with respect to matters of corporate organization and
authority, or the State of Illinois, we have assumed that the substantive laws
of such jurisdiction conform in all respects to the internal laws of the State
of Illinois.
We hereby consent to the reference to our firm in the
Registration Statement relating to the registration of the shares of Common
Stock issuable upon exercise of the Options described above.
Very truly yours,
ROSS & HARDIES
By: /s/ T. Stephen Dyer
A Partner
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 14,
1997 included in the U.S. Can Corporation Annual Report on Form 10-K for the
year ended December 31, 1996 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Chicago, Illinois
May 15, 1997
