As filed with the Securities and Exchange Commission on June 11, 1998.
Registration No. 333-45371
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1 to
Form S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
U.S. Can Corporation
(Exact name of registrant as specified in its charter)
Delaware 06-1094196
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 Commerce Drive
Oak Brook, Illinois 60523
(630) 571-2500
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
John R. McGowan
Vice President, Chief Financial Officer, Controller and Secretary
U.S. Can Corporation
900 Commerce Drive
Oak Brook, Illinois 60523
(630) 571-2500
(Name, address, including zip code, and 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
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective as determined by
market conditions.
If the only securities registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. |_|
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
registration statement for the same offering. |_|
<PAGE>
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Class of Amount to Offering Price Per Aggregate Offering Amount of
Securities to be be Share (1) Price (1) Registration
Registered Registered Fee (1) (2)
<S> <C> <C> <C> <C>
Common Stock 981,189 $16.90625 $16,588,226 $5,720.08
</TABLE>
($.01 par value)
(1) Solely for the purpose of calculating the registration fee, the offering
price per share, the aggregate offering price and the amount of the
registration fee have been computed in accordance with Rule 457(c) under
the Securities Act of 1933, as amended. Accordingly, the price per share of
Common Stock has been calculated to be equal to the average of the high and
low prices for a share of Common Stock as reported by the New York Stock
Exchange on June 8, 1998, which is a specified date within five business
days prior to the original date of filing of this Registration Statement.
(2) The Registrant has previously paid $2,163.14 of the registration fee.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the Registration Statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there by any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
Preliminary Prospectus
Subject To Completion
June 11, 1998
Prospectus
981,189 Shares
U.S. Can Corporation
Common Stock
($.01 par value)
This Prospectus relates to the offer and sale of up to 981,189 shares of the
common stock, $.01 par value (the "Common Shares" or "Common Stock"), of U.S.
Can Corporation (the "Company"). The Company is filing a registration statement
to permit transactions with respect to all of the restricted shares of Common
Stock which have been awarded to management to date and certain shares of Common
Stock issuable upon exercise of stock options. The Common Shares may be offered
by particular stockholders of the Company (the "Selling Stockholders") from time
to time in transactions on the New York Stock Exchange, in negotiated
transactions, or a combination of such methods of sale, at fixed prices that may
be changed, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices. The Selling
Stockholders may effect such transactions by the sale of the Common Shares to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Stockholders
and/or the purchasers of the Common Shares for whom such broker-dealers may act
as agent or to whom they may sell as principal, or both (which compensation to a
particular broker-dealer might be in excess of customary commissions). The
Selling Stockholders and any broker-dealer who acts in connection with the sale
of Common Shares hereunder may be deemed to be "underwriters" as that term is
defined in the Securities Act of 1933, as amended (the "Securities Act"), and
any commission received by them and profit on any resale of the Common Shares as
principal might be deemed to be underwriting discounts and commissions under the
Securities Act. See "Selling Stockholders" elsewhere in this Prospectus. The
Company will not receive any of the proceeds from the sale of the Common Shares
by the Selling Stockholders.
The Company's Common Stock is traded and quoted on the New York Stock
Exchange under the symbol "USC." On June 10, 1998, the last sale price of the
Common Stock, as reported on the New York Stock Exchange, was $16.9735 per
share.
The Company will bear all expenses (other than underwriting discounts and
selling commissions, and fees and expenses of counsel or other advisors to the
Selling Stockholders) in connection with the registration of the shares of
Common Stock being offered hereby, which expenses are estimated to be
approximately $60,000. See "Selling Stockholders" elsewhere in this Prospectus.
See "Risk Factors" beginning on page 5 for a discussion of certain factors
that should be considered in connection with an investment in the Common Stock.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
-------------------------------------------------
The date of this Prospectus is _______ __, 1998
<PAGE>
AVAILABLE INFORMATION
U.S. Can Corporation (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information filed by the Company, and the
Registration Statement of which this Prospectus forms a part, the exhibits and
schedules thereto and amendments thereof, may be inspected and copied at the
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Room 1024, Judiciary Plaza, Washington, D.C. 20549, and at the following
Regional Offices of the Commission located at 7 World Trade Center, Suite 1300,
New York, New York 10048 and at Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Copies of such material can be obtained from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549 at prescribed rates. The Commission
maintains a web site that contains reports, proxy and information statements and
other information regarding registrants, like the Company, that file
electronically with the Commission and the address of that web site is
"http://www.sec.gov". The Company's Common Stock is quoted on the New York Stock
Exchange, and therefore such reports, proxy statements and other information can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York, 10005.
Additional information regarding the Company and the shares offered hereby
is contained in the Registration Statement on Form S-3 and the exhibits thereto
(collectively, the "Registration Statement") filed with the Commission under the
Securities Act of 1933, as amended (the "Securities Act").
As permitted by the rules and regulations of the Commission, this Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto, to which reference is hereby made.
Statements made in this Prospectus as to the contents of any contract, agreement
or other document referred to is not necessarily complete. With respect to each
such contract, agreement or other document filed as an exhibit to the
Registration Statement, reference is hereby made to the exhibit for a more
complete description of the matter involved, and each such statement will be
qualified in its entirety by such reference. For further information with
respect to the Company and the shares of Common Stock offered hereby, reference
is hereby made to the Registration Statement, and the exhibits thereto.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference the following documents
previously filed with the Commission:
(a) the Company's Annual Report on Form 10-K/A-1, filed May 14, 1998, for
the fiscal year ended December 31, 1997;
(b) the Company's Proxy Statement, filed with the Commission on March 24,
1998, for its annual meeting of stockholders held on April 24, 1998, except for
the report of the Compensation Committee contained therein; and
(c) The Company's Quarterly Report on Form 10-Q, filed May 20, 1998, for the
quarter ended April 5, 1998; and
(d) the description of the Company's Common Stock, $.01 par value (the
"Common Stock"), contained in the Company's Registration Statement on Form 8-A
(File No. 0-21314) filed with the Commission on March 8, 1993, pursuant to
Section 12 of the Exchange Act.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment to this
Registration Statement, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
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<PAGE>
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein, or in any subsequently filed document which also is or is
deemed to be 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 Prospectus.
The Company will provide, without charge, to each person (including any
beneficial owner) to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the information that has been
incorporated by reference in this Prospectus (not including exhibits to such
information unless such exhibits are specifically incorporated by reference into
such
information). Such requests should be directed to: John R. McGowan, Vice
President, Chief Financial Officer, Controller and Secretary, at the Company's
principal executive offices at 900 Commerce Drive, Oak Brook, Illinois 60523,
telephone (630) 571-2500.
UNLESS THE CONTEXT OTHERWISE REQUIRES, REFERENCES IN THIS PROSPECTUS TO THE
"COMPANY" SHALL MEAN U.S. CAN CORPORATION AND ITS SOLE SUBSIDIARY, UNITED STATES
CAN COMPANY, COLLECTIVELY; REFERENCES TO "U.S. CAN" SHALL MEAN UNITED STATES CAN
COMPANY ONLY; REFERENCES TO "USC EUROPE" SHALL MEAN U.S. CAN'S EUROPEAN
SUBSIDIARIES WHICH OPERATE THE COMPANY'S EUROPEAN BUSINESS; REFERENCES TO "CPI
GROUP" SHALL MEAN THREE RELATED COMPANIES: CPI PLASTICS, INC., CP OHIO, INC. AND
CP ILLINOIS, INC.; REFERENCES TO "CROWN" SHALL MEAN CROWN CORK & SEAL COMPANY,
INC.; AND REFERENCES TO THE "COMMON STOCK" SHALL MEAN U.S. CAN CORPORATION'S
COMMON STOCK, PAR VALUE $.01 PER SHARE.
THE COMPANY
The Company is a leading manufacturer of steel and plastic containers for
personal care , household, automotive, paint and industrial products in the
United States and Europe. The Company's sales are generated by four major
groups: (i) U.S. aerosol; (ii) European aerosol; (iii) U.S. paint, plastics and
general line; and (iv) custom and specialty products. The Company believes it
currently has the number one or two market share in the U.S. aerosol, European
aerosol and U.S. paint, plastic and general line product groups. The Company
conducts its principal business operations in the general packaging (non-food
and non-beverage) segment of the metal container industry.
The Company is a supplier to numerous large consumer products manufacturers
in the United States and Europe, including the Sherwin-Williams Company, the
Gillette Company ( "Gillette"), ICI-Glidden, the Procter & Gamble Company,
Reckitt & Coleman Inc., Henkel Kommanditegeselschaft and Elida Gibbs Faberge, a
division of Unilever PLC. In March 1998, the Company acquired a 36.5% equity
interest in Formametal S.A. ("Formametal"), an aerosol can manufacturing company
located in the Province of Buenos Aires, Argentina for approximately $4.6
million.
The Company's principal executive offices are located at 900 Commerce
Drive, Oak Brook, Illinois,
60523 and its telephone number is (630) 571-2500. The Company is a Delaware
corporation.
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<PAGE>
INCLUSION OF FORWARD-LOOKING INFORMATION
CERTAIN STATEMENTS IN THIS REPORT CONSTITUTE "FORWARD-LOOKING STATEMENTS"
WITHIN THE MEANING OF SECTION 27A(i)(1) OF THE SECURITIES ACT. SUCH FORWARD
LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS, UNCERTAINTIES AND OTHER
FACTORS WHICH MAY CAUSE THE ACTUAL RESULTS, PERFORMANCE OR ACHIEVEMENTS OF THE
COMPANY, OR INDUSTRY RESULTS, TO BE MATERIALLY DIFFERENT FROM ANY FUTURE
RESULTS, PERFORMANCE OR ACHIEVEMENTS EXPRESSED OR IMPLIED BY SUCH
FORWARD-LOOKING STATEMENTS. SUCH FACTORS INCLUDE THE FOLLOWING: THE COMPANY'S
ABILITY TO SUCCESSFULLY INTEGRATE OR IMPROVE THE PERFORMANCE OF ACQUIRED
BUSINESSES, THE TIMING AND COST OF PLANT START-UPS AND CLOSURES, THE LEVEL OF
COST REDUCTION ACHIEVED THROUGH RESTRUCTURING, CHANGES IN MARKET CONDITIONS OR
PRODUCT DEMAND, LOSS OF IMPORTANT CUSTOMERS, COMPETITION AND CURRENCY
FLUCTUATIONS. SEE "RISK FACTORS." THESE IMPORTANT FACTORS MAY ALSO CAUSE THE
FORWARD-LOOKING STATEMENTS MADE BY THE COMPANY IN THIS PROSPECTUS TO BE
MATERIALLY DIFFERENT FROM ACTUAL RESULTS ACHIEVED BY THE COMPANY. IN LIGHT OF
THESE AND OTHER UNCERTAINTIES, THE INCLUSION OF A FORWARD-LOOKING STATEMENT
HEREIN SHOULD NOT BE REGARDED AS A REPRESENTATION BY THE COMPANY THAT THE
COMPANY'S PLANS AND OBJECTIVES WILL BE ACHIEVED.
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<PAGE>
RISK FACTORS
Prospective investors should consider carefully the specific factors set
forth below, as well as the other information set forth elsewhere in this
Prospectus before investing in the Common Stock.
COMPETITION
The general packaging segment of the metal container industry, the Company's
primary business, is very competitive. The Company's ability to compete may be
affected negatively by the fact that some of the Company's competitors have
greater financial resources than the Company. The principal methods of
competition in the general packaging industry are price, quality and service.
Price competition in the industry is vigorous and limits the Company's ability
to increase prices. While capital investments have permitted the Company to
reduce costs through operating efficiencies, thereby improving profitability,
there can be no assurance that the Company will be able to continue to improve
profit margins in the future in this manner. The Company's products also face
competition from aluminum, glass and plastic containers. Reduction in the cost
of raw materials in any of these industries could make the Company's products
more expensive in relation to these products and thus less competitive. It is
not generally the practice in the industry for customers to enter into long-term
contracts which require customers to purchase a specified number of containers.
Consequently, the Company faces greater competitive risk than might otherwise be
the case.
CUSTOMER RELATIONSHIPS
The Company is a supplier to numerous large consumer products manufacturers
in the United States and Europe. No single customer accounted for more than 10%
of the Company's total net sales during 1997, 1996 or 1995. The Company's
customer relationships are important to the Company's business and results of
operations. The Company has made and expects to continue to make significant
capital expenditures to meet customer requirements. For example, the Company has
invested approximately $30 million to establish a new plant in the U.K.,
primarily to service the business of a major aerosol can customer. The Company
is currently in the process of qualifying certain products for commercial
production at the new U.K. plant. Management plans to complete qualification and
expand the number of customers supplied from this location. The loss of one or
more large customers, or a material reduction in the quantities of containers
purchased or expected to be purchased by any such customer, could have a
material adverse effect on the Company.
RESTRUCTURING
The Company is undertaking to restructure its business and operations in an
effort to reduce costs. This restructuring includes the previously announced
closure or sale of certain of the Company's facilities, including plants in
Wisconsin, Illinois, Maryland, Florida and California. Additionally, the Company
is streamlining its organizational structure. If the Company's restructuring is
not executed within the expected time frame or if the cost reductions which the
Company expects to achieve through restructuring are less than expected, the
Company's financial results could be adversely affected.
LEVERAGED FINANCIAL POSITION; DEBT SERVICE OBLIGATIONS
The Company is highly leveraged. As of April 5, 1998, the Company's total
debt was approximately $363.3 million and stockholders' equity was approximately
$65.7 million. The Company will require substantial operating cash flow to fund
future payments of principal and interest on its indebtedness, ongoing working
capital needs and capital expenditures.
The Company's leverage has important consequences to stockholders, including
the following: (i) the Company's ability to obtain additional financing in the
future for working capital, capital expenditures, acquisitions, or general
corporate purposes may be impaired; (ii) a significant portion of the Company's
cash flow from operations must be dedicated to the payment of the principal of
and interest on its existing indebtedness; and (iii) the terms of certain of the
Company's indebtedness permit its creditors to accelerate payments upon certain
events of default or a change of control of U.S. Can or the Company.
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<PAGE>
RISK RELATING TO BUSINESS INTEGRATION IN EUROPE AND OTHER ACQUISITIONS
Europe and Argentina remain new geographic markets for the Company. The
Company faces challenges and business integration issues with USC Europe and
Formametal as it has with domestic acquisitions. While the Company believes it
has been successful in integrating the acquisitions it has made in the past,
there can be no assurance that either recent domestic or international
acquisitions, or any future acquisitions, will be integrated as successfully.
FOREIGN CURRENCY FLUCTUATIONS
To the extent that the Company obtains financing in United States dollars
and receives revenues and incurs expenses in the development, construction and
operation of USC Europe in local currencies, the Company will encounter currency
exchange rate risks. While the Company may consider entering into transactions
to hedge the risk of exchange rate fluctuations, there can be no assurance that
the Company will engage in such transactions, or, if the Company decides to
engage in such transactions, that shifts in the currency exchange rates will not
have an adverse effect on the Company's financial condition or its ability to
repay principal or interest on its debt obligations.
COMPLIANCE WITH RESTRICTIVE COVENANTS
The agreement under which the Revolving Credit Facility is provided (the
"Credit Agreement") and the Indenture of Trust, under which the Company's $275
million principal amount of 10 1/8% Senior Subordinated Notes (the "Notes") were
issued, impose financial and other restrictions on the Company and U.S. Can,
including limitations on the incurrence of additional indebtedness, on
investments and limitations on the sale of assets. The Credit Agreement also
requires U.S. Can to make payments of interest and principal, including from the
proceeds of certain asset sales. The Credit Agreement also requires U.S. Can to
maintain certain financial ratios, including interest coverage and ratios of
borrowings to earnings, before interest, taxes, depreciation and amortization
("EBITDA"), and of senior debt to EBITDA. Specifically, the Credit Agreement
required during 1997 that the Company not permit the Total Leverage Ratio (as
described therein) to exceed 4.00 to 1.00, the Maximum Domestic Leverage (as
described therein) to exceed 6.00 to 1.00, the Maximum Senior Leverage (as
described therein) to exceed 2.50 to 1.00, or the Interest Coverage Ratio (as
described therein) to be less than 2.50 to 1.00 (collectively these ratios are
referred to as the "Financial Ratios"). The ratios referred to in the previous
sentence fluctuate during the term of the Credit Agreement.
Primarily as a result of the 1997 special charges and discontinued
operations, the Company failed to comply with certain financial ratios,
including total leverage, maximum domestic leverage and interest coverage,
during the year and at year end. The Company obtained permanent waivers from the
appropriate lenders and the Company and such lenders have amended the Credit
Agreement to better reflect the Company's current configuration and expected
operating results. The Company expects to remain in compliance with the amended
financial ratios in the Credit Agreement through 1998. As of April 5, 1998, U.S.
Can was in compliance with the Credit Agreement and its other long-term debt
agreements.
There can be no assurance that these requirements will be met in the future.
If they are not, the lenders under the Credit Agreement would be entitled to
declare the indebtedness thereunder immediately due and payable. Additionally,
in the event of any material default by U.S. Can under the Credit Agreement, a
material default could similarly be deemed to occur under the terms of the
Notes. Upon the occurrence of a material default under the Indenture, an Event
of Default (as defined in the Indenture) may be declared and principal and
interest may be declared to be immediately due and payable. Additionally, the
trustee for the Notes may pursue any available remedy to collect payment of
principal and interest on the Notes or to enforce performance of any provision
of the Indenture.
ENVIRONMENTAL MATTERS
The groundwater in San Leandro, California, formerly a site of one of the
Company's can assembly facilities, is contaminated at shallow and intermediate
depths, and the area of concern
partially extends to the groundwater below the facility formerly owned by the
Company. The Company
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<PAGE>
has agreed to indemnify the purchaser of this site against environmental claims
related to the Company's prior ownership of the property. In April 1996, the
California Department of Toxic Substances Control ("CDTSC") issued an order to
certain past and present owners of this facility, including U.S. Can, directing
such owners to conduct remediation activities at this site. No specific form of
remediation was indicated. The CDTSC, U.S. Can and its consultants met in May
1998 to discuss the property at the former U.S. Can site. U.S. Can's consultant
presented a model explaining the origin of contaminants found beneath the site.
The CDTSC does not believe this model adequately explains the contamination
found at the site. If the CDTSC's concerns can be adequately addressed, the
CDTSC has stated it is likely no further action would be required. If not, the
CDTSC will require additional testing of the groundwater and development of a
feasibility study. There can be no assurance that the Company will not incur
material costs and expenses in connection with the CDTSC order and remediation
at the site.
The processes involved in the lithography and certain aspects of the
manufacture of steel containers have historically involved the use and handling
of materials now classified as hazardous substances under various laws. These
activities described above may expose owners and operators of facilities
involved in those activities to potential liability for the cost to clean up or
remedy any environmental contamination resulting from such substances relating
to those businesses. It is possible that the Company's insurance coverage may
extend to certain environmental liabilities, but the Company has not been able
to estimate such coverage due to the complexity and uncertainty inherent in such
an estimate. In addition, the Company has obtained indemnities against certain
liabilities in connection with its recent acquisitions. However, the statements
related to environmental liabilities made by the Company in this Prospectus are
made without regard to any potential insurance recovery or recovery of amounts
from indemnitors.
A variety of propellants are used in the Company's principal product,
aerosol cans. These propellants include hydrofluorocarbons, compressed gases
(for example, carbon dioxide and nitrous oxide), and volatile organic compounds
such as propane, butane and isobutane (individually, "VOC" and collectively
"VOCs"). Some United States and European regulations have caused consumer
product manufacturers (the Company's customers) to reformulate either their
products, the propellants used therein or both if they contain VOCs. To date,
most of the Company's customers have been successful in reformulating both their
products and propellants. However, there can be no assurance that all customers
will be able to effect such reformulations or future reformulations, if any, in
either products or propellants with satisfactory results. If customers are
unable to do so, this could have an adverse effect on the market for aerosol
cans.
USC Europe includes five aerosol can-making operations located in the United
Kingdom, France, Spain, Germany and Italy. The Company has retained an
independent environmental consultant to perform an initial environmental
inventory, and the seller provided disclosure on environmental matters relating
to each plant and site. The Company has also performed its own audit of plant
operations and facilities. In connection with this acquisition and with the
Company audit, no subsurface sampling was performed to identify possible
contamination. Several of the facilities have been operating at their locations
for more than ten years and, according to a survey conducted by an independent
environmental consultant, it is likely there have been releases of hazardous
substances at these locations in the past. The operation in Southall, UK and
Schwedt, Germany are in historically industrialized areas, and there is
potential for area-wide contamination involving adjacent sites. There can be no
assurance that there are not significant environmental liabilities unknown to
the Company.
RELIANCE ON TIN-PLATED STEEL
Tin-plated steel accounted for approximately 86% of the Company's total raw
material purchases domestically during the year ended December 31, 1997.
Negotiations with the Company's domestic tin-plated steel supplies occur once
per year. At that time, the prices for tin-plated steel are set for the next
year. There are no limits on the increases negotiated each year, but due to the
competitive nature of the steel industry and the volume of tin-plated steel
purchased by the Company in the United States, the Company has historically
negotiated raw materials price increases which are lower than those publicly
announced by its suppliers. However, no assurance can be given that the Company
will continue to be able to do so in the future. For 1998, the Company's
domestic tin-plated
steel suppliers have announced a price increase of 3%. With respect to the USC
Europe operations,
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<PAGE>
the Company has only limited prior purchasing history with its tin plate
suppliers. No assurance can be given that USC Europe will be able to continue to
purchase its tin plate requirements from such existing sources at favorable
prices. If the Company is unable to pass through future steel price increases to
its customers and if the Company is unable to reduce its costs in other ways,
such increases could have an adverse impact on the Company's operating results.
STOCKHOLDINGS BY DIRECTORS, MANAGEMENT AND CERTAIN OTHER STOCKHOLDERS
Certain of the Company's current large stockholders hold significant
positions in the Common Stock, and some of them are members of the Board of
Directors of the Company. Salomon, the Company's primary financial adviser and
investment bank, owns approximately 9% of the outstanding Common Stock of the
Company. In addition, three of the Company's eight directors beneficially own as
aggregate of approximately 14% of the outstanding Common Stock of the Company.
William J.
Smith, the current Chairman of the Board of the Company, beneficially owns
approximately 3.4% of the outstanding Common Stock of the Company. Ricardo Poma,
a member of the Board of Directors, beneficially owns approximately 7% of the
outstanding Common Stock of the Company. Francisco A. Soler, a member of the
Board of Directors, beneficially owns in the aggregate approximately 3.2% of the
outstanding Common Stock of the Company.
In addition to the shares of Common Stock which are outstanding, as of May
31, 1998, approximately 74,741 shares of restricted stock had been awarded but
not yet issued to management of the Company, and there were options outstanding
to purchase approximately an additional 1,281,500 shares of Common Stock. As of
May 31, 1998, approximately 960,000 of these options are currently exercisable.
The Company has also established a stock purchase plan available to certain
employees of the Company which permits employees to exercise options to acquire
shares of Common Stock at 85% of the market price of the Common Stock.
The Company is filing this registration statement to permit transactions
with respect to certain shares of Common Stock issued as "restricted stock"
under the Company's 1995 Equity Incentive Plan , 1997 Equity Incentive Plan and
1998 Equity Incentive Plan, as well as certain options and the shares of Common
Stock underlying such options which have not previously been subject to a
registration statement of the Company. There can be no assurance as to what
period of time such registration statement will remain effective.
No prediction can be made as to the effect, if any, that future sales, or
the availability of shares of Common Stock for future sales, will have on the
market price prevailing from time to time. Sales of substantial amounts of
Common Stock by the Company or by shareholders described above or the perception
that such sales may occur, could adversely affect prevailing market prices for
the Common Stock.
Due to the relatively large number of shares owned by these stockholders and
certain provisions in the Company's Restated Certificate of Incorporation (the
"Certificate of Incorporation") and Bylaws (the "Bylaws"), it may also be
difficult for other stockholders (including new investors) to cause a change in
control of the Company if such change were opposed by the Company's current
large stockholders and management. See "Risk Factors--Antitakeover Effects."
ANTITAKEOVER EFFECTS
The Company's Certificate of Incorporation and Bylaws contain a number of
provisions which could make the acquisition of the Company, by means of an
unsolicited tender offer, a proxy contest or otherwise, more difficult. Among
other things, (i) the Board of Directors is divided into three classes of
directors, with the classes to be as nearly equal in number as possible, with
the result that approximately one-third of the Board of Directors are elected
each year; (ii) directors may be removed only for cause and only upon the
affirmative vote of holders of at least 80% of the voting power of all the then
outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class; (iii) subject to the rights of any
holders of Preferred Stock, stockholder action can be taken only at an annual or
special meeting of stockholders and may not be taken by written consent in lieu
of a meeting; (iv) stockholders are not permitted to call a special meeting or
to require that the board call a special meeting of stockholders, and the
business permitted to be conducted at any special meeting of stockholders is
limited to the business before the meeting pursuant to the notice
- 8 -
<PAGE>
of meeting given by the Company; (v) an advance notice procedure for
stockholders to make nomination of candidates for election as directors, or to
bring other business before an annual meeting of stockholders of the Company,
has been established under the Bylaws of the Company; (vi) the affirmative vote
of the holders of at least 80% of the voting power of the outstanding shares of
voting stock, voting together as a single class, is required to amend provisions
of the Certificate of Incorporation relating to the prohibition of stockholder
action without a meeting, the number, election and term of the Company's
directors, the filling of vacancies and the removal of directors; and (vii) the
Certificate of Incorporation further provides that the Bylaws may be only
amended by the Board or by the affirmative vote of the holders of at least 80%
of the outstanding shares of voting stock, voting together as a single class.
The description set forth above is intended only to be a summary and is
qualified in its entirety by reference to the Certificate of Incorporation and
the Bylaws of the Company.
In October 1995, the Company's Board of Directors adopted a Shareholder
Rights Plan. The Board declared a distribution of one Right for each share of
Common Stock then outstanding. Each share of Common Stock has an attached Right.
The Rights are not exercisable or detachable from the Common Stock. The Rights
will become exercisable and detachable only following the acquisition by a
person or a group of 15 percent or more of the outstanding Common Stock of U.S.
Can Corporation or following the announcement of a tender or exchange offer for
15 percent or more of the outstanding Common Stock.
The Rights will, if they become exercisable, permit the holders of the
Rights to purchase a certain amount of preferred stock of U.S. Can Corporation
at 50 percent of its value, or to exchange the Rights for U.S. Can Corporation
Common Stock, if the Board permits. Where an acquiring company effects a merger
or other control transaction with U.S. Can Corporation, the Rights may also
entitle the holder to acquire stock of the acquiring company at 50 percent of
its value. If a person or group acquires 15 percent or more of the Common Stock
(or announces a tender or exchange offer for 15 percent or more of the Common
Stock), the acquiring person's or group's Rights become void. In certain
circumstances, the Rights may be redeemed by the Company at an initial
redemption price of $.01 per Right.
HOLDING COMPANY STRUCTURE
The Company is a holding company which derives all of its operating income
from U.S. Can, its sole direct subsidiary. As a holding company, the ability of
the Company to pay dividends on the Common Stock is dependent upon the receipt
of dividends or other payments from U.S. Can. There are restrictions under U.S.
Can's credit agreements on the ability of U.S. Can to transfer funds to U.S. Can
Corporation in the form of cash dividends, loans or advances, and U.S. Can
Corporation's ability to pay dividends, that currently limit U.S. Can
Corporation's ability to pay cash dividends and are likely to limit the future
payment of dividends on the Common Stock.
- 9 -
<PAGE>
RECENT DEVELOPMENTS
In the third quarter of 1997 the Company established a restructuring
provision of $35 million for plant closings and overhead cost reductions. In the
fourth quarter of 1997, the Company, at the direction of its Board of Directors,
employed the assistance of external business consultants to review operations
and explore other avenues for enhancing shareholder value. As a result of this
review, the Company established another restructuring provision of $14.7 million
primarily to include further personnel reductions and the reduction of asset
value associated with equipment used in the businesses the Company has exited or
is in the process of exiting.
The key components of the restructurings include closure of the Racine,
Wisconsin aerosol assembly plant, the Midwest Litho center in Alsip, Illinois,
the Sparrows Point litho center in Baltimore, Maryland, and the California
Specialty plant in Vernalis, California; a writedown to estimated proceeds of
the sale of the Orlando, Florida machine shop plant and the Baltimore, Maryland
specialty and paint distribution business; and organizational changes designed
to reduce general overhead. In July, S.C. Johnson, a major aerosol can customer
and principal customer of the Racine plant, awarded all of its global aerosol
business to a single supplier which is a U.S. Can competitor. Approximately $35
million of annual sales will be affected due to the loss of this customer.
Closure of the two litho plants and Racine assembly plant is due to the loss of
the S.C. Johnson business and increased efficiencies at other plants. The custom
and speciality business of the California plant will be transferred to other
locations.
The components of the restructuring provisions are $28.7 million for the
non-cash write off of assets related to the facilities to be closed or sold,
$12.8 million for severance and related termination benefits for approximately
95 salaried and approximately 260 hourly employees, and $5.9 million for other
related closure costs such as building restoration, equipment disassembly and
future lease payments. In addition to these charges, the Company provided an
additional $2.2 million related to the continuing carrying costs (principally
contractual lease payments) related to the closed Saddle Brook, New Jersey
facility which it has not been able to sublet as originally planned. The write
off of the assets included in the charge primarily relate to fixed assets ($22.9
million) which cannot be transferred or used in the Company's other operations
and unamortized goodwill related to the closed operations. As of December 31,
1997, approximately $4.6 million of the cash severance and other closure costs
had been spent with the majority of the remaining costs expected to be spent in
1998.
The plant closures and sales are expected to be complete by mid-1998.
As part of the business and operational realignments, the Company has sold
its steel pail business. After 1995 consolidation of the Saddle Brook operation,
the Company's steel pail business was conducted entirely from its North
Brunswick, New Jersey facility. Substantially all of the assets of this business
were sold in November 1997 for $1.4 million in cash and notes plus the
assumption of certain liabilities and future payments. 1997 revenues of the
steel pail business through October 5, 1997 were approximately $19 million. In
addition , the Company is actively seeking to sell its commercial metal services
business ("Metal Services"). Metal Services includes two plants in Chicago,
Illinois, one plant in each of Trenton, New Jersey and Brookfield, Ohio and the
closed Midwest Litho plant . 1997, 1996 and 1995 revenues from these operations
were $116 million, $101 million, and $64 million (excluding intra-Company sales
which are expected to be continued by the buyer and including third-party sales
from the closed Midwest Litho plant, which (other than sales to S.C. Johnson)
have been transferred to other Metal Services plants). The Company anticipates
that the sale of Metal Services will be completed in 1998. The Company's
historical financial statements have been restated to reflect these businesses
as discontinued operations.
In aggregate, the Company provided for a $16.0 million ($12.4 million after
income taxes) loss on the sale of these two businesses, primarily representing
the excess of recorded carrying value over the anticipated aggregate net sales
proceeds for the net assets to be sold in the dispositions. As of December 31,
1997, the net assets of Metal Services, excluding the discontinued operations
reserve, included net current assets of approximately $16.0 million and net
other assets of approximately $29.4 million.
- 10 -
<PAGE>
Primarily as a result of the 1997 special charges and discontinued
operations, the Company
failed to comply with certain financial ratios , including total leverage,
maximum domestic leverage and interest coverage, during the year and at year
end. The Company obtained permanent waivers from the appropriate lenders and the
Company and such lenders have amended the Credit Agreement to better reflect the
Company's current configuration and expected operating results. The Company
expects to remain in compliance with the amended financial ratios in the Credit
Agreement through 1998. As of April 5, 1998, U.S. Can was in compliance with the
Credit Agreement and its other long-term debt agreements.
In March, 1998, a subsidiary of the Company acquired a 36.5% equity interest
in Formametal, an aerosol can manufacturing company located in the Province of
Buenos Aires, Argentina for $4.6 million, payable over a 15 month period. In
connection with this investment, Formametal had agreed to purchase approximately
$2.6 million to $3.0 million of manufacturing equipment from the Company, and
the Company has agreed to provide certain technical assistance to Formametal.
The Company has also provided a guaranty in an amount not to exceed $2.0
million, to secure the repayment of certain indebtedness by Formametal. No such
indebtedness was outstanding as of April 5, 1998. This investment is being
accounted for on the equity method.
Paul W. Jones has been elected by the Board of Director as President and
Chief Executive Officer of the Company, effective April 1, 1998. Mr. Jones was
elected as a director on April 24, 1998. Mr. Jones, 49 years old, had been
President and Chief Executive Officer of Greenfield Industries, Inc., a major
tool manufacturer located in Augusta, Georgia, which he joined in 1989. Prior to
that, in a 19-year career with General Electric Company, he held general manager
positions in three G.E. divisions. Former President and Chief Executive Officer
William J. Smith will remain as Chairman of the Board until June 30, 1998, when
he will retire. At that time Mr. Jones will become Chairman and Mr. Smith will
remain a director and Chairman Emeritus.
Timothy W. Stonich, former Executive Vice President--Finance, Chief
Financial Officer and Secretary of U.S. Can, resigned from U.S. Can effective
April 6, 1998, to pursue other personal and business interests. John R. McGowan,
Vice President-Controller, is serving as Chief Financial Officer and Secretary
on an interim basis.
The Company has engaged Arthur Andersen LLP to assist in the implementation
of a Shareholder Value Added ("SVA") program. The adoption of SVA, which creates
a decision-making and compensation environment conducive the optimization of
capital deployment, is designed to maximize shareholder value. The Board of
Directors referred the adoption of SVA to the Compensation Committee of the
Company and it is implementing a pilot SVA compensation program for certain
employees.
- 11 -
<PAGE>
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock of
the Company pursuant to this Prospectus.
SELLING STOCKHOLDERS
The following table sets forth the number of shares of Common Stock owned by
each Selling Stockholder as of May 31, 1998, the number of shares of Common
Stock that may be offered for the Selling Stockholder's account and the number
of shares of Common Stock and, based on the number of shares of Common Stock
owned as of May 31, 1998, the percentage of the shares of Common Stock to be
owned by such Selling Stockholder if they elect to sell all of such Selling
Stockholder's shares of Common Stock.
<TABLE>
<CAPTION>
Shares of Maximum Number of Shares Shares of Common Stock
Common Stock Available to be to be Owned
Owned as Sold Assuming Sale of All
Name of of May 31, Pursuant Hereto Shares
Selling Stockholder Relationship to the Company Available for Sale
Hereunder(1)
Number Percent
<S> <C> <C> <C> <C>
William J. Smith Chairman of the Board 375,663 250,000 375,663 2.9%
Paul W. Jones President, Chief Executive Officer, 30,000 400,000 30,000 *
Director
Frank J. Galvin Executive Vice President, Operations 72,618 30,995 41,623 *
David Ford Senior Vice President International & 15,000 15,000 - 0 - *
President, European Operations
Peter J. Andres Vice President & Treasurer 22,277 10,000 12,277 *
Anthony F. Bonadonna Vice President, Human Resources 10,000 10,000 - 0 - *
Charles E. Foster Former Senior Vice President-- 3,045 3,045 - 0 - *
Custom and Specialty Products
Richard J. Krueger Former Vice President - - MIS 6,200 6,000 200 *
Paul J. Mangiafico Former Vice President -- Eastern Pail 6,661 6,661 - 0 - *
Operations
John R. McGowan Vice President, Controller, Chief 21,308 10,000 11,308 *
Financial Officer, Secretary
Lawrence T. Messina Senior Vice President -- U.S. Aerosol 21,331 15,000 6,331 *
Paint, Plastic and General Line
Gene A. Papes Vice President Sales and Marketing, 11,183 10,613 570 *
Aerosol Containers
Raymond J. Parker Vice President Engineering, Europe 28,722 10,613 18,109 *
William J. Smith, Jr. Former Senior Vice President 3,067 3,067 - 0 - *
Aerosol Operations
Jack J. Tunnell Former Vice President - - Southern 23,038 10,613 12,425 *
and Eastern Operations
David J. West Former Vice President -- Sales and 2,606 2,606 - 0 - *
Mktg, Custom and Speciality Prods.
Thomas J. Yurco Vice President Mat'ls Mgmt & Log. 38,689 10,563 28,126 *
David C. Schuermann Former Vice President and Group 6,188 6,188 - 0 - *
Executive -- Paint, Plastic and
General Line
</TABLE>
- 12 -
<PAGE>
<TABLE>
<CAPTION>
Shares of Maximum Number of Shares Shares of Common Stock
Common Stock Available to be to be Owned
Owned as Sold Assuming Sale of All
Name of of May 31, Pursuant Hereto Shares
Selling Stockholder Relationship to the Company Available for Sale
Hereunder(1)
Number Percent
<S> <C> <C> <C>
William S. Adams Former Vice President and Group 3,127 3,127 - 0 - *
Exec., Metal Services; Consultant
Larry S. Morrison Vice President Mfg. C/S 21,226 15,583 5,643 *
Paul Bertin Man'g Director UK/Can. 5,000 5,000 - 0 - *
Anibal Diaz Man'g Director USC European Ops. 8,000 8,000 - 0 - *
Nicola Valentini Business Director/Voghera 2,500 2,500 - 0 - *
David Pietro Director, Plastic Operations Newnan -0- 6,000 - 0 - *
Robert George Dir. of Ops., Weirton -0- 6,000 - 0 - *
Robert Rush Dir. of Ops., CHICAGO LITHO -0- 6,000 - 0 - *
Donald Hardy Dir. of Ops., CHICAGO MS -0- 6,000 - 0 - *
Calvin W. Aurand Jr. Director 3,633 2,133 1,500 *
Benjamin F. Bailar Director 37,133 2,133 35,000 *
Eugene F. Connelly Jr. Former Director 1,443 443 1,000 *
Carl Ferenbach Director 85,125 2,133 82,992 *
Ricardo Poma (2) Director 833,733 2,133 831,600 6.3%
Francisco A. Soler (3) Director 424,233 2,133 422,100 3.2%
Michael J. Zimmerman Former Director 1,443 443 1,000 *
Louis B. Susman Director 4,690 1,690 3,000 *
The J. Goldress Trust, Consultant designee - 0 - 15,000 - 0 - *
Jerry E. Goldress,
Trustee(4)
Gary Suttle (4) Consultant designee - 0 - 85,000 - 0 - *
</TABLE>
- -------------------------
* The percentage of shares beneficially owned does not exceed 1% of the class.
(1) Based upon the number of Shares of Common Stock outstanding on May 31,
1998. Assumes all stock that may be offered pursuant to this Prospectus is
sold, and no other shares owned by the Selling Stockholders are sold.
(2) Salcorp Ltd. ("Salcorp") is the record holder of 340,000 of these shares
and Katsura, S.A. ("Katsura") is the record holder of 60,000 of these
shares. Mr. Poma is the sole stockholder of both Salcorp and Katsura, and
is therefore deemed the beneficial owner of these shares. The remaining
518,000 shares are owned by Barcel Corporation ("Barcel"). Mr. Poma is the
Trustee for United Capital Trust, a family trust which owns all of the
stock of Barcel. Mr. Poma disclaims the beneficial ownership of 86,400 of
the shares held by Barcel in the United Capital Trust.
(3) 422,100 of these shares are owned beneficially by Windsor International
Corporation ("Windsor"), Atlas World Carriers S.A. ("Atlas") and The World
Financial Corporation S.A. ("World"), corporations affiliated or associated
with Mr. Soler or certain of Mr. Soler's relatives, which hold 181,100,
123,000 and 118,000 shares of Common Stock, respectively. Mr. Soler may be
deemed the beneficial owner of all shares held by Windsor, Atlas and World.
(4) The J. Goldress Trust (the "Goldress Trust") and Mr. Suttle are employees
or affiliates of the Company's consultant, GGG INC.
The Company has agreed to register offers and sales of the shares of
Common Stock and options granted and the underlying shares of Common Stock of
the Selling Stockholders offered hereby under the Securities Act. In this
connection, the Selling Stockholders are required to pay the underwriting
discounts and commissions and transfer
- 13 -
<PAGE>
taxes, if any, associated with the sale of their shares of Common Stock, and the
Company will pay substantially all of the expenses directly associated with the
sale of the shares of Common Stock hereunder.
DIVIDEND POLICY AND RESTRICTIONS
The Company has never declared any cash dividends on the Common Stock and
it does not anticipate paying such dividends in the foreseeable future. The
Company anticipates that it will continue to retain earnings and other cash
resources for use in the operation and expansion of its business. As a holding
company, the ability of the Company to pay dividends is dependent upon the
receipt of dividends or other payments from U.S. Can. The Credit Agreement and
the Indenture limit U.S. Can's ability to pay dividends or otherwise transfer
cash to the Company. Any future determination to pay cash dividends, if
permitted under U.S. Can's debt agreements, will be at the discretion of the
Company's Board of Directors and will be dependent upon the Company's results of
operations, financial condition and other factors deemed relevant by the Board
of Directors.
PLAN OF DISTRIBUTION
The Common Stock may be offered by the Selling Stockholders from time to
time in transactions on the New York Stock Exchange, in negotiated transactions,
or a combination of such methods of sale, at fixed prices that may be changed,
at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The Selling Stockholders may
effect such transactions by the sale of the Common Stock to or through
broker-dealers, and such broker-dealers may receive compensation in the form of
discounts, concessions or commissions from the selling Stockholders and/or the
purchasers of the Common Stock for whom such broker-dealers may act as agent or
to whom they may sell as principal, or both (which compensation to a particular
broker-dealer might be in excess of customary commissions). The Selling
Stockholders and any broker-dealer who acts in connection with the sale of
Common Stock hereunder may be deemed to be "underwriters" as that term is
defined in the Securities Act, and any commission received by them and profit on
any resale of the Common Stock as principal might be deemed to be underwriting
discounts and commissions under the Securities Act.
No prediction can be made as to the effect, if any, that future sales, or
the availability of shares of Common Stock for future sales, will have on the
market price prevailing from time to time.
The Company is filing a registration statement to permit transactions
with respect to all of the restricted shares of Common Stock which have been
awarded to management to date, and certain shares of Common Stock issuable upon
exercise of stock options. However, there can be no assurance as to what period
of time such registrations statement will remain effective, since the Company is
not contractually obligated to file a registration statement with respect to
transactions involving shares of Common Stock owned by the Selling Stockholders
and could terminate its use at any time.
LEGAL MATTERS
The validity of the shares of Common Stock was passed upon for the
Company by Ross & Hardies, Chicago, Illinois. A partner of Ross & Hardies
beneficially owns 12,500 shares of Common Stock.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1996
and 1997, and the related consolidated statements of operations, stockholders'
equity and cash flows for each of the three years in the period ended December
31, 1997, incorporated by reference in this Prospectus have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, which is incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report.
- 14 -
<PAGE>
No dealer, salesman or other person has been authorized to give any information
or to make any representations other than those contained in this Prospectus in
connection with the offer made by this Prospectus and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company. Neither the delivery of this Prospectus nor any sale made
hereunder shall under any circumstances create an implication that there has
been no change in the affairs of the Company since the date hereof. This
Prospectus does not constitute an offer or solicitation by anyone in any
jurisdiction in which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not authorized or in which the
person making such offer or solicitation is not qualified to do so or to anyone
to whom it is unlawful to make such offer or solicitation.
981,189 Shares
U.S. Can
Corporation
Common Stock
($.01 par value)
-----------------
Table Of Contents
Page
Available Information......................................................2
Incorporation of Certain
Documents by Reference.....................................................2
The Company................................................................3
Risk Factors...............................................................5
Recent Developments.......................................................10
Use of Proceeds...........................................................12
Selling Stockholders......................................................12
Dividend Policy and Restrictions..........................................14
Plan of Distribution......................................................14
Legal Matters.............................................................14
Experts...................................................................14
-----------------
----------------------------
Prospectus
Dated ________ __, 1998
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth various fees and estimated expenses in
connection with the sale and distribution of the securities being registered,
all of which are being borne by the Registrant.
SEC registration fee .............................................. $ 5,720.08
Printing expenses ..................................................$ 1,000.00
Legal fees and expenses ........................................... $ 25,000.00
Accounting fees and expenses .......................................$ 25,000.00
Miscellaneous ..................................................... $ 3,279.92
Total.................................... $60,000.00
Item 15. Indemnification of Directors and Officers
Delaware General Corporation Law. The Company has statutory authority to
indemnify the officers and directors. The applicable provisions of the General
Corporation Law of the State of Delaware (the "GCL") state that, to the extent
such person is successful on the merits or otherwise, a corporation may
indemnify any person who was or is a party or who is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
("such Person"), against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement, actually and reasonably incurred by such Person,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. In any threatened, pending or completed action by or in the right
of the corporation, a corporation also may indemnify any such Person for costs
actually and reasonably incurred by him in connection with that action's defense
or settlement, if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the corporation; however, no
indemnification shall be made with respect to any claim, issue or matter as to
which such Person shall have been adjudged to be liable to the corporation,
unless and only to the extent that a court shall determine that such indemnity
is proper.
Under the applicable provisions of the GCL, any indemnification shall be
made by the corporation only as authorized in the specific case upon a
determination that the indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct. Such determination shall be made:
(1) By the Board of Directors by a majority vote of a quorum consisting of
directors who are not parties to such action, suit or proceeding; or
(2) If such a quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion; or
(3) By the affirmative vote of a majority of the shares entitled to vote
thereon.
The Company's 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.
<PAGE>
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 certain circumstances where the
Company does not provide indemnification.
Item 16. Exhibits
Incorporation by
Exhibit Reference
Number Description of Document (if applicable)
5.1 Opinion of Ross & Hardies, dated June 11, 1998,
regarding legality of shares of Common Stock
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ross & Hardies *
24.1 Power of Attorney **
- -------------
* Included in opinion of Ross & Hardies.
** Included in signature pages.
II-2
<PAGE>
Item 17. 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 the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
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 the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if 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.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 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 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) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the Prospectus, to deliver, or
cause to be delivered to each person to whom the Prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the Prospectus to provide such interim financial information.
(3) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or
II-3
<PAGE>
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 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.
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-3 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 June 11, 1998.
U.S. CAN CORPORATION
By: /s/ Paul W. Jones
Paul W. Jones
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Paul W. Jones or John R. McGowan, and each of them, the true and lawful
attorney-in-fact and agent 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 attorney-in-fact
and agent, 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 attorney-in-fact and
agent, or his substitute 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 June 11, 1998.
Signature Title(s)
/s/ Paul W. Jones President, Chief Executive Officer and Director
Paul W. Jones
/s/ William J. Smith Chairman of the Board
William J. Smith
/s/ John R. McGowan Vice President , Chief Financial Officer,
John R. McGowan Controller and Secretary
II-4
<PAGE>
/s/ Benjamim F. Bailar Director
Benjamin F. Bailar
/s/ Francisco A. Soler Director
Francisco A. Soler
/s/ Louis B. Susman Director
Louis B. Susman
/s/ Carl Ferenbach Director
Carl Ferenbach
/s/ Ricardo Poma Director
Ricardo Poma
Director
Calvin Aurand
II-5
<PAGE>
U.S. CAN CORPORATION
EXHIBIT INDEX
Location
Of Document
in
Sequential
Numbering
Exhibit No. Description of Document System
5.1 Opinion of Ross & Hardies regarding legality of shares
of Common Stock (includes consent of Ross & Hardies) 26
23.1 Consent of Arthur Andersen LLP 27
24.1 Power of Attorney * 23
* Included in signature pages.
EXHIBIT 5.1
June 11, 1998
U.S. Can Corporation
900 Commerce Drive
Oak Brook, IL 60523
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
You have requested our opinion with respect to the offering and sale of
Common Stock pursuant to a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Act"), of up to
an aggregate of 981,189 shares of Common Stock, $.01 par value per share (the
"Common Stock") of U.S. Can Corporation (the "Corporation").
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 Corporation and certificates of public
officials and have not independently verified such facts.
Based upon the foregoing, it is our opinion that the Common Stock is
legally issued, fully paid and non-assessable.
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 use of this opinion as Exhibit 5.1 to the
Registration Statement relating to the registration of 981,189 shares of Common
Stock and to the use of our name as your counsel in connection with the
Registration Statement and in the Prospectus forming a part thereof.
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 18, 1998,
included in the U.S. Can Corporation Annual Report on Form 10- K/A-1 for the
year ended December 31, 1997, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen
ARTHUR ANDERSEN LLP
Chicago, Illinois
June 10, 1998
