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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
COMMISSION FILE NUMBER 0-21314
U.S. CAN CORPORATION
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
06-1094196
(I.R.S. EMPLOYER IDENTIFICATION NO.)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
900 COMMERCE DRIVE
OAK BROOK, ILLINOIS 60523
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES, INCLUDING ZIP CODE)
(630) 571-2500
(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
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Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, par
value $0.01.
------------------------------
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") during the preceding 12 months (or for such shorter period that
the registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
As of February 28, 1998, the aggregate market value of the voting stock held by
non-affiliates of U.S. Can Corporation was approximately $182,283,090.
As of February 28, 1998, 13,049,157 shares of Common Stock were outstanding.
------------------------------
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of U.S. Can Corporation's 1998 Proxy Statement are incorporated
in Part III hereof by reference.
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U.S. CAN CORPORATION AND SUBSIDIARIES
FORM 10-K
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
PART I
Item 1. Business.................................................... 4
Item 2. Properties.................................................. 9
Item 3. Legal Proceedings........................................... 10
Item 4. Submission of Matters to a Vote of Security Holders......... 11
PART II
Item 5. Market for the Company's Common Equity and Related
Stockholder Matters......................................... 11
Item 6. Selected Financial Data..................................... 12
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations................................... 13
Item 7A. Quantitative and Qualitative Disclosures About Market
Risk........................................................ 21
Item 8. Financial Statements and Supplementary Data................. 21
Item 9. Changes in and Disagreements With Accountants on Accounting
and Financial Disclosure.................................... 52
PART III
Item 10. Directors and Executive Officers of the Registrant.......... 52
Item 11. Executive Compensation...................................... 52
Item 12. Security Ownership of Certain Beneficial Owners and
Management.................................................. 52
Item 13. Certain Relationships and Related Transactions.............. 52
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form
8-K......................................................... 52
</TABLE>
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INCLUSION OF FORWARD-LOOKING INFORMATION
CERTAIN STATEMENTS UNDER THE CAPTIONS "BUSINESS," "LEGAL PROCEEDINGS,"
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS" AND ELSEWHERE IN THIS REPORT CONSTITUTE "FORWARD-LOOKING STATEMENTS"
WITHIN THE MEANING OF SECTION 21E OF THE EXCHANGE ACT OF 1934, AS AMENDED (THE
"EXCHANGE ACT"). SUCH STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS AND
UNCERTAINTIES WHICH MAY CAUSE THE COMPANY'S ACTUAL RESULTS, PERFORMANCE OR
ACHIEVEMENTS, OR INDUSTRY RESULTS, TO BE MATERIALLY DIFFERENT THAN ANY FUTURE
RESULTS, PERFORMANCE OR ACHIEVEMENTS EXPRESSED OR IMPLIED IN OR BY SUCH
FORWARD-LOOKING STATEMENTS. BY WAY OF EXAMPLE AND NOT LIMITATION, KNOWN RISKS
AND UNCERTAINTIES INCLUDE 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. IN LIGHT OF THESE AND OTHER
RISKS AND UNCERTAINTIES, THE INCLUSION OF A FORWARD-LOOKING STATEMENT IN THIS
REPORT SHOULD NOT BE REGARDED AS A REPRESENTATION BY THE COMPANY THAT ANY FUTURE
RESULTS, PERFORMANCE OR ACHIEVEMENTS WILL BE ATTAINED.
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U.S. CAN CORPORATION AND SUBSIDIARIES
FORM 10-K ANNUAL REPORT
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1997
PART I
ITEM 1. BUSINESS
GENERAL
References in this Report to the "Company" mean U.S. Can Corporation and
its subsidiaries, collectively, unless the context otherwise requires; and
references to "U.S. Can" mean solely United States Can Company and, unless the
context otherwise requires, does not include U.S. Can's foreign subsidiaries
(collectively referred to as "USC Europe"). U.S. Can Corporation is a Delaware
corporation, which owns all of U.S. Can's outstanding capital stock. The
references in this Report to market positions or market share are based on
information derived from annual reports, trade publications and management
estimates which the Company believes to be reliable.
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, plastic 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 Kommanditgeselschaft and Elida Gibbs Faberge, a division of Unilever PLC.
Aerosol
The Company is the leader in sales of aerosol cans in the United States,
accounting for approximately 58% of all aerosol cans sold domestically in 1997.
USC Europe produced approximately 26% of all steel aerosol cans sold in Europe
in 1997 and was the second largest manufacturer of steel aerosol cans in Europe.
Aerosol containers represent the Company's largest product line, accounting for
approximately 60.2% of the Company's total net sales in 1997, and are used to
package personal care, household, automotive, paint and various other products.
The Company offers a wide range of aerosol containers in order to meet its
customers' requirements, including stylized necked-in cans and barrier-pack cans
used for products such as shaving gel.
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. In
connection with this investment, Formametal has agreed to purchase approximately
$2.6 to $3.0 million of manufacturing equipment from the Company, and the
Company has agreed to provide certain technical assistance to Formametal, in
order to modernize and expand Formametal's manufacturing operations.
Paint, Plastic and General Line
Paint, plastic and general line, the Company's second largest product
grouping, accounted for approximately 27.2% of the Company's total net sales in
1997. This product group includes round cans for paint and coatings, oblong cans
for products such as turpentine and charcoal lighter, and plastic pails and
other containers for industrial and consumer products. Management estimates that
U.S. Can is second in market share in the United States, on a unit volume basis,
in steel round and general line containers. Management believes U.S. Can
produced more than 40% of all steel round and general line containers sold in
the United States during 1997.
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Custom and Specialty Products
The Company has a significant presence in the custom and specialty products
market. Its product lines include a wide array of functional and decorative
containers and tins, caps and closures, fitments and stampings, and collectible
items such as metal trading cards and signs. Through the early 1997 acquisition
of the Erie metal business from Owens-Illinois, the Company significantly
increased its seamless container presence and supplemented its closure
capabilities with the addition of the highly decorative unishell product line.
Major customers in these two lines include Northern Labs and Meguiars, car wax
companies which purchase seamless containers, and Avon and Carmex, consumer
product firms which purchase unishell closures. Custom and specialty contributed
sales of approximately $89 million or 12.0% of the Company's total net sales in
1997.
Restructuring Activities
During the second half of 1997, the Company undertook a number of
restructuring activities including the closure of four manufacturing facilities,
certain asset divestitures and organizational changes. A number of factors
contributed to these restructuring activities including the loss of S.C. Johnson
& Son, Inc. ("S.C. Johnson") as an aerosol customer and increased manufacturing
efficiency at other plants. The purposes of these restructuring activities
include cost and debt reductions, as well as an emphasis on the Company's core
product groups. As a result of these restructuring activities, the Company
recorded pre-tax charges of $35.0 million and $14.7 million in the third and
fourth quarters of 1997, respectively, sold its discontinued steel pail business
in November 1997 and plans to sell its discontinued commercial metal services
business.
As part of these restructuring activities, the Company's aerosol assembly
plant in Racine, Wisconsin, lithography centers in Alsip, Illinois and Sparrows
Point, Maryland, and a custom and specialty plant in Vernalis, California have
been or will be closed. In addition, the Company has sold the assets of the
North Brunswick, New Jersey steel pail business and certain other non-core
product lines, and expects to sell (i) the commercial metal services operations
located in Chicago, Illinois; Trenton, New Jersey and Brookfield, Ohio
(collectively, "Metal Services"), (ii) the Orlando, Florida machine engineering
center ("OMEC") and (iii) certain other non-core product lines. During 1997,
1996 and 1995, the discontinued operations generated approximately 15.4%, 16.4%
and 12.2%, respectively, of the Company's total net sales. The Company's
reorganization activities also include reductions in the Company's salaried and
hourly workforce.
For more details on these restructuring activities, see "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Restructuring" and Note (3) of the Notes to Consolidated Financial
Statements included elsewhere in this Report.
SALES
The Company's sales from continuing operations are derived from four major
groups: (i) U.S. aerosol, (ii) European aerosol, (iii) U.S. paint, plastic and
general line, and (iv) custom and specialty products. The following table sets
forth the percentage of sales contributed by each of these groups for each of
the last three fiscal years:
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
U.S. aerosol................................................ 57.9% 54.5% 46.0%
European aerosol (acquired in late 1996).................... -- 5.1 14.2
U.S. paint, plastic and general line........................ 29.6 28.2 27.2
Custom and specialty products, and other.................... 12.5 12.2 12.6
</TABLE>
CUSTOMERS
As of December 31, 1997, in the United States, the Company had
approximately 7,500 customers for its products, as compared to approximately
9,000 and 6,600 customers as of December 31, 1996 and 1995,
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respectively. No single customer accounted for more than 10% of the Company's
total net sales during 1997, 1996 or 1995.
In accordance with industry practice, the Company enters into one-year or
multi-year supply agreements with its major customers. These agreements specify
the number of containers a customer will purchase (or the mechanism for
determining such number), pricing, volume discounts (if any) and, in the case of
many of the Company's multi-year supply agreements, a provision permitting the
Company to pass through announced price increases in certain raw material costs.
In the United States, U.S. Can markets its products primarily through a
sales force comprised of inside and outside sales representatives. The sales
force is comprised of five groups -- Aerosol Sales, Paint, Plastic and General
Line Sales, Metal Services Sales, Custom and Specialty Sales and OMEC Sales. The
Company expects to sell Metal Services and OMEC as part of its restructuring
activities. In total, as of February 1, 1998, the Company had 47 outside sales
representatives and 52 inside sales representatives working in the domestic
market. USC Europe has eight inside sales representatives and eight outside
sales representatives working in the U.K., France, Spain, Germany and Italy.
RAW MATERIALS
The Company's principal raw materials are tin-plated steel ("tin plate")
and coatings and inks used to print its customers' designs and logos onto the
tin plate. U.S. Can purchases tin plate principally from domestic steel
manufacturers, with a minor portion purchased from Asian and European mills.
Both U.S. Can and USC Europe primarily rely on local mills to satisfy their
plants' tin plate requirements, but may also buy tin plate from other suppliers.
Tin plate accounted for approximately 86% of U.S. Can's total domestic raw
material purchases in 1997. Periodically, U.S. Can's major suppliers announce
increases in prices for tin plate and, in October 1997, such suppliers announced
an increase of 3% in the price of tin plate, effective January 1998.
Historically, U.S. Can has been able to negotiate lower price increases than
those announced by its major suppliers. However, there can be no assurance that
U.S. Can will be successful in negotiating lower price increases with respect to
future price increases. Many of U.S. Can's multi-year supply agreements with its
customers permit it to pass through tin plate price increases and, in some
cases, other raw material costs. However, historically, U.S. Can has not always
been able to immediately offset increases in tin plate prices with price
increases on its products.
The Company believes that adequate quantities of tin plate will continue to
be available from steel manufacturers. The individual suppliers of raw materials
accounting for more than 10% of the total steel used by U.S. Can in 1997 were
USX's U.S. Steel group, Weirton Steel Corporation and LTV Corporation. The
percentage of total raw materials supplied to U.S. Can by each of these
suppliers ranged from approximately 28% to 30% for the year ended December 31,
1997.
Periodically, USC Europe's major suppliers have announced price increases
for tin plate. USC Europe has on occasion been able to negotiate lower price
increases than those announced by its major suppliers. However, there can be no
assurance that USC Europe will be successful in negotiating lower price
increases with respect to future price increases. Although supply agreements
with customers often permit USC Europe to pass on announced raw material cost
increases in the form of higher prices, USC Europe has not always been able to
fully offset increases in tin plate prices.
The Company has not historically entered into written supply contracts with
steel makers and believes that other can manufacturers follow the same practice.
The Company allocates its purchases among steel makers on the basis of price and
performance, and uses a structured quality and service rating system which
monitors each supplier's performance on a monthly basis. Typically, the Company
reaches an oral agreement with each of its domestic tin plate suppliers on the
volume of the Company's purchases and pricing once per calendar year, based on
good faith estimates. Pricing is subject to renegotiation if the steel maker's
raw material costs increase or decrease. Since the inception of the Company, the
annual steel price agreements have not been renegotiated for any reason.
Agreements with foreign steel makers are substantially similar.
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The Company's second largest raw material expense is for coatings and inks,
which are used to print designs and logos onto the tin plate prior to assembly.
Coatings and inks accounted for approximately 9% of U.S. Can's domestic raw
material costs in fiscal year 1997 and are purchased from indigenous suppliers.
Based on the ready availability of these materials in the past and the number of
manufacturers which continue to make these products, management does not
anticipate any lack of availability of coatings and inks in the foreseeable
future.
The Company's plastic products are produced from two main types of resin,
which is a petroleum or natural gas product. High density polyethylene resin is
used to make pails, drums and agricultural products. 100% post-industrial and
consumer use, recycled polyethylene or polypropolene resin is used in the
production of the Plastite line of paint cans. The price of resin fluctuates
significantly and management believes that it is standard industry practice, as
well as the Company's contractual right/obligation in many of its supply
agreements, to pass on increases and decreases in resin prices to the customer.
LABOR
As of February 1, 1998, in the United States, the Company employed
approximately 3,757 salaried and hourly employees. At that date, there were a
total of 2,089 employees, or 56% of the Company's total workforce, who were
members of various labor unions, including the United Steelworkers of America
("USWA"), the International Association of Machinists ("IAM"), Local 810 Steel,
Metals, Alloys and Hardware Fabricators and Warehousemen, affiliated with the
International Brotherhood of Teamsters (the "Teamsters"), the Sheet Metal
Workers of America ("SMWA"), Graphic Communications International Union
("GCIU"), and the International Leather Goods, Plastic, Novelty and Service
Workers Union ("ILGPNSWU"). Labor agreements with the IAM (covering
approximately 36 employees) and with the GMP (covering approximately 75
employees), for the Wheeling, West Virginia plant, were ratified in March and
August 1997, respectively. A new agreement with the USWA was entered into at the
end of March 1997, covering approximately 62 employees at U.S. Can's Chicago
Metal Services facility. In August 1997, the Company completed negotiations at
its Burns Harbor, Indiana plant with the GCIU for the renewal of the labor
agreement for approximately 48 employees. In December 1997, the labor agreement
with the GCIU covering approximately 147 employees at the Weirton, West Virginia
plant was extended to February 15, 2002. The Company has also concluded
negotiations to discontinue its operations at its Midwest Litho Center in Alsip,
Illinois, involving the Teamster's unit of approximately 72 employees; the
Racine, Wisconsin plant involving the IAM's unit of approximately 75 employees;
and the Sparrows Point, Maryland plant with the USWA covering approximately 81
employees.
USC Europe employed approximately 721 people at the end of 1997. The
workforce is skilled and committed, as demonstrated over the last six years by
increasing productivity and very limited work stoppage due to labor disputes. In
line with common European practices, all plants are unionized. Labor relations
are excellent at all plants. Each of the USC Europe plants is managed by an
experienced management team, comprised of, in most cases, a general manager,
plant manager, sales manager and finance manager.
The Company has followed a labor strategy designed to enhance its
flexibility and productivity through constructive relations with its employees
and collective bargaining units. Elements of this strategy have included
implementation of flexible staff schedules, plant-level profit sharing plans and
plants staffed entirely by salaried workers. Management believes the 401(k) plan
first negotiated at U.S. Can's Elgin, Illinois plant is unique in the packaging
industry and provides incentives for local performance, while reducing the
Company's exposure to defined benefit plan costs traditionally bargained for by
unions. Currently, unionized workers at nine domestic plants are included in
this plan. In 1997, the ILGPNSWU unit at Newnan, Georgia, the GCIU unit at Burns
Harbor, Indiana, the USWA unit at Chicago Metal Services and employees of the
Alliance, Ohio plant were included in this plan.
Management believes the Company and its employees have benefited from
dealing directly with local unions in order to tailor their contracts to local
employee issues. In the future, management intends to negotiate separately with
the unions at acquired plants to reach individual site contracts with the
respective local unions. This policy has the effect of staggering renewal
negotiations with the various bargaining units.
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Management believes the Company's relations with its employees and their
collective bargaining units are generally good, as evidenced by the fact that
the Company has had only two work stoppages in its history -- a five-day work
stoppage at the Horsham, Pennsylvania, facility in November, 1992, and a one-day
work stoppage at the now-closed San Leandro, California, facility in June, 1988.
COMPETITION
The principal methods of competition in the general packaging industry are
price, quality and service. The Company believes that it competes favorably in
each of these areas. The Company can also compete more effectively by reducing
manufacturing costs and enhancing operating efficiencies through investments in
capital equipment and technology. Price competition in the industry is vigorous
and limits the Company's ability to increase prices. Generally, customers of all
general line containers are demanding more consistent product availability with
shorter lead times. Because aerosol cans are used for personal care, household
and other packaged products, and because they are pressurized, aerosol cans are
more sensitive to quality, can decoration and other consumer-oriented features
than paint and general line containers.
Competition has increased in the general packaging industry as a result of
mature markets, customer consolidations and consolidation within the container
industry. In steel aerosol containers, U.S. Can competes primarily with Crown,
Cork & Seal ("Crown") and BWAY Corporation. Crown is larger and has greater
financial resources than the Company. USC Europe competes in the steel aerosol
market with Crown, Impress, Staehle, and a group of other smaller regional
producers. Domestically, U.S. Can also competes with Advanced Monobloc and two
other smaller firms which manufacture aluminum aerosol containers. In Europe,
USC Europe competes with aluminum aerosol container manufacturers,
Alusuisse-Lonza Holding AG/Boxal and Pechiney International, S.A./Cebal.
In paint and general line, the Company competes primarily with BWAY
Corporation and one smaller, private firm. The Company's products also face
competition from aluminum, glass and plastic containers. In 1995, the Company
entered the plastic container line through the acquisition of Plastite
Corporation ("Plastite"). In 1996, the Company expanded its plastics operations
by acquiring three related plastic molding firms (the "CPI Group"). Major
plastic container competitors include Berry Plastics, Letica, Plastican, Nampac
and Norton.
Because shipping costs associated with the delivery of cans from outside
major geographical markets would add a significant additional component of cost,
the industry has historically had relatively little competition from
manufacturers outside these markets. Management believes that this condition is
unlikely to change in the foreseeable future. Management also believes that, due
to the substantial transportation costs involved in shipping empty cans over
long distances, its large number of facilities and their strategic locations
near customers are a major competitive advantage.
Management believes that the following factors benefit the Company from a
competitive standpoint: (i) reputation for quality and service; (ii)
strategically located manufacturing facilities and a strong sales force; (iii)
substantial capital investment in new technology such as necked-in and barrier
package designs, high-speed presses and assembly equipment, and
computer-controlled lithography; (iv) quality control systems, including
statistical process control and electronic "vision" error detection; (v) breadth
of product line; (vi) in-house decorating and lithography capacity; and (vii) a
successful labor strategy.
Custom and specialty products compete with a large number of container
manufacturers and closure suppliers; it does not compete across its entire
product spectrum with any single company. Competition is based principally on
price, quality and service, geographical proximity to customers and production
capability, with varying degrees of intensity according to the specific product
category. The Company believes it has the ability to compete favorably in each
aspect of the custom and specialty business as market conditions may require.
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ITEM 2. PROPERTIES
The Company has 35 manufacturing facilities located in 12 states in the
U.S. and in five countries abroad, many of which are strategically positioned
near principal customers and suppliers. In Europe, USC Europe has production
locations in the five largest regional markets, including the United Kingdom,
France, Spain, Italy and Germany. The following table sets forth certain
information with respect to these plants as of February 28, 1997.
<TABLE>
<CAPTION>
LOCATION SIZE STATUS FUNCTION
-------- ---- ------ --------
<S> <C> <C> <C>
UNITED STATES
Elgin, IL............... 481,346 sq. ft. Owned Manufacture and assembly of a full range of
aerosol cans, round gallons and oblong cans
of all sizes; Technical Center.
Chicago, IL............. 266,269 sq. ft. Owned Steel slitting and shearing, coating and
lithography.
Tallapoosa, GA.......... 228,080 sq. ft. Owned Manufacture and assembly of a full range of
aerosol cans and round gallons.
Commerce, CA............ 215,860 sq. ft. Leased Manufacture and assembly of aerosol cans,
oblong cans and round quarts and gallons.
Sparrows Point, MD*..... 211,670 sq. ft. Leased Steel shearing, coating and lithography.
Glen Dale, WV........... 210,000 sq. ft. Owned Manufacture of metal caps and closures, and
custom and specialty products.
Burns Harbor, IN........ 190,000 sq. ft. Leased Steel shearing, coating and lithography.
Hubbard, OH............. 174,970 sq. ft. Owned Manufacture and assembly of a full range of
round and general line cans.
Baltimore, MD........... 150,000 sq. ft. Leased Assembly of round cans.
Horsham, PA............. 132,000 sq. ft. Owned Assembly of aerosol cans and manufacture of
ends.
Racine, WI*............. 130,000 sq. ft. Owned Assembly of aerosol cans.
Brookfield, OH.......... 129,900 sq. ft. Leased Steel slitting, shearing and processing.
Green Bay, WI........... 127,000 sq. ft. Leased Assembly of aerosol cans.
Baltimore, MD (Steeltin
Plant)................ 123,000 sq. ft. Owned Assembly of specialty cans.
Columbiana, OH.......... 121,000 sq. ft. Leased Manufacture of custom and specialty
products.
Morrow, GA.............. 110,160 sq. ft. Leased Manufacture of plastic containers.
Weirton, WV............. 108,000 sq. ft. Leased Steel shearing, coating and lithography.
Danville, IL(1)......... 100,000 sq. ft. Owned Assembly of aerosol cans and manufacture of
ends.
Trenton, NJ............. 98,700 sq. ft. Leased Steel shearing, coating and lithography.
Newnan, GA.............. 95,000 sq. ft. Leased Manufacture of plastic pails and other
products.
Fern Park, FL........... 90,081 sq. ft. Leased Manufacture and overhaul of packaging
equipment and parts.
Dallas, TX.............. 87,000 sq. ft. Owned Manufacture of round cans.
Vernalis, CA*........... 74,000 sq. ft. Leased Manufacture of custom and specialty
containers.
Alsip, IL............... 64,349 sq. ft. Leased Assembly of round flat-top and screw-neck
cans.
Warren, OH.............. 58,000 sq. ft. Leased Coating and lithography.
Alliance, OH............ 52,000 sq. ft. Leased Manufacture of plastic products.
Baltimore, MD (Columbia
Specialty)............ 45,000 sq. ft. Leased Manufacture of specialty tins and
components.
New Castle, PA.......... 22,750 sq. ft. Owned Coating and lithography.
Tallapoosa, GA.......... 21,400 sq. ft. Owned Sporri Development Center; assembly of a
variety of specialty cans, including
small-size aerosol cans.
EUROPE
Merthyr Tydfil, UK...... 320,000 sq. ft. Leased(2) Manufacture and assembly of aerosol cans.
Southall, UK............ 253,000 sq. ft. Owned Manufacture and assembly of aerosol cans.
Laon, France............ 220,000 sq. ft. Owned(3) Manufacture and assembly of aerosol cans.
</TABLE>
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<TABLE>
<CAPTION>
LOCATION SIZE STATUS FUNCTION
-------- ---- ------ --------
<S> <C> <C> <C>
Reus, Spain............. 182,250 sq. ft. Owned Manufacture and assembly of aerosol cans.
Voghera, Italy.......... 45,200 sq. ft. Leased Assembly of aerosol cans.
Schwedt, Germany........ 35,500 sq. ft. Leased Assembly of aerosol cans.
</TABLE>
- -------------------------
* These facilities are in the process of being closed due to the Company's
restructuring activities and are expected to be sold or sublet.
(1) Subject to a mortgage in favor of The First National Bank of Danville.
(2) The property at Merthyr Tydfil is subject to a 999-year lease with a
pre-paid option to buy which becomes exercisable in January 2007. Up to that
time, the landowner may require the Company to purchase the property for a
payment of 1L British Sterling.
(3) Subject to a mortgage in favor of Societe Generale.
Currently, the Company's facility at Merthyr Tydfil is subject to a pledge
of the leasehold interests and personal property located thereon to secure
amounts outstanding under a credit agreement entered into with General Electric
Capital Corporation.
In addition to its manufacturing facilities, the Company owns approximately
22 acres of undeveloped land in Raeford, North Carolina; leases 37,734 square
feet of office space in Oak Brook, Illinois to house its corporate headquarters;
leases approximately 102,400 square feet of office and warehouse space in
Baltimore, Maryland to house a custom and specialty sales office and
distribution center; and owns a 145,000 square-foot building in Baltimore,
Maryland, where Alltrista Metal Services ("AMS") conducted metal service
operations. The Company has agreed to sublet approximately 58,200 square feet of
office and warehouse space in Saddle Brook, New Jersey, and expects to sell or
lease a former manufacturing facility also located in Saddle Brook.
Management believes the Company's facilities are adequate for its present
needs and that its properties are generally in good condition, well-maintained
and suitable for their intended use. All of the manufacturing plants described
in the table above are operating in regular service with one or more shifts per
day. The Company continuously evaluates the composition of its various
manufacturing facilities in light of current and expected market conditions and
demand. While no plans currently exist to further consolidate plant operations,
such actions may be deemed appropriate in the future.
ITEM 3. LEGAL PROCEEDINGS
The Company is involved in a number of legal proceedings arising in the
ordinary course of business consistent with past experiences. Management does
not believe that these proceedings will have a material adverse effect on the
business or financial condition of the Company either individually or in the
aggregate. In addition, the Company is involved in the following 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. In connection with sales in 1994 and
1995 of land on which this facility was located, the Company agreed to indemnify
the purchaser against environmental claims related to the Company's 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.
Consultants retained by the Company to evaluate the site concluded that the
Company's operations had not impacted the groundwater at this site and that the
contamination detected at this site resulted from migration from off-site,
upgradient sources. However, in January 1998, the CDTSC informed the Company
that it disagrees with these conclusions and wants the Company to conduct
extensive additional testing. With the CDTSC's consent, the Company is preparing
an appeal to the CDTSC Director. To date, there has been no resolution of this
matter between the Company and the CDTSC, although discussions are
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<PAGE> 11
ongoing. 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 National Labor Relations Board ("NLRB") has issued a decision finding
the Company in violation of certain sections of the National Labor Relations Act
as a result of the Company's closure of certain facilities in 1991 and failure
to offer inter-plant job opportunities to affected employees. The Company has
appealed to an Administrative Law Judge of the NLRB and is awaiting a decision.
Management does not believe that the resolution of this matter will have a
material adverse effect on the Company's financial condition or results of
operations.
For a discussion of Superfund sites in the U.S., see "Management's
Discussion and Analysis of Financial Condition and Results of
Operations -- Environmental Matters."
The litigation between U.S. Can and Continental Holdings Inc. concerning
U.S. Can's 1987 acquisition of the general packaging business of Continental Can
Company, USA, Inc. has been settled by the exchange of mutual releases and
dismissal of all litigation with prejudice, without payment of any monies by
either party.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders, through the
solicitation of proxies or otherwise, during the fourth quarter of 1997.
PART II
ITEM 5. MARKET FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
MARKET PRICE AND DIVIDEND POLICY
U.S. Can Corporation's common stock, par value $0.01 per share (the "Common
Stock"), has been listed on the New York Stock Exchange since April 7, 1995,
trading under the symbol "USC." Prior to that time, the Common Stock was
included in the Nasdaq National Market under the trading symbol "USCN." The
table below sets forth the high and low bid information for the Common Stock for
each quarter of 1996 and 1997.
<TABLE>
<CAPTION>
QUARTER HIGH LOW
------- ---- ---
<S> <C> <C>
First quarter, 1996........................................ $17.375 $13.250
Second quarter, 1996....................................... 18.250 16.125
Third quarter, 1996........................................ 16.375 14.500
Fourth quarter, 1996....................................... 17.250 15.250
First quarter, 1997........................................ 17.750 14.500
Second quarter, 1997....................................... 17.250 14.000
Third quarter, 1997........................................ 17.375 12.875
Fourth quarter, 1997....................................... 18.750 15.750
</TABLE>
As of February 28, 1998, there were 637 record holders of the Common Stock.
No cash dividends have been declared on the Common Stock by U.S. Can Corporation
during 1996 or 1997, and U.S. Can Corporation has no intention to pay cash
dividends in the foreseeable future. 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.
SALES OF UNREGISTERED SECURITIES
In February 1997, 270,000 shares of restricted Common Stock were awarded to
officers of the Company, as compensation. In June 1997, 62,000 shares of
restricted Common Stock were awarded to officers of the Company and U.S. Can, as
compensation. In October 1997, 3,101 shares of restricted Common Stock were
11
<PAGE> 12
awarded to outside directors of the Company, in lieu of part of these directors'
annual retainer. In December 1997, 15,000 shares of restricted Common Stock were
awarded to an executive officer of U.S. Can, as compensation. Each of these
awards was exempt pursuant to Section 4(2) of the Securities Act of 1933, as
amended (the "Act").
ITEM 6. SELECTED FINANCIAL DATA
The following selected historical financial data has been derived from the
Company's consolidated financial statements and should be read in conjunction
with the audited Consolidated Financial Statements and the Notes thereto, for
the years ended December 31, 1995, 1996 and 1997, contained in Item 8 of this
Report, and "Management's Discussion and Analysis of Financial Condition and
Results of Operations," contained in Item 7 of this Report.
U.S. CAN CORPORATION AND SUBSIDIARIES
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31,
--------------------------------------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
(000'S OMITTED, EXCEPT PER SHARE DATA AND PERCENTAGES)
<S> <C> <C> <C> <C> <C>
OPERATING DATA:
Net sales................................. $440,595 $532,652 $549,758 $636,535 $738,933
Cost of sales............................. 377,968 451,684 476,877 543,438 647,719
-------- -------- -------- -------- --------
Gross income............................ 62,627 80,968 72,881 93,097 91,214
Selling, general and administrative
expenses................................ 19,818 24,087 26,214 27,816 32,421
Special charges(a)........................ -- -- 8,000 -- 49,660
-------- -------- -------- -------- --------
Operating income........................ 42,809 56,881 38,667 65,281 9,133
Interest expense on borrowings............ 19,576 21,830 24,513 28,387 36,867
Amortization of deferred financing
costs................................... 1,052 1,307 1,543 1,518 1,738
Consolidation expense..................... 622 463 327 -- --
Other expense............................. 648 1,117 1,349 1,468 1,851
-------- -------- -------- -------- --------
Income (loss) from continuing operations
before income taxes, minority interest
and extraordinary item.................. 20,911 32,164 10,935 33,908 (31,323)
Provision (benefit) for income taxes...... 9,018 13,474 4,826 14,184 (11,863)
-------- -------- -------- -------- --------
Income (loss) from continuing operations
before minority interest and
extraordinary item...................... 11,893 18,690 6,109 19,724 (19,460)
Minority interest(b)...................... (608) -- -- -- --
-------- -------- -------- -------- --------
Income (loss) from continuing operations
before extraordinary item............... 11,285 18,690 6,109 19,724 (19,460)
Discontinued operations, net of income
taxes(c)
Net loss from discontinued operations... (361) (120) (2,170) (2,723) (159)
Net loss on sale of businesses.......... -- -- -- -- (12,413)
Extraordinary item -- loss from early
extinguishment of debt, net of income
taxes................................... (3,402) -- -- (5,250) --
-------- -------- -------- -------- --------
Net income (loss)......................... $ 7,522 $ 18,570 $ 3,939 $ 11,751 $(32,032)
-------- -------- -------- -------- --------
DILUTED PER SHARE DATA(D):
Income (loss) from continuing operations
before extraordinary item............... $ 1.23 $ 1.74 $ 0.48 $ 1.51 $ (1.49)
Extraordinary item........................ (0.37) -- -- (0.40) --
Discontinued operations................... (0.04) (0.01) (0.17) (0.21) (0.96)
-------- -------- -------- -------- --------
Net income (loss)......................... $ 0.82 $ 1.73 $ 0.31 $ 0.90 $ (2.45)
-------- -------- -------- -------- --------
Weighted averages shares outstanding
(000's)................................. 9,212 10,714 12,839 13,090 13,048
-------- -------- -------- -------- --------
OTHER DATA:
Capital expenditures...................... $ 22,010 $ 32,516 $ 31,379 $ 48,630 $ 54,030
Gross margin.............................. 14.2% 15.2% 13.3% 14.6% 12.3%
Operating margin.......................... 9.7% 10.7% 7.0% 10.2% 1.2%
</TABLE>
12
<PAGE> 13
<TABLE>
<CAPTION>
AS OF DECEMBER 31,
--------------------------------------------------------
1993 1994 1995 1996 1997
---- ---- ---- ---- ----
(000'S OMITTED)
<S> <C> <C> <C> <C> <C>
BALANCE SHEET DATA:
Current assets............................ $ 99,551 $134,279 $147,185 $232,564 $230,619
Total assets.............................. 306,588 400,724 455,436 643,616 633,704
Current liabilities....................... 70,171 95,475 98,237 126,934 149,848
Total debt (including current
maturities)............................. 182,822 200,646 244,576 375,810 376,141
Total stockholders' equity (deficit)
(e)..................................... 18,509 74,910 81,827 96,785 62,313
</TABLE>
- -------------------------
(a) The Company recorded a pretax charge of approximately $8.0 million in the
fourth quarter of 1995 related to actions taken to reduce overhead and to
eliminate redundant manufacturing capacity. In 1997, the Company committed
to significant business and operational realignments that resulted in a
pre-tax restructuring provision of $49.7 million. The restructuring includes
the closure of several of the Company's domestic facilities and a
significant work force reduction. See Note 3 of the "Notes to Consolidated
Financial Statements."
(b) Minority interest represents participation of the former holder of U.S.
Can's Class 1 Preferred Stock, by virtue of its accretion right, in the
earnings of U.S. Can. All remaining shares of Class 1 Preferred Stock were
redeemed in connection with the Company's initial public equity offering in
March 1993.
(c) In 1997, the Company sold its steel pail business and committed to a plan to
sell its commercial Metal Services business. In aggregate, the Company
provided for a $12.4 million after tax loss on the sale of these two
businesses, primarily representing the excess of recorded carrying value
over the anticipated net sales proceeds for the net assets to be sold in the
dispositions. See Note 3 of the "Notes to Consolidated Financial
Statements."
(d) Dilutive net income (loss) per common share amounts are computed by dividing
net income applicable to common stock (computed as net income (loss) less
dividends earned during the period on the Company's preferred stock and
accretion on the Company's redeemable warrants, such stock and warrants
outstanding only through March 1993) by the weighted average common shares
and common equivalent shares outstanding during the periods. Such average
shares include common shares outstanding and common shares subject to
outstanding dilutive stock options and stock purchase warrants.
(e) The significant increases in stockholders' equity in 1994 was primarily due
to the Company's equity offering in November 1994, which resulted in a net
increase of $34.2 million.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Since 1995, the Company has made a number of acquisitions. In 1995, the
Company acquired the stock of Plastite, Hunter Container Corporation ("Hunter")
and Metal Litho International and the assets of related partnerships ("MLI"), as
well as certain assets of Prospect Industries Corporation ("Prospect"). The
Company sold the assets and operations formerly owned by Prospect in November
1997. In April 1996, the Company acquired the assets of AMS. The stock of the
CPI Group and the stock and assets of USC Europe were acquired in August 1996
and September 1996, respectively. The former MLI and AMS operations have been
reclassified as discontinued operations in the financial statements included
elsewhere in this Report and are included in Metal Services, which the Company
is actively attempting to sell.
RESULTS OF OPERATIONS
In the third quarter, the Company established a restructuring provision of
$35 million for plant closings and overhead cost reductions. In the fourth
quarter, 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.
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<PAGE> 14
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 specialty business of the California plant will be transferred to other
locations.
As part of the business and operational realignments, the Company has sold
its steel pail business. After the 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 plus the assumption of
certain liabilities and future payments. 1997 revenues of the steel pail
business through October 5, were approximately $19 million. In addition, the
Company is actively seeking to sell 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.
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.
The Company continuously evaluates the composition of its various
manufacturing facilities in light of current and expected market conditions and
demand. While no formal plans currently exist to further consolidate plant
operations, such actions may be deemed appropriate in the future.
For further details on the restructuring provisions and the discontinued
operations, see Note (3) of the Notes to Consolidated Financial Statements.
The following comparisons exclude the impact of the steel pail and metal
services businesses.
YEAR ENDED DECEMBER 31, 1997, AS COMPARED TO YEAR ENDED DECEMBER 31, 1996
Net Sales
Net sales for the year ended December 31, 1997 were $738.9 million, an
increase of 16% over the corresponding period in 1996. Sales gains were the
result of the Company's acquisition of USC Europe in September 1996, and modest
growth in domestic steel paint and oblong unit volumes. The USC Europe
acquisition accounted for nearly 71% of the total year-to-year increase.
Gross Income
Gross income of $91.2 million was down $1.9 million or 2% from 1996. Gross
margin declined to 12.3% in 1997 versus 14.6% in 1996. Competitive pricing
pressure and increased steel costs compressed margins. Plant start-up costs,
primarily in Europe, also adversely impacted gross income in 1997.
14
<PAGE> 15
Operating Income
Operating income in 1997 before the restructuring provision was $58.8
million versus $65.3 million last year. Lower gross margins adversely impacted
1997 operating income. Selling, general, and administrative expenses remained
flat at 4.3% of net sales through 1996 and 1997.
Including the impact of the $49.7 million restructuring provision, the
Company reported operating income of $9.1 million for 1997. Due to the timing of
the plant closings and other cost reduction actions included in the
restructuring provision, no material benefit was realized in the 1997 results.
Interest and Other Expenses
Interest expense on borrowings increased $8.5 million in 1997 as compared
to 1996, due to increased borrowing, primarily to finance the Company's
acquisition of USC Europe, and the refinancing of shorter-term, lower-rate bank
debt with a portion of the proceeds of the 10 1/8% Notes issued in October 1996.
Other expenses were flat year-to-year as a percent of net sales.
Net Income (Loss)
Net loss from continuing operations in 1997 was $19.5 million or $1.49 per
share, versus net income of $19.7 million or $1.51 per share in 1996. The
restructuring provision recorded in 1997 had a negative after-tax effect of
$29.7 million or $2.27 per share.
Including the $10.4 million, or $0.80 per share, loss related to the
divested steel pail business, and the $2.1 million or $0.16 per share loss on
the discontinued metal service business, net loss for 1997 was $32.0 million or
$2.45 per share, versus 1996 net income of $11.8 million or $0.90 per share
(including discontinued operations loss of $2.7 million and extraordinary loss
on debt extinguishment of $5.2 million after-tax).
YEAR ENDED DECEMBER 31, 1996, AS COMPARED TO YEAR ENDED DECEMBER 31, 1995
Net Sales
Net sales for the year ended December 31, 1996 totaled $636.5 million, an
increase of 15.7% over the corresponding period in 1995. Companies acquired by
U.S. Can during the first three quarters of 1996, including USC Europe, added
approximately $45.4 million to sales in 1996. The Company has also realized
additional sales as a result of the Plastite and Hunter acquisitions in 1995 and
the CPI Group and USC Europe acquisitions in 1996. Sales gains for the year also
reflect volume growth in substantially all of the Company's products.
Gross Income
Gross income of $93.1 million for 1996 was $20.2 million, or 27.7%, higher
than gross income for 1995. The 1996 acquisitions were the primary reason for
this increase. Volume gains in 1996 with stable costs contributed to improved
performance. Gross margin increased to 14.6% of net sales in 1996 from 13.3% of
net sales in 1995 despite a significant advance purchase of steel in late 1994
which resulted in the Company not realizing the full impact of the 1995 steel
price increase in the first quarter of 1995. In 1995, margins, as well as sales,
were negatively impacted by weak second half demand. In 1996, the fourth quarter
and full year were impacted by the somewhat lower margins of acquired businesses
and seasonality of the new European operations. However, these were more than
offset by improved sales and margins in core operations.
Operating Income
The Company's operating income of $65.3 million for 1996 was $26.6 million,
or 68.8%, higher than operating income for 1995. Income was favorably impacted
by increased sales, improved margins and the effect of an overhead reduction
program begun in late 1995. Operating income as a percent of net sales was 10.2%
for 1996 as compared to 7.0% for 1995. The Company experienced an increase in
selling, general and
15
<PAGE> 16
administrative expenses during 1996, primarily due to acquisitions. However,
these expenses as a percent of net sales decreased from 4.8% of net sales in
1995 to 4.3% of net sales in 1996.
Interest and Other Expenses
Interest expense on borrowings increased by approximately $3.9 million in
1996 as compared to 1995. The increase is a result of increased borrowing,
primarily to finance the Company's acquisitions and the refinancing of shorter
term bank debt with a portion of the proceeds of the 10 1/8% $275 million note
issue in October 1996. Amortization of deferred financing costs and other
expense remained flat in 1996 as compared to 1995. The Company believes more
permanent long-term capital is the most appropriate means to finance
acquisitions, and, accordingly, issued the Notes to repay short-term acquisition
debt, in addition to the 13 1/2% Notes. As a result, repayment of lower cost,
shorter term debt with the Note proceeds has generated somewhat higher interest
expense even though a portion of the proceeds was used to redeem higher cost
13 1/2% Notes.
Net Income
For 1996, income before discontinued operations and extraordinary item was
$19.7 million, more than three times the $6.1 million reported in 1995. During
1996, the Company redeemed its 13 1/2% Notes with the proceeds from the issuance
of the 10 1/8% Notes. The early extinguishment of the 13 1/2% Notes resulted in
an extraordinary charge of $5.2 million (net of income taxes of $3.5 million)
primarily representing a prepayment premium and the write off of related
unamortized deferred financing costs. Earnings per share before discontinued
operations and extraordinary item were $1.51 for the year. Final net income was
$11.8 million ($0.90 per share) in 1996 compared to net income of $3.9 million
($0.31 per share) in 1995.
LIQUIDITY AND CAPITAL RESOURCES
During the last three fiscal years, the Company has met its liquidity needs
primarily through internally generated cash flows, borrowings under its credit
lines and proceeds of securities offerings. Principal liquidity needs have
included operations, repayment of indebtedness and related interest, capital
expenditures and acquisitions. Cash flow from operations has increased from
$24.8 million in 1995 to $30.1 million in 1996 and $64.4 million in 1997,
primarily due to improved working capital management in 1997. 1997 results also
include $5.7 million of payments related to the Company's recent restructuring
activities, including costs related to its discontinued operations. The Company
anticipates spending another $12.5 million of such costs in 1998. The remainder
of the restructuring provision primarily consists of non-cash items associated
with the write off of assets.
On October 17, 1996, U.S. Can Corporation issued $275 million of 10 1/8%
Notes in a private placement. Of the $268.1 million net proceeds to the Company
from the issuance, (i) approximately $109.7 million was deposited in an escrow
account and used to redeem U.S. Can's 13 1/2% Notes on January 15, 1997, and pay
the remaining interest thereon; (ii) approximately $67.3 million of the net
proceeds was used to retire acquisition-related borrowings; and (iii)
approximately $91.1 million of the net proceeds was used to repay a portion of
the borrowings outstanding under the Company's working capital line. In March
1997, the Company completed a registered exchange of the private Notes for
freely transferable Exchange Notes (the "Exchange Offer"). All of the Notes were
tendered in the Exchange Offer and, as a result, only the Exchange Notes remain
outstanding.
In April 1997, U.S. Can entered into an Amended and Restated Credit
Agreement with a group of banks (the "Credit Agreement"), providing a $110
million revolving credit facility (the "Revolving Credit Facility"). In February
1998, the Revolving Credit Facility was reduced to $80 million. Obligations
under the Credit Agreement are secured by U.S. Can's domestic accounts
receivable and inventory. Funds available under the Revolving Credit Facility
may be used for general corporate purposes (including ongoing working capital
needs and funds for permitted acquisitions). The Credit Agreement has a
five-year maturity and amended and restated the April 1994 credit agreement (the
"1994 Credit Agreement"). The Credit Agreement permits the Company to borrow
funds available under the Revolving Credit Facility in U.S.
16
<PAGE> 17
Dollars, British Pounds or French Francs. The weighted average interest rate on
this indebtedness at December 31, 1997 was 6.7%.
As of December 31, 1997, the Company's total debt was approximately $378.4
million and scheduled principal payments (excluding principal due on the
Revolving Credit Facility) were approximately $9.5 million, $9.0 million, $6.0
million, $7.7 million and $40.4 million for the years 1998, 1999, 2000, 2001 and
2002, respectively. As of March 18, 1998, U.S. Can had borrowings of $23.9
million outstanding under the Credit Agreement, $12.5 million in letters of
credit had been issued pursuant thereto and $43.6 million of unused credit
remained available thereunder.
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 December 31, 1997,
U.S. Can was in compliance with the Credit Agreement and its other long-term
debt agreements.
The Company's capital expenditures totaled $54.0 million in 1997, $48.6
million in 1996 and $31.4 million in 1995. Of the total capital expenditures in
1997 and 1996, approximately $30 million relates to the start-up of the Merthyr
Tydfil, UK plant. In each year, these capital expenditures also included
investments in new can production lines, paint can line enhancements, advanced
lithography technology and computer integrated manufacturing, to increase
manufacturing capacity, reduce changeover times and improve productivity. The
Company has also invested capital in plant expansions and the installation of
state-of-the-art end-making presses and automated packaging equipment.
The Company expects to spend approximately $100 to $150 million on capital
expenditures during the five years commencing in 1998, in an amount of
approximately $20 million in 1998 and in roughly equal amounts of approximately
$20.0 to $32.5 million in each year thereafter. The Company makes capital
expenditures principally for improvements in the productivity and quality of
lithography operations, continued technological enhancement of existing
equipment, automation of existing processes, computer-integrated manufacturing
techniques, quality and service improvements, facility expansion, and, if
necessary to meet demand, additional can-making capacity. The Company's capital
investments have historically yielded reduced operating costs and improved the
Company's profit margins, and management believes that the strategic deployment
of capital will enable the Company to improve its overall profitability by
leveraging the economies of scale inherent in the manufacture of containers.
Management believes that cash flow from operations, amounts available under
its credit facilities and proceeds from equipment financings should provide
sufficient funds for the Company's short-term and long-term capital expenditure
and debt amortization requirements, and other cash needs in the ordinary course
of business. The Company believes it will be able to refinance the Revolving
Credit Facility on or prior to maturity. If future strategic acquisition
opportunities arise, the Company would expect to finance them though some
combination of cash, stock and/or debt financing.
ACQUISITIONS
During 1995, the Company acquired four businesses for an aggregate of
approximately $30.2 million in cash, plus contingent payments of up to $2.5
million, and the assumption of approximately $6.7 million in debt. The cash
portion of the purchase prices was financed primarily from borrowings under U.S.
Can's revolving line of credit.
In April and June 1996, the Company acquired from Alltrista Corporation
("Alltrista") for approximately $14.4 million and the assumption of a $0.5
million liability substantially all of the assets (other than steel inventory)
of Alltrista Metal Services ("AMS"), a division of Alltrista. In June 1996, the
Company purchased AMS's remaining inventory for $8 million. The acquisitions
were financed with borrowings under
17
<PAGE> 18
U.S. Can's revolving line of credit. In July of 1996, the Company discontinued
operations at two of the former AMS plants.
In August 1996, the Company completed the acquisition of all of the
outstanding stock of three related companies, CPI Plastics, Inc., CP Ohio, Inc.
and CP Illinois, Inc. (collectively, the "CPI Group"), engaged in manufacturing
molded plastic drums and pails, and poultry products. The Company paid
approximately $15.1 million in cash to the stockholders of the CPI Group at
closing. In addition, U.S. Can has made contingent payments, based upon the CPI
Group's financial performance during 1996 and 1997, aggregating $1.0 million.
This acquisition was financed with borrowings under a special acquisition line
of credit provided to U.S. Can by its senior lenders.
In September 1996, the Company completed the acquisition of a portion of
Crown Cork & Seal Company, Inc.'s ("Crown's") European aerosol can businesses
("USC Europe") for $48.3 million, in addition to the assumption debt of $5.8
million. This acquisition included manufacturing operations in the United
Kingdom, France, Spain and Germany and the aerosol can manufacturing equipment
and assets from a Crown facility in Italy. The companies acquired and
established in connection with the USC Europe acquisition comprise the majority
of the European Subsidiaries. The Company incurred $3.5 million of costs in
completing this acquisition which have been included in total acquisition costs.
In January 1997, the Company acquired certain assets from Owens-Illinois
Closure Inc. ("O-I") for cash consideration of $10 million, subject to
adjustment based upon the actual value of the inventory acquired and potential
contingent payments of up to $1.5 million based upon realization of certain new
business which O-I was seeking at the time of the acquisition. The assets
acquired by the Company include machinery, equipment, inventory and raw
materials of O-I's Erie, Pennsylvania metal business. O-I will operate these
lines for up to one year, pending relocation into one or more of the Company's
plants.
The Company will continue to evaluate and selectively pursue acquisitions
which it believes are strategically important to meeting its customers needs,
attracting new customers, adding new products, complementing its existing
business and expanding its geographic reach.
ENVIRONMENTAL MATTERS
For a discussion of the San Leandro, California environmental order, see
"Legal Proceedings." There can be no assurance that the Company will not incur
material costs and expenses in connection with this order.
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. As of December 31, 1997, the Company's reserves for future
ascertainable costs of environmental remediation in the United States were
approximately $450,000. Management does not believe that such costs, if any, in
excess of the reserve will have a material adverse affect on the Company's
results of operations or financial condition. In making this assessment, the
Company considered all information available to it including its and other
companies' reported prior experience in dealing with such matters, data released
by the EPA and reports by independent environmental consultants regarding
certain matters. 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 Report 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 hydrocarbons, 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
18
<PAGE> 19
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.
The Company has made, and expects to continue to make, significant capital
expenditures to upgrade its facilities in accordance with current and pending
environmental regulations.
The Company received a request for information from the U.S. EPA in January
1997, concerning the lithography operations at its Chicago facility (formerly
owned by Alltrista). In March 1997, representatives of the U.S. EPA inspected
the Chicago facility and requested additional information, including compliance
tests and reports. The Company has cooperated fully with the U.S. EPA inquiry.
The Company does not know what the outcome of this inquiry will be. In the
acquisition agreement between the Company and Alltrista, Alltrista agreed to
indemnify the Company for compliance costs that relate back to Alltrista's
operation of this facility.
As a potentially responsible party ("PRP") at various Superfund sites in
the U.S., the Company is or may be legally responsible, jointly and severally
with the other members of the PRP group, for the cost of remediation of these
sites. Based on currently available data (including EPA data, internal records
and other sources believed to be reliable), the Company believes its
contribution, and/or the contribution of its predecessors, to these sites was de
minimis. Based on the information available as of the date of this Report,
management does not believe that its aggregate remediation costs or potential
liabilities in connection with these sites will have a material adverse effect
on the Company's financial condition or results of operations. However, there
can be no assurance that the other PRP's will pay their proportionate share of
the remediation costs at these sites and, as a result, future costs or
liabilities incurred by the Company could be material.
SEASONALITY
The Company's business as a whole is not affected to any significant degree
by seasonal variations, although quarterly sales and earnings tend to be
slightly stronger starting in early spring (second quarter) and extending
through late summer (third quarter). Aerosol sales do not tend to fluctuate
during the year, with only relatively minor spring and summer increases related
to household products and insect repellents. Paint sales tend to be stronger in
spring and early summer due to the favorable weather conditions. Portions of the
custom and specialty products line tend to vary seasonally, because of holiday
sales late in the year.
INTEREST RATES/FOREIGN CURRENCY
Management does not believe that interest rate fluctuations have a material
effect on the Company's results of operations and financial condition. As of
December 31, 1997, 11.62% of the Company's borrowings were floating rate
obligations. In the past, management has adopted strategies to increase the
Company's floating-rate exposure to benefit from declining rates. Currently, the
Company holds no interest rate swaps. However, in an effort to limit foreign
exchange risk related to the financing of the Merthyr Tydfil facility, the
Company has entered into a series of British Pound/Dollar forward contracts that
will not exceed $37 million
19
<PAGE> 20
in notional amount or a term of more than seven years. The Indenture under which
the 10 1/8% Notes were issued limits the Company's ability to enter into
currency hedging transactions that would be considered speculative, but the
Company is specifically permitted to hedge payment obligations on indebtedness
permitted by the Indenture.
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 its 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.
INFLATION
Historically, the Company has not always been able to immediately offset
increases in tin plate prices with price increases on the Company's products.
However, in most years, a combination of factors has permitted the Company to
improve its profitability notwithstanding these conditions. The Company's
capital spending programs and manufacturing process upgrades have increased
operating efficiencies and thereby reduced the Company's unit cost of
production. In addition, historically, the Company has been able to negotiate
lower price increases than those announced by its major suppliers. See "Business
- -- Raw Materials." The operating efficiencies and reduced unit cost of
production which have been achieved through the Company's capital spending
programs have mitigated the impact of inflation on the Company's cost structure.
In 1995 and 1997, higher material costs were one of the factors contributing to
the Company's reported earnings.
CUSTOMER RELATIONSHIPS/AEROSOL CONTAINERS
Aerosol containers accounted for 60.2% of the Company's total net sales for
the year ended December 31, 1997. A significant reduction in the number of
aerosol containers used by the Company's customers could have a material adverse
effect on the Company and, in particular, its European operations which are
comprised solely of aerosol manufacturing facilities.
In October 1996, U.S. Can received written confirmation of Gillette's
intention to purchase certain annual unit volumes of aerosol cans from U.S. Can,
including U.S. Can's European operations, through 1998, with the option to
extend for an additional period, subject to price adjustment for actual volumes
purchased. The Company's manufacturing facility in Merthyr Tydfil, in which the
Company has invested approximately $30 million, was opened in large part due to
Gillette's decision. The loss of Gillette as a customer or a material reduction
in the benefits to the Company expected under this arrangement would have an
adverse impact on the profitability of that facility and the Company's ability
to recoup the start-up costs of establishing the facility. It is not U.S. Can's
policy to have any plant devoted exclusively to one customer and management
plans to service other customers from this facility.
The Company's relationships with its customers are critical to its
business. A significant portion of the Company's annual net sales is
attributable to repeat customers. The loss of a significant number of such
customers could have a material adverse effect on the Company.
YEAR 2000
U.S. Can is currently in the process of converting from an IBM mainframe
legacy system to an integrated AS/400 software package from American Software,
that is Year 2000 compliant. Order entry and accounts receivable functions have
been converted to the AS/400-based system, and general ledger and accounts
payable functions are scheduled for conversion no later than the third quarter
of 1998. In addition, several plant manufacturing operating and data base
management systems are being upgraded to Year 2000 compliance at a minimal cost.
The Company has also surveyed its primary vendors which have indicated they will
be Year 2000 compliant. The Company has also reviewed certain telephone, time
and attendance, voice
20
<PAGE> 21
mail, and programmable logic control systems. The Company believes it will be
Year 2000 compliant in advance of the new millennium, and does not believe the
compliance costs will be material.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Inapplicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Report of Independent Public Accountants.................... 22
U.S. Can Corporation and Subsidiaries Consolidated Balance
Sheets as of December 31, 1996 and 1997................... 23
U.S. Can Corporation and Subsidiaries Consolidated
Statements of Operations for the Years Ended December 31,
1995, 1996 and 1997....................................... 24
U.S. Can Corporation and Subsidiaries Consolidated
Statements of Stockholders' Equity for the Years Ended
December 31, 1995, 1996 and 1997.......................... 25
U.S. Can Corporation and Subsidiaries Consolidated
Statements of Cash Flows for the Years Ended December 31,
1995, 1996 and 1997....................................... 26
U.S. Can Corporation and Subsidiaries Notes to Consolidated
Financial Statements...................................... 27
U.S. Can Corporation and Subsidiaries Quarterly Financial
Data (Unaudited).......................................... 51
</TABLE>
21
<PAGE> 22
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To U.S. Can Corporation:
We have audited the accompanying consolidated balance sheets of U.S. CAN
CORPORATION (a Delaware corporation) AND SUBSIDIARIES 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. These financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of U.S. Can
Corporation and Subsidiaries as of December 31, 1996 and 1997, and their results
of operations and cash flows for each of the three years in the period ended
December 31, 1997, in conformity with generally accepted accounting principles.
ARTHUR ANDERSEN LLP
Chicago, Illinois
February 18, 1998
22
<PAGE> 23
U.S. CAN CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(000'S OMITTED, EXCEPT SHARE DATA)
<TABLE>
<CAPTION>
DECEMBER 31, DECEMBER 31,
1996 1997
------------ ------------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents................................. $ 7,966 $ 6,773
Accounts receivable, less allowances of $10,895 and
$18,130 in 1996 and 1997, respectively.................. 86,822 74,137
Inventories............................................... 113,143 109,458
Prepaid expenses and other current assets................. 15,261 17,503
Prepaid income taxes...................................... 9,372 22,748
--------- ---------
Total current assets.................................. 232,564 230,619
--------- ---------
PROPERTY, PLANT AND EQUIPMENT:
Land...................................................... 5,425 5,485
Buildings................................................. 62,421 73,277
Machinery, equipment and construction in process.......... 408,428 427,404
--------- ---------
476,274 506,166
Less -- Accumulated depreciation and amortization......... (153,160) (181,869)
--------- ---------
Total property, plant and equipment................... 323,114 324,297
--------- ---------
MACHINERY REPAIR PARTS...................................... 6,057 6,396
INTANGIBLES................................................. 67,206 59,578
OTHER ASSETS................................................ 14,675 12,814
--------- ---------
Total assets.......................................... $ 643,616 $ 633,704
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current maturities of long-term debt...................... $ 11,928 $ 9,635
Cash overdrafts........................................... 3,769 7,800
Accounts payable.......................................... 56,355 50,686
Accrued payrolls and benefits............................. 25,786 24,358
Accrued insurance......................................... 6,770 6,607
Restructuring reserves.................................... -- 31,645
Other current liabilities................................. 22,326 19,117
--------- ---------
Total current liabilities............................. 126,934 149,848
--------- ---------
SENIOR DEBT................................................. 88,882 91,506
SUBORDINATED DEBT........................................... 275,000 275,000
--------- ---------
Total long-term debt.................................. 363,882 366,506
--------- ---------
OTHER LONG-TERM LIABILITIES:
Postretirement benefits................................... 26,128 27,387
Deferred income taxes..................................... 27,892 17,973
Other long-term liabilities............................... 1,995 9,677
--------- ---------
Total other long-term liabilities..................... 56,015 55,037
--------- ---------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value; 10,000,000 shares
authorized, none issued or outstanding.................. -- --
Common stock, $.01 par value; 50,000,000 shares authorized
12,995,636 and 13,097,855 shares issued in 1996 and
1997, respectively...................................... 130 131
Paid-in capital........................................... 105,582 108,003
Unearned restricted stock................................. (2,581) (2,558)
Treasury common stock, at cost; 20,651 and 44,159 shares
in 1996 and 1997, respectively.......................... (256) (714)
Currency translation adjustment........................... 1,622 (2,193)
Retained deficit.......................................... (7,712) (40,356)
--------- ---------
Total stockholders' equity............................ 96,785 62,313
--------- ---------
Total liabilities and stockholders' equity......... $ 643,616 $ 633,704
========= =========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an integral part
of these balance sheets.
23
<PAGE> 24
U.S. CAN CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(000'S OMITTED, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
--------------------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
NET SALES................................................... $549,758 $636,535 $738,933
COST OF SALES............................................... 476,877 543,438 647,719
-------- -------- --------
Gross income.............................................. 72,881 93,097 91,214
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES................ 26,214 27,816 32,421
SPECIAL CHARGES............................................. 8,000 -- 49,660
-------- -------- --------
Operating income.......................................... 38,667 65,281 9,133
INTEREST EXPENSE ON BORROWINGS.............................. 24,513 28,387 36,867
AMORTIZATION OF DEFERRED FINANCING COSTS.................... 1,543 1,518 1,738
OTHER EXPENSE............................................... 1,676 1,468 1,851
-------- -------- --------
Income (loss) before income taxes......................... 10,935 33,908 (31,323)
PROVISION (BENEFIT) FOR INCOME TAXES........................ 4,826 14,184 (11,863)
-------- -------- --------
Income (loss) from continuing operations before
extraordinary item..................................... 6,109 19,724 (19,460)
DISCONTINUED OPERATIONS, net of income taxes
Net loss from discontinued operation...................... (2,170) (2,723) (159)
Net loss on sale of businesses............................ -- -- (12,413)
EXTRAORDINARY ITEM, net of income taxes..................... -- (5,250) --
-------- -------- --------
NET INCOME (LOSS)........................................... $ 3,939 $ 11,751 $(32,032)
======== ======== ========
PER SHARE DATA:
Basic:
Income (loss) from continuing operations before
extraordinary item................................... $ 0.48 $ 1.53 $ (1.49)
Discontinued operations................................ (0.17) (0.21) (0.96)
Extraordinary item..................................... -- (0.41) --
-------- -------- --------
Net income (loss).................................... $ 0.31 $ 0.91 $ (2.45)
======== ======== ========
Weighted average shares outstanding (000's).......... 12,659 12,929 13,048
======== ======== ========
Diluted:.................................................. $ 0.48 $ 1.51 $ (1.49)
Income (loss) from continuing operations before
extraordinary item................................... (0.17) (0.21) (0.96)
Discontinued operations................................ -- (0.40) --
-------- -------- --------
Extraordinary item..................................... $ 0.31 $ 0.90 $ (2.45)
======== ======== ========
Net income (loss)
Weighted average shares and equivalent shares
outstanding (000's)............................... 12,839 13,090 13,048
======== ======== ========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an integral part
of these statements.
24
<PAGE> 25
U. S. CAN CORPORATION AND SUBSIDIARIES
CONSOLIDATION STATEMENTS OF STOCKHOLDER'S EQUITY
(000'S OMITTED)
<TABLE>
<CAPTION>
UNEARNED TREASURY CUMULATIVE RETAINED
COMMON PAID-IN RESTRICTED COMMON TRANSLATION EARNINGS
STOCK CAPITAL STOCK STOCK ADJUSTMENT (DEFICIT)
------ ------- ---------- -------- ----------- ---------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT DECEMBER 31, 1994......... $126 $ 98,799 $ -- $ (468) $ -- $(23,547)
Net income......................... -- -- -- -- -- 3,939
Payments of common stock issuance
costs........................... -- (22) -- -- -- --
Issuance of stock under employee
benefit plans................... 1 1,488 -- -- -- --
Purchase of treasury stock......... -- -- -- (209) -- --
Issuance of treasury stock......... 704 358
Exercise of stock options.......... 1 123 -- -- -- --
Income tax benefit related to
exercise of nonqualified stock
options......................... -- 661 -- -- -- --
Issuance of restricted stock....... 1 2,160 (2,161) -- -- --
Amortization of unearned restricted
stock........................... -- -- 109 -- -- --
Equity adjustment to reflect
minimum pension liability....... -- -- -- -- -- (236)
---- -------- ------- ------- ------- --------
BALANCE AT DECEMBER 31, 1995......... 129 103,913 (2,052) (319) -- (19,844)
Net income......................... -- -- -- -- -- 11,751
Issuance of stock under employee
benefit plans................... -- 516 -- -- --
Purchase of treasury stock......... -- -- -- (233) -- --
Issuance of treasury stock......... -- 129 -- 296 -- --
Exercise of stock options.......... -- 18 -- -- -- --
Issuance of restricted stock....... 1 1,006 (1,007) -- -- --
Amortization of unearned restricted
stock........................... -- -- 478 -- -- --
Equity adjustment to reflect
minimum pension liability....... -- -- -- -- -- 381
Cumulative translation
adjustment...................... -- -- -- -- 1,622 --
---- -------- ------- ------- ------- --------
BALANCE AT DECEMBER 31, 1996......... 130 105,582 (2,581) (256) 1,622 (7,712)
Net loss........................... -- -- -- -- -- (32,032)
Issuance of stock under employee
benefit plans................... 778 -- 721 -- --
Purchase of treasury stock......... -- -- -- (1,179) -- --
Exercise of stock options.......... -- 152 -- -- -- --
Issuance of restricted stock....... 1 1,491 (1,492) -- -- --
Amortization of unearned restricted
stock........................... -- -- 1,515 -- -- (612)
Cumulative translation
adjustment...................... -- -- -- -- -- (3,815) --
---- -------- ------- ------- ------- --------
BALANCE AT DECEMBER 31, 1997......... $131 $108,003 $(2,558) $ (714) $(2,193) $(40,356)
==== ======== ======= ======= ======= ========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an integral part
of these statements.
25
<PAGE> 26
U.S. CAN CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(000'S OMITTED)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income................................................ $ 3,939 $ 11,751 $(32,032)
Adjustments to reconcile net income to net cash provided
by operating activities --
Depreciation and amortization.......................... 28,238 33,977 42,434
Special charges........................................ 8,000 -- 49,660
Loss on sale of business............................... -- -- 12,413
Extraordinary loss on extinguishment of debt........... -- 5,250 --
Deferred income taxes.................................. (421) 4,776 (12,859)
Change in operating assets and liabilities, net of effect
of acquired businesses --
Accounts receivable....................................... (1,373) (7,948) 12,059
Inventories............................................ 4,716 (15,942) 3,785
Accounts payable....................................... (15,832) 6,077 (5,193)
Accrued payrolls and benefits, insurance and other..... (3,860) (6,296) (11,781)
Postretirement benefits................................ 545 599 1,259
Other, net............................................. 840 (1,322) 4,679
-------- --------- --------
Net cash provided by operating activities............ 24,792 30,922 64,424
-------- --------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures...................................... (31,379) (48,630) (54,030)
Acquisition of businesses, net of cash acquired........... (29,941) (80,894) (12,398)
Proceeds on sale of business.............................. -- -- 1,000
Change in restricted cash................................. (3,500) 1,455 --
Proceeds from sale of property............................ 600 1,515 630
Machinery repair parts usage (purchases), net............. 63 (662) (362)
-------- --------- --------
Net cash used in investing activities................ (64,157) (127,216) (65,160)
-------- --------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock and exercise of stock options.... 124 18 152
Net borrowings under the revolving line of credit and
changes in cash overdrafts............................. 46,884 (25,052) 1,931
Issuance of 10 1/8% notes................................. -- 275,000 --
Amounts paid in escrow.................................... -- (109,728) --
Borrowings of other long-term debt, including capital
lease obligations...................................... 10,911 14,247 24,935
Payments of other long-term debt, including capital lease
obligations............................................ (17,973) (41,424) (22,352)
Payments of debt refinancing costs........................ (337) (9,259) (1,574)
Payments of common stock issuance costs................... (22) -- --
Purchase of treasury stock, net........................... (209) (233) (1,179)
-------- --------- --------
Net cash provided by financing activities............ 39,378 103,569 1,913
-------- --------- --------
EFFECT OF EXCHANGE RATE CHANGES ON CASH..................... -- 555 (2,370)
-------- --------- --------
INCREASE IN CASH AND CASH EQUIVALENTS....................... 13 7,830 (1,193)
CASH AND CASH EQUIVALENTS, beginning of year................ 123 136 7,966
-------- --------- --------
CASH AND CASH EQUIVALENTS, end of year...................... $ 136 $ 7,966 $ 6,773
======== ========= ========
</TABLE>
The accompanying Notes to Consolidated Financial Statements are an integral part
of these statements.
26
<PAGE> 27
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1995, 1996 AND 1997
(1) BASIS OF PRESENTATION AND OPERATIONS
The consolidated financial statements include the accounts of U.S. Can
Corporation (the "Corporation"), its wholly owned subsidiary, United States Can
Company ("U.S. Can") and U.S. Can's subsidiaries, all of which are European
companies formed or acquired during 1996 (the "European Subsidiaries"). All
significant intercompany balances and transactions have been eliminated. The
consolidated group is referred to herein as the Company.
The Company is a manufacturer of steel and plastic containers for personal
care products and household, automotive, paint and industrial supplies. The
Company manufactures a broad line of aerosol containers for consumer and
household products in the United States and Europe. In its paint, plastic and
general line business, the Company produces metal and plastic, round and oblong
containers, for household and industrial paints and additives and other
industrial products in the United States. The Company also manufactures a wide
variety of custom and specialty tins, decorative containers and products. The
Company owns or leases 35 plants, located in 12 States, and 6 plants located in
the United Kingdom, France, Germany, Spain and Italy, many of which are
positioned near principal customers and suppliers. Certain of the operations and
plants are being discontinued or closed as further described in Note 3.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Cash and Cash Equivalents -- The Company considers all liquid
interest-bearing instruments purchased with an original maturity of three months
or less to be cash equivalents.
(b) Cash Overdrafts -- Cash overdrafts represent the aggregate amount of
checks which have been issued and have not yet cleared the Company's
zero-balance disbursement accounts, net of any cash in specific Company
depository accounts which will be automatically drawn against as such checks
clear the disbursement accounts. Cash on-hand and cash in Company accounts at
banks not subject to the automatic netting are reported as cash and cash
equivalents.
(c) Accounts Receivable Allowances -- Activity in the accounts receivable
allowances accounts was as follows (000's omitted):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
----------------------------
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Balance at beginning of year................................ $ 4,116 $ 5,451 $ 10,895
Provision for doubtful accounts........................... 220 459 2,280
Reserve for doubtful accounts from business
acquisitions........................................... 160 2,636 --
Provision for discounts, allowances and rebates........... 7,911 10,551 16,340
Write-offs of doubtful accounts, net of recoveries........ (242) (546) (254)
Discounts, allowances and rebates taken................... (6,714) (7,656) (11,130)
------- ------- --------
Balance at end of year...................................... $ 5,451 $10,895 $ 18,130
======= ======= ========
</TABLE>
(d) Inventories -- All domestic inventories, except machine parts, are
stated at cost determined by the last-in, first-out ("LIFO") cost method, not in
excess of market. Inventories of approximately $16.4 million at the European
Subsidiaries and machine shop inventory are stated at cost determined by the
first-in, first-out ("FIFO") cost method, not in excess of market. Inventory
costs include material, labor and factory overhead. FIFO cost of LIFO
inventories approximated their LIFO value at December 31, 1996 and 1997.
Tin-plated steel accounted for approximately 86% of the Company's total raw
material purchases during 1997. Negotiations with the Company's domestic
tin-plated steel suppliers occur once per year. At that time, the prices for
tin-plated steel are set for the upcoming year. Due to competition among steel
suppliers and the
27
<PAGE> 28
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
volume of tin-plated steel purchased by the Company in the United States, the
Company has historically negotiated raw materials pricing which is more
favorable than that 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.
With respect to the European Subsidiaries, the Company has only limited prior
purchasing history with its tin-plated steel suppliers. No assurance can be
given that the European Subsidiaries will be able to continue to purchase its
tin-plated steel requirements from such existing sources at prices below those
publicly announced by its suppliers.
Inventories reported in the accompanying balance sheets were classified as
follows (000's omitted):
<TABLE>
<CAPTION>
DECEMBER 31,
--------------------
1996 1997
---- ----
<S> <C> <C>
Raw materials............................................... $ 34,257 $ 33,746
Work in progress............................................ 48,654 42,763
Finished goods.............................................. 26,053 28,037
Machine shop inventory...................................... 4,179 4,912
-------- --------
$113,143 $109,458
======== ========
</TABLE>
(e) Property, Plant and Equipment -- Property, plant and equipment is
recorded at cost. Major renewals and betterments which extend the useful life of
an asset are capitalized; routine maintenance and repairs are expensed as
incurred. Total maintenance and repairs expense charged against earnings was
approximately $22.5 million, $25.2 million and $30.9 million in 1995, 1996 and
1997, respectively. Upon sale or retirement of these assets, the asset cost and
related accumulated depreciation are removed from the accounts and any related
gain or loss is reflected in income.
Depreciation for financial reporting purposes is principally provided using
the straight-line method over the estimated useful lives of the assets as
follows: buildings -- 25 to 40 years; machinery and equipment -- 5 to 20 years.
Property, plant and equipment under capital leases are amortized over the
shorter of the estimated useful life of the asset or the term of the lease.
Accelerated methods are used for income tax purposes, where permitted.
(f) Machinery Repair Parts -- Machinery repair parts are capitalized when
purchased and are expensed, at cost, as they are used in the course of
operations. These parts are recorded at the lower of cost or net realizable
value in the accompanying balance sheets.
(g) Intangibles -- Intangible assets consist principally of the excess
purchase price over the fair value of the net assets of businesses acquired
("goodwill"), which is principally amortized over a 40 year life. The related
amortization expense was $2.0 million, $1.5 million and $1.8 million for the
years ended December 31, 1995, 1996 and 1997, respectively. Total accumulated
amortization was $9.0 million and $10.5 million at December 31, 1996 and 1997,
respectively. Additionally, during 1997, net goodwill was reduced by $13.5
million as a result of the special charges and discontinued businesses described
in Note 3. After an acquisition, the Company continually reviews whether
subsequent events and circumstances have occurred that indicate the remaining
estimated useful life of goodwill may warrant revision or that the remaining
balance of goodwill may not be recoverable. If events and circumstances indicate
that goodwill related to a particular business should be reviewed for possible
impairment the Company uses projections to assess whether future operating
income (net of tax) of the business is expected to exceed the goodwill
amortization over the remaining life of the goodwill, to determine whether a
write-down of goodwill to recoverable value (generally as determined by the same
projections) is appropriate.
(h) Environmental Liabilities -- The Company's operations and products are
subject to Federal, state, local and foreign regulatory requirements relating to
environmental protection. It is the Company's policy to
28
<PAGE> 29
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
comply fully with all such applicable requirements. The Company may be subject
to potential liabilities for the costs of environmental remediation at currently
or previously owned or operated sites or sites to which it, or predecessor
owners, transported materials.
It is the Company's policy to accrue for the estimated cost of
environmental matters, on a non-discounted basis, when it is probable that a
liability has been incurred and the amount of the liability can be reasonably
estimated. Such provisions and accruals exclude claims for recoveries from
insurance carriers or other third parties. Such claims are recognized as
receivables only if realization is probable.
Statement of Position ("SOP") 96-1, "Environmental Remediation Liabilities"
was issued in October 1996 and adopted by the Company in 1997. This SOP provides
authoritative guidance on specific accounting issues that are present in the
recognition, measurement and disclosure of environmental remediation
liabilities. The impact of adopting this SOP did not have a material effect on
the Company's financial position or results of operations.
(i) Revenue -- Revenue is recognized when goods are shipped to the
customer. Estimated sales returns and allowances are recognized as an offset
against revenue in the period in which the related revenue is recognized.
(j) Foreign Currency Translation -- The functional currency for
substantially all of the European Subsidiaries is the applicable local currency.
The translation from the applicable foreign currencies to U.S. dollars is
performed for balance sheet accounts using current exchange rates in effect at
the balance sheet date and for revenue and expense accounts using an average
exchange rate prevailing during the period. The gains or losses resulting from
such translation are included in stockholders' equity. Gains or losses resulting
from foreign currency transactions are included in other income and were not
material in 1996 or 1997.
(k) New Accounting Pronouncements -- Statement of Financial Accounting
Standard ("SFAS") No. 128, "Earnings Per Share" was issued in February 1997 and
adopted by the Company as of December 31, 1997. This new pronouncement
established revised reporting standards for earnings per share and has been
retroactively applied to all periods presented herein. Previously reported
earnings per share for such periods were not materially different than currently
reported diluted earnings per share. Additionally, application of the new
standard for 1997 did not materially impact the calculation of diluted earnings
per share versus what would have been reported under the prior standard. Diluted
earnings per share for the Company includes the impact of assumed exercise of
dilutive stock options.
SFAS No. 130, "Reporting Comprehensive Income" was issued in July 1997 and
will be adopted by the Company in 1998. This new pronouncement establishes
standards for the reporting and display of comprehensive income and its
components which, for the Company, include cumulative translation and minimum
pension adjustments.
SFAS No. 131, "Disclosures About Segments of an Enterprise and Related
Information" was also issued in July 1997 and introduces a new model for segment
reporting, called the "management approach." The management approach is based on
the way that the chief operating decision maker organizes segments within the
company for making operating decisions and assessing performance. Management of
the Company is evaluating this new pronouncement to determine its impact upon
current reporting. Adoption of this new standard is scheduled for late 1998.
(l) Use of estimates -- The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
29
<PAGE> 30
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(3) SPECIAL CHARGES AND DISCONTINUED OPERATIONS
In 1995, the Company recorded a pretax charge of $8 million related to
actions taken to reduce overhead expenses and to eliminate redundant
manufacturing capacity. The primary components of the charge include costs
associated with severance packages for a number of identified salaried employees
throughout the Company and with the Company's Saddle Brook, New Jersey
manufacturing facility which was closed as part of the consolidation of the
Company's steel pail business into the Company's North Brunswick, New Jersey
manufacturing facility.
In the third quarter, the Company established a restructuring provision of
$35 million for plant closings and overhead cost reductions. In the fourth
quarter, 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 specialty 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 the 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 plus the assumption of
certain liabilities and future payments. 1997 revenues of the steel pail
business through October 5, 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.
30
<PAGE> 31
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
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.
The Company continuously evaluates the composition of its various
manufacturing facilities in light of current and expected market conditions and
demand. While no formal plans currently exist to further consolidate plant
operations, such actions may be deemed appropriate in the future.
(4) ACQUISITIONS
During 1995, the Company acquired four businesses for an aggregate of
approximately $30.2 million in cash, plus contingent payments of up to $2.5
million, and the assumption of approximately $6.7 million in debt. The cash
portion of the purchase prices was financed primarily from borrowings under U.S.
Can's revolving line of credit.
In April and June 1996, the Company acquired from Alltrista Corporation
("Alltrista") for approximately $14.4 million and the assumption of a $0.5
million liability substantially all of the assets (other than steel inventory)
of Alltrista Metal Services ("AMS"), a division of Alltrista. In June 1996, the
Company purchased AMS's remaining inventory for $8 million. The acquisitions
were financed with borrowings under U.S. Can's revolving line of credit. In July
of 1996, the Company discontinued operations at two of the former AMS plants.
In August 1996, the Company completed the acquisition of all of the
outstanding stock of three related companies, CPI Plastics, Inc., CP Ohio, Inc.
and CP Illinois, Inc. (collectively, the "CPI Group"), engaged in manufacturing
molded plastic drums and pails and poultry products. The Company paid
approximately $15.1 million in cash to the stockholders of the CPI Group at
closing. In addition, U.S. Can has made contingent payments, based upon the CPI
Group's financial performance during 1996 and 1997, aggregating $1.0 million.
This acquisition was financed with borrowings under a special acquisition line
of credit provided to U.S. Can by its senior lenders.
In September 1996, the Company completed the acquisition of a portion of
Crown Cork & Seal Company, Inc.'s ("Crown's") European aerosol can businesses
("USC Europe") for $48.3 million, in addition to the assumption debt of $5.8
million. This acquisition included manufacturing operations in the United
Kingdom, France, Spain and Germany and the aerosol can manufacturing equipment
and assets from a Crown facility in Italy. The companies acquired and
established in connection with the USC Europe acquisition comprise the majority
of the European Subsidiaries. The Company incurred $3.5 million of costs in
completing this acquisition which have been included in total acquisition costs.
In January 1997, the Company acquired certain assets from Owens-Illinois
Closure Inc. ("O-I") for cash consideration of $10 million subject to adjustment
based upon the actual value of the inventory acquired and potential contingent
payments of up to $1.5 million based upon realization of certain new business
which O-I was seeking at the time of the acquisition. The assets acquired by the
Company include machinery, equipment, inventory and raw materials of O-I's Erie,
Pennsylvania metal business. The purchase price allocation resulted in goodwill
of $7.1 million.
Each of the foregoing business acquisitions was accounted for as a purchase
for financial reporting purposes. Accordingly, assets and liabilities of the
acquired companies were revalued to estimated fair values as of the acquisition
date. Changes in these estimates, if any, are not expected to be material.
The operating results of each acquired business are included in the
consolidated statement of operations from the date of acquisition. Amortization
of excess purchase price over the estimated fair value of the net
31
<PAGE> 32
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
value of assets acquired is made over a period of 40 years. All acquired
companies, other than those comprising USC Europe, have been merged into U.S.
Can.
The following data represents the Company's unaudited pro forma 1995 and
1996 results of operations as if the significant acquisitions of the CPI Group
and USC Europe had occurred on January 1 of the applicable year (000's omitted,
except per share data):
<TABLE>
<CAPTION>
1995 1996
---- ----
<S> <C> <C>
Net sales.............................................. $698,251 $742,897
Income before extraordinary item....................... 3,241 15,155
Net income............................................. 5,411 12,629
Basic & Diluted Per Share Data:
Income before extraordinary item..................... $0.26 $1.26
Net income........................................... $0.42 $0.96
</TABLE>
The pro forma operating results include each businesses' pre-acquisition
results of operations for the indicated years with adjustments to reflect
amortization of goodwill, additional depreciation on the increases to the fair
market value of fixed assets, interest expense on the acquisition borrowings and
the effect of income taxes thereon. The pro forma information given above does
not purport to be indicative of the results that actually would have been
obtained if the operations were combined during the periods presented and is not
intended to be a projection of future results or trends.
(5) DEBT OBLIGATIONS
The primary debt obligations of the Company at December 31, 1996 and 1997,
consisted of the following (000's omitted):
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Senior debt --
Revolving line of credit............................. $ 34,700 $ 32,600
Secured equipment notes.............................. 12,021 4,825
Capital lease obligations............................ 35,894 30,050
Secured term loan.................................... 9,122 24,840
Industrial revenue bonds............................. 7,500 7,500
Mortgages and other.................................. 1,573 1,326
-------- --------
100,810 101,141
Less -- Current maturities............................. (11,928) (9,635)
-------- --------
Total senior debt............................ 88,882 91,506
Senior subordinated 10 1/8% notes...................... 275,000 275,000
-------- --------
Total long-term debt......................... $363,882 $366,506
======== ========
</TABLE>
In April 1997, U.S. Can entered into an Amended and Restated Credit
Agreement with a group of banks (the "Credit Agreement"), providing a $110.0
million revolving credit facility. Obligations under the Credit Agreement are
secured by U.S. Can's domestic accounts receivable and inventories. Funds
available under the Credit Agreement may be used for general corporate purposes
(including working capital needs and permitted acquisitions.) The Credit
Agreement permits the Company to borrow in U.S. Dollars, British Pounds or
French Francs. The Credit Agreement has a five-year maturity and amends and
restates the April 1994 credit agreement (the "1994 Credit Agreement").
The loans under the Credit Agreement bear interest at a floating rate equal
to, at the election of U.S. Can, one of the following: (i) the Base Rate (as
defined in the Credit Agreement) per annum, or
32
<PAGE> 33
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
(ii) based on the current pricing ratio, a reserve-adjusted Eurodollar rate plus
the then applicable margin, for specified interest periods (selected by U.S.
Can) of one, two, three, or six months. The weighted average interest rate of
the loans outstanding under the Credit Agreement was 6.7% at both December 31,
1996 and 1997. U.S. Can is required to pay letter of credit fees based on the
outstanding face amount outstanding on each letter of credit and a commitment
fee based on the average daily unused portion of each lender's commitment under
the Credit Agreement.
Certain temporary supplemental borrowing facilities were provided to the
Company under the 1994 Credit Agreement during 1996 to fund business
acquisitions and seasonal working capital needs. These supplemental facilities
were repaid and terminated upon the 1996 issuance of the 10 1/8% Notes described
below.
As of December 31, 1997, U.S. Can had borrowings of $32.6 million
outstanding under the Credit Agreement, $12.5 million in letters of credit
issued pursuant thereto, and $64.9 million of unused credit remained available.
Secured equipment notes, issued at various times since 1990, mature in
varying amounts from 1997 to 2003 and bear interest at various rates between
8.1% and 10.4%. Proceeds from these notes were used to purchase certain
manufacturing equipment, and the notes are secured by that equipment.
Capital lease obligations, mature in varying amounts from 1998 to 2007 and
bear interest at various rates between 4.57% and 19.64%. Other debt, consisting
of various governmental loans and real estate mortgages at interest rates
between 7.0% and 9.77%, mature at various times through 2025, and were used to
finance the expansion of several manufacturing facilities. Included in other
assets as of December 31, 1996 are proceeds of $2.0 million from certain
industrial revenue bonds which were restricted for the relocation and expansion
of the Company's Wheeling, West Virginia plant. These proceeds were used for
their intended purposes in 1997.
On December 20, 1996, U.K. Can, Ltd., one of the European Subsidiaries,
entered into (and U.S. Can guaranteed) a $28 million secured term loan with
General Electric Capital Corporation, to finance the acquisition of land,
building and equipment comprising the Merthyr Tydfil, Wales aerosol can
production facility. This credit facility is secured by the real and personal
property of U.S. Can's Merthyr Tydfil operation. The loan is denominated in U.S.
Dollars. During 1997, in connection with the transaction, the Corporation
entered into foreign currency contracts which allow the Company to exchange a
fixed amount of U.K. Pounds for U.S. Dollars at certain dates which coincide
with the repayment of principal and interest on the loan. The forward contracts
are intended to hedge against fluctuations in currency rates.
On October 17, 1996, the Corporation issued $275.0 million principal amount
of 10 1/8% Senior Subordinated Notes due 2006 in a private placement. These
notes were exchanged in March 1997 for similar notes which are publicly
registered. These exchange notes (the "10 1/8% Notes") are unsecured and are
subordinated to all other senior debt of the Corporation and its subsidiaries.
The 10 1/8% Notes are fully and unconditionally guaranteed on an unsecured
senior subordinated basis by U.S. Can. On or after October 15, 2001, the
Corporation may, at its option, redeem all or some of the 10 1/8% Notes at
declining redemption premiums which begin at approximately 105.1% in 2001. Upon
a change of control of the Corporation, as defined, the Noteholders could
require that the Corporation repurchase all or some of the 10 1/8% Notes at a
101% premium.
Net proceeds from the issuance of the 10 1/8% Notes were $268.1 million.
Approximately $158.4 million of these net proceeds were used to pay down amounts
under the 1994 Credit Agreement and $109.7 million was used to redeem all of the
13 1/2% Senior Subordinated Notes due 2002 (the "13 1/2% Notes") and remaining
interest thereon on January 15, 1997. The Company recorded the early
extinguishment of the 13 1/2% Notes as of October 17, 1996 which resulted in an
extraordinary charge in the fourth quarter of 1996 of $5.2 million (net of
income taxes of $3.5 million) primarily representing the write-off of related
unamortized deferred financing costs.
33
<PAGE> 34
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Based upon borrowing rates currently available to the Company for
borrowings with similar terms and maturities, the fair value of the Company's
total debt was approximately $345 million and $350 million as of December 31,
1996 and 1997, respectively. No quoted market value is available (except on the
10 1/8% Notes). These amounts, because they do not include certain costs such as
prepayment penalties, do not represent the amount the Company would have to pay
to reacquire and retire all of its outstanding debt in a current transaction.
Financing costs related to the issuance of new debt are deferred and
amortized over the terms of the related debt agreements. Net deferred financing
costs are recorded as other assets in the accompanying balance sheets.
The Company paid interest on borrowings, excluding amounts paid into the
escrow, of $24.7 million, $25.7 million and $35.2 million in 1995, 1996 and
1997, respectively. As of December 31, 1996 and 1997, accrued interest on
borrowings totaled $6.0 million and $6.7 million, respectively.
The Credit Agreement and certain of the Company's other debt agreements
contain various financial and other restrictive covenants, as well as
cross-default provisions. The financial covenants include, but are not limited
to, limitations on annual capital expenditures and certain ratios of borrowings
to earnings before interest, taxes, depreciation and amortization ("EBITDA"),
senior debt to EBITDA and interest coverage. The covenants also restrict the
Company's and U.S. Can's ability to distribute dividends, to incur additional
indebtedness, to dispose of assets and to make investments, acquisitions,
mergers and transactions with affiliates. Primarily as a result of the 1997
special charges and discontinued operations, the Company failed to comply with
certain financial ratios and other covenants during the year and at year end.
The Company obtained waivers from the appropriate lenders and have amended the
Credit Agreement to better reflect the Company's current configuration and
expected operating results. In conjuction with the amended agreement, the
Company elected to permanently reduce maximum and current availability by $30
million.
The Credit Agreement also provides that U.S. Can would be in default if
there is a change after December 31, 1996, which could reasonably be expected to
have a material adverse effect on the business, financial condition, operations,
properties or prospects of U.S. Can and its subsidiaries. Management is not
aware of, nor does it anticipate, Any such change and, accordingly, the
borrowings under these agreements have been classified as long-term debt in the
accompanying balance sheets.
Under existing agreements, maturities of long-term debt as of December 31,
1997 (including capital lease obligations), are as follows (000's omitted):
<TABLE>
<S> <C>
1998................................... $ 9,518
1999................................... 9,037
2000................................... 6,038
2001................................... 7,720
2002................................... 40,366
Thereafter............................. 303,462
--------
$376,141
========
</TABLE>
(6) INCOME TAXES
The Company does not provide for U. S. income taxes which would be payable
if undistributed earnings of the European Subsidiaries were remitted to the U.S.
because the Company either considers these earnings to be invested for an
indefinite period or anticipates that if such earnings were distributed, the
U.S. income taxes payable would be substantially offset by foreign tax credits.
Such unremitted earnings were $0.5 million and $1.8 million as of December 31,
1996 and 1997 respectively.
34
<PAGE> 35
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The provision for income taxes before discontinued operations and
extraordinary item consisted of the following on a domestic pretax loss of $33.6
million and foreign pretax earnings of $2.3 million (000's omitted):
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Current............................................ $5,247 $ 9,109 $ --
Deferred........................................... (421) 4,776 (12,859)
Foreign............................................ -- 299 996
------ ------- --------
Total............................................ $4,826 $14,184 $(11,863)
====== ======= ========
</TABLE>
Income taxes, net of refunds, of $5.8 million, $2.9 million and $0.5
million were paid in 1995, 1996 and 1997, respectively.
The principal items comprising the difference between taxes on income
before income taxes and extraordinary item computed at the Federal statutory
rate and the actual provision for such income taxes for the years presented were
as follows (000's omitted):
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Tax provision computed at the statutory rates............... $3,718 $11,868 $(10,963)
Nondeductible amortization of intangible assets............. 308 370 396
State taxes, net of Federal benefit......................... 492 1,436 (1,253)
Other, net.................................................. 308 510 (43)
------ ------- --------
Provision for income taxes................................ $4,826 $14,184 $(11,863)
====== ======= ========
</TABLE>
Deferred income taxes are determined based on the estimated future tax
effects of differences between the financial statement and tax bases of assets
and liabilities given the provisions of the enacted tax laws. The tax effect of
significant temporary differences representing deferred income tax benefits and
obligations consisted of the following (000's omitted):
<TABLE>
<CAPTION>
DECEMBER 31, 1996 DECEMBER 31, 1997
---------------------- ----------------------
BENEFITS OBLIGATIONS BENEFITS OBLIGATIONS
-------- ----------- -------- -----------
<S> <C> <C> <C> <C>
Vacation accrual....................... $ 3,352 $ -- $ 3,421 $ --
Debt extinguishment costs.............. 2,686 -- -- --
Overhead reduction reserves............ 1,454 -- 1,147 --
Postretirement benefits................ 10,682 -- 11,069 --
Workers' compensation accrual.......... 1,067 -- 898 --
Pension accrual........................ 2,026 -- 2,303 --
Inventory valuation reserves........... -- (7,443) -- (7,214)
Depreciation........................... -- (38,474) -- (37,707)
Alternative minimum tax credit
carryforwards........................ 4,195 -- 4,470 --
Restructuring reserves................. -- -- 18,061 --
Net operating loss..................... -- -- 5,909 --
Other.................................. 5,621 (3,686) 6,769 (4,348)
------- -------- ------- --------
Total deferred income tax benefits
(obligations)........................ $31,083 $(49,603) $54,044 $(49,269)
======= ======== ======= ========
</TABLE>
Other than as described below, the Company did not record any valuation
allowances against deferred income tax benefits at December 31, 1996 or 1997, as
all such benefits are expected to be realized as tax deductions in future tax
returns.
35
<PAGE> 36
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
In addition to the above deferred benefits and obligations, a German
subsidiary of the Company has net operating loss carryforward credits of
approximately $1.6 million. Some of the European subsidiaries have other net
deferred income tax assets primarily due to operating losses (not significant)
and non-deductible reserves. The Company has established a 100% valuation
allowance of $1.8 million against the European Subsidiaries' net deferred income
tax assets as of December 31, 1997 as realization of the related tax benefit is
not assured. If such assets are, in fact, realized in a future period, the
resulting benefit will reduce the future period's income tax expense.
(7) EMPLOYEE BENEFIT PLANS
The Company maintains separate noncontributory pension and defined
contribution plans covering most domestic hourly employees and all domestic
salaried personnel, respectively. It is the Company's policy to fund accrued
pension and defined contribution plan costs in compliance with ERISA
requirements. The total cost of these plans charged against earnings was
approximately $5.9 million, $6.1 million and $6.5 million for 1995, 1996 and
1997, respectively.
The following table sets forth the funded status of the Company's domestic
defined benefit pension plans, at December 31, 1996 and 1997 (000's omitted):
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Actuarial present value of benefit obligation --
Vested benefits........................................... $20,418 $27,636
Nonvested benefits........................................ 2,059 3,066
Accumulated benefit obligation.............................. 22,477 30,702
Effect of projected future compensation levels............ -- --
------- -------
Projected benefit obligation................................ 22,477 30,702
Plan assets at fair value................................... 20,707 24,966
------- -------
Projected benefit obligation in excess of plan assets..... 1,770 5,736
Unrecognized net gain....................................... 85 1,004
Unrecognized prior-service cost............................. (1,033) (1,956)
Unrecognized transition liability........................... (332) (67)
Additional minimum liability adjustment..................... 1,280 3,206
------- -------
Accrued pension costs.................................. $ 1,770 $ 7,743
======= =======
</TABLE>
In accordance with the provisions of SFAS No. 87 -- "Employers' Accounting
for Pensions," the Company recorded an additional minimum liability at the end
of 1996 and 1997 representing the excess of the accumulated benefit obligation
over the plan assets at fair value and the unfunded accrued pension cost. The
additional minimum liability was offset to the extent possible by an intangible
asset. Because the asset recognized may not exceed the amount of unrecognized
prior-service cost and unrecognized transition liability, the balance of the
offset of the additional minimum liability was reported as a reduction of
retained earnings, net of related income tax benefits.
The projected benefit obligation as of December 31, 1995, 1996 and 1997 was
determined using an assumed discount rate of 7.5%, 7.5% and 7.0%, respectively.
The expected long-term rate of return on plan assets used in determining net
periodic pension cost was 8.0%, 8.0% and 8.5% in 1995, 1996, and 1997,
respectively. The plan has a flat benefit formula; accordingly, the effect of
projected future compensation levels is zero. The plan's assets consist
primarily of shares of the Corporation's common stock, equity and bond funds,
corporate bonds and investment contracts with insurance companies.
36
<PAGE> 37
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
Net periodic pension costs for the Company's domestic defined benefit
pension plan for the years ended December 31, 1995, 1996 and 1997 included the
following components (000's omitted):
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Service cost on benefits earned during the year............. $ 625 $ 690 $ 871
Interest cost on projected benefit obligation............... 1,085 1,133 1,679
Actual return on plan assets................................ (1,562) (1,166) (3,549)
Net amortization and deferral............................... 1,041 507 2,231
Curtailment loss on severed employees....................... -- -- 2,595
------- ------- -------
Net periodic pension cost................................... $ 1,189 $ 1,164 $ 1,232
======= ======= =======
</TABLE>
In addition, hourly employees at eight plants are covered by
union-sponsored, collectively bargained, multi-employer pension plans. The
Company contributed to these plans and charged to expense approximately $1.2
million, $1.5 million and $1.4 million in 1995, 1996 and 1997, respectively. The
contributions are generally determined in accordance with the provisions of the
negotiated labor contracts and are generally based on a per employee per week
amount.
The impact from discontinued operations on the above disclosures is not
material.
While the Company does provide limited severance and certain supplemental
unemployment benefits for certain domestic employees in connection with certain
collective bargaining agreements, benefits paid under these arrangements have
been and are expected to continue to be minimal. Postemployment benefits
associated with restructuring programs are appropriately provided.
In March 1995, 1996 and 1997, the Corporation contributed shares of Common
Stock, valued at $1.1 million, $0.4 million and $0.9 million, respectively, to
U.S. Can's Salaried Employees Savings and Retirement Accumulation Plan.
In Europe, the Company maintains two defined benefit plans for certain of
its employees in the United Kingdom and in France. The United Kingdom plan
benefits are based primarily on years of service and employee compensation. As
of December 31, 1996 and 1997, the preliminary actuarially-determined
accumulated benefit obligation was $28.8 million and $29.1 million,
respectively, with such amount being fully funded. The French plan benefits are
based primarily on length of employee service. As of December 31, 1996 and 1997,
the actuarially-determined accumulated benefit obligation was approximately $1.4
million and $1.8 million, respectively, all of which was non-vested. This plan
is not funded. The aggregate net pension expense in 1996, from the date of the
USC Europe acquisition and 1997, for these two plans was approximately $0.2
million and $0.8 million, respectively.
(8) POSTRETIREMENT BENEFIT PLANS
The Company provides health and life insurance benefits for certain
domestic retired employees in connection with certain collective bargaining
agreements.
Net periodic postretirement benefit costs for the Company's domestic
postretirement benefit plans for the years ended December 31, 1995, 1996 and
1997, included the following components (000's omitted):
<TABLE>
<CAPTION>
1995 1996 1997
---- ---- ----
<S> <C> <C> <C>
Service cost on benefits earned during the year............. $ 333 $ 388 $ 406
Amortization of net loss.................................... -- -- 10
Interest cost on accumulated postretirement benefit
obligation................................................ 1,836 1,851 1,994
------ ------ ------
Net periodic postretirement benefit cost.................. $2,169 $2,239 $2,410
====== ====== ======
</TABLE>
37
<PAGE> 38
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
The Company's postretirement benefit plans currently are not funded. The
status of the plans at December 31, 1996 and 1997, is as follows (000's
omitted):
<TABLE>
<CAPTION>
1996 1997
---- ----
<S> <C> <C>
Actuarial present value of accumulated post-retirement
benefit obligation --
Retirees, beneficiaries and dependents of retirees........ $15,687 $17,740
Active employees and dependents........................... 10,381 11,793
------- -------
Total accumulated postretirement benefit obligation......... 26,068 29,533
Unrecognized net loss....................................... 1,700 4,317
------- -------
Accrued postretirement benefit costs................... $24,368 $25,216
======= =======
</TABLE>
The assumed health care cost trend rate used in measuring the accumulated
postretirement benefit obligation was 11% in 1995, 10% in 1996, and 9% in 1997,
gradually declining to 7% by the year 1999 and remaining at that level
thereafter. A one-percentage-point increase in the assumed health care cost
trend rate for each year would increase the accumulated postretirement benefit
obligation as of December 31, 1997, by approximately $3.1 million and the total
of the service and interest cost components of net postretirement benefit cost
for the year then ended by approximately $0.3 million. The assumed discount rate
used in determining the accumulated postretirement benefit obligation was 7.5%,
7.5% and 7.0%, in 1995, 1996 and 1997, respectively.
The impact from discontinued operations on the above disclosures is not
material.
An executive, director and stockholder of the Corporation is eligible to
receive postretirement benefits under a non-qualified supplemental benefit plan.
Annual expense for this plan is approximately $0.4 million. As of December 31,
1996 and 1997, the Company had recorded a liability of $3.0 million and $3.3
million, respectively, for benefits for which the executive was fully eligible
to receive at that date. The principal source of funding for this obligation is
an insurance policy on the executive's life on which the Company is currently
paying the premium. The cash surrender value, net of appropriate reserves, is
reflected as a component of other assets.
(9) COMMITMENTS AND CONTINGENCIES
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. In connection with sales in 1994 and
1995 of land on which the facility was located, the Company agreed to indemnify
the purchaser against environmental claims related to the Company's 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.
Consultants retained by the Company to evaluate the site concluded that the
Company's operations had not impacted the groundwater at this site and that the
contamination detected at this site resulted from migration from off-site,
upgradient sources. However, in January 1998, the CDSTC informed the Company
that it disagrees with these conclusions and wants the Company to conduct
extensive additional testing. With the CDTSC's consent, the Company is preparing
an appeal to the CDTSC's Director. To date, there has been no resolution of this
matter between the Company and the CDTSC, although discussion are ongoing. 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
38
<PAGE> 39
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
to potential liability for the cost to clean up or remedy any environmental
contamination resulting from such substances relating to those businesses. As of
December 31, 1997, the Company's reserves for future ascertainable costs of
environmental remediation in the United States were approximately $0.5 million.
Management does not believe that such costs, if any, in excess of the reserve
will have a material adverse effect on the Company's results of operations or
financial condition. In making this assessment, the Company considered all
information available to it including its and others companies' reported prior
experience in dealing with such matters, data released by the EPA and reports by
independent environmental consultants regarding certain matters. 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.
A variety of propellants are used in the Company's principal product,
aerosol cans. These propellants includes hydrocarbons, 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 operations 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.
The Company has made, and expects to continue to make, significant capital
expenditures to upgrade its facilities in accordance with current and pending
environmental regulations.
The Company received a request for information from the U.S. EPA in January
1997, concerning the lithography operations at its Chicago facility (formerly
owned by Alltrista). In March 1997, representatives of the U.S. EPA inspected
the Chicago facility and requested additional information, including compliance
tests and reports. The Company has cooperated fully with the U.S. EPA inquiry.
The Company does not know what the outcome of this inquiry will be. In the
acquisition agreement between the Company and Alltrista, Alltrista agreed to
indemnify the Company for compliance costs that relate back to Alltrista's
operation of this facility.
As a potentially responsible party ("PRP") at various Superfund sites in
the U.S., the Company is or may be legally responsible, jointly and severally
with the other members of the PRP group, for the cost of remediation of these
sites. Based on currently available data (including EPA data, internal records
and other sources believed to be reliable), the Company believes its
contribution, and/or the contribution of its predecessors, to these sites was de
minimis. Based on the information available as of the date of this Report,
39
<PAGE> 40
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
management does not believe that its aggregate remediation costs or potential
liabilities in connection with these sites will have a material adverse effect
on the financial condition or results of operations. However, there can be no
assurance that the other PRP's will pay their proportionate share of the
remediation costs at these sites and, as a result, future costs or liabilities
incurred by the Company could be material.
The Company, including the European Subsidiaries, is involved in various
other environmental and legal actions and administrative proceedings. Management
is of the opinion that their outcome will not have a material effect on the
Company's financial position or results of operations.
In 1995, Continental Holdings Inc. ("CHI") filed a Complaint against U.S.
Can and others asserting claims based upon alleged indemnity obligations of U.S.
Can to a CHI affiliate, arising from the 1987 acquisition by U.S. Can of the
general packaging business of another affiliate. In May 1997, CHI and U.S. Can
agreed to settle the litigation by dismissing their respective claims and
counterclaims with prejudice and exchanging full releases. No payment of monies
was included in this settlement.
The Company has entered into agreements to lease certain property under
terms which qualify as capital leases. Capital leases consist primarily of data
processing equipment and various production machinery and equipment. Most
capital leases contain renewal options and some contain purchase options. The
December 31, 1996 and 1997 capital lease asset balances were $51.6 million and
$37.8 million, net of accumulated amortization of $19.0 million and $18.8
million, respectively. Capital lease obligations extend through 2005. Capital
lease additions included as capital expenditures in the accompanying statements
of cash flows were $5.8 million, $2.1 million and $0.1 million in 1995, 1996 and
1997, respectively.
The Company also maintains operating leases on various plant and office
facilities and office equipment. Rent expense under operating leases for the
years ended December 31, 1995, 1996 and 1997, was $8.1 million, $9.2 million,
and $6.8 million, respectively.
At December 31, 1997 minimum payments due under these leases are as follows
(000's omitted):
<TABLE>
<CAPTION>
CAPITAL OPERATING
LEASES LEASES
------- ---------
<S> <C> <C>
1998...................................................... $ 5,937 $ 6,876
1999...................................................... 6,012 5,795
2000...................................................... 3,957 4,853
2001...................................................... 5,532 3,804
2002...................................................... 5,169 2,457
Thereafter................................................ 1,882 6,560
-------- -------
Total minimum lease payments.............................. 28,488 $30,345
=======
Amount representing interest.............................. (5,266)
--------
Present value of net minimum capital lease payments
(including $2,236 classified as current)................ $ 23,222
========
</TABLE>
The Company was contingently liable for outstanding letters of credit
totaling $12.5 million as of December 31, 1997. Such letters of credits were
issued primarily to guarantee workers' compensation claims, which have been
accrued but not funded, and certain debt.
(10) STOCK OPTION PLANS
Incentive Stock Option Plan
The Corporation maintains an Incentive Stock Option Plan (the "ISO Plan")
for certain key employees of the Company. Directors who are not regular
employees of the Company are not eligible to participate in the
40
<PAGE> 41
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
ISO Plan. In addition, no employee of the Company is eligible to participate in
the ISO Plan if such employee owns stock constituting 10% or more of the total
voting power of the Corporation. The Corporation has reserved 240,000 shares for
issuance under the ISO Plan. The exercise price for options granted under the
ISO Plan may not be less than 100% of the fair market value of the underlying
stock on the date the option is granted. Options under the plan may have a
maximum term of 10 years and are exercisable at the time specified by the Board
of Directors. Payment upon exercise of an option is to be in full, in either
cash or shares of Common Stock with a value equal to the option price, or a
combination of the two.
Nonqualified Stock Option Agreement
The Corporation was a party to a Nonqualified Stock Option Agreement under
which options to purchase a total of 300,000 shares were granted to an executive
officer and a former executive officer of the Company. During 1995, the
remaining 115,000 outstanding options were exercised.
1993 and 1994 Option Plans
The Company maintains two non-qualified option plans pursuant to which
employees of the Company may be granted options to purchase up to a total of
550,000 shares of Common Stock at a per share exercise price equal to the per
share market price of the Common Stock as of the date the option is granted.
Pursuant to these plans, the Company has issued options to purchase 543,375
shares of Common Stock at prices ranging from $12.00 to $21.50 per share. These
options have a maximum term of 10 years and vest over a four-year period, 25%
becoming fully vested on the first anniversary date of their issuance, with the
rest of the options vesting monthly in equal amounts over the remaining three
years.
Stock Purchase Plan
The Company maintains an annual non-qualified employee stock purchase plan
(the "Stock Purchase Plan") available to all salaried employees and certain
designated groups of hourly employees. The purpose of the plan is to promote
increased employee stock ownership in the Company and to provide a benefit to
employees. Participating employees are able to purchase shares of Common Stock
through payroll deductions. Each annual Stock Purchase Plan is in effect for a
one-year period. Eligible employees are able to elect to purchase shares of
Common Stock at a price equal to the current market price, less a 15% discount,
in an amount up to 7.5% of each participating employee's salary. Fifteen days
prior to the exercise date, each participant has the option to complete the
purchase of shares under the Stock Purchase Plan or to withdraw the amounts
withheld from the employee's salary pursuant to the plan. During 1995, 1996 and
1997, the Corporation issued Common Stock valued at $1.6 million, $0.5 million
and $0.7 million related to the Stock Purchase Plan. The Stock Purchase Plan
established for the 1997 -- 1998 plan year has an exercise price of $14.556 per
share.
Incentive Plan
In 1995, the Company adopted an equity incentive plan (the "Incentive
Plan") pursuant to which employees of the Company may be granted stock options
("Options"), stock appreciation rights ("SARs") and shares of restricted stock
("Restricted Shares"). The number of shares of Common Stock that may be issued
or transferred under this plan upon the exercise of Options or as Restricted
Shares may not exceed 650,000 shares. The exercise price of the Options may not
be less than 100% of the fair market value of the underlying stock on the date
of the grant. Options have a maximum term of ten years and are exercisable at
the time specified by the Board of Directors.
Options granted under the Incentive Plan may be either incentive stock
options ("ISOs") or non-qualified stock options ("NSOs"). Pursuant to the
Incentive Plan, the Company has issued ISOs to purchase
41
<PAGE> 42
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
192,500 shares of Common Stock at prices ranging from $16.50 to $20.875 per
share and NSOs to purchase 5,000 shares of Common Stock at a price of $18.75 per
share.
SARs may be granted in connection with any Option granted under the
Incentive Plan, either at the time of the Option grant or any time thereafter
during the term of the Option. SARs entitle the holder of the related Option to
surrender to the Company the unexercised, related option, or any portion
thereof, in exchange for an amount equal to the excess of the market value of a
share of Common Stock on the date the SAR is exercised over the Option's
exercise price times the number of shares covered by the surrendered Option, or
portion thereof. The Company has yet to grant any SARs.
Shares issued as Restricted Shares under the Incentive Plan provide all the
rights of ownership with respect to such shares, including the right to vote the
shares and receive all dividends or other distributions made or paid with
respect to such shares. The shares are restricted in that ownership is dependent
on continued employment with the Company and transferability is limited. These
restrictions lapse upon the completion of a period of time as specified by the
Board of Directors at the time of issuance. Restricted Shares issued under the
plan are recorded at their fair value on the date of issuance with a
corresponding charge to stockholders' equity representing the compensation to be
recognized during the restriction period. The unearned compensation is amortized
as expense on a straight-line basis over the restriction period. In 1995, 1996
and 1997, 131,000 restricted shares were awarded at an aggregate value of $2.2
million, 67,000 restricted shares were awarded at an aggregate value of $1.1
million and 95,630 restricted shares were awarded at an aggregate value of $1.4
million, respectively. Amortization of unearned compensation amounted to $0.1
million, $0.5 million and $2.4 million during 1995, 1996 and 1997, respectively.
1997 Equity Incentive Plan
During the year, the Company adopted a non-qualified equity incentive plan
(the "1997 Equity Incentive Plan") pursuant to which employees, directors,
officers, consultants and independent contractors of the Company may be granted
options or awarded restricted stock in an aggregate amount not in excess of
400,000 shares. The exercise price of any option may not be less than the market
value per share at the date of the grant. Pursuant to the 1997 Equity Incentive
Plan, the Company has issued options to a management consulting firm to purchase
100,000 shares of Common Stock at prices ranging from $16.125 to $20.00 per
share. These options have a maximum term of 7 years and were fully vested upon
issuance. Stock appreciation rights may also be issued under this plan.
The Company has entered into a restricted stock agreement with its current
chief executive officer which provides for the issuance of up to 250,000 shares
of the Company's common stock under the 1997 Equity Incentive Plan if certain
per share market prices are reached and sustained for certain periods. The
specified periods over which the certain market prices must be sustained extend
through February 2000. Based on the per share market price through February 19,
1998, 33,333 shares otherwise issuable under this agreement have been forfeited
and, based on the per share market price as of February 19, 1998, none of the
conditions for future issuances have yet been attained. Certain other provisions
of this agreement would require immediate issuance of unissued shares upon the
occurrence of specified events, none of which are contemplated as of December
31, 1997.
42
<PAGE> 43
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
A summary of the status of the Company's stock option plans at December 31,
1995, 1996 and 1997 and changes during the years then ended is presented in the
tables below:
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING EXERCISABLE OPTIONS
-------------------------- -------------------------
WEIGHTED AVG. WEIGHTED AVG.
SHARES EXERCISE PRICE SHARES EXERCISE PRICE
------ -------------- ------ --------------
<S> <C> <C> <C> <C>
January 1, 1995................................. 871,183 $11.26 356,730 $ 7.15
Granted....................................... 335,917 17.11
Exercised..................................... (217,162) 7.63
Canceled...................................... (33,146) 15.34
-------- ------
December 31, 1995............................... 956,792 $14.00 403,469 $11.48
Granted....................................... 83,897 14.56
Exercised..................................... (28,350) 16.94
Canceled...................................... (94,567) 17.21
-------- ------
December 31, 1996............................... 917,772 $13.63 744,499 $13.15
Granted....................................... 100,000 19.03
Exercised..................................... (12,000) 12.00
Canceled...................................... (129,272) 3.63
-------- ------
December 31, 1997............................... 876,500 $14.63 867,250 $14.59
======== ======
</TABLE>
<TABLE>
<CAPTION>
OPTIONS OUTSTANDING EXERCISABLE OPTIONS
AT DECEMBER 31, 1997 AT DECEMBER 31, 1997
------------------------------------ --------------------
WTD. AVG.
REMAINING WTD. AVG. WTD. AVG.
RANGE OF CONTRACTUAL EXERCISE EXERCISE
EXERCISE PRICES SHARES LIFE (YEARS) PRICE SHARES PRICE
--------------- ------ ------------ --------- ------ ---------
<S> <C> <C> <C> <C> <C>
$ 8.00 to $15.75............................ 446,500 5.0 $11.61 445,178 $11.59
$16.00 to $21.50............................ 430,000 7.0 17.67 422,072 17.61
------- ------- ------
876,500 6.0 14.63 867,250 $14.59
======= ======= ======
</TABLE>
Had compensation costs been determined on the fair value-based accounting
method for options granted in 1995, 1996 and 1997, pro forma net income/(loss)
and diluted earnings per share would have been $3.5 million and $0.27,
respectively, for 1995, $11.0 million and $0.84, respectively, for 1996 and
($32.4 million) and ($2.49), respectively for 1997. As compensation costs for
options granted prior to January 1, 1995, were not remeasured for purposes of
this pro forma disclosure, such disclosure may not be representative of such
future pro forma disclosures.
The weighted-average estimated fair value of options granted during 1995,
1996 and 1997 was $8.42, $2.42 and $6.80, respectively. The fair value of each
option grant is determined on the date of grant using the Black-Scholes option
pricing model with the following weighted-average assumptions for options
granted in 1995, 1996 and 1997, respectively; risk-free interest rate of 6.3%,
5.8% and 6.2%; expected lives of 7.9 years, 6.3 years and 7.0 years; expected
volatility of 24.9%, 35.4% and 28.3%; and no dividends for any year.
(11) SHAREHOLDER RIGHTS PLAN
On October 19, 1995, the Corporation's Board of Directors adopted a
Shareholder Rights Plan. The Board declared a distribution of one right (a
"Right") for each share of Common Stock, which was outstanding on October 19,
1995 (the "Record Date"). Each share of Common Stock issued after the Record
Date will be issued with an attached Right. The Rights will not immediately be
exercisable or detachable from the Common Stock. The Rights will become
exercisable and detachable only following the acquisition by a
43
<PAGE> 44
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
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 the Corporation at a
50 percent discount, or to exchange the Rights for Common Stock, if the Board
permits. Where an acquiring company effects a merger or other control
transaction with the Corporation, the Rights may also entitle the holder to
acquire stock of the acquiring company at a 50 percent discount. 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. If
not redeemed, the Rights will expire ten years after the Record Date.
In addition, the Company has adopted certain change of control protection
that, under certain circumstances, would increase compensation and benefits of
certain executive officers.
(12) GEOGRAPHICAL AREA INFORMATION
The following table summarizes certain financial data as of and for the
years ended December 31, 1996 and 1997, by geographical area. The Company had no
foreign operations prior to its acquisition of USC Europe.
<TABLE>
<CAPTION>
UNITED
STATES EUROPE CONSOLIDATED
------ ------ ------------
(000'S OMITTED)
<S> <C> <C> <C>
1996
Net Sales................................. $603,772 $ 32,763 $636,535
Operating Income.......................... 64,306 975 65,281
Identifiable Assets....................... 538,389 105,227 643,616
1997
Net Sales................................. $633,901 $105,032 $738,933
Operating Income.......................... 4,827 4,306 9,133
Identifiable Assets....................... 513,860 119,844 633,704
</TABLE>
(13) SUBSIDIARY GUARANTOR INFORMATION
The 10 1/8% Notes are guaranteed on a full, unconditional, unsecured,
senior subordinated, joint and several basis by each of the Corporation's
Subsidiary Guarantors. As of and through December 31, 1997, U.S. Can, wholly
owned by the Corporation, was the only Subsidiary Guarantor. The Corporation had
no assets or operations separate from its investment in U.S. Can, and there were
no Non-Guarantor Subsidiaries until the acquisition by U.S. Can of USC Europe on
September 11, 1996. Separate financial statements of U.S. Can are not presented
because management of the Company has determined that they are not material to
investors.
The following condensed consolidating financial data illustrates the
composition of the Corporation (the "Parent"), U.S. Can (the "Subsidiary
Guarantor"), and the European Subsidiaries (the "Non-Guarantor Subsidiaries"),
as of and for the years ended December 31, 1996 and 1997. Investments in
subsidiaries are accounted for by the Parent and the Subsidiary Guarantor under
the equity method for purposes of the supplemental consolidating presentation.
Earnings of subsidiaries are, therefore, reflected in their parent's investment
accounts and earnings.
44
<PAGE> 45
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
CONDENSED CONSOLIDATING BALANCE SHEET
AS OF DECEMBER 31, 1997
<TABLE>
<CAPTION>
UNITED STATES
U.S. CAN CAN COMPANY USC EUROPE U.S. CAN
CORPORATION (SUBSIDIARY (NON-GUARANTOR CORPORATION
(PARENT) GUARANTOR) SUBSIDIARY) ELIMINATIONS CONDENSED
----------- ------------- -------------- ------------ -----------
(000'S OMITTED)
<S> <C> <C> <C> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents.......... $ -- $ 415 $ 6,358 $ -- $ 6,773
Accounts receivable................ -- 53,559 20,578 -- 74,137
Inventories........................ -- 93,028 16,430 -- 109,458
Prepaid expenses and other
assets.......................... -- 13,904 3,599 -- 17,503
Prepaid income taxes............... -- 22,748 -- -- 22,748
-------- -------- -------- --------- --------
Total current assets....... 183,654 46,965 -- 230,619
-------- -------- -------- --------- --------
NET PROPERTY, PLANT AND EQUIPMENT.... -- 256,464 67,833 -- 324,297
INTANGIBLE ASSETS.................... -- 59,578 -- -- 59,578
OTHER ASSETS......................... -- 17,587 1,623 -- 19,210
INVESTMENT IN SUBSIDIARIES........... 335,962 -- -- (335,962) --
-------- -------- -------- --------- --------
Total assets............... $335,962 $517,283 $116,421 $(335,962) $633,704
======== ======== ======== ========= ========
CURRENT LIABILITIES:
Current maturities of long-term
debt............................ $ -- $ 6,817 $ 2,818 $ -- $ 9,635
Accounts payable................... -- 42,155 16,331 -- 58,486
Other current liabilities.......... -- 73,480 8,247 -- 81,727
-------- -------- -------- --------- --------
Total current liabilities....... -- 122,452 27,396 -- 149,848
-------- -------- -------- --------- --------
SENIOR DEBT.......................... -- 61,850 29,656 -- 91,506
SUBORDINATED DEBT.................... 275,000 -- -- -- 275,000
OTHER LONG-TERM LIABILITIES.......... 52,031 3,006 -- 55,037
INTERCOMPANY ADVANCES................ (1,351) (6,366) 7,717 -- --
STOCKHOLDERS' EQUITY................. 62,313 287,316 48,646 (335,962) 62,313
-------- -------- -------- --------- --------
Total liabilities and
equity................... $335,962 $517,283 $116,421 $(335,962) $633,704
======== ======== ======== ========= ========
</TABLE>
45
<PAGE> 46
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
CONDENSED CONSOLIDATING BALANCE SHEET
AS OF DECEMBER 31, 1996
<TABLE>
<CAPTION>
UNITED STATES
CAN
U.S. CAN COMPANY USC EUROPE U.S. CAN
CORPORATION (SUBSIDIARY (NON-GUARANTOR CORPORATION
(PARENT) GUARANTOR) SUBSIDIARIES) ELIMINATIONS CONSOLIDATED
----------- ------------- -------------- ------------ ------------
(000'S OMITTED)
<S> <C> <C> <C> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents........... $ -- $ 628 $ 7,338 $ -- $ 7,966
Accounts receivable................. -- 61,000 25,822 -- 86,822
Inventories......................... -- 98,179 14,964 -- 113,143
Prepaid expenses and other assets... -- 12,883 2,378 -- 15,261
Prepaid income taxes................ 696 8,676 -- -- 9,372
-------- -------- -------- -------- --------
Total current assets........... 696 181,366 50,502 -- 232,564
NET PROPERTY, PLANT AND EQUIPMENT..... -- 269,281 53,833 -- 323,114
INTANGIBLE ASSETS..................... -- 67,206 -- -- 67,206
OTHER ASSETS.......................... 7,671 12,169 892 -- 20,732
INVESTMENT IN SUBSIDIARIES............ 364,461 53,232 -- 417,693 --
-------- -------- -------- -------- --------
Total assets................... $372,828 $583,254 $105,227 $417,693 $643,616
======== ======== ======== ======== ========
CURRENT LIABILITIES
Current maturities of long-term
debt............................. $ -- $ 11,567 $ 361 $ -- $ 11,928
Accounts payable.................... -- 40,490 19,634 -- 60,124
Other current liabilities........... -- 43,187 11,695 -- 54,882
-------- -------- -------- -------- --------
Total current liabilities...... -- 95,244 31,690 -- 126,934
-------- -------- -------- -------- --------
SENIOR DEBT........................... -- 82,978 5,904 -- 88,882
SUBORDINATED DEBT..................... 275,000 -- -- -- 275,000
OTHER LONG-TERM LIABILITIES........... 1,340 53,647 1,028 -- 56,015
INTERCOMPANY ADVANCES................. (297) (13,076) 13,373 -- --
STOCKHOLDERS' EQUITY.................. 96,785 364,461 53,232 417,693 96,785
-------- -------- -------- -------- --------
Total liabilities and
stockholders' equity........ $372,828 $583,254 $105,227 $417,693 $643,616
======== ======== ======== ======== ========
</TABLE>
46
<PAGE> 47
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
UNITED STATES
U.S. CAN CAN COMPANY USC EUROPE U.S. CAN
CORPORATION (SUBSIDIARY) (NON-GUARANTOR CORPORATION
(PARENT) GUARANTOR SUBSIDIARIES) ELIMINATIONS CONSOLIDATED
----------- ------------- -------------- ------------ ------------
(000'S OMITTED)
<S> <C> <C> <C> <C> <C>
NET SALES............................... $ -- $633,901 $105,032 $ -- $738,933
COST OF SALES........................... -- 551,256 96,463 -- 647,719
-------- -------- -------- ------- --------
Gross income.......................... -- 82,645 8,569 -- 91,214
SELLING, GENERAL AND ADMINISTRATIVE
EXPENSES.............................. -- 28,158 4,263 -- 32,421
SPECIAL CHARGES......................... -- 49,660 -- -- 49,660
-------- -------- -------- ------- --------
Operating income...................... -- 4,827 4,306 -- 9,133
INTEREST EXPENSE ON BORROWINGS.......... -- 34,869 1,998 -- 36,867
AMORTIZATION OF DEFERRED FINANCING
COSTS................................. -- 1,738 -- -- 1,738
OTHER EXPENSE........................... -- 1,851 -- -- 1,851
EQUITY EARNING SUBSIDIARY............... (32,032) 1,312 30,720 --
PROVISION (BENEFIT) FOR INCOME TAXES.... -- (12,859) 996 -- (11,863)
EXTRAORDINARY ITEM...................... -- -- -- -- --
NET LOSS FROM DISCONTINUED OPERATIONS... -- (159) -- -- (159)
NET LOSS ON DISCONTINUATION OF
BUSINESSES............................ -- (12,413) -- -- (12,413)
-------- -------- -------- ------- --------
NET INCOME (LOSS)....................... $(32,032) $(32,032) $ 1,312 $30,720 $(32,032)
======== ======== ======== ======= ========
</TABLE>
47
<PAGE> 48
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
CONDENSED CONSOLIDATING STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
UNITED STATES
U.S. CAN CAN COMPANY U.S. CAN
CORPORATION (SUBSIDIARY) CORPORATION
(PARENT) GUARANTOR USC EUROPE ELIMINATIONS CONSOLIDATED
----------- ------------- ---------- ------------ ------------
(000'S OMITTED)
<S> <C> <C> <C> <C> <C>
NET SALES............................... $ -- $603,772 $32,763 $ -- $636,535
COST OF SALES........................... -- 512,938 30,500 -- 543,438
------- -------- ------- -------- --------
Gross Income.......................... -- 90,834 2,263 -- 93,097
SELLING, GENERAL AND ADMINISTRATIVE
EXPENSES.............................. -- 26,528 1,288 -- 27,816
SPECIAL CHARGES......................... -- 0
------- -------- ------- -------- --------
Operating Income...................... -- 64,306 975 -- 65,281
INTEREST EXPENSE ON BORROWINGS.......... -- 28,159 228 -- 28,387
AMORTIZATION OF DEFERRED FINANCING
COSTS................................. -- 1,518 -- -- 1,518
OTHER EXPENSE........................... -- 1,531 (63) -- 1,468
EQUITY EARNINGS SUBSIDIARY.............. 11,751 511 -- (12,262) 0
PROVISION FOR INCOME TAXES.............. -- 13,885 299 -- 14,184
EXTRAORDINARY ITEM...................... -- (5,250) -- -- (5,250)
NET LOSS FROM DISCONTINUED OPERATIONS... -- (2,723) -- -- (2,723)
NET LOSS ON DISCONTINUATION OF
BUSINESSES............................ -- -- -- -- --
------- -------- ------- -------- --------
NET INCOME (LOSS)....................... $11,751 $ 11,751 $ 511 $(12,262) $ 11,751
======= ======== ======= ======== ========
</TABLE>
48
<PAGE> 49
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1997
<TABLE>
<CAPTION>
US CAN
US CAN COMPANY USC EUROPE US CAN
CORPORATION (SUBSIDIARY) (NON-GUARANTOR CORPORATION
(PARENT) GUARANTOR SUBSIDIARIES) ELIMINATIONS CONSOLIDATED
----------- ------------ -------------- ------------ ------------
(000'S OMITTED)
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES......................... $ -- $ 64,653 $ (229) $ -- $ 64,424
-------- -------- -------- -------- --------
CASH FLOWS FROM OPERATING ACTIVITIES:
Capital expenditures............... -- (36,122) (17,908) -- (54,030)
Acquisition of businesses, net of
cash acquired................... -- (12,398) -- -- (12,398)
Proceeds on sale of business....... -- 1,000 -- -- 1,000
Proceeds from sale of property..... -- -- 630 -- 630
Machinery repair parts usage,
net............................. -- 88 (450) -- (362)
-------- -------- -------- -------- --------
Net cash used in investing
activities.................... -- (47,432) (17,728) -- (65,160)
-------- -------- -------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of common stock and
exercise of stock options....... -- 152 -- -- 152
Net borrowings under the revolving
line of credit and changes in
cash overdrafts................. -- 1,931 -- -- 1,931
Borrowings of other long-term debt,
including capital lease
obligations..................... -- (1,086) 26,021 -- 24,935
Payments of other long-term debt,
including capital lease
obligations..................... -- (21,628) (724) -- (22,352)
Payments of debt refinancing
costs........................... -- (1,574) -- -- (1,574)
Purchase of treasury stock, net.... -- (1,179) -- -- (1,179)
-------- -------- -------- -------- --------
Net cash provided by financing
activities.................... -- $(23,384) 25,297 -- 1,913
-------- -------- -------- -------- --------
EFFECT OF EXCHANGE RATE CHANGES ON
CASH............................... -- $ -- (2,370) -- (2,370)
-------- -------- -------- -------- --------
INCREASE IN CASH AND CASH
EQUIVALENTS........................ -- $ (6,163) 4,970 -- (1,193)
CASH AND CASH EQUIVALENTS, beginning
of year............................ -- $ 628 7,338 -- 7,966
-------- -------- -------- -------- --------
CASH AND CASH EQUIVALENTS, end of
year............................... $ -- $ (5,535) $ 12,308 $ -- $ 6,773
======== ======== ======== ======== ========
</TABLE>
49
<PAGE> 50
U.S. CAN CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (CONTINUED)
CONDENSED CONSOLIDATING STATEMENT OF CASH FLOWS
FOR THE YEAR ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
UNITED STATES
CAN
U.S. CAN COMPANY USC EUROPE U.S. CAN
CORPORATION (SUBSIDIARY) (NON-GUARANTOR CORPORATION
(PARENT) GUARANTOR SUBSIDIARIES) ELIMINATIONS CONSOLIDATED
----------- ------------- -------------- ------------ ------------
(000'S OMITTED)
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING
ACTIVITIES....................... $ -- $ 26,245 $ 4,677 $ -- $ 30,922
-------- --------- -------- -------- ---------
CASH FLOWS FROM INVESTING
ACTIVITIES:
Capital expenditures............. -- (38,294) (10,336) -- (48,630)
Acquisition of businesses, net of
cash........................... -- (29,655) (51,239) -- (80,894)
Changes in restricted cash....... -- 1,455 -- -- 1,455
Proceeds from sale of property... -- 1,515 -- -- 1,515
Machinery repair parts usage,
net............................ -- 29 (691) -- (662)
-------- --------- -------- -------- ---------
Net cash used in investing
activities................ -- (64,950) (62,266) -- (127,216)
CASH FLOWS FROM FINANCING
ACTIVITIES:
Issuance of common stock and
exercise of stock options...... -- (51,082) 51,100 -- 18
Change in intercompany
advances....................... -- (13,373) 13,373 -- --
Net borrowings under the
revolving line of credit and
changes in cash overdrafts..... -- (25,052) -- -- (25,052)
Issuance of 10 1/8% Notes........ -- 275,000 -- -- 275,000
Amounts paid in escrow........... -- (109,728) -- -- (109,728)
Borrowings of other long-term
debt, including capital lease
obligations.................... -- 14,247 -- -- 14,247
Payments of other long-term debt,
including capital lease
obligations.................... -- (41,323) (101) -- (41,424)
Payments of debt refinancing
costs.......................... -- (9,259) -- -- (9,259)
Purchase of treasury stock,
net............................ -- (233) -- -- (233)
-------- --------- -------- -------- ---------
Net cash provided from
financing activities...... -- 39,197 64,372 -- 103,569
-------- --------- -------- -------- ---------
EFFECT OF EXCHANGE RATE CHANGES
ON CASH........................ -- -- 555 -- 555
-------- --------- -------- -------- ---------
INCREASE CASH AND CASH
EQUIVALENTS.................... -- 492 7,338 -- 7,830
CASH AND CASH EQUIVALENTS,
beginning of period............ -- 136 -- -- 136
-------- --------- -------- -------- ---------
CASH AND CASH EQUIVALENTS, end of
period......................... $ -- $ 628 $ 7,338 $ 0 $ 7,966
======== ========= ======== ======== =========
</TABLE>
50
<PAGE> 51
U.S. CAN CORPORATION AND SUBSIDIARIES
QUARTERLY FINANCIAL DATA (UNAUDITED)
The following is a summary of the unaudited interim results of operations
for each of the quarters in 1996 and 1997.
<TABLE>
<CAPTION>
FIRST QUARTER SECOND QUARTER THIRD QUARTER FOURTH QUARTER
------------------- ------------------- ------------------- -------------------
1996 1997 1996 1997 1996 1997 1996 1997
---- ---- ---- ---- ---- ---- ---- ----
(000'S OMITTED, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
NET SALES................... $144,286 $198,781 $149,075 $190,592 $154,977 $189,169 $188,197 $160,391
COST OF SALES............... 122,499 173,016 126,330 167,844 132,305 165,781 162,304 141,078
-------- -------- -------- -------- -------- -------- -------- --------
Gross Income.............. 21,787 25,765 22,745 22,748 22,672 23,388 25,893 19,313
SELLING, GENERAL AND
ADMINISTRATIVE EXPENSES... 6,422 8,668 6,436 8,115 6,525 7,667 8,433 7,971
SPECIAL CHARGES(a).......... -- -- -- -- -- 35,012 -- 14,648
-------- -------- -------- -------- -------- -------- -------- --------
Operations Income
(Loss).................. 15,365 17,097 16,309 14,633 16,147 (19,291) 17,460 (3,306)
INTEREST EXPENSE ON
BORROWINGS................ 6,186 9,255 6,335 9,187 6,992 9,274 8,874 9,151
AMORTIZATION OF DEFERRED
FINANCING COSTS........... 426 439 376 455 331 475 385 369
OTHER EXPENSES.............. 372 429 391 460 362 482 343 480
PROVISION (BENEFIT) FOR
INCOME TAXES.............. 3,493... 2,727 3,856 1,716 3,548 (11,347) 3,287 (4,959)
-------- -------- -------- -------- -------- -------- -------- --------
Income (Loss) From
Continuing Operations... 4,888 4,247 5,351 2,815 4,914 (18,175) 4,571 (8,347)
DISCONTINUED OPERATIONS, NET
OF TAX(a)................. (558) 91 (274) (44) (335) (11,632) (1,556) (987)
EXTRAORDINARY ITEM -- NET OF
TAX(b).................... -- -- -- -- -- -- (5,250) --
-------- -------- -------- -------- -------- -------- -------- --------
NET INCOME (LOSS)........... $ 4,330 $ 4,338 $ 5,077 $ 2,771 $ 4,579 $(29,807) $ (2,235) $ (9,334)
======== ======== ======== ======== ======== ======== ======== ========
DILUTED EARNINGS (LOSS) PER
SHARE..................... $ 0.33 $ 0.33 $ 0.39 $ 0.21 $ 0.35 $ (2.26) $ (0.17) $ (0.71)
======== ======== ======== ======== ======== ======== ======== ========
Weighted average shares and
equivalent shares
outstanding (000's)....... 13,005 13,155 13,063 13,163 13,120 13,210 13,158 13,129
Stock Market Price Range
High...................... $ 17.375 $ 17.750 $ 18.250 $ 17.250 $ 16.375 $ 17.375 $ 17.250 $ 18.750
Low....................... $ 13.250 $ 14.500 $ 16.125 $ 14.000 $ 14.500 $ 12.875 $ 15.250 $ 15.750
</TABLE>
- -------------------------
(a) See Note 3 of the "Notes to Consolidated Financial Statements."
(b) See Note 5 of the "Notes to Consolidated Financial Statements."
51
<PAGE> 52
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Incorporated by reference from the Corporation's 1998 Proxy Statement to be
filed with the Commission.
ITEM 11. EXECUTIVE COMPENSATION
Incorporated by reference from the Corporation's 1998 Proxy Statement to be
filed with the Commission, excluding, however, the Compensation and Management
Development Committee Report and the performance graph contained therein.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Incorporated by reference from the Corporation's 1998 Proxy Statement to be
filed with the Commission.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Incorporated by reference from the Corporation's 1998 Proxy Statement to be
filed with the Commission.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) (1) Financial Statements commence on p. 21.
(2) Financial Statement Schedules
All schedules are omitted as they are inapplicable or not required,
or the required information is included in the financial statements
or in the notes thereto.
(3) Exhibits (Note: Management contracts and compensatory plans or
arrangements are underlined in the following list.)
<TABLE>
<CAPTION>
INCORPORATION
EXHIBIT BY REFERENCE
NUMBER DESCRIPTION OF DOCUMENT (IF APPLICABLE)
- ------- ----------------------- ---------------
<C> <S> <C>
3.1 Restated Certificate of Incorporation....................... @4.3
3.2 By-laws..................................................... @@4.1
4.1 Indenture for 10 1/8% Notes................................. @@@4.2
4.2 Amended and Restated Credit Agreement, dated as of April 27,
1997........................................................ +4.1
4.3 Amendment No. 1 to Credit Agreement......................... ++10.3
4.4 Amendment No. 2 to Credit Agreement.........................
4.5 Shareholder Rights Agreement................................ ###4.1
10.1 Stock and Warrant Purchase Agreement with Salomon Brothers
Holding Company dated May 2, 1990........................... *10.1
10.2 Letter Agreement with Salomon Brothers dated May 2, 1990.... *10.3
10.3 Sublease Agreement for Commerce, CA plant dated, February
10, 1989.................................................... *10.10
10.4 Lease, as amended, for Weirton, WV plant dated January 1,
1976........................................................ *10.11
10.5 Lease for Burns Harbor, IN plant dated December 5, 1987..... **10.12
10.6 Voghera, Italy lease (English translation).................. ***10.6
10.7 Lease Agreement, as amended, for Alsip, IL plant dated
August 1, 1980.............................................. **10.15
10.8 Employment Agreement with William J. Smith dated March 26,
1993........................................................ sec.sec.sec.10.9
10.9 Employment Agreement with Timothy W. Stonich dated March 15,
1993........................................................ sec.sec.10.10
</TABLE>
52
<PAGE> 53
<TABLE>
<CAPTION>
INCORPORATION
EXHIBIT BY REFERENCE
NUMBER DESCRIPTION OF DOCUMENT (IF APPLICABLE)
- ------- ----------------------- ---------------
<C> <S> <C>
10.10 The Corporation's Incentive Stock Option Plan............... *10.20
10.11 Lease for Baltimore, MD plant with San Tomas Limited
Partnership dated October 24, 1991.......................... **10.23
10.12 Administrative Consent Order with the New Jersey Department
of Environmental Protection and Energy (including
Fully-Funded Trust Agreement)............................... xx10.29
10.13 Sublease for Green Bay, WI facility, dated October 31,
1992........................................................ sec.28.2
10.14 Nonqualified Supplemental Benefit Plan for William J. Smith
(including Supplemental Benefit Agreement and Split-Dollar
Insurance Agreement)........................................ xx10.31
10.15 U.S. Can Corporation Stockholders Agreement................. sec.sec.10.25
10.16 1993 Stock Option Plan...................................... #10.28
10.17 Employment Agreement with Frank J. Galvin dated March 26,
1993........................................................ sec.sec.10.29
10.18 Lease for Brookfield, OH facility, dated January 8, 1987.... sec.sec.sec.10.30
10.19 Second amendment to lease for Oak Brook, IL headquarters
dated May 16, 1994.......................................... para.10.29
10.20 Amendment No. 4 to lease for Weirton, WV, dated December 29,
1994........................................................ para.10.30
10.21 Lease Amendment to Burns Harbor, IN, dated September 1,
1994........................................................ para.10.31
10.22 Merthyr Tydfil, Wales Lease................................. ***10.24
10.23 Lease Amendment to Alsip, IL, dated September 1, 1994....... para.10.33
10.24 Lease for Fern Park, FL, dated May 16, 1994................. para.10.35
10.25 First amendment to lease for Trenton, NJ, dated January 19,
1995........................................................ para.10.36
10.26 Letter agreement with Salomon Brothers, dated October 11,
1995........................................................ +++10.29
10.27 Employment agreement with Tony Bonadonna, dated July 1,
1994........................................................ +++10.31
10.28 Non-Qualified Supplemental 401(k) Plan...................... +++10.33
10.29 Non-Qualified Benefit Replacement Plan...................... +++10.34
10.30 Change in Control Agreement with Frank J. Galvin............ ###10.3
10.31 Change in Control Agreement with Timothy W. Stonich......... ###10.5
10.32 Restricted Stock Agreement with Frank J. Galvin............. ###10.2
10.33 Restricted Stock Agreement with Timothy W. Stonich.......... ###10.4
10.34 1995 Equity Incentive Plan.................................. xxx
10.35 Amendment No. 1 to Employment Agreement with Frank J.
Galvin...................................................... +++10.44
10.36 Amendment No. 1 to Employment Agreement with Timothy W.
Stonich..................................................... +++10.45
10.37 Agreement regarding Amendment and Restatement of Oak Brook
Lease, dated March 6, 1992.................................. +++10.46
10.38 Columbiana, Ohio lease Agreement, dated January 23, 1990.... +++10.47
10.39 Burns Harbor Lease Amendment No. 1, dated August 18, 1994... +++10.48
10.40 Burns Harbor Lease Amendment No. 3, dated February 1,
1995........................................................ +++10.49
10.41 Addendum No. II to Brookfield, Ohio Lease, dated September
27, 1991.................................................... +++10.50
10.42 First Amendment to Lease for the Baltimore, Maryland plant
with San Tomas Limited Partnership, dated May 8, 1994....... +++10.51
10.43 Lease Agreement for the Columbia Specialty plant in
Baltimore, Maryland, dated May 6, 1994...................... +++10.52
10.44 Warren, Ohio Lease Agreement, dated January 23, 1990........ +++10.53
10.45 Amendment No. 3 to Weirton Lease Agreement, dated October
29, 1993.................................................... +++10.55
10.46 Engagement agreement and related agreement dated April 25,
1996, with Salomon Brothers Inc............................. $10.2
10.47 Newnan, Georgia Lease....................................... @@@10.3
10.48 Alliance, Ohio Lease........................................ @@@10.4
10.49 Salomon Smith Barney Engagement, dated January 30, 1998.....
10.50 1997 Equity Incentive Plan..................................
10.51 Change-In-Control Agreement with David Ford.................
10.52 David Ford Restricted Stock Agreement.......................
</TABLE>
53
<PAGE> 54
<TABLE>
<CAPTION>
INCORPORATION
EXHIBIT BY REFERENCE
NUMBER DESCRIPTION OF DOCUMENT (IF APPLICABLE)
- ------- ----------------------- ---------------
<C> <S> <C>
10.53 William J. Smith Restricted Stock Agreement.................
10.54 Paul W. Jones Offer Letter..................................
10.55 Engagement agreement dated September 3, 1997, with Salomon
Brothers Inc................................................ **10.2
10.56 Indemnification agreement dated July 9, 1997, with Salomon
Brothers Inc................................................ **10.1
10.57 Form of Non-employee Director Restricted Stock Agreement and
October 1997 schedule.......................................
10.58 John R. McGowan Employment Agreement........................
10.59 Lawrence T. Messina Employment Agreement....................
10.60 Amendment 1 to J. R. McGowan Employment Agreement...........
10.61 Amendment dated 11/17/97 to F. J. Galvin Employment
Agreement...................................................
10.62 Amendment 1 to A. F. Bonadonna Employment Agreement.........
23.1 Consent of Independent Public Accountants
27.1 Financial Data Schedule (EDGAR version only)................
</TABLE>
- -------------------------
<TABLE>
<C> <S>
@ Previously filed with Registration Statement on Form S-3 of
the Corporation, on June 1, 1994 (Reg. No. 33-79556).
@@ Previously filed with Form S-8 Registration Statement of the
Corporation, on March 23, 1994 (Reg. No. 33-76742).
@@@ Previously filed with Form 10-Q of the Corporation and U.S.
Can for the quarterly period ended September 29, 1996.
### Previously filed with Form 10-Q of the Corporation and U.S.
Can for the quarterly period ended October 1, 1995.
* Previously filed with Form 10-Q of the Corporation for the
quarterly period ended April 6, 1997.
** Previously filed with Form 10-Q of the Corporation for the
quarterly period ended October 5, 1997.
*** Previously filed with Form 10-K of the Corporation for the
year ended December 31, 1996.
x Previously filed with Form 8-K of the Corporation and U.S.
Can filed on May 14, 1996.
+ Previously filed with Form 10-Q of the Corporation and U.S.
Can for the quarter ended March 31, 1996.
# Previously filed with Form 8-K of the Corporation and U.S.
Can filed on August 9, 1996.
xx Previously filed with the Form S-1 Registration Statement of
the Corporation filed on January 6, 1993 (Registration No.
33-56804).
xxx Previously filed with the Corporation's 1995 Proxy
Statement.
sec. Previously filed with the Form 10-Q Quarterly Report of U.S.
Can for the Quarterly Period Ended April 3, 1994.
sec.sec. Previously filed with the Form 10-K Annual Report of U.S.
Can for the Fiscal Year Ended December 31, 1992.
sec.sec.sec. Previously filed with the Form 10-Q Joint Quarterly Report
of the Corporation and U.S. Can for the Quarterly Period
Ended April 3, 1994.
++ Previously filed with Form 10-Q Joint Quarterly Report of
the Corporation and U.S. Can for the quarterly period ended
July 2, 1995.
+++ Previously filed with Form 10-K Joint Annual Report of the
Corporation and U.S. Can for the fiscal year ended December
31, 1995.
para. Previously filed with the Joint Annual Report of the
Corporation and U.S. Can for the Fiscal Year Ended December
31, 1994.
$ Previously filed with Form 10-Q of the Corporation and U.S.
Can for the quarter ended June 30, 1996.
</TABLE>
54
<PAGE> 55
$$ Previously filed with Form 8-K of the Corporation and U.S.
Can filed on September 26, 1996.
$$$ Previously filed with Registration Statement on Form S-4 of
the Corporation and U.S. Can filed on December 11, 1996
(Registration No. 333-17677).
The Company agrees that, upon request, it will furnish a copy of any
instrument with respect to long-term debt less than or equal to 10 percent of
its total consolidated assets.
(b) No reports on Form 8-K were filed by the Corporation during the fourth
quarter of 1997.
55
<PAGE> 56
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized on March 24, 1998.
U.S. CAN CORPORATION
By: /s/ WILLIAM J. SMITH
------------------------------------
William J. Smith
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed by the following persons in the capacities indicated on
March 24, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ WILLIAM J. SMITH Chairman of the Board
- -----------------------------------------------------
William J. Smith
/s/ WILLIAM J. SMITH President and Chief Executive Officer
- -----------------------------------------------------
William J. Smith
/s/ TIMOTHY W. STONICH Executive Vice President, Finance, Chief
- ----------------------------------------------------- Financial Officer and Secretary
Timothy W. Stonich
/s/ JOHN R. MCGOWAN Vice President and Controller
- -----------------------------------------------------
John R. McGowan
/s/ CALVIN W. AURAND, JR. Director
- -----------------------------------------------------
Calvin W. Aurand, Jr.
/s/ BENJAMIN F. BAILAR Director
- -----------------------------------------------------
Benjamin F. Bailar
/s/ EUGENE B. CONNOLLY, JR. Director
- -----------------------------------------------------
Eugene B. Connolly, Jr.
/s/ CARL FERENBACH Director
- -----------------------------------------------------
Carl Ferenbach
/s/ RICARDO POMA Director
- -----------------------------------------------------
Ricardo Poma
/s/ FRANCISCO A. SOLER Director
- -----------------------------------------------------
Francisco A. Soler
/s/ MICHAEL J. ZIMMERMAN Director
- -----------------------------------------------------
Michael J. Zimmerman
</TABLE>
56
<PAGE> 57
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
- ------ -----------------------
4.4 Amendement no. 2 to Credit Agreement
10.49 Salomon Smith Barney Engagement Agreement, dated January 30, 1998
10.50 1997 Equity Incentive Plan
10.51 Change-In control Agreement with David Ford
10.52 David Ford Restricted Stock Agreement
10.53 William Smith Restricted Stock Agreement
10.54 Paul Jones Offer Letter
10.57 Form of Non-Employee Director Restricted Stock Agreement and October
1997 Schedule
10.58 John R. McGowan Employment Agreement
10.59 Lawrence T. Messina Employee Agreement
10.60 Amendment 1 to J.R. McGowan Employment Agreement
10.61 Amendment dated 11/17/97 to F.J. Galvin Employment Agreement
10.62 Amendment 1 to A.F. Bonadonna Employment Agreement
23.1 Consent of Independent Public Accountants
27.1 Financial Data Schedule
<PAGE> 1
Exhibit 4.4
CONFORMED COPY
AMENDMENT NO. 2
AND
WAIVER NO. 2
TO
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 2 AND WAIVER NO. 2 TO AMENDED AND RESTATED
CREDIT AGREEMENT ("Agreement") is being executed and delivered as of February
19, 1998, by and among United States Can Company, a Delaware corporation (the
"Borrower"), the financial institutions from time to time party to the Amended
and Restated Credit Agreement referred to below (collectively, the "Lenders",
and each individually, a "Lender"), and Bank of America National Trust and
Savings Association (as successor to Bank of America Illinois), as the "Agent"
for the Lenders (the "Agent"). Undefined capitalized terms which are used herein
shall have the meanings ascribed to such terms in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agent are parties
to that certain Amended and Restated Credit Agreement dated as of April 25, 1997
(as heretofore amended and modified by that certain Amendment No. 1 and Waiver
No. 1 thereto, dated as of November 12, 1997, among such parties, the "Credit
Agreement"), pursuant to which the Lenders have agreed to provide, subject to
the terms and conditions contained therein, certain loans and other financial
accommodations to the Borrower;
WHEREAS, the Borrower has failed to comply with its Total
Leverage Ratio, as set forth in clause (b) of Section 6.3 of the Credit
Agreement, its Maximum Domestic Leverage Ratio, as set forth in clause (c) of
Section 6.3 of the Credit Agreement, and its Interest Coverage Ratio, as set
forth clause (e) of Section 6.3 of the Credit Agreement, in each case with
respect to its four fiscal quarter period ending on December 31, 1997
(hereinafter, collectively, the "Covenant Defaults"); and
WHEREAS, the Borrower requested the Lenders and the Agent, and
subject to the terms and conditions of this Agreement the Lenders and the Agent
have agreed, to waive the Covenant Defaults, and to enter into certain
amendments to the definition of EBITDA and certain other provisions of the
Credit Agreement as provided below; and
WHEREAS, as a condition, among others, to the Lenders' and the
Agent's willingness to agree to such waivers and amendments, the Lenders and the
Agent have required that the Commitment Amount be reduced to $80,000,000, as
reflected in the amendments to Section 2.2.2 of the Credit Agreement as provided
below.
<PAGE> 2
NOW, THEREFORE, in consideration of the foregoing premises,
the terms and conditions stated herein and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the Borrower, the
Lenders and the Agent, such parties hereby agree as follows:
1. Amendment No. 1 to Credit Agreement. Subject to Paragraph 3
of this Agreement, and effective as of the date of this Agreement, the Credit
Agreement is hereby amended as follows (section and schedule references herein
refer to those of the Credit Agreement):
(a) Section 2.2.2 is deleted in its entirety and replaced with
the following provision:
"SECTION 2.2.2. Mandatory. (a) The Commitment Amount
shall be automatically and permanently reduced pursuant to this
subsection by $30,000,000 on February 19, 1998, by $12,500,000 on April
25, 2000 and by $12,500,000 on April 25, 2001; provided, however, if
the Incremental Syndication shall have not occurred, no reduction to
the Commitment Amount shall occur pursuant to this subsection on April
25, 2000 and, on April 25, 2001 the Commitment Amount shall be
automatically and permanently reduced pursuant to this subsection by
$10,000,000.
(b) If the Metal Services Sale Date occurs prior to
calendar year 2001, the Commitment Amount shall be automatically and
permanently reduced on each Metal Services Reduction Date by amounts
equal to the applicable Metal Services Reduction Increment with respect
to each such Metal Services Reduction Date. If the Metal Services Sale
Date occurs after calendar year 2000, the Commitment Amount shall be
automatically and permanently reduced on the Metal Services Sale Date
by the amount, if any, by which the Metal Services Gross Proceeds
received as of the Metal Services Sale Date exceeds $25,000,000.
Nothing in this subsection shall be construed to permit any such sale
which is otherwise prohibited by Section 6.2(g)."
(b) Section 6.2(c) is amended to delete clause (D)(3) of such
section in its entirety and to replace such clause with the following clause:
"(3) all reductions to the Commitment Amount required by Section
2.2.2(b) shall have been made,"
(c) Schedule I is amended to delete the word "and" appearing
at the end of clause (iii) of the definition of "EBITDA" set forth in such
schedule, to delete clause (iv) of such definition in its entirety, to delete
the second proviso of such definition in its entirety, and to replace such
provisions with the following provisions:
-2-
<PAGE> 3
"(iv) for purposes of computing the Borrower's and its consolidated
Subsidiaries' EBITDA for any four (4) fiscal quarter period, the amount
of EBITDA otherwise calculated pursuant to this definition shall be
increased by the aggregate amount of that portion of any unusual
charges incurred by the Borrower and its Subsidiaries during such
period which will not result in the outlay of cash during such
computation period and is deducted in otherwise computing EBITDA for
such period, but only to the extent such amount does not exceed
$15,000,000 during such period and was not incurred with respect to any
write-down or other revaluation of any of the Collateral which is
either (x) outside of the ordinary course of business or (y) otherwise
in an amount which exceeds five percent (5%) of the aggregate book
value of the Collateral, and (v) for purposes of computing the
Borrower's and its consolidated Subsidiaries EBITDA for any four (4)
fiscal quarter period, such computation shall include EBITDA (whether
positive or negative) attributable to the Borrower's Metal Services
business to the extent otherwise excluded as a result of such business
being classified as a discontinuing operation; provided, further,
however, that, for purposes of computing the Borrower's and its
consolidated Subsidiaries' EBITDA for any four (4) fiscal quarter
period which includes the Borrower's fiscal quarter ended October 5,
1997, in addition to any adjustment made pursuant to clause (iv) of
this definition, but without duplication, the amount of EBITDA
otherwise calculated pursuant to this definition for such four (4)
fiscal quarter period shall be increased by the aggregate amount of
restructuring charges incurred by the Borrower and its Subsidiaries
during the Borrower's fiscal quarter ended October 5, 1997 to the
extent such restructuring charges do not exceed $35,000,000 in the
aggregate."
(d) Schedule I is further amended to delete clause (f) of the
definition of "Permitted Disposition" in its entirety and to replace such clause
with the following provision:
and (f) the sale for fair value by the Borrower of all, or a material
portion, of the Metal Services Assets outside the ordinary course of
its business, provided that (i) the Metal Services Gross Proceeds with
respect thereto is greater than or equal to $25,000,000, (ii) at least
90% of such Metal Services Gross Proceeds are payable by the purchaser
of such Metal Services Assets to the Borrower in cash, or by wire
transfer of immediately available funds, on the Metal Services Sale
Date or, with respect to inventory, within six (6) months thereafter
(plus any applicable grace periods), (iii) the Borrower shall make a
mandatory prepayment with respect thereto in accordance with Section
2.8.1(e), (iv) any reduction to the Commitment Amount which is required
to be made pursuant to Section 2.2.2(b) in connection therewith shall
have been made and (v) no Default or Event of Default shall have
occurred and be continuing as of the Metal Services Sale Date."
(e) Schedule I is further amended to delete in its entirety
the definition of "Pricing Ratio" set forth in such schedule and to replace such
definition with the following definition:
-3-
<PAGE> 4
"Pricing Ratio" means, as of last day of any fiscal quarter, a
fraction equal to the Borrower's and its consolidated Subsidiaries' Senior Debt
as of the last day of the then most recently ended fiscal quarter divided by the
Borrower's and its consolidated Subsidiaries' Pricing EBITDA for the most recent
four (4) fiscal quarters then ended.
(f) Schedule I is further amended to add the following
definition to such schedule in the appropriate alphabetical location:
"Pricing EBITDA" means, with respect to any period, as
determined in accordance with GAAP, the sum for such period of (a) Operating
Income plus (b) Depreciation; provided, however, that, (i) for purposes of
computing the Borrower's and its consolidated Subsidiaries' Pricing EBITDA for
the four (4) fiscal quarter period ending on June 30, 1997, all operations
acquired by the Borrower or any such Subsidiaries by merger or other acquisition
during either of the last two fiscal quarters of 1996 or the first fiscal
quarter of 1997 shall be treated as having been acquired on a pro forma basis as
of July 1, 1996, (ii) for purposes of computing the Borrower's and its
consolidated Subsidiaries' Pricing EBITDA for the four (4) fiscal quarter period
ending on September 30, 1997, all operations acquired by the Borrower or any
such Subsidiary by merger or other acquisition during the last fiscal quarter of
1996 or the first fiscal quarter of 1997 shall be treated as having been
acquired on a pro forma basis as of October 1, 1996, (iii) for purposes of
computing the Borrower's and its consolidated Subsidiaries' Pricing EBITDA for
the four (4) fiscal quarter period ending December 31, 1997, and each four (4)
fiscal quarter period ending thereafter, all operations acquired by the Borrower
and its Subsidiaries by merger or otherwise during such period shall be treated
as having been acquired on a pro forma basis as of the first day of such period
if, and only if, for purposes this clause (iii), such merger or acquisition
either occurred prior to the Closing Date or was permitted under Section 6.2(a),
and, with respect to each such merger and acquisition which has occurred after
the Closing Date, the Borrower shall have delivered to the Agent copies of the
audited annual financial statements of the Person who was, or whose operations
were, acquired by the Borrower and its Subsidiaries pursuant to such merger or
acquisition for the fiscal year of such Person which had most recently ended as
of the date of such merger or acquisition, (iv) for purposes of computing the
Borrower's and its consolidated Subsidiaries' Pricing EBITDA for any four (4)
fiscal quarter period, the amount of Pricing EBITDA otherwise calculated
pursuant to this definition shall be increased by the aggregate amount of that
portion of any unusual charges incurred by the Borrower and its Subsidiaries
during such period which will not result in the outlay of cash (whether during
the period of computation or any subsequent period) and is deducted in otherwise
computing Pricing EBITDA for such period, but only to the extent such amount
does not exceed $15,000,000 during such period and was not incurred with respect
to any write-down or other revaluation of any of the Collateral which is either
(x) outside of the ordinary course of business or (y) otherwise in an amount
which exceeds five percent (5%) of the aggregate book value of the Collateral
and (v) for purposes of computing the Borrower's and its consolidated
Subsidiaries Pricing EBITDA for any four (4) fiscal quarter period, such
computation shall include Pricing EBITDA (whether positive or negative)
attributable to the Borrower's Metal Services business to the extent otherwise
excluded as a result of such business being classified as a discontinuing
operation; provided, further, however, that, for purposes of computing the
Borrower's and its consolidated
-4-
<PAGE> 5
Subsidiaries' EBITDA for any four (4) fiscal quarter period which includes any
fiscal quarter of the Borrower ending on or before December 31, 1998, no
adjustment shall be made pursuant to clause (iv) of this definition and,
instead, the amount of Pricing EBITDA otherwise calculated pursuant to this
definition for any such period shall be increased by the aggregate amount of
restructuring charges incurred by the Borrower and its Subsidiaries during such
period which will not result in the outlay of cash (whether during the period of
computation or any subsequent period), but only to the extent such restructuring
charges do not exceed $28,000,000 in the aggregate after the date hereof.
2. Waiver No. 2 to the Credit Agreement. Subject to Paragraph
3 of this Agreement, and effective as of the date of this Agreement, each of the
Lenders and the Agent hereby waive each of the Covenant Defaults.
3. Effectiveness of this Agreement; Conditions Precedent. The
provisions of Paragraphs 1 and 2 shall be deemed to have become effective as of
the date of this Agreement, but such effectiveness shall be expressly
conditioned upon the Agent's receipt on or before February 27, 1997 of each of
the following:
(a) an originally-executed counterpart of this Agreement
executed by a duly authorized officer of the Borrower and each of the Lenders;
and
(b) payment of each "Amendment Fee" due and payable pursuant
to, and as defined in, Paragraph 4(e) hereof.
4. Representations, Warranties and Covenants. (a) The Borrower
hereby represents and warrants that this Agreement constitutes the legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
(b) The Borrower hereby represents and warrants that the
statements contained in the second "WHEREAS" clause in the introductory
paragraphs of this Agreement are true and correct.
(c) The Borrower hereby represents and warrants that its
execution and delivery of this Agreement, and its performance hereafter of the
Credit Agreement as modified by this Agreement, have been duly authorized by all
necessary corporate action, do not violate any provision of its articles of
incorporation, bylaws or other charter documents, will not violate any law,
regulation, court order or writ applicable to it, will not require the approval
or consent of any governmental agency, and do not require the approval or
consent of any third party under the terms of any contract or agreement to which
the Borrower, Parent or any Subsidiary of the Borrower or Parent is bound
(including, without limitation, the Parent Indenture).
(d) The Borrower hereby represents and warrants that, after
giving effect to all of the provisions of this Agreement, (i) no Default or
Event of Default has occurred and is continuing or will have occurred and be
continuing and (ii) all of the representations and
-5-
<PAGE> 6
warranties of the Borrower contained in the Credit Agreement (other than
representations and warranties which, in accordance with their express terms,
are made only as of a specified date) are, and will be, true and correct as of
the date of the Borrower's execution hereof in all material respects as though
made on and as of such date. The Borrower hereby further represents and warrants
that none of the Covenant Defaults would have occurred if the amendment
contemplated by Paragraph 1(c) hereof were effective as of December 31, 1997.
(e) The Borrower hereby agrees to pay to the Agent, for the
benefit of each Lender which executes and delivers a counterpart to this
Agreement prior to February 27, 1997, an amendment fee in an amount equal to
one-tenth of one percent (0.10%) of such Lender's Commitment as in existence on
February 19, 1998 after giving effect to the amendments proposed by this
Agreement (the "Amendment Fee"), provided no such Amendment Fee shall be due or
payable unless the conditions set forth in Paragraph 3(a) shall have been
satisfied. Such payments shall be made in cash or in immediately available funds
to the Agent, for the benefit of each such Lender, promptly following the later
to occur of such Lender's execution and delivery of a counterpart to this
Agreement and the satisfaction of the conditions set forth in Paragraph 3(a).
5. Reference to and Effect on Credit Agreement. The Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed. Except as expressly set forth in Paragraph 2 hereof, neither the
execution, delivery or effectiveness of this Agreement shall operate as a waiver
of any right, power or remedy of the Agent or any Lender of any Default or Event
of Default under the Credit Agreement, all of which the Agent and the Lenders
hereby expressly reserve. Nothing contained herein shall require the Agent or
the Lender to hereafter waive any Default or Event of Default, whether arising
from the Borrower's subsequent noncompliance with the same provisions subject to
the express waivers provided in this Agreement or otherwise. The Borrower, the
Lenders and the Agent agree and acknowledge that this Agreement constitutes a
"Loan Document" under and as defined in the Credit Agreement.
6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws and decisions of the State of Illinois.
7. Agent's Expenses. The Borrower hereby agrees to promptly
reimburse the Agent for all of the reasonable out-of-pocket expenses, including,
without limitation, attorneys' and paralegals' fees, it has heretofore or
hereafter incurred or incurs in connection with the preparation, negotiation and
execution of this Agreement.
8. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement among the parties.
* * * *
-6-
<PAGE> 7
IN WITNESS WHEREOF, this Agreement has been duly executed as
of the day and year first above written.
UNITED STATES CAN COMPANY
By: /s/ Peter J. Andres
-------------------------------------
Name: Peter J. Andres
Title: Vice President - Treasurer
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION (as successor
to Bank of America
Illinois), as Agent
By: /s/ Jay McKeown
-------------------------------------
Name: Jay McKeown
Title: Assistant Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION (as successor
to Bank of America
Illinois), as the Primary
Issuing Lender, a Lender
and individually
By: /s/ Tracy J. Alfery
-------------------------------------
Name: Tracy J. Alfery
Title: Vice President
HARRIS TRUST AND SAVINGS BANK,
as an Issuing Lender and a Lender
By: /s/ Scott F. Geik
-------------------------------------
Name: Scott F. Geik
Title: Vice President
-7-
<PAGE> 8
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Daniel A. Toll
-------------------------------------
Name: Daniel A. Toll
Title: Second Vice President
SOCIETE GENERALE, CHICAGO,
BRANCH, as a Lender
By: /s/ Joseph A. Philbin
-------------------------------------
Name: Joseph A. Philbin
Title: Vice President
-8-
<PAGE> 1
Exhibit 10.49
[SALOMON BROTHERS LETTERHEAD]
January 30, 1998
U.S. Can Corporation
900 Commerce Drive
Oak Brook, Illinois 60521
Attention: Timothy W. Stonich
Executive Vice President &
Chief Financial Officer
Ladies and Gentlemen:
The purpose of this letter is to confirm the engagement of Salomon
Brothers Inc and Smith Barney Inc., collectively doing business as Salomon Smith
Barney, ("Salomon") by U.S. Can Corporation (the "Company") on an exclusive
basis to render certain financial advisory and investment banking services to
the Company. In the event that Salomon is asked to provide investment banking
services which Salomon believes would represent a conflict with the services to
be provided to the Company, Salomon will terminate this engagement as described
in Section 5 of this agreement.
Section 1. Services to be Rendered. Salomon will perform such of the
following financial advisory and investment banking services as the Company may
reasonably request:
(a) Salomon will familiarize itself to the extent it deems
appropriate and feasible with the business, operations, properties,
financial condition and prospects of the Company, it being understood
that Salomon shall in the course of such familiarization, rely entirely
upon publicly available information and such other information as may be
supplied by the Company, without independent investigation;
(b) Salomon will assist the Company in evaluating the extent to which
it might be subject to a change in control that, in the opinion of the
Company's Board of Directors, would not be in the best interests of the
Company and its shareholders, and in considering the Company's
alternatives to reduce the likelihood of such a change in control;
<PAGE> 2
-2-
(c) If the Company or any shareholder receives any oral or written
offer or proposal relating to an acquisition of or similar business
combination involving the Company, or relating to the acquisition of more
than 15% of the Company's voting securities from the Company and/or its
shareholders (any such offer or proposal being hereinafter called a
"Combination Proposal" and any such acquisition or combination, whether
resulting from a Combination Proposal or otherwise, being hereinafter
called a "Combination Transaction"), Salomon will advise and assist the
management and Board of Directors of the Company in their evaluation of
the Combination Proposal and provide such financial advisory and
investment banking services in connection with the Combination Proposal
as management or the Board of Directors may reasonably request;
(d) If the Board of Directors of the Company determines that a
proposed Combination Transaction involving the Company or its
shareholders is in the best interests of the Company and its
shareholders, Salomon will advise and assist the Company in attempting to
design and implement a strategy with the objective of successfully
consummating the Combination Transaction;
(e) If the Board of Directors of the Company determines that a
proposed Combination Transaction involving the Company or its
shareholders is not in the best interests of the Company and its
shareholders, Salomon will advise and assist the Board of Directors in
seeking to promote the best interests of the Company and its
shareholders, as determined by the Board of Directors of the Company;
(f) If , as a result of a Combination Proposal, the Board of
Directors or management of the Company determines to consider or
undertake any one or more of the following transactions (each an
"Alternative Transaction"):
(i) an acquisition (by merger or otherwise) by the Company (or a
subsidiary of the Company) of another corporation or other business
entity (a "Subject Company") or a purchase by the Company (or a
subsidiary of the Company) of all or a significant portion of the
assets or more than 15% of the equity securities of a Subject Company
(an "Acquisition Transaction"); or
(ii) a repurchase by the Company (or a subsidiary of the Company) of
shares of common stock or other securities of the Company ("Shares"),
which repurchase might take the form of a negotiated purchase of Shares
from one or more persons, groups or entities or a tender or exchange
offer by the Company (or a subsidiary of the Company) for Shares, or a
recapitalization or restructuring of the Company (including without
limitation through an issuer tender offer, extraordinary dividend,
spin-off, split-off or similar
<PAGE> 3
-3-
transaction) or a liquidation of the Company (any of the transactions
referred to in this subclause (ii) being a "Recapitalization");
(iii) a divestiture, public offering, leveraged buyout or other sale by
the Company involving all or a significant portion of the assets or
more than 15% of the equity securities, as the case may be, of one or
more of its subsidiaries, divisions or lines of business (any of the
transactions referred to in this subclause (iii) being a
"Divestiture"); or
(iv) the public or private sale of additional equity securities of the
Company (a "Placement"); Salomon will advise and assist the Company in
considering the desirability of effecting such Alternative
Transaction(s) and, if the Company believes such Alternative
Transaction(s) to be desirable, in effecting such Alternative
Transaction(s);
(g) If so requested by the Company, Salomon will render, in
accordance with its customary practice, an opinion (the "Opinion") as to
the adequacy or fairness, from a financial point of view, to the
shareholders of the Company of the consideration to be paid or received,
as the case may be, by the Company or its security holders in any
Combination Proposal, Combination Transaction or Alternative Transaction,
with the understanding that in rendering the Opinion Salomon will rely,
without independent investigation, on information furnished to it by the
Company (which information the Company hereby warrants shall be complete
and accurate in all material respects, and not misleading) or other
relevant parties or publicly available and that the Opinion may be in
such form as Salomon shall determine and Salomon may qualify the Opinion
in such manner as Salomon believes appropriate. Notwithstanding anything
to the contrary elsewhere herein, the Company may reproduce the Opinion
in full in any disclosure document or proxy statement relating to such
Combination Proposal, Combination Transaction or Alternative Transaction
(the "Statement") that the Company files under the Securities Exchange
Act of 1934 and distributes to its shareholders. In such event, the
Company may also include references to the Opinion and to Salomon and its
relationship with the Company (in each case in such form as Salomon shall
approve) in the Statement;
(h) In the event of any acquisition or proposed acquisition by any
person or group of persons of 15% or more of any class of the Company's
equity securities (a "Stock Accumulation"), or in the event of any
solicitation of proxies or shareholder consents in opposition to, or
without the support of, the Board of Directors of the Company (a "Proxy
Contest"), Salomon will advise and assist the Board of Directors in
seeking to promote the best interests of the Company and its
shareholders, as determined by the Board of Directors; and
<PAGE> 4
-4-
(i) Salomon will render such other financial advisory and investment
banking services as may from time to time be agreed upon by Salomon and
the Company.
Section 2. Fees. The Company shall pay to Salomon for its services
hereunder cash fees customary under the circumstances, as the Company and
Salomon may from time to time agree upon, with respect to any Combination
Proposal, Combination Transaction, actual or proposed Alternative Transaction,
Stock Accumulation or Proxy Contest. Salomon shall act as exclusive financial
advisor to the Company in any Combination Transaction. Salomon shall act as the
Company's exclusive financial advisor in the event that the Company completes an
Alternative Transaction in such instances where the Company uses a financial
advisor. Salomon will act as lead manager or lead agent for any Placement.
Section 3. Expenses. In addition to any fees that may be payable to
Salomon hereunder and regardless of whether any transaction is proposed or
consummated, the Company hereby agrees, from time to time upon request, to
reimburse Salomon for all reasonable fees and disbursements of Salomon's counsel
and all of Salomon's reasonable travel and other out-of-pocket expenses incurred
in connection with any actual or proposed transaction or otherwise arising out
of Salomon's engagement hereunder.
Section 4. Indemnity. Salomon and the Company have entered into a
separate letter agreement, dated July 9, 1997, providing for the indemnification
of Salomon by the Company in connection with Salomon's engagement hereunder.
Section 5. Termination of Engagement. Salomon's engagement hereunder
may be terminated by either the Company or Salomon at any time after December
31, 1998, with or without cause, upon written advice to that effect to the other
party; provided, however, that Salomon will be entitled to (1) the fee provided
for in Section 2 hereof notwithstanding any such termination, and (2) its full
fees under Section 2 hereof in the event that at any time prior to the
expiration of one year after such termination (a) a Combination Transaction, an
Alternative Transaction or Placement is consummated or (b) an Acquisition
Transaction or Placement is consummated; and provided, further, that the
provisions of this Section 5 and Sections 3 and 6 hereof shall survive any such
termination. Not withstanding the foregoing, the Company shall not be obligated
to pay fees to Salomon, if the termination of this engagement was at Salomon's
request.
<PAGE> 5
- 5 -
Section 6. Miscellaneous.
(a) THIS LETTER AGREEMENT AND THE RELATED INDEMNIFICATION AGREEMENT
REFERRED TO ABOVE SHALL BE DEEMED MADE IN NEW YORK. SUCH AGREEMENTS SHALL
BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO SUCH
STATE'S RULES CONCERNING CONFLICTS OF LAWS. ANY RIGHT TO TRIAL BY JURY
WITH RESPECT TO ANY CLAIM OR PROCEEDING RELATED TO OR ARISING OUT OF THIS
ENGAGEMENT, OR ANY TRANSACTION OR CONDUCT IN CONNECTION HEREWITH, IS
WAIVED.
(b) The Company expressly acknowledges that all opinions and advice
(written or oral) given by Salomon to the Company in connection with
Salomon's engagement are intended solely for the benefit and use of the
Company (including its management, directors and attorneys) in
considering the transaction to which they relate, except where expressly
permitted hereby, and the Company agrees that no such opinion or advice
shall be used for any other purpose or reproduced, disseminated, quoted
or referred to at any time, in any manner or for any purpose, nor shall
any public references to Salomon be made by the Company (or such
persons), other than references required by law or regulation without the
prior written consent of Salomon, which consent shall not be unreasonably
withheld.
(c) The Company expressly acknowledges that Salomon has been retained
solely as an advisor to the Company, and not as an advisor to or agent of
any other person, and that the Company's engagement of Salomon is not
intended to confer rights upon any persons not a party hereto (including
shareholders, employees or creditors of the Company) as against Salomon,
Salomon's affiliates or their respective directors, officers, agents and
employees.
<PAGE> 6
- 6 -
* * *
Please confirm that the foregoing is in accordance with your
understandings and agreements with Salomon Brothers Inc and Smith Barney Inc. by
signing and returning the duplicate of this letter enclosed herewith.
Very truly yours,
SALOMON BROTHERS INC
SMITH BARNEY INC.
By /s/ Charles Bobrinskoy
--------------------------------------
Managing Director
ACCEPTED AND AGREED AS OF THE
DATE FIRST ABOVE WRITTEN:
U.S. Can Corporation
By /s/ Timothy W. Stonich
-------------------------------
Title: EVP, Finance,
CFO & Sec'y
<PAGE> 1
Exhibit 10.50
U.S. CAN CORPORATION
1997 Equity Incentive Plan
1. PURPOSE. The purpose of this 1997 Equity Incentive Plan (the "Plan")
is to further the success of U.S. Can Corporation, a Delaware corporation
(hereinafter called the "Company") by attracting and retaining directors,
officers, and other key executives, employees and independent contractors of the
Company and its subsidiaries and to provide to such persons incentives and
rewards relating to the Company's business plans.
2. DEFINITIONS. As used in this Plan, in addition to the terms defined
elsewhere herein, the following terms have the following meanings when used
herein with initial capital letters:
(a) "Appreciation Right" means a right granted pursuant to
Section 5.
(b) "Board" means the Board of Directors of the Company or,
pursuant to any delegation by the Board to the Compensation Committee
pursuant to Section 11, the Compensation Committee.
(c) "Change in Control" shall have the meaning set forth by
the Board.
(d) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(e) "Common Shares" means shares of Common Stock of the
Company or any security into which such Common Shares may be changed by
reason of any transaction or event of the type referred to in Section
8.
(f) "Compensation Committee" means a committee appointed by
the Board consisting of at least three Non- Employee Directors, each of
whom will be a disinterested person within the meaning of Rule 16b-3.
(g) "Date of Grant" means the date determined in accordance
with the Board's authorization on which a grant of Option Rights or
Appreciation Rights, or a grant of Restricted Shares, becomes
effective.
(h) "Form of Appreciation Right Grant" means the form adopted
by the Board for the granting of Appreciation Rights pursuant to
Section 5 hereof, which form may be amended by the Board from time to
time.
<PAGE> 2
(i) "Form of Option Right Grant" means the form adopted by the
Board for the granting of Option Rights pursuant to Section 4 hereof,
which form may be amended by the Board from time to time.
(j) "Form of Restricted Share Grant" means the form adopted by
the Board for the transfer or issuance of Restricted Shares pursuant to
Section 6 hereof, which form may be amended by the Board from time to
time.
(k) "Incentive Stock Options" means Option Rights that are
intended to qualify as "incentive stock options" under Section 422 of
the Code or any successor provision.
(l) "Market Value per Share", as applied to any date, means
the mean between the highest and lowest quoted selling prices at which
Common Shares were sold on such date as reported by the New York Stock
Exchange or the principal securities exchange or automated quotation
system on which Common Shares were traded, or if no Common Shares were
traded on such date, on the next preceding date on which Common Shares
were so traded.
(m) "Non-Employee Director" means a Director of the Company
who is not a full-time employee of the Company or any Subsidiary.
(n) "Nonqualified Stock Option" means Option Rights other than
Incentive Stock Options.
(o) "Optionee" means the optionee named in an agreement with
the Company evidencing an outstanding Option Right.
(p) "Option Price" means the purchase price payable on
exercise of an Option Right.
(q) "Option Right" means the right to purchase Common Shares
upon exercise of an option granted pursuant to Section 4.
(r) "Participant" means a person who is approved by the Board
to receive benefits under this Plan and who is at the time an officer,
executive, director or other employee or independent contractor of the
Company or any one or more of its Subsidiaries, or who has agreed to
commence serving in any of such capacities.
(s) "Restricted Shares" means Common Shares issued pursuant to
Section 6 as to which neither the substantial risk of forfeiture nor
the prohibition on transfers referred to in Section 6 has expired.
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<PAGE> 3
(t) "Rule 16b-3" means rule 16b-3 promulgated under the
Exchange Act (or any successor rule substantially to the same effect),
as in effect from time to time.
(u) "Spread" means the excess of the Market Value per Share of
the Common Shares on the date when an Appreciation Right is exercised,
or on the date when Option Rights are surrendered in payment of the
Option Price of other Option Rights, over the Option Price provided for
in the related Option Right.
(v) "Subsidiary" means any corporation with respect to which
the Company directly or indirectly owns stock possessing 50% or more of
the voting power as described in Section 424(f) of the Code.
3. SHARES AVAILABLE UNDER THE PLAN. Subject to adjustment as provided
in Section 8, the number of Common Shares that may be issued or transferred
under this Plan upon the exercise of Option Rights or Appreciation Rights or as
Restricted Shares and released from substantial risks of forfeiture thereof, may
not exceed 400,000. Shares issued under this Plan may be shares of original
issuance or treasury shares or a combination of the foregoing.
4. OPTION RIGHTS. The Board may from time to time authorize the grant
to Participants of options to purchase Common Shares upon such terms and
conditions as it may determine in accordance with the following provisions:
(a) Each grant will specify the number of Common Shares to
which it pertains and the term during which the rights granted
thereunder will exist.
(b) Each grant will specify an Option Price per share, which
may not be less than the Market Value per Share as of the Date of
Grant.
(c) Each grant will specify whether the Option Price is
payable (i) in cash, (ii) by the actual or constructive transfer to the
Company of nonforfeitable, unrestricted Common Shares already owned by
the Optionees (or other consideration authorized pursuant to Section
4(d)) having an actual or constructive value as of the time of exercise
as determined by the Board or in accordance with the applicable
agreement referred to in Section 4(i), equal to the total Option Price,
or (iii) by a combination of such methods of payment.
(d) The Board may determine, at or after the Date of Grant,
that payment of the Option Price of any option may
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<PAGE> 4
also be made in whole or in part in the form of Restricted Shares or
other Common Shares that are forfeitable or subject to restrictions on
transfer, or other Option Rights (based on the Spread on the date of
exercise). Unless otherwise determined by the Board at or after the
Date of Grant, whenever any Option Price is paid in whole or in part by
means of any of the forms of consideration specified in this paragraph,
the Common Shares received upon the exercise of the Option Rights will
be subject to such risks of forfeiture or restrictions on transfer as
may correspond to any that apply to the consideration surrendered, but
only to the extent of (i) the number of shares surrendered in payment
of the Option Price or (ii) the Spread of any unexercisable portion of
Option Rights surrendered in payment of the Option Price.
(e) Any grant may provide for deferred payment of the Option
Price from the proceeds of sale through a bank or broker on the
exercise date of some or all of the shares to which such exercise
relates.
(f) Successive grants may be made to the same Participant
whether or not any Option Rights previously granted to such Participant
remain unexercised.
(g) Each grant will specify the period or periods of
continuous service by the Optionee with the Company or any Subsidiary
which is necessary before the Option Rights or installments thereof
will become exercisable and may provide for the earlier exercise of
such Option Rights in the event of a Change in Control or other event.
(h) Option Rights granted under this Plan must be Nonqualified
Stock Options.
(i) Each grant of Option Rights will be evidenced by an
agreement executed on behalf of the Company by any officer, director,
or, if authorized by the Board, employee of the Company and delivered
to the Optionee and containing such terms and provisions as the board
may approve, except that in no event will any such agreement include
any provision prohibited by the express terms of this Plan. The
agreement shall be consistent with the Form of Option Right Grant
adopted by the Board for the purpose of granting Option Rights.
5. APPRECIATION RIGHTS. The Board may also authorize the grant to any
Optionee of Appreciation Rights in respect of Option Rights granted hereunder.
An Appreciation Right will be a right of the Optionee, exercisable by surrender
of the related Option
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<PAGE> 5
Right or in accordance with the applicable agreement referred to in Section
5(f), to receive from the Company an amount, as determined by the Board, which
will be expressed as a percentage of the Spread at the time of exercise. Each
such grant will be in accordance with the following provisions:
(a) Any grant may provide that the amount payable on exercise
of an Appreciation Right may be paid by the Company in cash, in Common
Shares, or in any combination thereof and may either grant to the
Optionee or retain in the Board the right to elect among those
alternatives.
(b) Any grant may specify that the amount payable on exercise
of an Appreciation Right may not exceed a maximum specified by the
Board as of the Date of Grant.
(c) Any grant may specify waiting periods before exercise and
permissible exercise dates or periods and will provide that no
Appreciation Right may be exercised except at a time when the related
Option Right is also exercisable and at a time when the Spread is
positive.
(d) Any grant may specify that such Appreciation Right may be
exercised only in the event of a Change in Control or other event.
(e) Any grant may provide that, in the event of a Change in
Control, then any such Appreciation Right will automatically be deemed
to have been exercised by the Optionee, the related Option Right will
be deemed to have been surrendered by the Optionee and will be
cancelled, and the Company forthwith upon the consummation thereof will
pay to the Optionee in cash an amount equal to the Spread at the time
of such consummation.
(f) Each grant of Appreciation Rights will be evidenced by an
agreement executed on behalf of the Company by an officer, director,
or, if authorized by the Board, employee of the Company and delivered
to and accepted by the Optionee, which agreement will describe such
Appreciation Rights, identify the related Option Rights, state that
such Appreciation Rights are subject to all the terms and conditions of
this Plan, and contain such other terms and provisions as the Board may
approve, except that in no event will any such agreement include any
provision prohibited by the express terms of this Plan. The agreement
shall be consistent with the Form of Appreciation Right Grant adopted
by the Board for the purpose of granting Appreciation Rights.
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<PAGE> 6
6. RESTRICTED SHARES. The Board may also authorize the
issuance or transfer of Restricted Shares to Participants in
accordance with the following provisions. Each such grant will
be in accordance with the following provisions:
(a) Each such issuance or transfer will constitute an
immediate transfer of the ownership of Common Shares to the Participant
in consideration of the performance of services, entitling such
Participant to voting, dividend, and other ownership rights, but
subject to the substantial risk of forfeiture and restrictions on
transfer provided below.
(b) Each such issuance or transfer may be made without
additional consideration.
(c) Each such issuance or transfer will provide that the
Restricted Shares covered thereby will be subject, except (if the Board
so determines) in the event of a Change in Control or other event
specified in the agreement referred to in Section 6(e), for a period to
be determined by the Board at the Date of Grant, to a "substantial risk
of forfeiture" within the meaning of Section 83 of the Code.
(d) Each such issuance or transfer will provide that during
the period for which such substantial risk of forfeiture is to
continue, the transferability of the Restricted Shares will be
prohibited or restricted in the manner and to the extent prescribed in
or pursuant to the agreement referred to in Section 6(e) (which
restrictions may include, without limitation, rights of repurchase or
first refusal or provisions subjecting the Restricted Shares to a
continuing substantial risk of forfeiture in the hands of any
transferee).
(e) Each issuance or transfer of Restricted Shares will be
evidenced by an agreement executed on behalf of the Company by any
officer, director, or, if authorized by the Board, employee of the
Company and delivered to and accepted by the Participant and containing
such terms and provisions as the Board may approve except that in no
event will any such agreement include any provision prohibited by the
express terms of the Plan. The agreement shall be consistent with the
Form of Restricted Share Grant adopted by the Board for the purpose of
issuing Restricted Shares. All certificates representing Restricted
Shares will be held in custody by the Company until all restrictions
thereon have lapsed, together with a stock power executed by the
Participant in whose name such certificates are registered,
endorsed in blank and covering such Restricted Shares, which may be
executed by any officer of the Company upon a
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<PAGE> 7
determination by the Board that an event causing the forfeiture of the
Restricted Shares has occurred.
7. TRANSFERABILITY.
(a) No Option Right or Appreciation Right granted, issued, or
transferred under this Plan will be transferable by a Participant other
than by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order, as that term is defined in the Code
or the rules thereunder or Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or the rules thereunder,
except (in the case of a Participant who is not a Director or officer
of the Company) to a fully revocable trust of which the Optionee is
treated as the owner for federal income tax purposes. Option rights and
Appreciation Rights will be exercisable during the Optionee's life only
by him or by his guardian or legal representative. The Board may impose
additional restrictions on transfer as well.
(b) The Board may specify at the Date of Grant that part or
all of the Common Shares that are (i) to be issued or transferred by
the Company upon the exercise of Option Rights or Appreciation Rights
or (ii) no longer subject to the substantial risk of forfeiture and
restrictions on transfer referred to in Section 6, will be subject to
further restrictions on transfer.
8. ADJUSTMENTS. The Board may make or provide for such adjustments in
the numbers of Common Shares covered by outstanding Option Rights or
Appreciation Rights granted hereunder, in the prices per share applicable to
such Option Rights and Appreciation Rights, and in the kind of shares covered
thereby, as the Board may determine is equitably required to prevent dilution or
enlargement of the rights of Participants that otherwise would result from (a)
any stock dividend, stock split, combination of shares, recapitalization, or
other change in the capital structure of the Company, (b) any merger,
consolidation, spin-off, split-off, spin-out, split-up, reorganization, partial
or complete liquidation, or other distribution of assets or issuance of rights
or warrants to purchase securities, or (c) any other corporate transaction or
event having an effect similar to any of the foregoing; provided, further,
however, that any adjustment which by reason of this Section 8 is not required
to be made currently will be carried forward and taken into account in any
subsequent adjustment. In the event of any such trans action or event, the Board
may provide in substitution for any or all outstanding awards under this Plan
such alternative consideration as it may determine to be equitable in the
circumstances and may require in connection therewith the surrender of all
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<PAGE> 8
awards so replaced. The Board may also make or provide for such adjustments in
the numbers of shares specified in Section 3 as the Board may determine is
appropriate to reflect any transaction or event described in this Section 8.
9. FRACTIONAL SHARES. The Company will not be required to issue any
fractional Common Shares pursuant to this Plan. The Board may provide for the
elimination of fractions and for the settlement of fractions in cash.
10. WITHHOLDING TAXES. To the extent that the Company is required to
withhold federal, state, local, or foreign taxes in connection with any payment
made or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for such withholding are insufficient, it
will be a condition to the receipt of such payment or the realization of such
benefit that the Participant or such other person make arrangements satisfactory
to the Company for payment of the balance of such taxes required to be withheld,
which arrangements may include relinquishment of a portion of such benefit.
11. ADMINISTRATION OF THE PLAN.
(a) This Plan will be administered by the Board, which may
from time to time delegate all or any part of its authority under this
Plan to the Compensation Committee.
(b) The Board will take such actions as are required to be
taken by it hereunder, may take the actions permitted to be taken by it
hereunder, and will have the authority from time to time to interpret
this Plan and to adopt, amend, and rescind rules and regulations for
implementing and administering this Plan. All such actions will be in
the sole discretion of the Board, and when taken, will be final,
conclusive, and binding. Without limiting the generality or effect of
the foregoing, the interpretation and construction by the Board of any
provision of this Plan or of any agreement, notification, or document
evidencing the grant of Option Rights, Appreciation Rights, or
Restricted Shares, and any determination by the Board in its sole
discretion pursuant to any provision of this Plan or of any such
agreement, notification, or document will be final and conclusive.
Without limiting the generality or effect of any provision of the
Certificate of Incorporation of the Company, no member of the Board
will be liable for any such action or determination made in good faith.
(c) The provisions of Sections 4, 5, and 6 will be interpreted
as authorizing the Board, in taking any action under or pursuant to
this Plan, to take any action it
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<PAGE> 9
determines in its sole discretion to be appropriate subject only to the
express limitations therein contained and no authorization in any such
Section or other provision of this Plan is intended or may be deemed to
constitute a limitation on the authority of the Board.
(d) The existence of this Plan or any right granted or other
action taken pursuant hereto will not affect the authority of the Board
or the Company to take any other action, including in respect of the
grant or award of any option, security, or other right or benefit,
whether or not authorized by this Plan, subject only to limitations
imposed by applicable law as from time to time applicable thereto.
12. AMENDMENTS, ETC.
(a) This Plan may be amended from time to time by the Board,
but without further approval by a majority of the stockholders of the
Company present in person or by proxy at a meeting of the Company's
stockholders and entitled to vote generally in the election of
directors, or as may be other wise required by Rule 16b-3, no such
amendment will (i) increase the maximum numbers of Common Shares or
Restricted Shares pursuant to Section 3 (except that adjustments and
additions authorized by this Plan will not be limited by this
provision) or (ii) cause Rule 16b-3 to become inapplicable to this Plan
during any period in which the Company has any class of equity
securities registered pursuant to Section 13 or 15 of the Exchange Act.
(b) The Board may, with the concurrence of the affected
Optionee, cancel any agreement evidencing Option Rights or any other
award granted under this Plan. In the event of such cancellation, the
Board may authorize the granting of new Option Rights or other awards
hereunder (which may or may not cover the same number of Common Shares
which had been the subject of the prior award) in such manner, at such
option price, and subject to such other terms, conditions, and
discretions as would have been applicable under this Plan had the
canceled Option Rights or other award not been granted.
(c) In case of termination of employment by reason of death,
disability, or normal or early retirement, or in the case of hardship
or other special circumstances, of a Participant who holds an Option
Right or Appreciation Right not immediately exercisable in full, or any
Restricted Shares as to which the substantial risk of forfeiture or the
prohibition or restriction on transfer has not lapsed, or who holds
Common Shares subject to any transfer restriction imposed pursuant to
Section 7(b), the Board may take such action as
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<PAGE> 10
it deems equitable in the circumstances or in the best interests of the
Company, including without limitation waiving or modifying any other
limitation or requirement under any such award.
(d) This Plan will not confer upon any Participant any right
with respect to continuance of employment or other service with the
Company or any Subsidiary, nor will it interfere in any way with any
right the Company or any Subsidiary would otherwise have to terminate
or modify the terms of such Participant's employment or other service
at any time.
(e) This Plan will be governed by and constructed in
accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of laws thereof. If any provision
of this Plan is held to be invalid or unenforceable, no other provision
of this Plan will be affected thereby.
(f) The Plan shall be effective upon adoption by the Board of
Directors. Subject to the foregoing condition, options, Appreciation
Rights and Restricted Shares may be granted pursuant to the Plan from
time to time within the period commencing upon adoption of the Plan by
the Board of Directors and ending ten (10) years after the earlier of
such adoption and the approval of the Plan by the stockholders.
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<PAGE> 1
Exhibit 10.51
CHANGE IN CONTROL AGREEMENT BETWEEN
DAVID FORD AND
UNITED STATES CAN COMPANY
THIS CHANGE IN CONTROL AGREEMENT, dated as of February 4, 1998 (the
"Agreement"), is by and among U.S. Can Corporation, a Delaware corporation,
having its principal offices at 900 Commerce Drive, Oak Brook, Illinois 60523
("USC"), United States Can Company, a Delaware corporation having its principal
offices at 900 Commerce Drive, Oak Brook, Illinois 60523 (the "Subsidiary," with
USC and the Subsidiary collectively referred to herein as "US Can" or the
"Company"), and David Ford, an employee of US Can (the "Employee").
WHEREAS, the Employee is presently serving as Senior V.P. European
Operations and an employee of USC Holding U.K. Limited; and
WHEREAS, US Can desires to retain the Employee's services and the
Employee is willing to enter into and continue his employment as an employee of
USC Holding U.K. Limited on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. CERTAIN DEFINED TERMS. (a) "Change of Control" - As used herein,
shall mean any one or more of the following: the acquisition by any individual,
entity or group [within the meaning of Section 13(d) (3) or 14(d) (2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")] of fifteen
percent (15%) or more of the shares of the then outstanding common stock of the
Company (the "Outstanding Common Stock"), a merger or consolidation of the
Company in which the Company does not survive as an independent public company,
a sale of all or substantially all of the assets of the Company, or a
liquidation or dissolution of the Company; provided, however, that the following
acquisitions shall not constitute a Change of Control for the purposes of this
subsection (a): (i) any acquisition directly from the Company, or (ii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company.
(b) "Constructive Termination", as used herein, shall mean any
one or more of the following occurrences within two (2) years following the
Effective Date of a Change of Control: (i) the assignment to the Employee of any
duties is inconsistent in any material respect with the Employee's position,
authority, duties or responsibilities immediately prior to the Effective Date of
the Change of Control referred to above, or any other action by the Company
which results in a diminution in any material respect
1
<PAGE> 2
of the Employee's position, authority, duties or responsibilities as the same
existed immediately prior to the Effective Date of the Change of Control
referred to above.
(c) "Effective Date", as used herein, shall mean the first
date during which a Change of Control (as defined in Section 1(a)) occurs.
2. TERMINATION. If the Employee is terminated, or is subject to a
Constructive Termination, within two (2) years following the Effective Date of a
Change of Control, the Employee will be entitled to receive the benefits set
forth below.
(a) SEVERANCE PAYMENT. If termination or Constructive
Termination of the Employee occurs within two (2) years following the Effective
Date of a Change of Control, the Employee shall receive a severance payment
equal to two (2) times the higher of the Employee's then current annual base
salary, or the Employee's annual base salary on the date immediately prior to
the Effective Date of a Change of Control.
(b) BONUS PAYMENT. If termination or Constructive Termination
of the Employee occurs within two (2) years following the Effective Date of a
Change of Control, the Employee shall be awarded a prorated bonus based on
Employee's target bonus (as then established by the Board of Directors of the
Company or the Employee's manager, as set forth by the Company in any the
effective bonus plan, as set forth in any employment agreement or as set forth
in any combination of the above) for the fiscal year in which the employment
services are Terminated or Constructively Terminated. The bonus amount received
shall be prorated for the actual number of days which have elapsed in the fiscal
year of Termination or Constructive Termination over the total number of days in
that fiscal year.
(c) RESTRICTED STOCK. If termination or Constructive
Termination of the Employee occurs within two (2) years following the Effective
Date of a Change of Control, the vesting of all restricted stock grants shall be
accelerated to the date on which the Employee is terminated or is subject to a
Constructive Termination.
(d) HEALTH BENEFITS. If termination or Constructive
Termination of the Employee occurs within two (2) years following the Effective
Date of a Change of Control, the Employee shall continue to receive the same
health and welfare benefits (in effect at any time 120 days prior to the
Effective Date of a Change of Control) for a period of two years following the
date of Termination or Constructive Termination.
3. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois, of the United States of
America, applicable to agreements made and to be performed in Illinois, without
giving effect to conflicts of law principles.
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<PAGE> 3
4. HEADINGS. The section headings of this Agreement are for reference
only and are to be given no effect in the construction or interpretation of this
Agreement.
5. SEVERABILITY. If any part or provision of this Agreement shall be
declared invalid or unenforceable by a court of competent jurisdiction, said
provision or part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts or
provisions of this Agreement.
6. WAIVER. Any party may waive compliance by another party with any of
the provisions of this Agreement. No waiver of any provision shall be construed
as a waiver of any other provision. Any waiver must be in writing.
7. BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding on and
inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity (including any
employee or person engaged by the Company in any capacity) not a party to this
Agreement. The Company will require any successor (whether direct or indirect,
by merger, purchase, consolidation or otherwise) of the Company to make an
express assumption of the obligations hereunder and cause any successor (whether
direct or indirect, by merger, purchase, consolidation or otherwise) of the
Company to agree to perform all parts and provisions under this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place.
8. COUNTERPARTS. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed as
but one and the same document.
9. NOTICES. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally when
delivered by facsimile transmission (receipt confirmed, followed by confirmed
hard copy promptly sent by international overnight courier), or three business
days after being sent by a recognized international overnight courier freight
prepaid, to the parties at the following addresses (or to such other address as
a party may have specified by notice duly given to the other party in accordance
with this provision):
If to the Employee:
At the Employee's then current business or resident address
(or facsimile transmission number), as shown on the records of
US Can, with a copy to such other person as the Employee may
have specified by notice duly given to US Can in accordance
with this provision.
3
<PAGE> 4
If to US Can:
United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60523 - USA
Facsimile Transmission Number: 1-630-573-0715
Attention: President
With a copy to:
Ross & Hardies
150 N. Michigan Avenue
Chicago, Illinois 60601-7567 - USA
Facsimile Transmission Number: 1-312-750-8600
Attention: Lawrence R. Samuels
IN WITNESS WHEREOF, the parties have executed this Agreement, in
triplicate, on the date first written above.
Employee
/s/ David Ford
----------------------------------------
David Ford
United States Can Company
/s/ William J. Smith
----------------------------------------
William J. Smith
President and Chief Executive Officer
U.S. Can Corporation
/s/ William J. Smith
----------------------------------------
William J. Smith
President and Chief Executive Officer
4
<PAGE> 1
EXHIBIT 10.52
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into as
of this 24th day of November, 1997, by and between U.S. Can Corporation, a
Delaware corporation (the "Company" or "US Can"), and David Ford, an employee
(the "Employee") of United States Can Company, the Company's wholly-owned
subsidiary ("USCC"), or one of USCC's direct or indirect subsidiaries.
WHEREAS, the Company adopted the U.S. Can Corporation 1997 Equity
Incentive Plan (the "Plan") by vote of its Board of Directors on February 20,
1997.
WHEREAS, the Board of Directors of the Company desires to carry out
the purpose of the Plan by awarding the Employee restricted shares of its Common
Stock, $.01 par value (the "Common Stock"), as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Award of Restricted Stock. The Company hereby awards to the
Employee 15,000 restricted shares of Common Stock (the "Restricted Stock") on
the terms and conditions set forth herein and in the Plan.
2. Vesting of Restricted Stock. Subject to the other terms and
provisions of this Agreement, the Restricted Stock shall vest at the end of the
one-year period beginning on the date hereof and ending on November 24, 1998.
All Restricted Stock shall become fully vested
<PAGE> 2
on the date set forth above unless there is a Change of Control (as defined
below) involving the Company and the Employee's employment is terminated (or
constructively terminated, as defined hereinbelow), other than by a voluntary
resignation on the Employee's part, within two years following the occurrence of
events constituting such a Change in Control, in which case the Restricted Stock
shall vest as set forth in Section 7 hereof.
As used herein: "Change of Control" shall mean any one or more of
the following: the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of Fifteen Percent (15%) or more of the shares
of the then outstanding common stock of the Company (the "Outstanding Common
Stock"), a merger or consolidation of the Company in which the Company does not
survive as an independent public company, a sale of all or substantially all of
the assets of the Company or a liquidation or dissolution of the Company;
provided, however, that the following acquisitions shall not constitute a Change
of Control for the purposes of this subsection (a): (i) any acquisition directly
from the Company or (ii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company.
As used herein, "constructive termination" or "constructively
terminated" shall mean any one or more of the following occurrences within two
(2) years following the effective date of a Change of Control: (i) the
assignment to the Employee of any duties inconsistent in any material respect
with the Employee's position, authority, duties or responsibilities immediately
prior to the effective date of the Change of Control referred to above, or any
other action by the Company which results in a diminution in any material
respect of the Employee's position,
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<PAGE> 3
authority, duties or responsibilities as the same existed immediately prior to
the effective date of the Change of Control referred to above.
3. Termination And Forfeiture of Restricted Stock. The Employee
acknowledges receipt of the provisions of the Plan, attached hereto as Exhibit
A, and further agrees that, in the event the Employee's employment with the
Company is terminated by the Company with cause, or by the Employee voluntarily,
prior to completion of the vesting of the Restricted Stock awarded to the
Employee under this Agreement, all Restricted Stock shall be forfeited to the
Company and shall not be or become the property of the Employee. In the event
the Employee's employment with the Company is terminated by the Company without
cause prior to completion of the vesting of the Restricted Stock awarded to the
Employee under this Agreement, then all of the Restricted Stock shall vest as
set forth in Section 6 hereof.
4. Adjustments of and Changes in Common Stock. The Board shall make
or provide for adjustments in the number of shares of Common Stock covered
hereby and in the kind of shares covered hereby, as the Board may determine is
equitably required to prevent dilution or enlargement of the rights of the
Employee that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization, or other change in the capital
structure of the Company, (b) any merger, consolidation, spin-off, split-off,
spin-out, split-up, reorganization, partial or complete liquidation, or other
distribution of assets or issuance of rights or warrants to purchase securities,
or (c) any other corporate transaction or event having an effect similar to any
of the foregoing; provided, further, however, that any adjustment which by
reason of this Section 4 is not required to be made currently will be carried
forward and taken into account in any subsequent adjustment. In the event of any
such transaction or event, the Board
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<PAGE> 4
may provide in substitution for any or all shares outstanding hereunder such
alternative consideration as it may determine to be equitable in the
circumstances and may require in connection therewith the surrender of all
shares so replaced.
5. Transferability of Restricted Stock. No Restricted Stock awarded
under the Plan shall be transferable by the Employee other than by will or the
laws of descent and distribution until such stock has vested, at which time such
stock may be transferred in accordance with applicable laws and regulations. The
Restricted Stock shall not otherwise be transferred, assigned, pledged or
hypothecated for any purpose whatsoever and is not subject, in whole or in part,
to execution, attachment or similar process. Any attempted assignment, transfer,
pledge or hypothecation or other disposition of the Restricted Stock, other than
in accordance with the terms set forth herein, shall be void and of no effect.
6. Termination of Employment. In the event of termination of the
employment of the Employee by reason of (i) permanent and total disability
within the meaning of Section 22 (e)(3) of the Code, (ii) death, (iii)
termination or constructive termination of the employment of the Employee by the
Company within two years of the occurrence of a Change in Control (as defined
hereinabove) or (iv) termination of the employment of the Employee by the
Company without cause prior to completion of the vesting of the Restricted Stock
awarded to the Employee under this Agreement, the Restricted Stock shall vest
upon the date of death or the effective date of termination or constructive
termination for the events described in clauses (i), (iii) or (iv) above. In the
event the Employee retires prior to the vesting of any shares of Restricted
Stock awarded hereunder, at its option, the Company may, but is under no
obligation to, accelerate the vesting of all or part of such shares.
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<PAGE> 5
7. Rights Relating to Restricted Stock. Each award of Restricted
Stock shall constitute an immediate transfer of the ownership of Common Shares
to the Participant in consideration of the performance of services; provided,
the Company or its agent will retain possession of the Restricted Stock until
fully vested. The Employee shall have the voting rights provided for in the 1997
Equity Incentive Plan, as amended from time to time.
8. Administration. The Restricted Stock shall vest in accordance
with such administrative regulations as the Board of Directors shall from time
to time adopt, to the extent not inconsistent with Section 422 of the Code.
9. Laws. The Restricted Stock and this Agreement shall be construed,
administered and governed under the laws of the State of Delaware, United States
of America, without regard to its conflict of law principles, and to the extent
not inconsistent with Section 422 of the Code and the regulations issued
thereunder.
10. General. The Company shall, at all times during which the
Restricted Stock is outstanding, pay all original issue and transfer taxes with
respect to the issuance and transfer of Common Stock pursuant hereto, shall pay
all other necessary fees and expenses incurred by the Company in connection
therewith, and shall use its best efforts to comply with all laws and
regulations which, in the opinion of the Company or counsel for the Company,
shall be applicable thereto.
11. Taxes. Nothing contained herein shall be construed as a
representation as to an Employee's tax treatment by federal, state or local
taxing entities and no representation is made by the Company as to the continued
existence, if any, of a beneficial tax treatment of any
- 5 -
<PAGE> 6
Restricted Stock awarded hereunder. Each Employee should consult his/her
individual tax consultant as to any Restricted Stock awarded hereunder.
12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, one day after sent by recognized overnight or other expedited
delivery service, or five (5) days after deposit in the United States mail,
postage prepaid, registered or certified mail, return receipt requested, to the
parties at the following addresses (or to such other address as a party may have
specified by notice duly given to the other party in accordance with this
provision):
If to the Employee:
At the Employee's then current business or residence address as
shown on the records of the Company, with a copy to such other
person as the Employee may have specified by notice duly given to
the Company in accordance with this provision.
If to the Company:
United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60523
Attention: Vice President, Human Resources
With a copy to:
Ross & Hardies
150 N. Michigan Avenue
Chicago, Illinois 60601-7567
Attention: Lawrence R. Samuels, Esq.
13. Headings. The section headings of this Agreement are for
reference only and are to be given no effect in the construction or
interpretation of this Agreement.
- 6 -
<PAGE> 7
14. Severability. If any part or provision of this Agreement shall
be declared invalid or unenforceable by a court of competent jurisdiction, said
provision or part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts or
provisions of this Agreement.
15. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in writing.
16. Binding Effect; Assignment. This Agreement shall be binding on
and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity (including any
employee or person engaged by the Company in any capacity) not a party to this
Agreement. The Company will require any successor (whether direct or indirect,
by merger, purchase, consolidation or otherwise) of the Company to make an
express assumption of the obligations hereunder and cause any successor (whether
direct or indirect, by merger, purchase, consolidation or otherwise) of the
Company to agree to perform all parts and provisions under this Agreement in the
same manner and to the same extent that the Company would be required to perform
it if no such succession had taken place.
17. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed as
but one and the same document.
18. Fractional Shares. In connection with this award, the Company
shall have no obligation to issue any fractional share of Common Stock. The
Company will pay in cash to
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<PAGE> 8
the Employee an amount equivalent to the value of any fractional share the
Employee would otherwise be entitled to receive.
19. Acknowledgment. BEFORE SIGNING HEREUNDER, THE EMPLOYEE SHOULD
READ AND THOROUGHLY REVIEW THE PLAN ATTACHED HERETO AS EXHIBIT A. BY SIGNING
HEREUNDER, THE EMPLOYEE ACKNOWLEDGES RECEIPT OF THE PLAN AND REPRESENTS THAT
EMPLOYEE HAS READ AND THOROUGHLY REVIEWED THE PLAN.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
U.S. CAN CORPORATION
By: /s/ Anthony F. Bonadonna
--------------------------------------
Name: Anthony F. Bonadonna
Title: Vice President, Human Resources
Employee
/s/ David Ford
------------------------------------------
David Ford
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<PAGE> 1
EXHIBIT 10.53
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into
this 20th day of February, 1997, by and between U.S. Can Corporation, a Delaware
corporation (the "Company" or "US Can"), and William J. Smith ("Smith"),
President and Chief Executive Officer of US Can and United States Can Company,
the Company's wholly-owned subsidiary.
WHEREAS, the Company adopted the U.S. Can Corporation 1997 Equity
Incentive Plan (the "Plan") by vote of its Board of Directors on February 20,
1997.
WHEREAS, the Board of Directors of the Company desires to carry out
the purpose of the Plan by granting Smith 250,000 restricted shares of its
Common Stock, $.01 par value (the "Common Stock"), subject to the terms and
conditions hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Grant of Restricted Stock. The Company hereby awards to Smith the
right to receive up to an aggregate of 250,000 shares of Common Stock (the
"Restricted Stock"), the issuance of which is contingent on the conditions set
forth in Section 2 hereof, subject to the terms and conditions set forth herein
and in the Plan.
2. Conditions to Issuance of Restricted Stock.
(A) Subject to the other terms and provisions of this Agreement and
the Plan, 100,000 shares of Restricted Stock (the "First Tranche") shall be
issued on the occurrence of the following: (i) if, during the period beginning
on February 20, 1997 and
<PAGE> 2
ending on February 19, 1998, the shares of Common Stock of the Company trade on
the New York Stock Exchange (the "NYSE"), or on the principal securities
exchange or automated quotation system as the Company's common stock may then
trade, at an average closing price equal to or greater than $20 per share for
all trading days in any period of 90 consecutive days, then 33,333 shares of
Restricted Stock shall be issued promptly after the conclusion of such 90 day
period referred to in 2(A)(i) hereunder; (ii) if, during the period beginning on
February 20, 1998 and ending on February 19, 1999, the shares of Common Stock of
the Company trade on the NYSE, or on the principal securities exchange or
automated quotation system as the Company's common stock may then trade, at an
average closing price equal to or greater than $20 per share for all trading
days in any period of 90 consecutive days, then 33,333 additional shares of
Restricted Stock shall be issued promptly after the conclusion of such 90 day
period referred to in 2(A)(ii) hereunder; (iii) if, during the period beginning
on February 20, 1999 and ending on February 19, 2000, the shares of Common Stock
of the Company trade on the NYSE, or on the principal securities exchange or
automated quotation system as the Company's common stock may then trade, at an
average closing price equal to or greater than $20 per share for all trading
days in any period of 90 consecutive days, then 33,334 additional shares of
Restricted Stock shall be issued promptly after the conclusion of such 90 day
period referred to in 2(A)(iii) hereunder; (iv) if there is a Change of Control
(as defined below) involving the Company (a) at any time during which Smith is
either a member of the Board of Directors of US Can and/or United States Can
Company or Chief Executive Officer of US Can and/or United States Can Company,
and (b) if the transaction representing a Change of Control occurs at a price
equal to or greater than $20 per share for the Common
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<PAGE> 3
Stock of the Company, all 100,000 shares of Restricted Stock comprising the
First Tranche not previously issued shall be issued concurrently with the Change
of Control; and (v) (a) if while Smith is Chief Executive Officer of the
Company, Smith dies, becomes permanently and totally disabled within the meaning
of section 22 (e)(3) of the Internal Revenue Code of 1986, as amended (the
"Code"), or leaves the employ of the Company with the approval of the Board of
Directors; and (b) the shares of Common Stock of the Company have traded on the
NYSE, or on the principal securities exchange or automated quotation system as
the Company's common stock may then trade, at an average closing price equal to
or greater than $20 per share for the prior 30 trading days, all Restricted
Stock comprising the First Tranche not previously issued shall be issued upon
the occurrence of one of the events described in subclause (v) (a) above and the
event described in subclause (v)(b) above. All Restricted Stock in the First
Tranche which cannot be issued under the conditions set forth above shall be
forfeited.
(B) Subject to the other terms and provisions of this Agreement and
the Plan, an additional 150,000 shares of Restricted Stock (the "Second
Tranche") shall be issued as follows: (i) if, from and after the date hereof and
through the end of calendar year 1998, the shares of Common Stock of the Company
at any time trade on the NYSE, or on the principal securities exchange or
automated quotation system as the Company's common stock may then trade, at an
average closing price equal to or greater than $25 per share for all trading
days in any period of 180 consecutive days, then 100,000 shares of the
Restricted Stock comprising the Second Tranche shall be issued promptly after
the conclusion of such 180 day period referred to in 2(B)(i) hereunder; (ii) if,
from and after the date hereof and
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<PAGE> 4
through the end of calendar year 1998, the shares of Common Stock of the Company
trade on the NYSE, or on the principal securities exchange or automated
quotation system as the Company's common stock may then trade, at an average
closing price equal to or greater than the following for all trading days in any
consecutive 180 day period, then the additional shares of Restricted Stock
comprising the Second Tranche shall be issued in the amounts set forth below
promptly after the conclusion of such 180 day period referred to in 2(B)(ii)
hereunder:
<TABLE>
<CAPTION>
Stock Price Additional Issued Shares
- ----------- ------------------------
<S> <C>
$26 per share and above but below $27 10,000 shares of Restricted Stock
$27 per share and above but below $28 10,000 shares of Restricted Stock
$28 per share and above but below $29 10,000 shares of Restricted Stock
$29 per share and above but below $30 10,000 shares of Restricted Stock
$30 per share and above 10,000 shares of Restricted Stock
</TABLE>
Notwithstanding the foregoing, if there is a Change of Control involving the
Company on or prior to December 31, 1998, (a) at any time during which Smith is
either a member of the Board of Directors of US Can and/or United States Can
Company or Chief Executive Officer of US Can and/or United States Can Company,
and (b) if the transaction representing a Change of Control occurs at a price
equal to or greater than $25 per share for the Common Stock of the Company,
100,000 of the shares of Restricted Stock comprising the Second Tranche, if not
previously issued, shall be issued concurrently with the Change of Control, with
additional shares of Restricted Stock not previously issued to be issued
concurrently with the Change of Control in the amounts and at the prices set
forth below:
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<PAGE> 5
<TABLE>
<CAPTION>
Stock Price on Change of Control Additional Issued Shares
- -------------------------------- ------------------------
<S> <C>
$26 per share and above but below $27 10,000 shares of Restricted Stock
$27 per share and above but below $28 10,000 shares of Restricted Stock
$28 per share and above but below $29 10,000 shares of Restricted Stock
$29 per share and above but below $30 10,000 shares of Restricted Stock
$30 per share and above 10,000 shares of Restricted Stock
</TABLE>
All Restricted Stock in the Second Tranche which cannot be issued as set forth
above shall be forfeited.
(C) The Restricted Stock is transferable at any time and from time
to time after its issuance in accordance with Section 2 hereof, but subject to
any restrictions on offer or sale set forth in federal and state securities laws
or other restrictions imposed by applicable law. As used herein: "Change of
Control" shall mean any one or more of the following: the acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
Fifteen Percent (15%) or more of the shares of the then outstanding common stock
of the Company (the "Outstanding Common Stock"), a merger or consolidation of
the Company in which the Company does not survive as an independent public
company, a sale of all or substantially all of the assets of the Company or a
liquidation or dissolution of the Company; provided, however, that the following
acquisitions shall not constitute a Change of Control for the purposes of this
Paragraph 1: (i) any acquisition directly from the Company or (ii) any
acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company.
3. Termination And Forfeiture of Restricted Stock. Smith
acknowledges receipt of the provisions of the Plan, attached hereto as Exhibit
A, and further agrees that, in
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<PAGE> 6
the event Smith's employment with the Company is terminated by the Company with
cause (if same occurs in any year during which Smith is Chief Executive Officer
of the Company and/or United States Can Company), prior to completion of the
issuance of the Restricted Stock granted to Smith under this Agreement, then all
of the unissued Restricted Stock shall be forfeited to the Company and shall not
be or become the property of Smith.
4. Issuance of Shares. The Company shall have no obligation to issue
fractional shares of the Restricted Stock or any portion thereof hereunder, but
shall pay to Smith an amount in cash equal to the Market Value per Share (as
defined in the Plan) of Restricted Stock for each fractional share.
5. Adjustments of and Changes in Common Stock. The Board shall make
or provide for adjustments in the numbers of Common Stock covered by any
Restricted Stock grant hereunder, in the prices per share applicable to such
Restricted Stock, and in the kind of shares covered thereby, as the Board may
determine is equitably required to prevent dilution or enlargement of the rights
of Smith that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization, or other change in the capital
structure of the Company, (b) any merger, consolidation, spin-off, split-off,
spin-out, split-up, reorganization, partial or complete liquidation, or other
distribution of assets or issuance of rights or warrants to purchase securities,
or (c) any other corporate transaction or event having an effect similar to any
of the foregoing; provided, further, however, that any adjustment which by
reason of this Section 5 is not required to be made currently will be carried
forward and taken into account in any subsequent adjustment. In the event of any
such transaction or event, the Board may provide in substitution for any or all
outstanding awards under the Plan
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<PAGE> 7
such alternative consideration as it may determine to be equitable in the
circumstances and may require in connection therewith the surrender of all
awards so replaced.
6. Nontransferability of Restricted Stock. No Restricted Stock
granted under the Plan shall be transferable by Smith other than by will or the
laws of descent and distribution until the conditions for the issuance of such
stock as set forth in Section 2 hereof have been met. The Restricted Stock shall
not otherwise be transferred, assigned, pledged or hypothecated for any purpose
whatsoever and is not subject, in whole or in part, to execution, attachment or
similar process. Any attempted assignment, transfer, pledge or hypothecation or
other disposition of the Restricted Stock, other than in accordance with the
terms set forth herein, shall be void and of no effect.
7. Voting Rights of Restricted Stock. Each issuance of Restricted
Stock, made on or after the conditions set forth in Section 2 are met, shall
constitute an immediate transfer of the ownership of Common Shares to the
Participant in consideration of the performance of services.
8. Administration. The Restricted Stock shall be issued in
accordance with such administrative regulations as the Board of Directors shall
from time to time adopt, to the extent not inconsistent with Section 422 of the
Code.
9. Laws. The Restricted Stock and this Agreement shall be construed,
administered and governed under the laws of the State of Delaware, without
regard to its conflict of law principles, and to the extent not inconsistent
with Section 422 of the Code and the regulations issued thereunder.
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<PAGE> 8
10. General. The Company shall, at all times during which the
Restricted Stock is outstanding, pay all original issue and transfer taxes with
respect to the issuance and transfer of Common Stock pursuant hereto, shall pay
all other necessary fees and expenses incurred by the Company in connection
therewith, and shall use its best efforts to comply with all laws and
regulations which, in the opinion of the Company or counsel for the Company,
shall be applicable thereto.
11. Taxes. Nothing contained herein shall be construed as a
representation as to Smith's tax treatment by federal, state or local taxing
entities and no representation is made by the Company as to the continued
existence, if any, of a beneficial tax treatment of any Restricted Stock granted
hereunder. Smith should consult his individual tax consultant as to any
Restricted Stocks granted hereunder.
12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, one day after sent by recognized overnight delivery service, or five
(5) days after deposit in the United States mail, postage prepaid, registered or
certified mail, return receipt requested, to the parties at the following
addresses (or to such other address as a party may have specified by notice duly
given to the other party in accordance with this provision):
If to Smith:
At Smith's then current business or residence address as shown
on the records of the Company, with a copy to such other
person as Smith may have specified by notice duly given to the
Company in accordance with this provision.
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<PAGE> 9
If to the Company:
United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60521
Attention: President and Vice President, Human Resources
With a copy to:
Ross & Hardies
150 N. Michigan Avenue
Chicago, Illinois 60601-7567
Attention: Lawrence R. Samuels, Esq.
13. Headings. The section headings of this Agreement are for
reference only and are to be given no effect in the construction or
interpretation of this Agreement.
14. Severability. If any part or provision of this Agreement shall
be declared invalid or unenforceable by a court of competent jurisdiction, said
provision or part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts or
provisions of this Agreement.
15. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in writing.
16. Binding Effect; Assignment. This Agreement shall be binding on
and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity (including any
employee or person engaged by the Company in any capacity) not a party to this
Agreement. The Company will require any successor (whether direct or indirect,
by merger, purchase, consolidation or otherwise) of the Company
- 9 -
<PAGE> 10
to make an express assumption of the obligations hereunder and cause any
successor (whether direct or indirect, by merger, purchase, consolidation or
otherwise) of the Company to agree to perform all parts and provisions under
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place.
17. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed as
but one and the same document.
18. Acknowledgement. BY SIGNING HEREUNDER, SMITH ACKNOWLEDGES
RECEIPT OF THE PLAN ATTACHED HERETO AS EXHIBIT A AND REPRESENTS THAT HE HAS READ
AND THOROUGHLY REVIEWED THE PLAN.
- 10 -
<PAGE> 11
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
U.S. CAN CORPORATION WILLIAM J. SMITH
By: /s/ Carl Ferenbach /s/ William J. Smith
--------------------------------------- -------------------------------
Name: Carl Ferenbach William J. Smith
Title: Chairman of the Compensation
Committee of the Board of Directors
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<PAGE> 12
EXHIBIT A
Copy of U.S. Can Corporation 1997 Equity Incentive Plan
- 12 -
<PAGE> 1
EXHIBIT 10.54
LETTER OF U.S. CAN CORPORATION
March 5, 1998
PRIVATE AND CONFIDENTIAL
Mr. Paul Jones
728 Michaels Creek
Evans, Georgia 30809
Dear Paul:
On behalf of U.S. Can Corporation's Board of Directors, we are
delighted to offer you the position of President and Chief Executive Officer.
The Search Committee and the Board have been thoroughly involved throughout the
process and believe that you are the best candidate for the job. We have
tremendous opportunity at U.S. Can for growth and diversification and we would
like to have you lead us in these efforts.
This document formally conveys specifics of our offer as follows:
1. POSITION: Effective April 1, 1998, you will be elected President
and Chief Executive Officer of U.S. Can Corporation, United States Can Company
and such subsidiaries as you shall deem appropriate. You will report to the
Board of Directors. Effective April 1, 1998, I will resign as President and
Chief Executive Officer and on June 30, 1998, I will retire as Chairman of U.S.
Can. On July 1, 1998, you will become Chairman of the Board. As long as I am a
Director, I will serve as Chairman Emeritus, and I also will serve as a
consultant to the Corporation until April 2000.
2. COMPENSATION: Your base salary will be at least $500,000 per
annum. Your base salary for 1998 will be $500,000 prorated to reflect the
portion of the year for which you are employed. Your base salary and other
compensation will be reviewed annually by the Compensation Committee of the
Board of Directors.
Your bonus for 1998 will be guaranteed to be 100% of your prorated
base salary.
At a time of your choice approximately sixty (60) days following
your employment, the Board of Directors suggests that a Board-level Strategic
Planning Session be held to establish goals for the Corporation under your
leadership. Immediately following this discussion, the Compensation Committee of
the Board will meet to determine jointly with you the performance goals on which
your future compensation will be based. It is our intention to have a bonus plan
for 1999 that pays a bonus equal to 100% of your base pay upon the
<PAGE> 2
Mr. Paul Jones
March 5, 1998
Page 2
achievement of the targets set by the Compensation Committee, with greater
amounts for exceeding those targets and appropriate reductions for results
modestly below target.
3. TERM: Three (3) year employment agreement.
4. STOCK OPTIONS: On the date on which you commence employment with
the Corporation, you will be granted options to purchase 300,000 shares of
common stock of the Corporation at the then current market price. These options
will be Incentive Stock Options, as defined in the Corporation's 1995 Equity
Incentive Plan (the "Plan"), to the maximum extent permitted by Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"). The Corporation will
seek shareholder approval at the next annual meeting of shareholders of the
amendment to the Plan to include this option grant in the Plan or seek
shareholder approval for a new 1998 Plan which will include these options, (the
"Initial Options"). At the time you exercise the portion of the Initial Options
which are not Incentive Stock Options under the Code, the Corporation will make
an additional payment to you in an amount sufficient on a net, after tax basis,
to compensate you for the difference between the actual tax treatment to you of
the exercise of the Initial Options and the tax treatment that would have
occurred had the lowest available long-term capital gain tax rate applied.
5. STOCK PURCHASES You agree to purchase 30,000 shares of common
stock of the Corporation. You may, if you wish, purchase those shares
immediately or you may purchase 10,000 shares annually during each of the first
three (3) years of your employment with the Corporation. For each such share
purchased by you, the Corporation will grant you an option to purchase an
additional 3 1/3 shares of common stock of the Corporation at the current market
price at the time of the purchase of the shares. These options will be
Nonqualified Stock Options under the Plan and will be immediately exercisable.
Any shares purchased by you prior to the date of your employment will be
credited against the 30,000 share purchase obligation.
6. VESTING OF STOCK OPTIONS: 100,000 of the Initial Options will
vest at the end of each of the three years covered by your employment agreement.
7. FUTURE STOCK OPTIONS: Future stock options will be considered by
the Board of Directors in connection with the Strategic Planning Session and in
accordance with the annual review of performance and compensation.
8. ACCELERATED VESTING: In the event of your death or permanent
disability, a change of control of the Corporation or if the Board of Directors
terminates your employment as Chief Executive Officer of the Corporation for any
reason other than for cause, the Initial Options granted to you will vest
automatically.
<PAGE> 3
Mr. Paul Jones
March 5, 1998
Page 3
9. TERMINATION: In the event of the termination of your employment
with the Corporation due to your death or permanent disability, the Corporation
will pay you or your estate an amount equal to one years' base salary. In the
event your employment is terminated by the Corporation without cause, you shall
receive your base salary and benefits for the remainder of the term of your
employment agreement or eighteen (18) months, whichever is longer, and you will
receive a bonus prorated to reflect any partial year of employment if, at the
end of that year, it is determined that the bonus targets have been met. If the
employment agreement is terminated for cause, you will receive no further
compensation. In the event that there is a change of control of U.S. Can
Corporation and within two (2) years of that change of control you resign
because you suffer a material diminution in salary, benefits or responsibilities
or are required to relocate more than fifty (50) miles from Oakbrook, Illinois,
("Resignation for Cause"), you will be entitled to the same compensation as if
your employment were terminated without cause. If the total value of your
compensation treated as contingent on any change of control exceeds the
threshold specified under Section 280G(b) of the Code beyond which a portion of
such benefits are considered an excess parachute payment, you will be reimbursed
in an amount such that the total value of such compensation, net of all
applicable taxes, would be the same as if no excise tax under 4999(a) of the
Code were payable in respect to such excess parachute payment.
10. OTHER FINANCIAL BENEFITS: The Corporation will provide you with
the following additional financial benefits during your employment:
- A payment of $225,000 less any bonus paid to you in respect of
your services to your current employer for 1998 to compensate
you for the lost bonus opportunity resulting from your
resignation from your current employer to accept our offer
- Group term life insurance in the amount of $2,000,000
- Health, welfare, retirement and other benefits provided to
other senior executives
- Automobile allowance in the amount of $900 per month
- Reasonable relocation expenses to Chicago
- Reasonable temporary housing allowance up to six (6) months
- Financial assistance relating to the resale of your residence
in Georgia as provided for in U.S. Can's Relocation Policy
Guide
- Four (4) weeks paid vacation annually
- Payment of the fees and expenses of your legal counsel
incurred in connection with the negotiation of your employment
agreement up to $10,000
For your convenience I am enclosing summaries of our employee health
benefits and a copy of our Relocation Guide.
<PAGE> 4
Mr. Paul Jones
March 5, 1998
Page 4
11. EMPLOYMENT, NON-COMPETE AND CONFIDENTIALITY AGREEMENTS: You will
sign employment, non-compete and confidentiality agreements upon your
employment.
We are pleased to present you this offer, and look forward to a
lengthy and mutually beneficial relationship.
Sincerely,
/s/ William J. Smith
William J. Smith, Chairman and Chief
Executive Officer of U.S. Can Corporation
Terms Accepted and Agreed to:
/s/ Paul Jones
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Paul Jones
<PAGE> 1
EXHIBIT 10.57
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") is entered into as
of the ________ day of ______________, ____________, by and between U.S. Can
Corporation, a Delaware corporation (the "Company" or "US Can"), and
_______________________________, a member of the Board of Directors of the
Company (the "Director").
WHEREAS, the Company adopted the U.S. Can Corporation 1997 Equity
Incentive Plan (the "Plan") by vote of its Board of Directors on February 20,
1997.
WHEREAS, the Board of Directors of the Company desires to carry out
the purpose of the Plan and pay all or part of the Director's annual retainer by
awarding the Director restricted shares of its Common Stock, $.01 par value (the
"Common Stock"), as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Award of Restricted Stock. The Company hereby awards to the
Director ______________ restricted shares of Common Stock (the "Restricted
Stock") on the terms and conditions set forth herein and in the Plan.
2. Vesting of Restricted Stock. Subject to the other terms and
provisions of this Agreement, the Restricted Stock shall vest at the end of the
period beginning as of the date hereof and ending on
____________________________________. All Restricted Stock shall become fully
vested
<PAGE> 2
on the date set forth above unless there is a Change of Control (as defined
below) involving the Company, in which case the Restricted Stock shall vest as
of the date such Change of Control is consummated.
As used herein: "Change of Control" shall mean any one or more of
the following: the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) of fifteen percent (15%) or more of the then
outstanding shares of common stock of the Company (the "Outstanding Common
Stock"), a merger or consolidation of the Company in which the Company does not
survive as an independent public company, a sale of all or substantially all of
the assets of the Company or a liquidation or dissolution of the Company;
provided, however, that the following acquisitions shall not constitute a Change
of Control for the purposes of this subsection (a): (i) any acquisition directly
from the Company or (ii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company.
3. Termination And Forfeiture of Restricted Stock. The Director
acknowledges receipt of the provisions of the Plan, attached hereto as Exhibit
A, and further agrees that, in the event the Director is removed by the
shareholders from the Board of Directors of the Company with cause, or the
Director voluntarily resigns, effective prior to completion of the vesting of
the Restricted Stock awarded to the Director under this Agreement, all unvested
Restricted Stock shall be forfeited to the Company and shall not be or become
the property of the Director.
4. Adjustments of and Changes in Common Stock. The Board shall make
or provide for adjustments in the number of shares of Common Stock covered
hereby and in the kind
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<PAGE> 3
of shares covered hereby, as the Board may determine is equitably required to
prevent dilution or enlargement of the rights of the Director that otherwise
would result from (a) any stock dividend, stock split, combination of shares,
recapitalization, or other change in the capital structure of the Company, (b)
any merger, consolidation, spin-off, split-off, spin-out, split-up,
reorganization, partial or complete liquidation, or other distribution of assets
or issuance of rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of the foregoing;
provided, further, however, that any adjustment which by reason of this Section
4 is not required to be made currently will be carried forward and taken into
account in any subsequent adjustment. In the event of any such transaction or
event, the Board may provide in substitution for any or all shares outstanding
hereunder such alternative consideration as it may determine to be equitable in
the circumstances and may require in connection therewith the surrender of all
shares so replaced.
5. Transferability of Restricted Stock. The Restricted Stock awarded
under the Plan shall be transferable by the Director in accordance with
applicable laws and regulations, provided that, until such Restricted Stock has
vested, the Director will (i) notify the Company in writing as to the identity
of the transferee and the effective date of such transfer, if known, and (ii)
demonstrate to the Company's reasonable satisfaction that said transferee has
agreed to abide by all of the terms and conditions of this Agreement with
respect to such Restricted Stock. During the period of any substantial risk of
forfeiture, the Restricted Stock shall not be assigned, pledged or hypothecated
for any purpose whatsoever and is not subject, in whole or in part, to
execution, attachment or similar process. Any attempted assignment, pledge or
hypothecation shall be void and of no effect.
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<PAGE> 4
6. Termination Events. In the event of termination of the Director's
service on the Board of Directors by reason of (i) permanent and total
disability within the meaning of Section 22 (e)(3) of the Code, or (ii) death
prior to completion of the vesting of the Restricted Stock awarded to the
Director under this Agreement, the Restricted Stock shall vest upon the date of
death or the effective date of termination for the event described in clause (i)
above. In the event the Director retires prior to the vesting of any shares of
Restricted Stock awarded hereunder, at its option, the Company may, but is under
no obligation to, accelerate the vesting of all or part of such shares.
7. Rights Relating to Restricted Stock. This award of Restricted
Stock shall constitute an immediate transfer of the ownership of Common Shares
to the Director in consideration of the performance of services; provided, the
Company or its agent will retain possession of the Restricted Stock until fully
vested. The Director shall have the voting rights provided for in the 1997
Equity Incentive Plan, as amended from time to time.
8. Administration. The Restricted Stock shall vest in accordance
with such administrative regulations as the Board of Directors shall from time
to time adopt, to the extent not inconsistent with Section 422 of the Code.
9. Laws. The Restricted Stock and this Agreement shall be construed,
administered and governed under the laws of the State of Delaware, United States
of America, without regard to its conflict of law principles, and to the extent
not inconsistent with Section 422 of the Code and the regulations issued
thereunder.
10. General. The Company shall, at all times during which the
Restricted Stock is outstanding, pay all original issue and transfer taxes with
respect to the issuance and transfer
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<PAGE> 5
of Common Stock pursuant hereto, shall pay all other necessary fees and expenses
incurred by the Company in connection therewith, and shall use its best efforts
to comply with all laws and regulations which, in the opinion of the Company or
counsel for the Company, shall be applicable thereto.
11. Taxes. Nothing contained herein shall be construed as a
representation as to an Director's tax treatment by federal, state or local
taxing entities and no representation is made by the Company as to the continued
existence, if any, of a beneficial tax treatment of any Restricted Stock awarded
hereunder. Each Director should consult his/her individual tax consultant as to
any Restricted Stock awarded hereunder.
12. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally, one day after sent by recognized overnight or other expedited
delivery service, or five (5) days after deposit in the United States mail,
postage prepaid, registered or certified mail, return receipt requested, to the
parties at the following addresses (or to such other address as a party may have
specified by notice duly given to the other party in accordance with this
provision):
If to the Director:
At the Director's then current business or residence address as
shown on the records of the Company, with a copy to such other
person as the Director may have specified by notice duly given to
the Company in accordance with this provision.
If to the Company:
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<PAGE> 6
United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60523
Attention: Vice President, Human Resources
With a copy to:
Ross & Hardies
150 N. Michigan Avenue
Chicago, Illinois 60601-7567
Attention: Lawrence R. Samuels, Esq.
13. Headings. The section headings of this Agreement are for
reference only and are to be given no effect in the construction or
interpretation of this Agreement.
14. Severability. If any part or provision of this Agreement shall
be declared invalid or unenforceable by a court of competent jurisdiction, said
provision or part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts or
provisions of this Agreement.
15. Waiver. Any party may waive compliance by another party with any
of the provisions of this Agreement. No waiver of any provision shall be
construed as a waiver of any other provision. Any waiver must be in writing.
16. Binding Effect; Assignment. This Agreement shall be binding on
and inure to the benefit of the parties and their respective successors and
permitted assigns. Nothing in this Agreement shall create or be deemed to create
any third party beneficiary rights in any person or entity (including any
Director or person engaged by the Company in any capacity) not a party to this
Agreement. The Company will require any successor (whether direct or indirect,
by merger,
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<PAGE> 7
purchase, consolidation or otherwise) of the Company to make an express
assumption of the obligations hereunder and cause any successor (whether direct
or indirect, by merger, purchase, consolidation or otherwise) of the Company to
agree to perform all parts and provisions under this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place.
17. Counterparts. This Agreement may be signed in any number of
counterparts and all such counterparts shall be read together and construed as
but one and the same document.
18. Fractional Shares. In connection with this award, the Company
shall have no obligation to issue any fractional share of Common Stock. The
Company will pay in cash to the Director an amount equivalent to the value of
any fractional share the Director would otherwise be entitled to receive.
19. Acknowledgment. BEFORE SIGNING HEREUNDER, THE DIRECTOR SHOULD
READ AND THOROUGHLY REVIEW THE PLAN ATTACHED HERETO AS EXHIBIT A. BY SIGNING
HEREUNDER, THE DIRECTOR ACKNOWLEDGES RECEIPT OF THE PLAN AND REPRESENTS THAT
THE DIRECTOR HAS READ AND THOROUGHLY REVIEWED THE PLAN.
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<PAGE> 8
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
U.S. CAN CORPORATION
By:______________________________
Name:
Title:
Director
_________________________________
_________________________________
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<PAGE> 9
SCHEDULE OF AWARDS
On October 23, 1997, each of the following non-employee directors, or his
designee firm, was awarded 443 restricted shares of Common Stock, vesting April
24, 1998:
Calvin Aurand, Benjamin Bailar, Carl Ferenbach, Ricardo Poma, Francisco Soler,
Eugene Connolly and Michael Zimmerman.
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<PAGE> 1
EXHIBIT 10.58
U. S. CAN COMPANY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of May 1, 1997 (the
"Agreement") is by and between United States Can Company, a Delaware corporation
having its principal offices at 900 Commerce Drive, Oak Brook, Illinois 60521
("U.S. Can"), and John R. McGowan, an employee of U.S. Can (the "Employee").
WHEREAS, the Employee has been or is being hired to serve as VICE
PRESIDENT CONTROLLER of U.S. Can; and
WHEREAS, U.S. Can desires to retain the Employee's services, and the
Employee is willing to enter into and/or continue employment as an employee of
U.S. Can on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. The Employee shall be employed by U.S. Can as Vice
President Controller for the Term of Employment (as defined in Section 5
hereof), and on the terms and conditions set forth herein.
2. DUTIES. The Employee shall perform those duties normally associated
with the position of Vice President Controller, as well as any other duties and
tasks as may be assigned from time to time to the Employee by the Chief
Executive Officer of U.S. Can. During the Term of Employment, the Employee shall
work exclusively for U.S. Can and its Affiliates (as hereinafter defined) and
devote substantially all of his business efforts and time to fulfill the duties
of his employment.
For purposes of this Agreement, the term "Affiliate" shall mean U.S. Can,
any other corporation owned or controlled by U.S. Can, directly or indirectly,
and any parent or subsidiary of U.S. Can, including, without limitation, U.S.
Can Corporation, a Delaware corporation.
3. SITE OF EMPLOYMENT. During the Term of Employment, Employee's regular
place of employment shall be U.S. Can's principal offices located at 900
Commerce Drive, Oak Brook, Illinois 60521, or such other place as the Chief
Executive Officer may direct.
<PAGE> 2
4. COMPENSATION AND BENEFITS.
a. Salary: In full consideration for the aforementioned services and
subject to the due performance thereof, the Employee shall receive
an annual salary of $170,000 (payable bi-weekly) during the Term of
the Employment; provided, however, that the Employee shall receive
only a pro rata share of such salary through the date of termination
or resignation in the event the Employee is terminated for cause by
U.S. Can pursuant to Section 6(i) or in the event the employee
voluntarily resigns pursuant to Section 6(iii) hereof. U.S. Can
shall calculate any pro rata share of the Employee's salary earned
through the date of termination or resignation, including accrued
but unused vacation time. In the event the Employee is terminated by
U.S. Can without cause pursuant to Section 6(ii) below, the Employee
shall be entitled to receive his Severance Payments pursuant to
Section 7 hereof; provided, however, that in the event the Employee
is terminated without cause due to a disability in accordance with
Section 8 hereof, U.S. Can shall only be obligated to the Employee
for the difference between the Severance Payments and any other
amounts received by the Employee as a result of such disability,
including but not limited to amounts received pursuant to any
disability insurance plan provided by U.S. Can, worker's
compensation payments and any compensatory or punitive damage awards
received in any personal injury action. Any increase in base salary,
or the award of any bonus, shall be made in the sole discretion of
the Board of Directors of U.S. Can, taking into account, in their
sole discretion, whether the Employee has attained the performance
goals, financial and otherwise, established for the Employee by the
Board of Directors for the preceding year.
b. BENEFITS. The Employee shall be entitled to receive a car or an
allowance not in excess of $9,600 per year and the other fringe
benefits received by other officers of U.S. Can and its Affiliates,
including but not limited to, being covered under any incentive
compensation plans, group insurance plans, stock
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<PAGE> 3
option, stock grant and/or stock purchase plans and any retirement
accumulation plan, including but not limited to the Non-qualified
Excess Benefit Replacement Plan pursuant to Section 401(a)(17) and
Section (15) of the Internal Revenue Code of 1986, as amended,
offered by U.S. Can and/or its Affiliates; provided, however, that
nothing herein shall require U.S. Can or its Affiliates to maintain
the fringe benefits currently provided to officers of U.S. Can
and/or its Affiliates.
c. REASONABLE AND NECESSARY BUSINESS EXPENSES. The Employee shall be
entitled to reimbursement from U.S. Can of reasonable and necessary
business expenses incurred by the Employee in the course of his
employment.
d. VACATION/HOLIDAYS. During each year of the Term of Employment, the
Employee shall be entitled to five (5) weeks of paid vacation plus
the paid holidays observed by U.S. Can and its Affiliates.
5. TERM OF EMPLOYMENT. The Employee's term of employment by U.S. Can shall
commence on the date hereof and shall continue until termination thereof by the
Employee or U.S. Can pursuant to the terms hereof (the "Term of Employment"),
subject to the provisions of Section 10 hereof.
6. TERMINATION. The Term of Employment may be terminated (i) by U.S. Can
with cause (as set forth below), effective immediately; (ii) by U.S. Can without
cause (as set forth below), effective thirty (30) days after written notice to
Employee; (iii) by Employee unilaterally, effective thirty (30) days after
written notice to U.S. Can; or (iv) on death of the Employee, effective
immediately.
Termination with cause is permitted in the following circumstances:
a) material breach or non-performance of any of the terms and
conditions of this Agreement by Employee without proper cause, after
a written demand for performance has been delivered to Employee by
U.S. Can, which notice specifies the nature of the default and
Employee has failed to cure such default within five (5) days
thereafter;
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<PAGE> 4
b) commission of any crime involving assault, moral turpitude or any
felony in connection with the performance of his duties hereunder;
or
c) other intentional or negligent conduct having a material adverse
effect on the condition, financial or otherwise, of U.S. Can, or any
of its Affiliates.
In every other case of termination by U.S. Can, the termination shall be
deemed to be without cause.
7. SEVERANCE PAYMENTS. Should U.S. Can or its successor/assignee terminate
the Term of Employment without cause pursuant to Section 6(ii) above, the
Employee shall receive eighteen (18) months of base salary and the insurance
benefits which exist during the pay period immediately preceding the termination
of the Term of Employment (the "Severance Payments"). The Severance Payments
shall be payable in the same manner as base salary payments are made during the
Term of Employment in accordance with Section 4 hereof.
8. DISABILITY OF THE EMPLOYEE. In the event that the Employee suffers
total and permanent disability during the Term of Employment hereunder, then,
effective on the date thereof, the Term of Employment shall conclude; provided,
however, that the termination of the Term of Employment resulting from the total
and permanent disability shall be deemed to be termination without cause, and
the Employee shall be entitled to receive the Severance Payments pursuant to
Section 7 hereof, less any other amount received by the Employee as a result of
such disability as provided for in Section 4(a) hereof. Total and permanent
disability shall mean a disability because of which the Employee is physically
or mentally unable to substantially perform the duties required of him under
this Agreement for a period of six (6) consecutive months or more.
9. DEATH OF THE EMPLOYEE. If the Employee dies during his Term of
Employment hereunder, the Term of Employment shall conclude on the date thereof,
and the Employee's designated beneficiary or, in the event no beneficiary has
been designated or survives, to the estate of the Employee, the estate of the
Employee shall be entitled to receive a death benefit from U.S. Can equal to two
times the Employee's base salary existing on the date of his death (not to
exceed a maximum of $500,000). Any amounts payable by U.S. can in respect of the
death benefit provided herein may be paid in twenty-four (24) equal installments
at U.S. can's option.
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<PAGE> 5
10. EFFECT OF EXPIRATION OR TERMINATION. If the Term of Employment comes
to an end for any reason whatsoever, the obligations of the parties under
Sections 11 and 12 shall continue in accordance with the terms and conditions of
each respective Section. Further, Sections 4 and 7 will remain in full force and
effect until the Employee's account is settled.
11. NON-COMPETITION. The Employee hereby agrees that, during the Term of
Employment, and during the Agreed Period (as hereinafter defined), the Employee
shall not: (a) engage, directly or indirectly, in any Prohibited Activities (as
hereinafter defined) in any Prohibited Territory (as hereinafter defined) as an
owner, officer, director, employee, stockholder, principal, consultant, agent
lender, guarantor, cosigner, investor or trustee of any corporation,
partnership, proprietorship, joint venture, association or any other entity or
business of any nature or (b) solicit any customers or clients of U.S. Can or
its Affiliates in connection with any transactions which are in direct
competition with the business of U.S. Can. Notwithstanding the foregoing, the
Employee may be the owner of not more than 5% of the outstanding capital stock
of any corporation engaged in Prohibited Activities (as defined herein). For
purposes of this Section 11, "Prohibited Activities" shall mean any
manufacturing, development, sales, marketing, licensing and/or distribution of
any container which is directly competitive with any product supplied by U.S.
Can or any of its Affiliates and the provision of any services directly
competitive with services offered by U.S. Can or its Affiliates and "Prohibited
Territory" means the United States and any other country or applicable
geographic area where the products and/or services of U.S. Can or its Affiliates
are sold. The term "Agreed Period" shall mean the Term of Employment and the one
and one-half year period following the date on which the Term of Employment is
terminated.
12. CONFIDENTIALITY.
(a) For purposes of this Section 12, "U.S. Can Confidential Information"
means all Trade Secrets and Other Confidential Technical and Business
Information (as defined below) (whether or not reduced to writing and whether or
not patentable or protectable by copyright) which U.S. Can now owns or is
licensed to use, or may in the future own or be licensed to use during the
entire term of your employment at U.S. Can, including the Term of Employment
hereunder. "Trade Secrets and Other Confidential Technical and Business
Information" means all confidential
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<PAGE> 6
or proprietary product development and design information and all confidential
or proprietary procedures, techniques, manuals, customer information,
specifications, data bases, test results, information concerning business or
product acquisitions, strategic plans, customer lists, pricing data, and
discoveries, inventions and innovations made, created, acquired or developed by
or on behalf of U.S. Can and/or it Affiliates but excluding in each case any
information which as a whole (i) is contained at the time of disclosure or
thereafter in a patent or a printed publication available to the general public,
(ii) is obtained from a third party lawfully in possession of such information
and who is not subject to a contractual or a fiduciary duty not to disclose such
information, or (iii) any other information which is known generally by the
public.
(b) The Employee agrees to take the following steps to preserve the
confidential and proprietary nature of U.S. Can Confidential Information:
(i) During or after the Employee's employment by U.S. Can, the
Employee will not disclose or transfer any of the U.S. Can
Confidential Information other than as authorized by U.S. Can
within the scope of the Employee's duties with U.S. Can.
Except to the extent the Employee is authorized to do so in
his capacity as an employee or officer of U.S. Can, the
employee understands that he is not allowed to sell, license
or otherwise exploit any products or services which embody or
utilize in whole or in part any U.S. Can Confidential
Information.
(ii) The Employee will take all reasonable precautions to prevent
the unauthorized disclosure (whether inadvertent or
deliberate) of U.S. Can Confidential Information to
unauthorized persons or entities, and will report promptly to
appropriate U.S. Can management any such activities by others.
(iii) While the Employee is permitted to retain all personal
information which is not comprised of or derived from U.S. Can
Confidential Information (in whole or in part), all notes,
files, data, tapes, reference materials, reports, sketches,
drawings, price lists, customer lists, plans, memoranda,
records and any other document or matter comprised of, or
derived from U.S. Can Confidential Information (in whole or in
part) shall belong exclusively to U.S. Can. At the request of
U.S. Can or upon termination of the Employee's employment with
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<PAGE> 7
U.S. Can, the Employee will deliver to U.S. Can all tangible
materials embodying U.S. Can Confidential Information in his
possession or control.
(c) Except as otherwise provided herein, this Section 11 shall survive for
a period of ten (10) years following termination of this Agreement.
13. EQUITABLE RELIEF. The Employee understands that a breach by him of any
provision of this Agreement may cause substantial injury to U.S. Can and/or its
Affiliates which may be irreparable and/or in amounts difficult or impossible to
ascertain, and that in the event the Employee breaches any provision of this
Agreement, U.S. Can shall have, in addition to all other remedies available in
the event of a breach of this Agreement, the right to injunctive or other
equitable relief. Further, the Employee acknowledges and agrees that the
restrictions and commitments set forth in the Agreement are necessary to protect
U.S. Can's legitimate interests and are reasonable in scope, area and time, and
that if, despite this acknowledgement and agreement, at the time of the
enforcement of any provision of this Agreement a court of competent jurisdiction
shall hold that the period or scope of such provision is unreasonable under the
circumstances then existing, the maximum reasonable period or scope under such
circumstances shall be substituted for the period or scope stated in such
provision.
14. NON-WAIVER OF RIGHTS. The failure to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
15. ARBITRATION. Any dispute as to any claim under this Agreement shall be
settled by arbitration in Chicago, Illinois by an arbitrator, who shall be
appointed pursuant to the rules of the American Arbitration Association. The
arbitration shall be conducted promptly and expeditiously in accordance with the
applicable arbitration rules of the American Arbitration Association. Any award
issued as a result of such arbitration shall be final and binding on the
parties, and judgement upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
- 7 -
<PAGE> 8
16. SEVERABILITY. Whenever there may be a conflict between the provisions
of this Agreement and any statute, prevailing law, judicial decision, ordinance
or regulation, the latter shall prevail, but in such event the provisions of
this Agreement so affected shall be construed and limited only to the extent
necessary to bring it within the requirements of such law and in no event shall
such illegality or unenforceability affect the remaining provisions or remaining
portions of a provision of this Agreement.
17. NOTICES. Any notice given by either party hereunder shall be in
writing and shall be personally delivered or shall be mailed, certified or
registered mail, postage prepaid, as follows:
To U.S. Can: United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60521
Attention: Chief Executive Officer
with a copy to: Lawrence R. Samuels
Ross & Hardies
150 North Michigan
Chicago, Illinois 60601
To Employee: At the address of the Employee as set forth on the payroll
records of U.S. Can.
or to such other address as may have been furnished to the other party by
written notice in accordance with this Section 17.
18. ASSIGNMENT. The rights and obligations of U.S. Can under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of U.S. Can.
19. ENTIRE AGREEMENT. This Agreement (together with any applicable stock
option agreement, stock grant agreement, stock purchase agreement or
change-of-control agreement) contains the entire agreement between the parties
and supersedes all prior or contemporaneous agreements and representations,
written or oral with respect to the subject matter described herein. No
representations or agreements, written or oral, other than the representations
and agreements contained in this Agreement, or any applicable stock option
agreement, stock grant agreement, stock purchase agreement or change-of-control
agreement, have been made to or in favor of the
- 8 -
<PAGE> 9
Employee with respect to the subject matter described herein. This Agreement may
not be changed orally, but only by an agreement in writing signed by both
parties.
20. APPLICABLE LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to its
conflicts of law doctrine, and the Employee hereby consents to personal
jurisdiction in Illinois for such purpose.
IN WITNESS WHEREOF, the parties have executed this Agreement, in
triplicate, on the date first written above.
EMPLOYEE UNITED STATES CAN COMPANY
/s/ John R. McGowan By: /s/ William J. Smith
- ------------------------ ------------------------
John R. McGowan William J. Smith
President and Chief Executive Officer
- 9 -
<PAGE> 1
EXHIBIT 10.59
U. S. CAN COMPANY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of May 1, 1997 (the
"Agreement") is by and between United States Can Company, a Delaware corporation
having its principal offices at 900 Commerce Drive, Oak Brook, Illinois 60521
("U.S. Can"), and Lawrence T. Messina, an employee of U.S. Can (the "Employee").
WHEREAS, the Employee has been or is being hired to serve as SENIOR
VICE PRESIDENT INTERNATIONAL of U.S. Can; and
WHEREAS, U.S. Can desires to retain the Employee's services, and the
Employee is willing to enter into and/or continue employment as an employee of
U.S. Can on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. The Employee shall be employed by U.S. Can as Senior
Vice President International for the Term of Employment (as defined in Section 5
hereof), and on the terms and conditions set forth herein.
2. DUTIES. The Employee shall perform those duties normally associated
with the position of Senior Vice President International, as well as any other
duties and tasks as may be assigned from time to time to the Employee by the
Chief Executive Officer of U.S. Can. During the Term of Employment, the Employee
shall work exclusively for U.S. Can and its Affiliates (as hereinafter defined)
and devote substantially all of his business efforts and time to fulfill the
duties of his employment.
For purposes of this Agreement, the term "Affiliate" shall mean U.S.
Can, any other corporation owned or controlled by U.S. Can, directly or
indirectly, and any parent or subsidiary of U.S. Can, including, without
limitation, U.S. Can Corporation, a Delaware corporation.
3. SITE OF EMPLOYMENT. During the Term of Employment, Employee's
regular place of employment shall be U.S. Can's principal offices located at 900
Commerce Drive, Oak Brook, Illinois 60521, or such other place as the Chief
Executive Officer may direct.
<PAGE> 2
4. COMPENSATION AND BENEFITS.
a. Salary: In full consideration for the aforementioned
services and subject to the due performance thereof,
the Employee shall receive an annual salary of
$170,000 (payable bi-weekly) during the Term of the
Employment; provided, however, that the Employee
shall receive only a pro rata share of such salary
through the date of termination or resignation in the
event the Employee is terminated for cause by U.S.
Can pursuant to Section 6(i) or in the event the
employee voluntarily resigns pursuant to Section
6(iii) hereof. U.S. Can shall calculate any pro rata
share of the Employee's salary earned through the
date of termination or resignation, including accrued
but unused vacation time. In the event the Employee
is terminated by U.S. Can without cause pursuant to
Section 6(ii) below, the Employee shall be entitled
to receive his Severance Payments pursuant to Section
7 hereof; provided, however, that in the event the
Employee is terminated without cause due to a
disability in accordance with Section 8 hereof, U.S.
Can shall only be obligated to the Employee for the
difference between the Severance Payments and any
other amounts received by the Employee as a result of
such disability, including but not limited to amounts
received pursuant to any disability insurance plan
provided by U.S. Can, worker's compensation payments
and any compensatory or punitive damage awards
received in any personal injury action. Any increase
in base salary, or the award of any bonus, shall be
made in the sole discretion of the Board of Directors
of U.S. Can, taking into account, in their sole
discretion, whether the Employee has attained the
performance goals, financial and otherwise,
established for the Employee by the Board of
Directors for the preceding year.
b. BENEFITS. The Employee shall be entitled to receive a
car or an allowance not in excess of $9,600 per year
and the other fringe benefits received by other
officers of U.S. Can and its Affiliates, including
but not limited to, being covered under any incentive
compensation plans, group insurance plans, stock
- 2 -
<PAGE> 3
option, stock grant and/or stock purchase plans and
any retirement accumulation plan, including but not
limited to the Non-qualified Excess Benefit
Replacement Plan pursuant to Section 401(a)(17) and
Section (15) of the Internal Revenue Code of 1986, as
amended, offered by U.S. Can and/or its Affiliates;
provided, however, that nothing herein shall require
U.S. Can or its Affiliates to maintain the fringe
benefits currently provided to officers of U.S. Can
and/or its Affiliates.
c. REASONABLE AND NECESSARY BUSINESS EXPENSES. The
Employee shall be entitled to reimbursement from U.S.
Can of reasonable and necessary business expenses
incurred by the Employee in the course of his
employment.
d. VACATION/HOLIDAYS. During each year of the Term of
Employment, the Employee shall be entitled to four
(4) weeks of paid vacation plus the paid holidays
observed by U.S. Can and its Affiliates.
5. TERM OF EMPLOYMENT. The Employee's term of employment by U.S. Can
shall commence on the date hereof and shall continue until termination thereof
by the Employee or U.S. Can pursuant to the terms hereof (the "Term of
Employment"), subject to the provisions of Section 10 hereof.
6. TERMINATION. The Term of Employment may be terminated (i) by U.S.
Can with cause (as set forth below), effective immediately; (ii) by U.S. Can
without cause (as set forth below), effective thirty (30) days after written
notice to Employee; (iii) by Employee unilaterally, effective thirty (30) days
after written notice to U.S. Can; or (iv) on death of the Employee, effective
immediately.
Termination with cause is permitted in the following circumstances:
a) material breach or non-performance of any of the
terms and conditions of this Agreement by Employee
without proper cause, after a written demand for
performance has been delivered to Employee by U.S.
Can, which notice specifies the nature of the default
and Employee has failed to cure such default within
five (5) days thereafter;
- 3 -
<PAGE> 4
b) commission of any crime involving assault, moral
turpitude or any felony in connection with the
performance of his duties hereunder; or
c) other intentional or negligent conduct having a
material adverse effect on the condition, financial
or otherwise, of U.S. Can, or any of its Affiliates.
In every other case of termination by U.S. Can, the termination shall
be deemed to be without cause.
7. SEVERANCE PAYMENTS. Should U.S. Can or its successor/assignee
terminate the Term of Employment without cause pursuant to Section 6(ii) above,
the Employee shall receive eighteen (18) months of base salary and the insurance
benefits which exist during the pay period immediately preceding the termination
of the Term of Employment (the "Severance Payments"). The Severance Payments
shall be payable in the same manner as base salary payments are made during the
Term of Employment in accordance with Section 4 hereof.
8. DISABILITY OF THE EMPLOYEE. In the event that the Employee suffers
total and permanent disability during the Term of Employment hereunder, then,
effective on the date thereof, the Term of Employment shall conclude; provided,
however, that the termination of the Term of Employment resulting from the total
and permanent disability shall be deemed to be termination without cause, and
the Employee shall be entitled to receive the Severance Payments pursuant to
Section 7 hereof, less any other amount received by the Employee as a result of
such disability as provided for in Section 4(a) hereof. Total and permanent
disability shall mean a disability because of which the Employee is physically
or mentally unable to substantially perform the duties required of him under
this Agreement for a period of six (6) consecutive months or more.
9. DEATH OF THE EMPLOYEE. If the Employee dies during his Term of
Employment hereunder, the Term of Employment shall conclude on the date thereof,
and the Employee's designated beneficiary or, in the event no beneficiary has
been designated or survives, to the estate of the Employee, the estate of the
Employee shall be entitled to receive a death benefit from U.S. Can equal to two
times the Employee's base salary existing on the date of his death (not to
exceed a maximum of $500,000). Any amounts payable by U.S. can in respect of the
death benefit provided herein may be paid in twenty-four (24) equal installments
at U.S. can's option.
- 4 -
<PAGE> 5
10. EFFECT OF EXPIRATION OR TERMINATION. If the Term of Employment
comes to an end for any reason whatsoever, the obligations of the parties under
Sections 11 and 12 shall continue in accordance with the terms and conditions of
each respective Section. Further, Sections 4 and 7 will remain in full force and
effect until the Employee's account is settled.
11. NON-COMPETITION. The Employee hereby agrees that, during the Term
of Employment, and during the Agreed Period (as hereinafter defined), the
Employee shall not: (a) engage, directly or indirectly, in any Prohibited
Activities (as hereinafter defined) in any Prohibited Territory (as hereinafter
defined) as an owner, officer, director, employee, stockholder, principal,
consultant, agent lender, guarantor, cosigner, investor or trustee of any
corporation, partnership, proprietorship, joint venture, association or any
other entity or business of any nature or (b) solicit any customers or clients
of U.S. Can or its Affiliates in connection with any transactions which are in
direct competition with the business of U.S. Can. Notwithstanding the foregoing,
the Employee may be the owner of not more than 5% of the outstanding capital
stock of any corporation engaged in Prohibited Activities (as defined herein).
For purposes of this Section 11, "Prohibited Activities" shall mean any
manufacturing, development, sales, marketing, licensing and/or distribution of
any container which is directly competitive with any product supplied by U.S.
Can or any of its Affiliates and the provision of any services directly
competitive with services offered by U.S. Can or its Affiliates and "Prohibited
Territory" means the United States and any other country or applicable
geographic area where the products and/or services of U.S. Can or its Affiliates
are sold. The term "Agreed Period" shall mean the Term of Employment and the one
and one-half year period following the date on which the Term of Employment is
terminated.
12. CONFIDENTIALITY.
(a) For purposes of this Section 12, "U.S. Can Confidential
Information" means all Trade Secrets and Other Confidential Technical and
Business Information (as defined below) (whether or not reduced to writing and
whether or not patentable or protectable by copyright) which U.S. Can now owns
or is licensed to use, or may in the future own or be licensed to use during the
entire term of your employment at U.S. Can, including the Term of Employment
hereunder. "Trade Secrets and Other Confidential Technical and Business
Information" means all confidential
- 5 -
<PAGE> 6
or proprietary product development and design information and all confidential
or proprietary procedures, techniques, manuals, customer information,
specifications, data bases, test results, information concerning business or
product acquisitions, strategic plans, customer lists, pricing data, and
discoveries, inventions and innovations made, created, acquired or developed by
or on behalf of U.S. Can and/or it Affiliates but excluding in each case any
information which as a whole (i) is contained at the time of disclosure or
thereafter in a patent or a printed publication available to the general public,
(ii) is obtained from a third party lawfully in possession of such information
and who is not subject to a contractual or a fiduciary duty not to disclose such
information, or (iii) any other information which is known generally by the
public.
(b) The Employee agrees to take the following steps to preserve the
confidential and proprietary nature of U.S. Can Confidential Information:
(i) During or after the Employee's employment by U.S.
Can, the Employee will not disclose or transfer any
of the U.S. Can Confidential Information other than
as authorized by U.S. Can within the scope of the
Employee's duties with U.S. Can. Except to the extent
the Employee is authorized to do so in his capacity
as an employee or officer of U.S. Can, the employee
understands that he is not allowed to sell, license
or otherwise exploit any products or services which
embody or utilize in whole or in part any U.S. Can
Confidential Information.
(ii) The Employee will take all reasonable precautions to
prevent the unauthorized disclosure (whether
inadvertent or deliberate) of U.S. Can Confidential
Information to unauthorized persons or entities, and
will report promptly to appropriate U.S. Can
management any such activities by others.
(iii) While the Employee is permitted to retain all
personal information which is not comprised of or
derived from U.S. Can Confidential Information (in
whole or in part), all notes, files, data, tapes,
reference materials, reports, sketches, drawings,
price lists, customer lists, plans, memoranda,
records and any other document or matter comprised
of, or derived from U.S. Can Confidential Information
(in whole or in part) shall belong exclusively to
U.S. Can. At the request of U.S. Can or upon
termination of the Employee's employment with
- 6 -
<PAGE> 7
U.S. Can, the Employee will deliver to U.S. Can all
tangible materials embodying U.S. Can Confidential
Information in his possession or control.
(c) Except as otherwise provided herein, this Section 11 shall survive
for a period of ten (10) years following termination of this Agreement.
13. EQUITABLE RELIEF. The Employee understands that a breach by him of
any provision of this Agreement may cause substantial injury to U.S. Can and/or
its Affiliates which may be irreparable and/or in amounts difficult or
impossible to ascertain, and that in the event the Employee breaches any
provision of this Agreement, U.S. Can shall have, in addition to all other
remedies available in the event of a breach of this Agreement, the right to
injunctive or other equitable relief. Further, the Employee acknowledges and
agrees that the restrictions and commitments set forth in the Agreement are
necessary to protect U.S. Can's legitimate interests and are reasonable in
scope, area and time, and that if, despite this acknowledgement and agreement,
at the time of the enforcement of any provision of this Agreement a court of
competent jurisdiction shall hold that the period or scope of such provision is
unreasonable under the circumstances then existing, the maximum reasonable
period or scope under such circumstances shall be substituted for the period or
scope stated in such provision.
14. NON-WAIVER OF RIGHTS. The failure to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
15. ARBITRATION. Any dispute as to any claim under this Agreement shall
be settled by arbitration in Chicago, Illinois by an arbitrator, who shall be
appointed pursuant to the rules of the American Arbitration Association. The
arbitration shall be conducted promptly and expeditiously in accordance with the
applicable arbitration rules of the American Arbitration Association. Any award
issued as a result of such arbitration shall be final and binding on the
parties, and judgement upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
- 7 -
<PAGE> 8
16. SEVERABILITY. Whenever there may be a conflict between the
provisions of this Agreement and any statute, prevailing law, judicial decision,
ordinance or regulation, the latter shall prevail, but in such event the
provisions of this Agreement so affected shall be construed and limited only to
the extent necessary to bring it within the requirements of such law and in no
event shall such illegality or unenforceability affect the remaining provisions
or remaining portions of a provision of this Agreement.
17. NOTICES. Any notice given by either party hereunder shall be in
writing and shall be personally delivered or shall be mailed, certified or
registered mail, postage prepaid, as follows:
To U.S. Can: United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60521
Attention: Chief Executive Officer
with a copy to: Lawrence R. Samuels
Ross & Hardies
150 North Michigan
Chicago, Illinois 60601
To Employee: At the address of the Employee as set forth on the
payroll records of U.S. Can.
or to such other address as may have been furnished to the other party by
written notice in accordance with this Section 17.
18. ASSIGNMENT. The rights and obligations of U.S. Can under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of U.S. Can.
19. ENTIRE AGREEMENT. This Agreement (together with any applicable
stock option agreement, stock grant agreement, stock purchase agreement or
change-of-control agreement) contains the entire agreement between the parties
and supersedes all prior or contemporaneous agreements and representations,
written or oral with respect to the subject matter described herein. No
representations or agreements, written or oral, other than the representations
and agreements contained in this Agreement, or any applicable stock option
agreement, stock grant agreement, stock purchase agreement or change-of-control
agreement, have been made to or in favor of the
- 8 -
<PAGE> 9
Employee with respect to the subject matter described herein. This Agreement may
not be changed orally, but only by an agreement in writing signed by both
parties.
20. APPLICABLE LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to its
conflicts of law doctrine, and the Employee hereby consents to personal
jurisdiction in Illinois for such purpose.
IN WITNESS WHEREOF, the parties have executed this Agreement, in
triplicate, on the date first written above.
EMPLOYEE UNITED STATES CAN COMPANY
/s/ Lawrence T. Messina By: /s/ William J. Smith
- ------------------------ -----------------------------------------
Lawrence T. Messina William J. Smith
President and Chief Executive Officer
/s/ Sarah M. Howard
- ------------------------
Witness
[NOTORIAL SEAL]
- 9 -
<PAGE> 1
Exhibit 10.60
AMENDMENT NO. 1
TO EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to the Employment
Agreement (the "Agreement") by and between United States Can Company, a Delaware
corporation (the "Company") and John R. McGowan, an employee of the Company (the
"Employee"), is made and entered into as of the 17th day of November, 1997, by
and between the Company and the Employee.
W I T N E S S E T H:
WHEREAS, the Employee has previously entered into the
Agreement under the terms and conditions set forth therein;
WHEREAS, the Company wishes to amend the Agreement to offer
certain supplemental retirement medical benefits for Management Executive
Committee members who have attained the age of 55 years or older and who retire
or whose employment is terminated.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Plan Benefits.
a. Eligibility. The Employee shall be eligible to
receive the benefits described in the section
entitled "Modified Benefits for Certain Former
Employees" (the "Plan") under the United States Can
Company Health, Life and Disability Benefits Plan, as
amended (a) if the Employee is a member of the
Company's Management Executive Committee and (b) if
after the attainment of age 55 years or older, the
Employee's employment is terminated, for any reason,
including retirement, other than a termination by the
Company for cause (as specified in the Employee's
employment agreement). A copy of the Plan is attached
as Exhibit A hereto.
b. Effectiveness of Plan. The Employee's
coverage under the Plan shall become effective on
the date the Employee's active employee coverage
ends; provided, however the Employee meets the
requirements of Section 1(a) above and does not
<PAGE> 2
violate the covenant set forth in Section 1(c)
hereinafter.
c. Conditions.
(i) Non-Compete. As a condition of
participation in the Plan, the Employee
agrees that he will not directly or
indirectly (whether through a partnership of
which the Employee is a partner or through
any other individual or entity in which the
Employee has a any interest, legal or
equitable), (a) engage in any business
competitive with the business of the
Company; or (b) solicit or otherwise engage
with any customers or clients of the Company
in any transactions which are in direct
competition with the Company; in each case
in the United States of America or any
country where the Company or its
subsidiaries or affiliates are doing
business with respect to the Company's
products and services, and in each case,
excluding passive investment interests of
less than two percent (2%) in corporations
whose stock is registered under the
Securities Exchange Act of 1934, as amended.
(ii) Equitable Relief. The Employee
understands that a breach by him of this
Section 1(c) may cause substantial injury to
the Company, which may be irreparable or in
amounts difficult or impossible to
ascertain, or both and that in the event the
Employee breaches this Section 1(c), the
Company shall have, in addition to all other
remedies available in the event of a breach
of this Amendment, the right to injunctive
or other equitable relief. Further, the
Employee acknowledges and agrees that the
restrictions set forth herein are necessary
to protect the Company's legitimate
interests and are reasonable in scope, area
and time, and that if, despite this
acknowledgement and agreement, at the time
of enforcement of this Amendment, a court of
competent jurisdiction shall hold that the
period or scope of such provision is
unreasonable under the circumstances then
existing, the maximum reasonable period or
scope under such
-2-
<PAGE> 3
circumstances shall be substituted for the
period or scope stated in such provision.
(iii) Termination of Benefits. Should
the Employee breach this Section 1(c), all
benefits provided under the Plan for the
Employee (and his spouse, if applicable)
shall cease, and the Company shall be
entitled to pursue all other available legal
or equitable remedies.
2. Provisions of the Plan. The following is a list of certain
provisions and benefits of the Plan. The information concerning the
foregoing in this Amendment is qualified in its entirety by the Plan
document, the text of which shall at all times be controlling.
(a) Coverage. If the Employee meets the
requirements of Section 1 above, he may elect to
continue to receive all medical and home pharmacy
coverage under the Plan, for him and his spouse, (if
he has been married to such spouse for at least the
one-year period prior to such termination of
employment and if such spouse is covered under the
Plan at the time of such termination of employment
and is not entitled to Medicare). Coverage for the
former Employee shall end on the date he becomes
entitled to benefits under Medicare. Coverage for the
former Employee's spouse shall end on the date such
spouse becomes entitled to benefits under Medicare
or, if earlier, on the date such person ceases to be
the former Employee's spouse on account of divorce.
(b) Deductible. There shall be a yearly
deductible of $500 per covered individual.
(c) Employee Cost. The Employee's cost to
participate in the Plan is $75 per month. In the
event coverage of the former Employee terminates on
account of his becoming entitled to Medicare, or in
the event of his death, the monthly premium for
coverage of his spouse (or surviving spouse, as the
case may be) thereafter, if such spouse (or surviving
spouse) is otherwise then entitled to coverage, shall
continue to be $75.
(d) Exclusions. The Plan DOES NOT include
dental, vision, disability or life insurance
benefits.
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<PAGE> 4
3. Tax Implications. The Employee understands that a portion of the
benefits received under the Plan will be considered taxable income
under Section 105(h) of the Internal Revenue Code of 1986, as amended,
and Treasury Regulation Section 1.105-11(d)(3)(iii), as amended. The
Company shall annually notify the Employee electing such coverage (or
the spouse or surviving spouse of such a former Employee, where such
former Employee no longer has coverage under the Plan and where such
spouse continues to have such coverage) of the amount of benefits paid
on behalf of such former Employee and/or his spouse or surviving spouse
which are considered taxable income.
4. Governing Terms. The Agreement is amended only to the extent set
forth herein and to the extent that there are any conflicts between
this Amendment and the Agreement, the terms of this Amendment shall
govern. All other terms, conditions and provisions of the Agreement
shall remain in full force and effect. This Amendment may not be
changed without the written consent of the parties hereto.
5. Governing Law. This Amendment shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to
its conflicts of law doctrine, and the Employee hereby consents to
personal jurisdiction in Illinois.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same.
7. Headings. The section headings of this Amendment are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Amendment.
8. Assignment. The rights and obligations of the Company under this
Amendment shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
9. Waiver. The failure to enforce any of the provisions of this
Amendment shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Amendment, or any
part hereof, or the right of either party thereafter to enforce each
and every provision in accordance with the terms of this Amendment.
- 4 -
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
UNITED STATES CAN COMPANY
- -------------------------------------------
By: /s/ William J. Smith
----------------------------------------
Its: President and Chief Executive Officer
-------------------------------------
EMPLOYEE
/s/ John R. McGowan
- -------------------------------------------
John R. McGowan
- 5 -
<PAGE> 1
Exhibit 10.61
AMENDMENT NO. 1
TO EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to the Employment
Agreement (the "Agreement") by and between United States Can Company, a Delaware
corporation (the "Company") and Frank J. Galvin, an employee of the Company (the
"Employee"), is made and entered into as of the 17th day of November, 1997, by
and between the Company and the Employee.
W I T N E S S E T H:
WHEREAS, the Employee has previously entered into the
Agreement under the terms and conditions set forth therein;
WHEREAS, the Company wishes to amend the Agreement to offer
certain supplemental retirement medical benefits for Management Executive
Committee members who have attained the age of 55 years or older and who retire
or whose employment is terminated.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
3. Plan Benefits.
a. Eligibility. The Employee shall be eligible to
receive the benefits described in the section
entitled "Modified Benefits for Certain Former
Employees" (the "Plan") under the United States Can
Company Health, Life and Disability Benefits Plan, as
amended (a) if the Employee is a member of the
Company's Management Executive Committee and (b) if
after the attainment of age 55 years or older, the
Employee's employment is terminated, for any reason,
including retirement, other than a termination by the
Company for cause (as specified in the Employee's
employment agreement). A copy of the Plan is attached
as Exhibit A hereto.
b. Effectiveness of Plan. The Employee's coverage
under the Plan shall become effective on the date the
Employee's active employee coverage ends; provided,
however the Employee meets the requirements of
Section 1(a) above and does not violate the covenant
set forth in Section 1(c) hereinafter.
<PAGE> 2
c. Conditions.
(i) Non-Compete. As a condition of
participation in the Plan, the Employee
agrees that he will not directly or
indirectly (whether through a partnership of
which the Employee is a partner or through
any other individual or entity in which the
Employee has a any interest, legal or
equitable), (a) engage in any business
competitive with the business of the
Company; or (b) solicit or otherwise engage
with any customers or clients of the Company
in any transactions which are in direct
competition with the Company; in each case
in the United States of America or any
country where the Company or its
subsidiaries or affiliates are doing
business with respect to the Company's
products and services, and in each case,
excluding passive investment interests of
less than two percent (2%) in corporations
whose stock is registered under the
Securities Exchange Act of 1934, as amended.
(ii) Equitable Relief. The Employee
understands that a breach by him of this
Section 1(c) may cause substantial injury to
the Company, which may be irreparable or in
amounts difficult or impossible to
ascertain, or both and that in the event the
Employee breaches this Section 1(c), the
Company shall have, in addition to all other
remedies available in the event of a breach
of this Amendment, the right to injunctive
or other equitable relief. Further, the
Employee acknowledges and agrees that the
restrictions set forth herein are necessary
to protect the Company's legitimate
interests and are reasonable in scope, area
and time, and that if, despite this
acknowledgement and agreement, at the time
of enforcement of this Amendment, a court of
competent jurisdiction shall hold that the
period or scope of such provision is
unreasonable under the circumstances then
existing, the maximum reasonable period or
scope under such circumstances shall be
substituted for the period or scope stated
in such provision.
(iii) Termination of Benefits. Should
the Employee breach this Section 1(c), all
-2-
<PAGE> 3
benefits provided under the Plan for the
Employee (and his spouse, if applicable)
shall cease, and the Company shall be
entitled to pursue all other available legal
or equitable remedies.
2. Provisions of the Plan. The following is a list of certain
provisions and benefits of the Plan. The information concerning the
foregoing in this Amendment is qualified in its entirety by the Plan
document, the text of which shall at all times be controlling.
(a) Coverage. If the Employee meets the
requirements of Section 1 above, he may elect to
continue to receive all medical and home pharmacy
coverage under the Plan, for him and his spouse, (if
he has been married to such spouse for at least the
one-year period prior to such termination of
employment and if such spouse is covered under the
Plan at the time of such termination of employment
and is not entitled to Medicare). Coverage for the
former Employee shall end on the date he becomes
entitled to benefits under Medicare. Coverage for the
former Employee's spouse shall end on the date such
spouse becomes entitled to benefits under Medicare
or, if earlier, on the date such person ceases to be
the former Employee's spouse on account of divorce.
(b) Deductible. There shall be a yearly
deductible of $500 per covered individual.
(c) Employee Cost. The Employee's cost to
participate in the Plan is $75 per month. In the
event coverage of the former Employee terminates on
account of his becoming entitled to Medicare, or in
the event of his death, the monthly premium for
coverage of his spouse (or surviving spouse, as the
case may be) thereafter, if such spouse (or surviving
spouse) is otherwise then entitled to coverage, shall
continue to be $75.
(d) Exclusions. The Plan DOES NOT include
dental, vision, disability or life insurance
benefits.
3. Tax Implications. The Employee understands that a portion of the
benefits received under the Plan will be considered taxable income
under Section 105(h) of the Internal Revenue Code of 1986, as amended,
and Treasury
-3-
<PAGE> 4
Regulation Section 1.105-11(d)(3)(iii), as amended. The Company shall
annually notify the Employee electing such coverage (or the spouse or
surviving spouse of such a former Employee, where such former Employee
no longer has coverage under the Plan and where such spouse continues
to have such coverage) of the amount of benefits paid on behalf of such
former Employee and/or his spouse or surviving spouse which are
considered taxable income.
4. Governing Terms. The Agreement is amended only to the extent set
forth herein and to the extent that there are any conflicts between
this Amendment and the Agreement, the terms of this Amendment shall
govern. All other terms, conditions and provisions of the Agreement
shall remain in full force and effect. This Amendment may not be
changed without the written consent of the parties hereto.
5. Governing Law. This Amendment shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to
its conflicts of law doctrine, and the Employee hereby consents to
personal jurisdiction in Illinois.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same.
7. Headings. The section headings of this Amendment are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Amendment.
8. Assignment. The rights and obligations of the Company under this
Amendment shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
9. Waiver. The failure to enforce any of the provisions of this
Amendment shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Amendment, or any
part hereof, or the right of either party thereafter to enforce each
and every provision in accordance with the terms of this Amendment.
- 4 -
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
UNITED STATES CAN COMPANY
- -------------------------------------------
By: /s/ William J. Smith
----------------------------------------
Its: President and Chief Executive Officer
--------------------------------------
EMPLOYEE
/s/ Frank J. Galvin
- -------------------------------------------
Frank J. Galvin
- 5 -
<PAGE> 1
Exhibit 10.62
AMENDMENT NO. 1
TO EMPLOYMENT AGREEMENT
This Amendment No. 1 (the "Amendment") to the Employment
Agreement (the "Agreement") by and between United States Can Company, a Delaware
corporation (the "Company") and Anthony F. Bonadonna, an employee of the Company
(the "Employee"), is made and entered into as of the 17th day of November, 1997,
by and between the Company and the Employee.
W I T N E S S E T H:
WHEREAS, the Employee has previously entered into the
Agreement under the terms and conditions set forth therein;
WHEREAS, the Company wishes to amend the Agreement to offer
certain supplemental retirement medical benefits for Management Executive
Committee members who have attained the age of 55 years or older and who retire
or whose employment is terminated.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
2. Plan Benefits.
a. Eligibility. The Employee shall be eligible to
receive the benefits described in the section
entitled "Modified Benefits for Certain Former
Employees" (the "Plan") under the United States Can
Company Health, Life and Disability Benefits Plan, as
amended (a) if the Employee is a member of the
Company's Management Executive Committee and (b) if
after the attainment of age 55 years or older, the
Employee's employment is terminated, for any reason,
including retirement, other than a termination by the
Company for cause (as specified in the Employee's
employment agreement). A copy of the Plan is attached
as Exhibit A hereto.
b. Effectiveness of Plan. The Employee's coverage
under the Plan shall become effective on the date the
Employee's active employee coverage ends; provided,
however the Employee meets the requirements of
Section 1(a) above and does not violate the covenant
set forth in Section 1(c) hereinafter.
<PAGE> 2
c. Conditions.
(i) Non-Compete. As a condition of
participation in the Plan, the Employee
agrees that he will not directly or
indirectly (whether through a partnership of
which the Employee is a partner or through
any other individual or entity in which the
Employee has a any interest, legal or
equitable), (a) engage in any business
competitive with the business of the
Company; or (b) solicit or otherwise engage
with any customers or clients of the Company
in any transactions which are in direct
competition with the Company; in each case
in the United States of America or any
country where the Company or its
subsidiaries or affiliates are doing
business with respect to the Company's
products and services, and in each case,
excluding passive investment interests of
less than two percent (2%) in corporations
whose stock is registered under the
Securities Exchange Act of 1934, as amended.
(ii) Equitable Relief. The Employee
understands that a breach by him of this
Section 1(c) may cause substantial injury to
the Company, which may be irreparable or in
amounts difficult or impossible to
ascertain, or both and that in the event the
Employee breaches this Section 1(c), the
Company shall have, in addition to all other
remedies available in the event of a breach
of this Amendment, the right to injunctive
or other equitable relief. Further, the
Employee acknowledges and agrees that the
restrictions set forth herein are necessary
to protect the Company's legitimate
interests and are reasonable in scope, area
and time, and that if, despite this
acknowledgement and agreement, at the time
of enforcement of this Amendment, a court of
competent jurisdiction shall hold that the
period or scope of such provision is
unreasonable under the circumstances then
existing, the maximum reasonable period or
scope under such circumstances shall be
substituted for the period or scope stated
in such provision.
(iii) Termination of Benefits. Should
the Employee breach this Section 1(c), all
-2-
<PAGE> 3
benefits provided under the Plan for the
Employee (and his spouse, if applicable)
shall cease, and the Company shall be
entitled to pursue all other available legal
or equitable remedies.
2. Provisions of the Plan. The following is a list of certain
provisions and benefits of the Plan. The information concerning the
foregoing in this Amendment is qualified in its entirety by the Plan
document, the text of which shall at all times be controlling.
(a) Coverage. If the Employee meets the
requirements of Section 1 above, he may elect to
continue to receive all medical and home pharmacy
coverage under the Plan, for him and his spouse, (if
he has been married to such spouse for at least the
one-year period prior to such termination of
employment and if such spouse is covered under the
Plan at the time of such termination of employment
and is not entitled to Medicare). Coverage for the
former Employee shall end on the date he becomes
entitled to benefits under Medicare. Coverage for the
former Employee's spouse shall end on the date such
spouse becomes entitled to benefits under Medicare
or, if earlier, on the date such person ceases to be
the former Employee's spouse on account of divorce.
(b) Deductible. There shall be a yearly
deductible of $500 per covered individual.
(c) Employee Cost. The Employee's cost to
participate in the Plan is $75 per month. In the
event coverage of the former Employee terminates on
account of his becoming entitled to Medicare, or in
the event of his death, the monthly premium for
coverage of his spouse (or surviving spouse, as the
case may be) thereafter, if such spouse (or surviving
spouse) is otherwise then entitled to coverage, shall
continue to be $75.
(d) Exclusions. The Plan DOES NOT include
dental, vision, disability or life insurance
benefits.
3. Tax Implications. The Employee understands that a portion of the
benefits received under the Plan will be considered taxable income
under Section 105(h) of the Internal Revenue Code of 1986, as amended,
and Treasury
-3-
<PAGE> 4
Regulation Section 1.105-11(d)(3)(iii), as amended. The Company shall
annually notify the Employee electing such coverage (or the spouse or
surviving spouse of such a former Employee, where such former Employee
no longer has coverage under the Plan and where such spouse continues
to have such coverage) of the amount of benefits paid on behalf of such
former Employee and/or his spouse or surviving spouse which are
considered taxable income.
4. Governing Terms. The Agreement is amended only to the extent set
forth herein and to the extent that there are any conflicts between
this Amendment and the Agreement, the terms of this Amendment shall
govern. All other terms, conditions and provisions of the Agreement
shall remain in full force and effect. This Amendment may not be
changed without the written consent of the parties hereto.
5. Governing Law. This Amendment shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to
its conflicts of law doctrine, and the Employee hereby consents to
personal jurisdiction in Illinois.
6. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of
which together shall constitute one and the same.
7. Headings. The section headings of this Amendment are for reference
purposes only and are to be given no effect in the construction or
interpretation of this Amendment.
8. Assignment. The rights and obligations of the Company under this
Amendment shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
9. Waiver. The failure to enforce any of the provisions of this
Amendment shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Amendment, or any
part hereof, or the right of either party thereafter to enforce each
and every provision in accordance with the terms of this Amendment.
- 4 -
<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date and year first above written.
UNITED STATES CAN COMPANY
- -------------------------------------------
By: /s/ William J. Smith
----------------------------------------
Its: President and Chief Executive Officer
---------------------------------------
EMPLOYEE
/s/ Anthony F. Bonadonna
- -------------------------------------------
Anthony F. Bonadonna
- 5 -
<PAGE> 1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation of
our report included in this form 10-K into the Company's previously filed
Registration Statements File Nos. 33-76742, 333-23647 and 333-27441 on Form
S-8, and 33-79556 on Form S-3.
/s/ Arthur Andersen LLP
-----------------------
Arthur Andersen LLP
Chicago, Illinois
March 24, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 6,773
<SECURITIES> 0
<RECEIVABLES> 92,267
<ALLOWANCES> 18,130
<INVENTORY> 109,458
<CURRENT-ASSETS> 230,619
<PP&E> 506,166
<DEPRECIATION> 181,869
<TOTAL-ASSETS> 633,704
<CURRENT-LIABILITIES> 149,848
<BONDS> 0
0
0
<COMMON> 131
<OTHER-SE> 62,182
<TOTAL-LIABILITY-AND-EQUITY> 633,704
<SALES> 738,933
<TOTAL-REVENUES> 738,933
<CGS> 647,719
<TOTAL-COSTS> 647,719
<OTHER-EXPENSES> 3,589
<LOSS-PROVISION> 394
<INTEREST-EXPENSE> 36,867
<INCOME-PRETAX> (31,323)
<INCOME-TAX> (11,863)
<INCOME-CONTINUING> (19,460)
<DISCONTINUED> (12,572)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (32,032)
<EPS-PRIMARY> (2.45)
<EPS-DILUTED> (2.45)
</TABLE>
