As filed with the Securities and Exchange Commission on April 27, 1998
Registration No. 33-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
U.S. Can Corporation
(Exact name of registrant as specified in its charter)
Delaware 36-2815480
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 Commerce Drive
Oak Brook, Illinois 60523
(Address, of Principal Executive Offices)(Zip Code)
U.S. Can Corporation
1998 Employee Stock
Purchase Plan
(Full Title of Plans)
John R. McGowan
Vice President,
Chief Financial Officer, Controller
and Secretary
U.S. Can Corporation
900 Commerce Drive
Oak Brook, Illinois 60523
(Name and address of agent for service)
(630) 571-2500
(Telephone number, including area code, of agent for service)
Copies To:
T. Stephen Dyer, Esq.
Ross & Hardies
150 North Michigan Avenue
Chicago, Illinois 60601
(312) 558-1000
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed 457(h)
Amount maximum Proposed Amount of
Title of to be offering price aggregate registration
Securities to be registered(4) registered(1)(4) per share(2) offering price(3) fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 150,000 $17.25 $2,587,500 $764.00
========================================================================================================
</TABLE>
(1) The securities being registered include a maximum of 150,000 shares
issuable upon the exercise of options under the 1998 Employee Stock
Purchase Plan of U.S. Can Corporation, assuming full participation of all
employees under such plans.
(2) This is the average maximum offering price determined by dividing the
proposed aggregate offering price by the amount of shares to be registered.
(3) Solely for the purpose of calculating the registration fee, the proposed
aggregate offering price has been estimated in accordance with Rule 457(h)
promulgated under the Securities Act of 1933 (the "Act") using $17.25, the
average of the high and low prices for a share of Common Stock reported by
the New York Stock Exchange on April 22, 1998.
(4) In addition, pursuant to Rule 416(c) under the Act, this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
U.S. Can Corporation (the "Company") and the U.S. Can Corporation 1998
Employee Stock Purchase Plan hereby incorporates by reference the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) the Company's Annual Report on Form 10-K, for the fiscal year ended
December 31, 1997, the Company's latest year for which audited financial
statements have been filed;
(b) all other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since December
31, 1997;
(c) the description of the Company's Common Stock, $.01 par value,
contained in the Company's Registration Statement on Form 8-A (File No. O-21314)
filed with the Commission on March 8, 1993, pursuant to Section 12 of the
Exchange Act; and
(d) the Company's Proxy Statement, filed on March 24, 1998, for its annual
meeting of stockholders held on April 24, 1998, except for the report of the
Compensation Committee and the Performance Graph contained therein.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to filing of a
post-effective amendment to the Registration Statement which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
A partner of Ross & Hardies, general counsel to the Company, beneficially
owns 12,500 shares of Common Stock.
Item 6. Indemnification of Officers and Directors
Delaware General Corporation Law. The Company has statutory authority to
indemnify its officers and directors. The applicable provisions of the General
Corporation Law of the State of Delaware (the "GCL") state that, to the extent
such person is successful on the merits or otherwise, a corporation may
indemnify any person who was or is a party or who is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
("such Person"), against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement, actually and reasonably incurred by such Person,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and with respect to any
criminal action or
<PAGE>
proceeding, had no reasonable cause to believe his conduct was unlawful. In any
threatened pending or completed action by or in the right of the corporation, a
corporation also may indemnify any such Person for costs actually and reasonably
incurred by him in connection with that action's defense or settlement, if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation; however, no indemnification
shall be made with respect to any claim, issue or matter as to which such Person
shall have been adjudged to be liable to the corporation, unless and only to the
extent that a court shall determine that such indemnity is proper.
Under the applicable provisions of the GCL, any indemnification shall be
made by the corporation only as authorized in the specific case upon a
determination that the indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable standard
of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who are not parties to such action, suit or proceeding; or
(2) if such a quorum is not obtainable or, even if obtainable, a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion; or
(3) by the affirmative vote of a majority of the shares entitled to vote
thereon.
The Company's Amended and Restated Certificate of Incorporation provides
for indemnification to the full extent permitted by the laws of the State of
Delaware against and with respect to threatened, pending or completed actions,
suits or proceedings arising from or alleged to arise from, a party's actions or
omissions as a director, officer, employee or agent of the Company or of any
subsidiary of the Company or of any other corporation, partnership, joint
venture, trust or other enterprise which he has served in such capacity at the
request of the Company if such acts or omissions occurred or were or are alleged
to have occurred, while said party was a director or officer of the Company.
Generally, under Delaware law, indemnification will only be available where an
officer or director can establish that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company.
The Company maintains a director and officer liability insurance policy
which indemnifies directors and officers for certain losses arising from a claim
by reason of a wrongful act, as defined under the policy, under certain
circumstances where the Company does not provide indemnification.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Incorporation
Number Description by Reference
4.1 Restated Certificate of Incorporation of the Company *4.3
4.2 By-laws of the Company **4.1
4.3 Indenture for 101/8 Notes @4.2
4.4 Amended and Restated Credit Agreement, dated April 25, 1997 +4.1
4.5 Amendment No. 1 to Credit Agreement ++10.3
4.6 Amendment No. 2 to Credit Agreement +++4.4
4.7 Shareholders Rights Agreement #4.1
- 2 -
<PAGE>
5.1 Opinion of Ross & Hardies regarding
legality of shares of Common Stock.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ross & Hardies (contained
in opinion filed as Exhibit 5.1).
24.1 Power of Attorney. ***
* Previously filed as exhibit to the Company's Form S-3 Registration
Statement, filed on June 1, 1994 (Registration No. 33-79556) and
incorporated herein by reference.
** Previously filed as an exhibit to the Company's Form S-8 Registration
Statement, filed on March 23, 1994 (Registration No. 33-76742) and
incorporated herein by reference thereto.
@ Previously filed with the Form 10-Q Quarterly Report of the Company and
United States Can Company ("U.S. Can") for the Quarterly Period ended
September 29, 1996.
+ Previously filed with the Form 10-Q Quarterly Report of the Company for the
Quarterly Period Ended April 6, 1997.
++ Previously filed with the Form 10-Q Quarterly Report of the Company for the
Quarterly Period Ended October 5, 1997.
+++ Previously filed with the Form 10-K Annual Report of the Company for the
Year Ended December 31, 1997.
# Previously filed with the Form 10-Q Quarterly Report of the Company and
U.S. Can for the Quarterly Period Ended October 1, 1995.
*** Power of attorney is contained in signatures.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers
or sales are being made, a post-effective
amendment to this Registration Statement:
(i) to include any prospectus required
by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any
facts or events arising after the
effective date of this Registration
Statement (or the most recent
post-effective amendment thereof)
which, individually or in the
aggregate, represent a fundamental
change in the information set forth
in this Registration Statement.
Notwithstanding the foregoing, any
increase or decrease in volume of
securities
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<PAGE>
offered (if the total dollar value
of securities offered would not
exceed that which was registered)
and any deviation from the low or
high end of the estimated maximum
offering range may be reflected in
the form of prospectus filed with
the Commission pursuant to Rule
424(b) if, in the aggregate, the
changes in volume and price
represent no more than a 20% change
in the maximum aggregate offering
price set forth in the "Calculation
of Registration Fee" table in the
effective Registration Statement.
(iii) to include any material information
with respect to the plan of
distribution not previously
disclosed in this Registration
Statement or any material change to
such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form
S-8 or Form F-3, and the information
required to be included in a post-effective
amendment by those paragraphs is contained
in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are
incorporated by reference in this
Registration Statement.
(2) that, for the purpose of determining any
liability under the Securities Act of 1933,
each such post-effective amendment shall be
deemed to be a new registration statement
relating to the securities offered therein,
and the offering of such securities at that
time shall be deemed to be the initial bona
fide offering thereof.
(3) to remove from registration by means of a
post-effective amendment any of the
securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933 (the
"Act"), each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes that, insofar
as indemnification for liabilities arising under the Act may be permitted to
directors, officers and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
- 4 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Oak Brook, State of Illinois, on April 27, 1998
U.S. CAN CORPORATION
By: /s/ Paul W. Jones
Paul W. Jones
President and Chief
Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes
and appoints Paul W. Jones and John R. McGowan, and each of them, the true and
lawful attorneys-in-fact and agents of the undersigned, with full power of
substitution and resubstitution, for and in the name, place and stead of the
undersigned, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and hereby grants to
such attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in furtherance of the foregoing, as fully to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated on April 27, 1998
Signature
/s/ Paul W. Jones President, Chief Executive Officer and Director
Paul W. Jones
/s/ William J. Smith Chairman of the Board
William J. Smith
/s/ John R. McGowan Vice President, Chief Financial Officer,
John R. McGowan Controller and Secretary
/s/ Benjamin F. Bailar Director
Benjamin F. Bailar
/s/ Francisco A. Soler Director
Francisco A. Soler
/s/ Louis B. Susman Director
Louis B. Susman
Director
Carl Ferenbach
/s/ Ricardo Poma Director
Ricardo Poma
/s/ Calvin W. Aurand, Jr. Director
Calvin W. Aurand, Jr.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933,
the trustees (or other persons who administer the employee benefit plan) have
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Oak Brook, State of
Illinois on April 27, 1998.
U.S. Can Corporation
1998 Employee Stock Purchase Plan
By: /s/ Anthony F. Bonadonna
Anthony F. Bonadonna
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS FILED WITH
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
U.S. CAN CORPORATION
<PAGE>
U.S. CAN CORPORATION
EXHIBIT INDEX
Location Of
Document in
Sequential
Exhibit Numbering
No. Description System
5.1 Opinion of Ross & Hardies regarding 11
legality of shares of Common Stock.
23.1 Consent of Arthur Andersen LLP. 13
23.2 Consent of Ross & Hardies (contained 11
in opinion filed as Exhibit 5.1).
24.1 Power of Attorney.* 7
*Power of attorney is contained in signature.
Exhibit 5.1
April 27, 1998
U.S Can Corporation
900 Commerce Drive
Oak Brook, Illinois 60521
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
You have requested our opinion with respect to the
registration by U.S. Can Corporation (the "Company") pursuant to a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Act"), of an aggregate of 150,000 shares of the Company's
Common Stock, $.01 par value per share (the "Common Stock"), issuable upon the
exercise of options (the "Options") to purchase Common Stock as issued pursuant
to the U.S. Can Corporation 1998 Employee Stock Purchase Plan (the "Plan").
In so acting, we have examined originals or copies, certified
or otherwise identified to our satisfaction, of such documents, corporate
records, certificates of public officials and other instruments and have
conducted such other investigations of fact and law as we have deemed relevant
and necessary to form a basis for the opinions hereinafter expressed. In
conducting such examination, we have assumed (i) that all signatures are
genuine, (ii) that all documents and instruments submitted to us as copies
conform with the originals, and (iii) the due execution and delivery of all
documents where due execution and delivery are a prerequisite to the
effectiveness thereof. As to any facts material to this opinion, we have relied
upon statements and representations of officers and other representatives of the
Company and certificates of public officials and have not independently verified
such facts.
Based upon the foregoing, it is our opinion that the Common
Stock issuable upon the proper exercise of Options granted pursuant to the Plan
will be validly issued, fully paid and non-assessable when issued in accordance
with the Plan.
We express no opinion as to the laws of any jurisdiction other
than the State of Illinois, the United States of America, and, solely with
respect to matters of corporate organization and
<PAGE>
U.S. Can Corporation
April 27, 1998
Page 2
authority, the General Corporation Law of the State of Delaware. We are not
admitted to the practice of law in the State of Delaware. Insofar as the
foregoing opinion relates to matters that would be controlled by the substantive
laws of any jurisdiction other than the United States of America, the General
Corporation Law of the State of Delaware, with respect to matters of corporate
organization and authority, or the State of Illinois, we have assumed that the
substantive laws of such jurisdiction conform in all respects to the internal
laws of the State of Illinois.
We hereby consent to the reference to our firm in the
Registration Statement relating to the registration of the shares of Common
Stock issuable upon exercise of the Options described above.
Very truly yours,
ROSS & HARDIES
By: /s/ Lawrence R. Samuels
A Partner
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 18, 1998, included in the U.S. Can Corporation Annual Report on Form
10-K for the year ended December 31, 1997, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Chicago, Illinois
April 27, 1998
