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EXHIBIT 4.2
AMENDMENT NO. 1 TO
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amendment No. 1 (this "Amendment") to the Amended and Restated Rights
Agreement (the "Rights Agreement") dated as of October 19, 1995 between U.S. Can
Corporation, a Delaware corporation (the "Company"), and Harris Trust and
Savings Bank, as rights agent (the "Rights Agent"), is made as of June 1, 2000
between the Company and the Rights Agent. Capitalized terms used but not
otherwise defined herein have the meanings assigned to those terms in the Rights
Agreement.
1. Amendment to definition of "Acquiring Person." The definition of
"Acquiring Person" set forth in Section 1(a) of the Rights Agreement is hereby
amended by inserting the following paragraph at the end of such Section 1(a):
Notwithstanding anything in this Section 1(a) to the contrary, none of Pac
Packaging Acquisition Corporation ("Newco"), Paul W. Jones, John L.
Workman, Roger B. Farley, David R. Ford, Thomas A. Scrimo, J. Michael Kirk,
Gillian V.N. Derbyshire, Ricardo Poma, Francisco A. Soler, Salcorp Ltd.,
Katsura, S.A., Barcel Corporation, Scarsdale Company N.V., Inc., Windsor
International Corporation, Atlas World Carriers S.A., The World Financial
Corporation S.A., Citigroup Inc., Salomon Smith Barney Inc., Berkshire
Partners LLC, Bank of America, N.A., other lenders which participate with
any or all of the foregoing persons or entities in the recapitalization
transaction contemplated by the Agreement and Plan of Merger dated June 1,
2000 between the Company and Newco (the "Merger Agreement"), and their
respective spouses, Associates, Affiliates, and subsidiaries (collectively,
the "Exempted Persons"), either individually, collectively or in any
combination, shall be deemed to be an Acquiring Person or Acquiring Persons
prior to a Termination Event; provided that all of the Exempted Persons do
not beneficially own in the aggregate more than 30% of the outstanding
shares of capital stock of the Company excluding, for purposes of
determining compliance with such 30% threshhold, (i) any shares of capital
stock of the Company beneficially owned by any of Citigroup Inc., Salomon
Smith Barney Inc., Bank of America, N.A., any such lenders or any of their
respective Associates, Affiliates or subsidiaries (the "Financial
Institutions") that are held or beneficially owned by any such Financial
Institutions in the ordinary course of their respective brokerage, trading,
arbitrage, trust, investment management or investment advisory activities,
and (ii) any shares of capital stock of the Company that are inadvertently
acquired without recognition by the purchaser of the application of this
sentence and which are promptly sold by the purchaser upon learning of such
application. A "Termination Event" shall be deemed to have occurred on the
fifth business day after (a) the Merger Agreement is terminated in
accordance with its terms without the Effective Time (as defined therein)
having occurred and (b) notice of such termination has been given to Newco,
Berkshire Partners LLC, Salomon Smith Barney Inc., Ricardo Poma and
Francisco A. Soler at the latest addresses for such persons reflected in
the Company's records.
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2. Amendment to definition of "Beneficial Owner." The definition of
"Beneficial Owner" set forth in Section 1(c) of the Rights Agreement is hereby
amended by inserting the following paragraph at the end of such Section 1(c):
Notwithstanding anything in this Section 1(c) to the contrary, prior to
a Termination Event none of the Exempted Persons, either individually,
collectively or in any combination, shall be deemed to be a beneficial
owner of or to beneficially own any securities beneficially owned,
directly, or indirectly, by any other Exempted Person regardless of any
agreements, arrangements or understandings among any Exempted Persons;
provided that all of the Exempted Persons do not beneficially own in
the aggregate more than 30% of the outstanding shares of capital stock
of the Company excluding, for purposes of determining compliance with
such 30% threshold, (i) any shares of capital stock of the Company
beneficially owned by any of the Financial Institutions that are held
or beneficially owned by such Financial Institutions in the ordinary
course of their respective brokerage, trading, arbitrage, trust,
investment management or investment advisory activities, and (ii) any
shares of capital stock of the Company that are inadvertently acquired
by the purchaser without recognition by the purchaser of the
application of this sentence and which are promptly sold by the
purchaser upon learning of such application.
3. Further Changes. The Company and the Rights Agent agree that the
foregoing amendments to the Rights Agreement will not be rescinded or otherwise
modified without the Exempted Persons having received 14 days prior written
notice thereof from the Company. The Exempted Persons are third party
beneficiaries of this paragraph 3 and may rely hereon.
4. Miscellaneous. This Amendment shall be deemed to be a contract made
under the laws of the State of Illinois and for all purposes shall be governed
by and construed in accordance with the laws of such State applicable to
contracts made and performed entirely within such State. This Amendment may be
executed in any number of counterparts, each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first written above.
U.S. CAN CORPORATION
By: /s/ PAUL W. JONES
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Name: Paul W. Jones
Title: Chairman of the Board,
President and Chief Executive Officer
HARRIS TRUST AND SAVINGS BANK,
as Rights Agent
By: /s/ MARY ANN BLYTH
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Name: Mary Ann Blyth
Title: Vice President, Call Center Manager
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