UNITED STATES CAN COMPANY
10-7/8% Senior Secured Notes due July 15, 2010
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 22, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
United States Can Company, a corporation organized under the laws of the state of Delaware (the
"Company"), proposes to issue and sell (the "Initial Placement") to Citigroup Global Markets Inc. (the "Initial
Purchaser"), upon the terms set forth in a purchase agreement, dated as of July 15, 2003 (the "Purchase
Agreement"), $125,000,000 aggregate principal amount of the Company's 10-7/8% Senior Secured Notes due July 15, 2010
(the "Notes"), which will be guaranteed by each of the Guarantors (as defined herein) (the "Guarantees" and,
together with the Notes, the "Securities") and secured on a second-priority basis by certain assets of the
Company, the Guarantors and their respective subsidiaries. To induce the Initial Purchaser to enter into the
Purchase Agreement and to satisfy a condition of your obligations thereunder, the Company and the Guarantors
(collectively, the "Issuers") agree with you for your benefit and the benefit of the holders from time to time of
the Securities (including the Initial Purchaser) (each a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall have their
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respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean (i) any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person or (ii) any
other Person who is a director or officer (a) of such specified Person, (b) of any subsidiary of such specified
Person or (c) of any Person described in clause (i) above. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period following the consummation
of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in effect
suspending the effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration statement of the Company and
the Guarantors on an appropriate form under the Act with respect to the Registered Exchange Offer, all amendments
and supplements to such registration statement, including post-effective amendments thereto, in each case
including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference
therein.
"Exchanging Dealer" shall mean any Holder (which may include the Initial Purchaser) that is a
Broker-Dealer and elects to exchange for New Securities any Securities that it acquired for its own account as a
result of market-making activities or other trading activities (but not directly from the Company or any
Affiliate of the Company) for New Securities.
"Final Memorandum" shall have the meaning set forth in the Purchase Agreement.
"Guarantors" shall mean, collectively, the Parent Guarantor and the Subsidiary Guarantor.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated as of July 22, 2003,
among the Issuers and Xxxxx Fargo Bank Minnesota, National Association, as trustee, as the same may be amended
from time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble hereto.
"Initial Placement" shall have the meaning set forth in the preamble hereto.
"Issuers" shall mean, collectively, the Company, the Parent Guarantor and the Subsidiary
Guarantor.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of
Securities registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment bankers and manager or
managers that shall administer an underwritten offering.
"New Securities" shall mean debt securities of the Company identical in all material respects
to the Securities (except that the cash interest and interest rate step-up provisions and the transfer
restrictions shall be modified or eliminated, as appropriate) and to be issued under the Indenture.
"Parent Guarantor" shall mean U.S. Can Corporation, a Delaware corporation and the Company's
sole stockholder.
"Prospectus" shall mean the prospectus included in any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of
an effective registration statement in reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion of the Securities or the New
Securities covered by such Registration Statement, and all amendments and supplements thereto and all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the Issuers to issue and deliver
to the Holders of the Securities that are not prohibited by any law or policy of the Commission from
participating in such offer, in exchange for the Securities, a like aggregate principal amount of the New
Securities.
"Registration Statement" shall mean any Exchange Offer Registration Statement or Shelf
Registration Statement that covers any of the Securities or the New Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration statement, including post-effective amendments (in
each case including the Prospectus contained therein), all exhibits thereto and all material incorporated by
reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement of the Company and
the Guarantors pursuant to the provisions of Section 3 hereof which covers some or all of the Securities or New
Securities, as applicable, on an appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Subsidiary Guarantor" shall mean USC May Verpackungen Holding Inc., a Delaware corporation and
wholly-owned subsidiary of the Company.
"Trustee" shall mean the trustee with respect to the Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities in connection with an offering thereof
under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare and, not later than 120
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days following the date of the original issuance of the Securities (or if such 120th day is not a Business Day,
the next succeeding Business Day), shall file with the Commission the Exchange Offer Registration Statement with
respect to the Registered Exchange Offer. The Issuers shall use their best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 150 days of the date of the original issuance of
the Securities (or if such 150th day is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuers shall
promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities (assuming that such Holder is not an
Affiliate of the Issuers, acquires the New Securities in the ordinary course of such Holder's business, has no
arrangements with any Person to participate in the distribution of the New Securities and is not prohibited by
any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such New
Securities from and after their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of the several states of the United
States.
(c) In connection with the Registered Exchange Offer, the Issuers shall, or shall cause
the Trustee to:
(i) mail to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days after the
date notice thereof is mailed to the Holders (or, in each case, longer if required by applicable law);
(iii) keep the Exchange Offer Registration Statement continuously effective under the Act,
supplemented and amended as required under the Act, to ensure that it is available for sales of New
Securities by Exchanging Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an address
in the Borough of Manhattan in New York City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a
supplemental letter to the Commission (A) stating that the Issuers are conducting the Registered
Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub.
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avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (B) including a
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representation that the Issuers have not entered into any arrangement or understanding with any Person
to distribute the New Securities to be received in the Registered Exchange Offer and that, to the best
of the Issuers' information and belief, each Holder participating in the Registered Exchange Offer is
acquiring the New Securities in the ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the New Securities; and
(vii) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the Issuers
shall:
(i) accept for exchange all Securities tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with Section 4(s) all Securities
so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder of Securities a
principal amount of New Securities equal to the principal amount of the Securities of such Holder so
accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Xxxxxx
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Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13,
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1988), as interpreted in the Commission's letter to Xxxxxxxx & Xxxxxxxx dated July 2, 1993 and similar no-action
letters; and (y) must comply with the registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction unless such transaction is exempt from such requirements. Absent such
exemption, any secondary resale transaction must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Act
if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder
directly from the Issuers or one of their Affiliates. Accordingly, each Holder participating in the Registered
Exchange Offer shall be required to represent to the Issuers that, at the time of the consummation of the
Registered Exchange Offer:
(i) any New Securities received by such Holder will be acquired in the ordinary course of
business;
(ii) such Holder will have no arrangement or understanding with any Person to participate
in the distribution of the Securities or the New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Issuers or, if it is an Affiliate of the
Issuers, such Holder will comply with the registration and prospectus delivery requirements of the Act,
to the extent applicable.
In addition, each Holder participating in the Registered Exchange Offer shall be required to make such
additional representations as may be reasonably necessary, under applicable Commission rules, regulations and
interpretations, to (x) permit the Issuers' use of Form S-4 (or another appropriate form under the Act) for
registration of the Registered Exchange Offer or (y) have the Exchange Offer Registration Statement declared
effective.
(f) If the Initial Purchaser determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold
allotment, at the request of the Initial Purchaser, the Issuers shall issue and deliver to the Initial Purchaser
or the Person purchasing New Securities registered under a Shelf Registration Statement as contemplated by
Section 3 hereof from the Initial Purchaser, in exchange for such Securities, a like principal amount of New
Securities. The Issuers shall use their best efforts to cause the CUSIP Service Bureau to issue the same CUSIP
number for such New Securities as for New Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or applicable interpretations
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thereof by the Commission's staff, the Issuers determine upon advice of their outside counsel that they are not
permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for any other
reason the Registered Exchange Offer is not consummated within 180 days of the date hereof; (iii) the Initial
Purchaser so requests with respect to Securities that are not eligible to be exchanged for New Securities in the
Registered Exchange Offer and that are held by it following consummation of the Registered Exchange Offer; (iv)
any Holder (other than the Initial Purchaser) is not eligible to participate in the Registered Exchange Offer; or
(v) the Initial Purchaser participates in the Registered Exchange Offer or acquires New Securities pursuant to
Section 2(f) hereof and does not receive freely tradeable New Securities in exchange for Securities constituting
any portion of an unsold allotment (it being understood that (x) the requirement that the Initial Purchaser
deliver a Prospectus containing the information required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of New Securities acquired in exchange for such Securities shall result in such New
Securities being not "freely tradeable"; and (y) the requirement that an Exchanging Dealer deliver a Prospectus
in connection with sales of New Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities shall not result in such New
Securities being not "freely tradeable"), the Issuers shall effect a Shelf Registration Statement in accordance
with subsection (b) below.
(b)(i) The Issuers shall as promptly as practicable (but in no event more than 120 days after
so required or requested pursuant to this Section 3), file with the Commission and thereafter shall use
its best efforts to cause to be declared effective under the Act a Shelf Registration Statement relating
to the offer and sale of the Securities or the New Securities, as applicable, by the Holders thereof
from time to time in accordance with the methods of distribution elected by such Holders and set forth
in such Shelf Registration Statement; provided, however, that no Holder (other than the Initial
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Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all of the provisions of this Agreement
applicable to such Holder; and provided further, that with respect to New Securities received by the
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Initial Purchaser in exchange for Securities constituting any portion of an unsold allotment, the
Issuers may, if permitted by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the information required by Item 507
or 508 of Regulation S-K, as applicable, in satisfaction of its obligations under this subsection with
respect thereto, and any such Exchange Offer Registration Statement, as so amended, shall be referred to
herein as, and governed by the provisions herein applicable to, a Shelf Registration Statement.
(ii) The Issuers shall use their best efforts to keep the Shelf Registration Statement
continuously effective, supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two years from the date the
Shelf Registration Statement is declared effective by the Commission (or for a period of one year from
such effective date if such Shelf Registration Statement is filed at the request of the Initial
Purchaser) or such shorter period that will terminate when all the Securities or New Securities, as
applicable, covered by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the "Shelf Registration Period").
The Issuers shall be deemed not to have used their best efforts to keep the Shelf Registration Statement
effective during the requisite period if they voluntarily take any action that would result in Holders
of Securities covered thereby not being able to offer and sell such Securities during that period,
unless (A) such action is required by applicable law; or (B) such action is taken by the Issuers in good
faith and for valid business reasons (not including avoidance of the Issuers' obligations hereunder),
including the acquisition or divestiture of assets, so long as the Issuers promptly thereafter comply
with the requirements of Section 4(k) hereof, if applicable.
(iii) The Issuers shall cause the Shelf Registration Statement and the related Prospectus
and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or
such amendment or supplement, (A) to comply in all material respects with the applicable requirements of
the Act and the rules and regulations of the Commission; and (B) not to contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not
misleading.
4. Additional Registration Procedures. In connection with any Shelf Registration
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Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following provisions
shall apply.
(a) The Issuers shall:
(i) furnish to you, not less than three Business Days prior to the filing thereof with the
Commission, a copy of any Exchange Offer Registration Statement and any Shelf Registration Statement,
and each amendment thereof and each amendment or supplement, if any, to the Prospectus included therein
(including, if reasonably requested by you, all documents incorporated by reference therein after the
initial filing) and shall use their best efforts to reflect in each such document, when so filed with
the Commission, such comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on the facing page of the Exchange
Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus contained in the Exchange Offer
Registration Statement, and in Annex D hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer;
(iii) if requested by the Initial Purchaser, include the information required by Item 507 or
508 of Regulation S-K, as applicable, in the Prospectus contained in the Exchange Offer Registration
Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the Holders that
propose to sell Securities pursuant to the Shelf Registration Statement as selling security holders.
(b) The Issuers covenant that:
(i) any Registration Statement and any amendment thereto and any Prospectus forming part
thereof and any amendment or supplement thereto shall comply in all material respects with the Act and
the rules and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto shall not, when it becomes
effective, contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
(c) The Issuers shall advise you, the Holders of Securities covered by any Shelf
Registration Statement and any Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to the Issuers a telephone or facsimile number and address for notices, and, if requested by
you or any such Holder or Exchanging Dealer, shall confirm such advice in writing (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the
Issuers shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has been filed with the
Commission and when the Registration Statement or any post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for any amendment or supplement to the Registration
Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Issuers of any notification with respect to the suspension of
the qualification of the securities included therein for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration Statement
or the Prospectus so that, as of such date, the statements therein are not misleading and do not omit to
state a material fact required to be stated therein or necessary to make the statements therein (in the
case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(d) The Issuers shall use their reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of any Registration Statement or the qualification of the securities therein
for sale in any jurisdiction at the earliest possible time.
(e) The Issuers shall furnish to each Holder of Securities covered by any Shelf
Registration Statement, without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including all material incorporated therein by reference, and, if the Holder so
requests in writing, all exhibits thereto.
(f) The Issuers shall, during the Shelf Registration Period, deliver to each Holder of
Securities covered by any Shelf Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration Statement and any amendment or
supplement thereto as such Holder may reasonably request. The Issuers consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of securities in connection with the offering
and sale of the securities covered by the Prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement in accordance with applicable law.
(g) The Issuers shall furnish to each Exchanging Dealer which so requests, without charge,
at least one copy of the Exchange Offer Registration Statement and any post-effective amendment thereto,
including all material incorporated by reference therein, and, if the Exchanging Dealer so requests in writing,
all exhibits thereto (including exhibits incorporated by reference therein).
(h) The Issuers shall promptly deliver to the Initial Purchaser, each Exchanging Dealer
and each other Person required to deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer Registration Statement and any amendment
or supplement thereto as any such Person may reasonably request. The Issuers consent to the use of the
Prospectus or any amendment or supplement thereto by the Initial Purchaser, any Exchanging Dealer and any such
other Person that may be required to deliver a Prospectus following the Registered Exchange Offer in connection
with the offering and sale of the New Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement in accordance with applicable law.
(i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant to
any Registration Statement, the Issuers shall arrange, if necessary, for the qualification of the Securities or
the New Securities for sale under the laws of such jurisdictions as any Holder shall reasonably request and will
maintain such qualification in effect so long as required; provided that in no event shall the Issuers be
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obligated to qualify to do business in any jurisdiction where they are not then so qualified or to take any
action that would subject them to service of process in suits, other than those arising out of the Initial
Placement, the Registered Exchange Offer or any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Issuers shall cooperate with the Holders of Securities to facilitate the timely
preparation and delivery of certificates representing New Securities or Securities to be issued or sold pursuant
to any Registration Statement free of any restrictive legends and in such denominations and registered in such
names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v)
above, the Issuers shall promptly prepare a post-effective amendment to the applicable Registration Statement or
an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter
delivered to the Initial Purchaser of the securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for in Section 2 and the Shelf Registration
Statement provided for in Section 3(b) shall each be extended by the number of days from and including the date
of the giving of a notice of suspension pursuant to Section 4(c) to and including the date when the Initial
Purchaser, the Holders of the Securities and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement, the Issuers shall
provide a CUSIP number for the Securities or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates for such Securities or New Securities,
in a form eligible for deposit with The Depository Trust Company.
(m) The Issuers shall comply with all applicable rules and regulations of the Commission
and shall make generally available to their security holders as soon as practicable after the effective date of
the applicable Registration Statement an earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Issuers shall cause the Indenture to be qualified under the Trust Indenture Act in
a timely manner.
(o) The Issuers may require each Holder of securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Issuers such information regarding the Holder and the distribution of
such securities as the Issuers may from time to time reasonably require for inclusion in such Registration
Statement. The Issuers may exclude from such Shelf Registration Statement the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Issuers shall enter into such
customary agreements and take all other appropriate actions (including if requested an underwriting agreement in
customary form) in order to expedite or facilitate the registration or the disposition of the Securities, and in
connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if any, with respect to all parties
to be indemnified pursuant to Section 6).
(q) In the case of any Shelf Registration Statement, the Issuers shall:
(i) make reasonably available for inspection by the Holders of Securities to be registered
thereunder, any underwriter participating in any disposition pursuant to such Registration Statement,
and any attorney, accountant or other agent retained by the Holders or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of the Issuers and their
subsidiaries;
(ii) cause the Issuers' officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any such underwriter, attorney, accountant or agent
in connection with any such Registration Statement as is customary for similar due diligence
examinations during normal business hours; provided, however, that any information that is designated in
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writing by the Issuers, in good faith, as confidential at the time of delivery of such information shall
be kept confidential by the Holders or any such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by law, or such information becomes
available to the public generally through no fault of the Holder or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are customarily made by issuers
to underwriters in primary underwritten offerings and covering matters including, but not limited to,
those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters,
if any) addressed to each selling Holder and the underwriters, if any, covering such matters as are
customarily covered in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) if requested in writing by the Majority Holders or by any Underwriter participating in
any disposition pursuant to such Shelf Registration Statement, to use its best efforts to obtain "cold
comfort" letters and updates thereof from the independent certified public accountants of the Issuers
(and, if necessary, any other independent certified public accountants of any subsidiary of the Issuers
or of any business acquired by the Issuers for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each selling Holder of Securities
registered thereunder and the underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably requested by the Majority
Holders and the Managing Underwriters, if any, including those to evidence compliance with Section 4(k)
and with any customary conditions contained in the underwriting agreement or other agreement entered
into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at (A) the
effectiveness of such Registration Statement and each post-effective amendment thereto; and (B) each closing
under any underwriting or similar agreement as and to the extent required thereunder.
(r) If a Registered Exchange Offer is to be consummated, upon delivery of the Securities
by Holders to the Issuers (or to such other Person as directed by the Issuers) in exchange for the New
Securities, the Issuers shall mark, or caused to be marked, on the Securities so exchanged that such Securities
are being canceled in exchange for the New Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
(s) The Issuers will use their best efforts (i) if the Securities have been rated prior to
the initial sale of such Securities, to confirm such ratings will apply to the Securities or the New Securities,
as the case may be, covered by a Registration Statement; or (ii) if the Securities were not previously rated, to
cause the Securities covered by a Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect to the related Registration Statement
or by any Managing Underwriters.
(t) In the event that any Broker-Dealer shall underwrite any Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the distribution" (within the meaning of the
Rules of Fair Practice and the By-Laws of the National Association of Securities Dealers, Inc.) thereof, whether
as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such Broker-Dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a "qualified independent
underwriter" (as defined in such Rules) to participate in the preparation of the Registration Statement,
to exercise usual standards of due diligence with respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or is made through a placement
or sales agent, to recommend the yield of such Securities;
(ii) indemnifying any such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Rules.
(u) The Issuers shall use their best efforts to take all other steps necessary to effect
the registration of the Securities or the New Securities, as the case may be, covered by a Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses incurred in connection
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with the performance of their obligations under Sections 2, 3 and 4 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in connection therewith, and, in the
case of any Exchange Offer Registration Statement, will reimburse the Initial Purchaser for the reasonable fees
and disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) Each of the Issuers, jointly and severally,
----------------------------------
agrees to indemnify and hold harmless each Holder of Securities or New Securities, as the case may be, covered by
any Registration Statement (including the Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer), the directors, officers, employees and agents of
each such Holder and each Person who controls any such Holder within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement as originally filed or in any amendment thereof, or in any preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein (with respect to a preliminary Prospectus or Prospectus,
in light of the circumstances under which they were made) a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however, that the Issuers will not be
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liable in any case to the extent that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance
upon and in conformity with written information furnished to the Issuers by or on behalf of any such Holder
specifically for inclusion therein; provided, further, that the foregoing indemnity with respect to any untrue
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statement contained in or omission from the preliminary Prospectus shall not inure to the benefit of any Holder
(or any of the directors, officers, employees and agents of such Holder or any person controlling such Holder)
from whom the person asserting any such loss, claim, damage or liability purchased the Securities or New
Securities, as the case may be, which are the subject thereof if such person did not receive a copy of the final
Prospectus (or the final Prospectus as then amended or supplemented if the Issuers shall have furnished any
amendments or supplements thereto) at or prior to the confirmation of the sale of such Securities or New
Securities, as the case may be, to such person in any case where the untrue statement or omission of a material
fact contained in such preliminary Prospectus was corrected in the final Prospectus (or the final Prospectus as
so amended or supplemented if the Issuers shall have furnished any amendments or supplements thereto), and it is
finally judicially determined that such delivery was not so made. This indemnity agreement will be in addition
to any liability which the Issuers may otherwise have.
Each of the Issuers, jointly and severally, also agrees to indemnify or contribute as provided
in Section 6(d) to Losses of any underwriter of Securities or New Securities, as the case may be, registered
under a Shelf Registration Statement, their directors, officers, employees or agents and each Person who controls
such underwriter on substantially the same basis as that of the indemnification of the Initial Purchaser and the
selling Holders provided in this Section 6(a) and shall, if requested by any Holder, enter into an underwriting
agreement reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement (including the Initial
Purchaser and, with respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging
Dealer) severally agrees to indemnify and hold harmless each of the Issuers, each of their directors, each of
their officers who signs such Registration Statement and each Person who controls the Issuers within the meaning
of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from each of the Issuers to
each such Holder, but only with reference to written information relating to such Holder furnished to the Issuers
by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which any such Holder may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section 6 or notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in writing of the commencement thereof; but
the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b)
above unless and to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve
the indemnifying party from any obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party.
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Notwithstanding the indemnifying party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section is
unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable
indemnifying party shall have a joint and several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating
or defending same) (collectively "Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying party, on the one hand, and such
indemnified party, on the other hand, from the Initial Placement and the Registration Statement which resulted in
such Losses; provided, however, that in no case shall the Initial Purchaser or any subsequent Holder of any
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Security or New Security be responsible, in the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, nor shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Issuers shall be deemed to be equal to the sum of (x) the total net proceeds from the
Initial Placement (before deducting expenses) and (y) the total amount of additional interest which the Issuers
were not required to pay as a result of registering the securities covered by the Registration Statement which
resulted in such Losses. Benefits received by the Initial Purchaser shall be deemed to be equal to the total
purchase discounts and commissions, and benefits received by any other Holders shall be deemed to be equal to the
value of receiving Securities or New Securities, as applicable, registered under the Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on
the cover page of the Prospectus forming a part of the Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to, among other things, whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one hand, or by the indemnified party,
on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even if the Holders were treated as one entity
for such purpose) or any other method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act and each director, officer, employee
and agent of such Holder shall have the same rights to contribution as such Holder, and each Person who controls
the Company, the Parent Guarantor or the Subsidiary Guarantor within the meaning of either the Act or the
Exchange Act, each officer of the Company, the Parent Guarantor or the Subsidiary Guarantor who shall have signed
the Registration Statement and each director of the Company, the Parent Guarantor or the Subsidiary Guarantor
shall have the same rights to contribution as the Company, the Parent Guarantor or the Subsidiary Guarantor,
subject in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or any of the Issuers or any of the officers, directors or
controlling Persons referred to in this Section hereof, and will survive the sale by a Holder of securities
covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or New Securities, as the
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case may be, covered by any Shelf Registration Statement are to be sold in an underwritten offering, the Managing
Underwriters shall be selected by the Majority Holders.
(b) No Person may participate in any underwritten offering pursuant to any Shelf
Registration Statement, unless such Person (i) agrees to sell such Person's Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements; and (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting
arrangements.
8. No Inconsistent Agreements. The Issuers have not, as of the date hereof, entered
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into, nor shall any of them, on or after the date hereof, enter into, any agreement with respect to any of their
securities that is inconsistent with the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement, including the provisions of
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this sentence, may not be amended, qualified, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Issuers have obtained the written consent of the Majority
Holders (or, after the consummation of any Registered Exchange Offer in accordance with Section 2 hereof, of New
Securities); provided that, with respect to any matter that directly or indirectly affects the rights of the
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Initial Purchaser hereunder, the Issuers shall obtain the written consent of the Initial Purchaser against which
such amendment, qualification, supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities or New Securities, as the case may be,
are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of
other Holders may be given by the Majority Holders, determined on the basis of Securities or New Securities, as
the case may be, being sold rather than registered under such Registration Statement.
10. Notices. All notices and other communications provided for or permitted hereunder
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shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing
overnight delivery:
(a) if to a Holder, at the most current address given by such holder to the Company in
accordance with the provisions of this Section, which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture, with a copy in like manner to Citigroup
Global Markets Inc.;
(b) if to you, initially at the respective addresses set forth in the Purchase Agreement;
and
(c) if to the Issuers, initially at the Company's address set forth in the Purchase
Agreement, with a copy to Ropes & Gray LLP, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchaser or the Issuers by notice to the other parties may designate additional or
different addresses for subsequent notices or communications.
11. Successors. This Agreement shall inure to the benefit of and be binding upon the
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successors and assigns of each of the parties, including, without the need for an express assignment or any
consent by the Issuers thereto, subsequent Holders of Securities and the New Securities. The Issuers hereby
agree to extend the benefits of this Agreement to any Holder of Securities and the New Securities, and any such
Holder may specifically enforce the provisions of this Agreement as if an original party hereto.
12. Counterparts. This agreement may be in signed counterparts, each of which shall an
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original and all of which together shall constitute one and the same agreement.
13. Headings. The headings used herein are for convenience only and shall not affect the
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construction hereof.
14. Applicable Law. This Agreement shall be governed by and construed in accordance with
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the laws of the State of New York applicable to contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the provisions contained herein,
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or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of
the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Issuers, etc. Whenever the consent or approval of Holders of a
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specified percentage of principal amount of Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Issuers or their Affiliates (other than subsequent Holders of Securities
or New Securities if such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of
such Securities or New Securities) shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
[signature page follows]
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding
agreement among the Issuers and the Initial Purchaser.
Very truly yours,
UNITED STATES CAN COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief Financial Officer
U.S. CAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief Financial Officer
USC MAY VERPACKUNGEN HOLDING INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President and Chief Financial Officer
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
ANNEX A
Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of such New Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a Broker-Dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a Broker-Dealer in connection with resales of New
Securities received in exchange for Securities where such Securities were acquired by such Broker-Dealer as a
result of market-making activities or other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business one year after the Expiration Date, it
will make this Prospectus available to any Broker-Dealer for use in connection with any such resale. See "Plan
of Distribution".
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in exchange for Securities, where such
Securities were acquired by such Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be used by a Broker-Dealer in
connection with resales of New Securities received in exchange for Securities where such Securities were acquired
as a result of market-making activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year after the Expiration Date, it will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 2003, all dealers effecting transactions in the New Securities may be
required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New Securities by brokers-dealers.
New Securities received by Broker-Dealers for their own account pursuant to the Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the
writing of options on the New Securities or a combination of such methods of resale, at market prices prevailing
at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form
of commissions or concessions from any such Broker-Dealer and/or the purchasers of any such New Securities. Any
Broker-Dealer that resales New Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any such resale of New Securities and any
commissions or concessions received by any such Persons may be deemed to be underwriting compensation under the
Securities Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
For a period of one year after the Expiration Date, the Company will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all expenses incident to the Exchange
Offer (including the expenses of one counsel for the holder of the Securities) other than commissions or
concessions of any brokers or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the Securities Act.
ANNEX D
Rider A
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CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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Rider B
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If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New Securities in the
ordinary course of its business, it is not engaged in, and does not intend to engage in, a distribution of New
Securities and it has not arrangements or understandings with any Person to participate in a distribution of the
New Securities. If the undersigned is a Broker-Dealer that will receive New Securities for its own account in
exchange for Securities, it represents that the Securities to be exchange for New Securities were acquired by it
as a result of market-making activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
