As filed with the Securities and Exchange Commission on April 21, 1995
Registration No. _______
SECURITIES AND EXCHANGE COMMISSION
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
BALL CORPORATION
(Exact name of issuer as specified in its charter)
Indiana 35-0160610
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
345 South High Street, Muncie, Indiana 47305
(Address of principal executive offices) (Zip Code)
Issuer's telephone number, including area code: (317) 747-6100
CT CORPORATION SYSTEM, One North Capitol
Avenue, Indianapolis, Indiana 46204 (Name
and address of agent for service)
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. (X)
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. ( )
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Each Class Amount Maximum Maximum Amount of
of Securities to be to be Offering Price Aggregate Registration
Registered Registered Per Unit* Offering Price* Fee
Common Stock
(Without Par Value) 500,000 $36.25 $18,125,000 $6,250.00
- ------------------ ------- ------ ----------- ---------
*Computed pursuant to Rule 457(b) solely for the purpose of determining the
registration fee for 500,000 shares which may be granted, on the basis of the
average of the high and low prices of the Common Stock on the New York Stock
Exchange-Composite Transactions for April 17, 1995.
The issuer hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the issuer shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a)
may determine.
<PAGE>
CROSS REFERENCE SHEET
Cross-Reference Sheet Pursuant to Item 501(b) of Regulation S-K Showing Location
in Prospectus of Information Required by Items of Form S-3
Form S-3 Item Number Location in Prospectus
1. Forepart of the Registration Statement and Outside Front Cover Page
Front Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of Inside Front Cover
Prospectus Page; Outside Back
Cover Page
3. Summary Information, Risk Factors and Ratio of Inapplicable: except
Earnings to Fixed Charges address and telephone
number of principal
executive offices,
the Corporation
4. Use of Proceeds The Plan - Question 1
5. Determination of Offering Price The Plan - Question 11
6. Dilution Inapplicable
7. Selling Security Holders Inapplicable
8. Plan of Distribution The Plan
9. Description of Securities to be Registered Description of Common
Stock - Incorporated by
Reference
10. Interests of Named Experts and Counsel Legal Opinions
11. Material Changes Inapplicable
12. Incorporation of Certain Material by Reference Documents Incorporated
by Reference
13. Disclosure of Commission Position on Inapplicable
Indemnification for Securities Act Liabilities
<PAGE>
BALL CORPORATION
Dividend Reinvestment and Voluntary Stock Purchase Plan for Shareholders
500,000 Shares of
Common Stock
Without par value
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Dividend Reinvestment and Voluntary Stock Purchase Plan for Shareholders
(the Plan) of Ball Corporation provides a simple and convenient method for the
Shareholders of the Company's Common Stock to purchase shares of the Company's
Common Stock without payment of a brokerage commission or service charge.
Participants in the Plan may have cash dividends on their shares of Common Stock
automatically reinvested and, if they choose, invest by making optional cash
payments of not less than $25 per payment nor more than a total of $3,000 per
quarter.
The purchase price of the shares of Common Stock purchased by reinvestment of
cash dividends and by investment of optional cash payments will be 95% and 100%,
respectively, of the average of the high and low sales prices of the Company's
Common Stock (as published in The Wall Street Journal report of the New York
Stock Exchange - Composite Transactions, corrected for any reporting errors) for
the Investment Date, or, if the Common Stock is not traded on the Investment
Date, the last trading day preceding the Investment Date on which the Common
Stock is traded.
This Prospectus relates to 500,000 authorized and unissued shares of the
Company's Common Stock registered for purchase under the Plan. The shares
reserved for the Plan and held under the Plan shall be subject to adjustment
through declaration of stock dividends and through recapitalization resulting in
stock split-ups, combinations or exchanges or otherwise. It is suggested that
this Prospectus be retained for future reference.
No person is authorized to give any information or to make any representations
other than those contained in this Prospectus in connection with the offer
contained in this Prospectus, and, if given or made, such information must not
be relied upon as having been authorized by the Company. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that there has been no change in the affairs of the
Company since the date thereof.
The date of this Prospectus is April 20, 1995.
<PAGE>
THE COMPANY
Ball Corporation, an Indiana corporation (the "Company"), has its principal
executive offices at 345 S. High Street, Muncie, Indiana 47305 (telephone number
(317) 747-6100).
DESCRIPTION OF THE PLAN
The following is a question and answer statement of the provisions of the
Dividend Reinvestment and Voluntary Stock Purchase Plan for Shareholders of the
Company. Questions and Answers 1 through 25 both explain and constitute the
Plan, which was adopted by the Board of Directors on October 25, 1977, as
amended and renamed by action of the Board of Directors, acting by and through
its Executive Committee, August 27, 1979.
PURPOSE
1. What is the purpose of the Plan?
The purpose of the Plan is to provide participants with a simple and convenient
method of investing cash dividends and optional cash payments in shares of
Common Stock of the Company, without payment of any brokerage commission or
service charge. Since such shares of Common Stock will be purchased from the
Company, the Company will receive additional funds needed for the repayment of
debt, for working capital, and for other corporate purposes.
ADVANTAGES
2. What are the features of the Plan?
As a participant in the Plan, (a) you may purchase shares of Common Stock at a
5% discount from the market price by reinvesting cash dividends, as paid from
time to time, on all of the shares of Common Stock registered in your name, or
(b) you may purchase shares of Common Stock by making optional cash payments of
not less than $25 per payment up to a maximum of $3,000 per quarter, or (c) you
may do both. You do not pay any brokerage commission or service charge for your
purchases under the Plan. Full investment of funds is possible under the Plan
because the Plan permits fractions of shares, as well as full shares, to be
credited to your account. You can avoid the inconvenience and expense of
safekeeping certificates for shares credited to your account under the Plan. A
statement of account will be mailed to you after each purchase to provide
simplified record-keeping.
ADMINISTRATION
3. Who administers the Plan for participants?
First Chicago Trust Company of New York (the Agent), administers the Plan for
the Company, keeps records, sends statements of account to participants and
performs other duties relating to the Plan.
<PAGE>
ELIGIBILITY
4. Who is eligible to participate?
All holders of record of shares of Common Stock of the Company are eligible to
participate in the Plan. Beneficial owners of shares of Common Stock whose
shares are registered in names other than their own (for instance, in the name
of a broker or bank nominee) must either become shareholders of record by having
shares transferred into their own names or have their broker or nominee act for
them.
PARTICIPATION BY SHAREHOLDERS
5. How do shareholders participate?
A holder of record of shares of Common Stock may join the Plan at any time by
completing and signing a shareholder Authorization Card and returning it to the
Agent. If your shareholder Authorization Card is received by the Agent ON OR
BEFORE the record date for determining the shareholders entitled to the next
dividend, reinvestment of your dividends will commence with such dividend. The
record dates for quarterly dividends customarily payable in the middle of March,
June, September and December are normally on the 1st or in the early part of
these months. (Historically, the Company has paid dividends at these times,
although there can be no assurance that this policy will continue.) If your
shareholder Authorization Card is received AFTER the record date, reinvestment
of your dividends will not start until payment of the next dividend declared
after your Authorization Card is received. For example, if the shareholder
Authorization Card is received by the Agent on or before the December dividend
record date, the December dividend will be reinvested. A shareholder
Authorization Card and a postage-paid return envelope may be obtained at any
time by writing to First Chicago Trust Company of New York, Ball Corporation
Dividend Reinvestment and Voluntary Stock Purchase Plan for Shareholders, P.O.
Box 13531, Newark, New Jersey 07188-0001 or by calling the Agent at
1-800-446-2617.
6. What are my options under the Plan?
You may choose either or both of the following investment options:
(a) To reinvest automatically cash dividends on all shares registered in
your name at 95% of the current market price (see the answer to Question 11 for
a description of how this is computed); and/or
(b) To invest by making optional cash payments of not less than $25 per
payment in any amount up to a total maximum amount of $3,000 per quarter,
whether or not your dividends are being reinvested, at 100% of the current
market price as defined in the Plan.
See the answer to Question 10 as to the timing of purchases.
<PAGE>
7. May I change options under the Plan?
Yes. You may change options at any time by completing and signing a new
shareholder Authorization Card and returning it to the Agent. The answer to
Question 5 tells how to obtain an Authorization Card and return envelope. Any
change of option concerning the reinvestment of dividends must be received by
the Agent on or before the record date for a dividend (see Question 8) in order
for the change to become effective with that dividend.
REINVESTMENT OF DIVIDENDS
8. How are dividends reinvested?
If your shareholder Authorization Card is received by the Agent on or before the
record date for determining the holders of shares entitled to the next dividend,
reinvestment of your dividends will commence with such dividend. Your dividends
will be used by the Agent to purchase full or fractional shares from the
Company. The Agent will credit the shares to the accounts of the individual
participants. Shares held for the accounts of participants are registered in the
name of the Agent's nominee.
OPTIONAL CASH PAYMENTS
9. How does the cash payment option work?
You may invest in additional shares of Common Stock by making optional cash
payments of not less than $25 per payment. Optional payments may be made at
irregular intervals and the amount of each such payment may vary, but total
payments invested may not exceed $3,000 per calendar quarter. Participants in
the Plan have no obligation to make any optional cash payments.
An optional cash payment may be made by enclosing a cashier's or certified check
or money order with the Authorization Card when enrolling; or thereafter by
forwarding a cashier's or certified check or money order to the Agent with a
payment form which will be attached to each statement of account. Cashier's or
certified checks and money orders must be made payable to First Chicago Trust
Company of New York in United States dollars and sent to P.O. Box 13531, Newark,
New Jersey 07188-0001. No interest will be paid on optional cash payments.
PURCHASES
10. When will purchases of Common Stock be made?
Optional cash payments received by the Agent BEFORE any Investment Date will be
applied by the Agent to the purchase of additional shares of Common Stock from
the Company on that Investment Date. Optional cash payments received by the
Agent ON OR AFTER the Investment Date will be held for reinvestment at the next
Investment Date unless the Agent is specifically requested in writing to return
the payment to the shareholder. The "Investment Date" is the dividend payable
date, when, as and if declared, by Ball Corporation. Historically, the Company
has paid dividends in March, June, September and December, although there can be
no assurance that this policy will continue.
Cash dividends on shares registered in the names of participants and designated
for reinvestment, and cash dividends on shares held by the Agent in Plan
accounts will be applied by the Agent on the Investment Date to the purchase of
additional shares of Common Stock.
11. What will be the price of shares purchased under the Plan?
The purchase price of the shares of Common Stock purchased by reinvestment of
cash dividends and investment of optional cash payments will be 95% and 100%,
respectively, of the average of the high and low sales prices of the Company's
Common Stock (as published in The Wall Street Journal report of the New York
Stock Exchange - Composite Transactions, corrected for any reporting errors) for
the Investment Date, or, if the Common Stock is not traded on the Investment
Date, for the last trading day preceding the Investment Date on which the Common
Stock is traded.
The price of all shares purchased will be computed to three decimal places.
12. How will the number of shares purchased for a participant be determined? The
number of shares that will be purchased for you on any Investment Date will
depend on the amount of your dividend, the amount of any optional cash payments
and the applicable purchase price of the Common Stock. Your account will be
credited with the number of shares, both full and fractional, that results from
dividing the amounts of your dividends and optional payments to be invested by
the applicable purchase price (computed to three decimal places).
COSTS
13. Are there any charges to me for my purchases under the Plan?
No. There are no brokerage fees for purchases because shares are purchased
directly from the Company. All costs of administration of the Plan will be paid
by the Company. However, if you request the Agent to sell your shares in the
event of your withdrawal from the Plan, the Agent will deduct any brokerage
commission and transfer tax incurred (see Question l9).
DIVIDENDS
14. Will dividends be paid on shares held in my Plan account?
Yes. Cash dividends on full shares, and any fraction of a share, credited
to your account are automatically reinvested in additional shares and credited
to your account.
REPORTS TO PARTICIPANTS
15. What kind of reports will be sent to me?
Following each purchase of shares for your account, the Agent will mail to you a
statement showing amounts invested, purchase price, the number of shares
purchased, the fair market value of the shares purchased and other similar
information for the year to date. These statements are your record of the costs
of your purchases and should be retained for income tax and other purposes. In
addition, you will receive copies of the same communications sent to all other
holders of shares of Common Stock, including the Company's quarterly reports and
annual report to shareholders, a notice of the annual meeting and proxy
statement and Internal Revenue Service information for reporting dividend income
received.
<PAGE>
CERTIFICATES FOR SHARES
16. Will I receive certificates for shares of Common Stock purchased under the
Plan? Shares of Common Stock purchased by the Agent for your account will be
registered in the name of the Agent's nominee and certificates for such shares
will not be issued to you until requested by you. The total number of shares
credited to your account will be shown on each statement of account. This
custodial service protects you against the risk of loss, theft or destruction of
stock certificates.
Certificates for any number of whole shares credited to your account will be
issued to you at any time upon written request to the Agent. Any remaining full
shares and fraction of a share will continue to be credited to your account.
Certificates for fractions of shares will not be issued under any circumstances.
17. May shares held in my Plan account be pledged?
No. If you wish to pledge shares credited to your Plan account, you must
request certificates for such shares.
18. In whose name will certificates be registered when issued?
When issued to you upon your request, certificates for shares will be registered
in the name in which your Plan account is maintained. Generally this will be the
name or names in which your certificates are registered at the time you enroll
in the Plan.
WITHDRAWAL FROM THE PLAN
19. How do I withdraw from the Plan?
You may withdraw from the Plan at any time by sending a written notice that you
wish to withdraw to First Chicago Trust Company of New York, Ball Corporation
Dividend Reinvestment and Voluntary Stock Purchase Plan for Shareholders, P.O.
Box 2598, Jersey City, New Jersey 07303. When you withdraw from the Plan, or
upon termination of the Plan by the Company, certificates for whole shares
credited to your account under the Plan will be issued to you and you will
receive a cash payment for any fraction of a share (see Question 20) and for any
optional cash payments that you have made which have not yet been used to
purchase Common Stock.
Upon withdrawal from the Plan, you may, if you desire, also request that all of
the shares credited to your Plan account be sold by the Agent. If such sale is
requested, the sale of all whole shares in your Plan account will be made for
your account by the Agent within ten business days of the Agent's receipt of the
request. You will receive from the Agent a check for the proceeds of the sale
minus any brokerage commission, if the services of a broker are used, and any
transfer fees incurred. You will also receive a cash payment for any fraction of
a share (see Question 20) and for any optional cash payments that you have made
which have not yet been used to purchase Common Stock.
20. What happens to my fractional share when I withdraw from the Plan?
When you withdraw from the Plan, a cash adjustment representing the proceeds
from the sale of any fractional shares then credited to your account, less any
brokerage commission, if the services of a broker are used, and any transfer tax
incurred, will be mailed directly to you.
OTHER INFORMATION
21. What happens if I sell or transfer shares registered in my name?
To sell shares in your dividend reinvestment account, you may either use the
form which is part of your account statement, or telephone First Chicago Trust
Company of New York at 1-800-446-2617.
If you sell or transfer a portion of the shares of Common Stock registered in
your name, then the dividends on shares remaining in your name and in your
account will continue to be reinvested until you notify the Agent that you wish
to withdraw from the Plan.
If you dispose of all shares of Common Stock registered in your name, the
dividends on the shares credited to your Plan account will continue to be
reinvested until you notify the Agent that you wish to withdraw from the Plan.
22. What happens if the Company issues a stock dividend or declares a stock
split? Any shares distributed by the Company as a stock dividend on shares
(including fractional shares) credited to your account under the Plan, or upon
any split of such shares, will be credited to your account. Stock dividends or
splits distributed on all other shares held by you and registered in your own
name will be mailed directly to you.
23. Can I vote shares in my Plan account at meetings of shareholders? Yes. You
will receive a proxy for the total number of whole shares held - both the shares
registered in your name and those credited to your Plan account. The total
number of whole shares held may also be voted in person at a meeting. Fractional
shares held in Plan accounts will not be voted.
If the proxy is not returned or if it is returned unsigned, none of your shares
will be voted.
24. What is the responsibility of the Company and the Agent under the Plan?
Neither the Company nor the Agent, in administering the Plan, will accept
liability for any act done in good faith or for any good faith omission to act
including, without limitation, any claim or liability arising out of failure to
terminate a participant's account upon such participant's death prior to receipt
by the Agent of notice in writing of such death.
NEITHER THE COMPANY NOR THE AGENT CAN ASSURE YOU OF A PROFIT OR PROTECT YOU
AGAINST A LOSS ON SHARES PURCHASED UNDER THE PLAN.
25. May the Plan be changed or discontinued?
The Company reserves the right to modify, suspend or terminate the Plan at any
time. Any such modification, suspension or termination will not affect
previously executed transactions. The Company also reserves the right to adopt,
and from time to time change, such administrative rules and regulations (not
inconsistent in substance with the basic provisions of the Plan as then in
effect) as it deems desirable or appropriate for the administration of the Plan.
The Agent reserves the right to resign at any time upon reasonable written
notice to the Company.
<PAGE>
USE OF PROCEEDS
The Company has no basis for estimating precisely either the number of shares of
Common Stock that ultimately may be sold pursuant to the Plan, or the prices at
which such shares will be sold. However, the Company proposes to use the net
proceeds from the sale of shares of Common Stock pursuant to the Plan, when and
as received, to repay debt of the Company, for working capital and for other
corporate purposes.
FEDERAL INCOME TAX CONSEQUENCES
Under Internal Revenue Service rulings in connection with similar plans, the
full fair market value of the shares purchased with reinvested dividends is
taxable as dividend income to the participant. This means that in addition to
the reinvested dividends being taxable, the 5% discount allowed on the purchase
of shares with reinvested dividends under the Plan is also taxable as dividend
income to the participant in the year the shares are purchased. Your statements
of account will show the fair market value of the Common Stock purchased with
reinvested dividends, and a statement mailed to you at year-end will show total
dividend income and the additional income which, under the above rulings, is
deemed to result from the 5% discount.
Federal law may require that income tax be withheld from the payment of
dividends. The Agent shall apply to the purchase of shares of Common Stock on
behalf of each participant an amount equal to the dividends payable to such
participant less the amount of tax required to be withheld.
You will not realize any taxable income on the purchase of shares under the
optional cash payment plan.
You will not realize any taxable income when you receive certificates for whole
shares credited to your account, either upon your request for such certificates
or upon withdrawal from or termination of the Plan.
You may realize a gain or loss when shares are sold or exchanged, whether such
sale or exchange is pursuant to your request to withdraw from the Plan or takes
place after withdrawal from or termination of the Plan. You may also realize a
gain or loss if you withdraw from the Plan and receive a cash payment for a
fraction of a share credited to your account. The amount of such gain or loss
will be the difference between the amount you receive for the shares or fraction
of a share and the tax basis thereof, as the tax basis is defined below for tax
purposes.
In accordance with the rulings referred to above, your tax basis of shares
acquired under the Plan by reinvestment of dividends will be equal to the fair
market value of the shares on the dividend payment dates (Investment Dates under
the Plan) as of which the shares were purchased for your Plan account. The tax
basis of shares purchased at fair market value with an optional cash payment
will be the amount of such optional cash payment.
The holding period of shares of Common Stock acquired under the Plan, whether
purchased with dividends or optional cash payments, will begin on the day
following the date as of which the shares were purchased for your account.
In the case of foreign participants who elect to have their dividends reinvested
and whose dividends are subject to United States income tax withholding, an
amount equal to the dividends payable to such participants, less the amount of
tax required to be withheld, will be applied by the Agent to the purchase of
shares of Common Stock.
For further information as to the tax consequences of participation in the Plan,
you should consult with your own tax advisor.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Securities and
Exchange Commission and are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1994.
(2) The Company's Notice of the 1995 Annual Meeting of Shareholders and Proxy
Statement dated March 20, 1995, issued in connection with the Annual Meeting of
Shareholders held on April 26, 1995.
(3) The description of the common stock contained in the Company's Prospectus
dated May 17, 1979 (Registration No. 33-21506) and the restated Rights Agreement
dated July 25, 1986 as amended and restated on January 23, 1990 and as amended
on Amendment No. 2 to Form 8 dated July 31, 1990.
(4) The Company's reports on Form 8-K dated January 26, 1994; April 29, 1994 and
September 8, 1994.
All documents filed pursuant to Section 13 or 14 of the Securities Exchange Act
of 1934 after the date of this Prospectus and prior to the termination of this
offering shall be deemed to be incorporated by reference in this Prospectus and
to be part hereof from the date of filing of such documents.
ADDITIONAL INFORMATION
Reports, proxy statements and other information filed by the Company can be
inspected and copied at the public reference facilities of the Securities and
Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Such
material can also be inspected at the New York Stock Exchange, 20 Broad Street,
New York, N.Y. 10005, The Chicago Stock Exchange, 440 South LaSalle Street,
Chicago, Illinois 60605 and The Pacific Stock Exchange, Inc., 301 Pine Street,
San Francisco, California 94104. Copies can be obtained from the Securities and
Exchange Commission at prescribed rates. Requests should be directed to the
Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549.
LEGAL OPINIONS
The validity of the common stock offered hereby will be passed upon for the
Company by George A. Sissel, General Counsel of the Company or by Robert W.
McClelland, Assistant General Counsel of the Company. Mr. Sissel and Mr.
McClelland are paid a salary by the Company and participate in the various
employee benefit plans offered by the Company.
FINANCIAL STATEMENTS
The financial statements of the Company included in the Annual Report on Form
10-K for the fiscal year ended December 31, 1994, are incorporated herein by
reference in reliance upon the report therein of Price Waterhouse LLP
independent accountants and upon authority of Price Waterhouse LLP as experts in
accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Commission Registration Fee..................... $ 6,250.00
Stock Exchange Listing Fees..................... 1,500.00
Miscellaneous Expenses.......................... 1,000.00
Total........................................... $ 8,750.00
Item 15. Indemnification of Directors and Officers
Section 23-1-37-8 of the Indiana Business Corporation Law
provides as follows:
(a) A corporation may indemnify an individual made a party to a
proceeding because the individual is or was a director
against liability incurred in the proceeding if:
(1) The individual's conduct was in good faith; and
(2) The individual believed:
(A) In the case of conduct in the individual's
official capacity with the corporation, that
the individual's conduct was in its best
interests; and
(B) In all other cases, that the individual's
conduct was at least not opposed to its best
interests; and
(3) In the case of any criminal proceeding, the individual
either:
(A) Had reasonable cause to believe the individual's
conduct was lawful; or
(B) Had no reasonable cause to believe the
individual's conduct was unlawful.
(b) A director's conduct with respect to an
employee benefit plan for a purpose the director
reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct
that satisfies the requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent is not, of itself,
determinative that the director did not meet the standard
of conduct described in this section.
Section B of Article XII of the Company's Amended Articles of
Incorporation provides as follows:
Indemnification of directors, officers and employees shall be as
follows:
1. The Corporation shall indemnify each person who is or was a
director, officer or employee of the Corporation, or of any other corporation,
partnership, joint venture, trust or other enterprise which he is serving or
served in any capacity at the request of the Corporation, against any and all
liability and reasonable expense that may be incurred by him in connection with
or resulting from any claim, actions, suit or proceeding (whether actual or
threatened, brought by or in the right of the corporation or such other
corporation, partnership, joint venture, trust or other enterprise, or
otherwise, civil, criminal, administrative, investigative, or in connection with
an appeal relating thereto), in which he may become involved, as a party or
otherwise, by reason of his being or having been a director, officer or employee
of the Corporation or of such other corporation, partnership, joint venture,
trust or other enterprise or by reason of any past or future action taken or not
taken in his capacity as such director, officer or employee, whether or not he
continues to be such at the time such liability or expense is incurred, provided
that such person acted in good faith and in a manner he reasonably believed to
be in the best interests of the Corporation or such other corporation,
partnership, joint venture, trust or other enterprise, as the case may be, and,
in addition, in any criminal action or proceedings, had no reasonable cause to
believe that his conduct was unlawful. Notwithstanding the foregoing, there
shall be no indemnification (a) as to amounts paid or payable to the Corporation
or such other corporation, partnership, joint venture, trust or other
enterprise, as the case may be, for or based upon the director, officer or
employee having gained in fact any personal profit or advantage to which he was
not legally entitled; (b) as to amounts paid or payable to the Corporation for
an accounting of profits in fact made from the purchase or sale of securities of
the Corporation within the meaning of Section 16(b) of the Securities Exchange
Act of 1934 and amendments thereto or similar provisions of any state statutory
law; or (c) with respect to matters as to which indemnification would be in
contravention of the laws of the State of Indiana or of the United States of
America whether as a matter of public policy or pursuant to statutory
provisions.
2. Any such director, officer or employee who has been wholly
successful, on the merits or otherwise, with respect to any claim, action, suit
or proceeding of the character described herein shall be entitled to
indemnification as of right, except to the extent he has otherwise been
indemnified. Except as provided in the preceding sentence, any indemnification
hereunder shall be granted by the Corporation, but only if (a) the Board of
Directors, acting by a quorum consisting of directors who are not parties to or
who have been wholly successful with respect to such claim, action, suit or
proceeding, shall find that the director, officer or employee has met the
applicable standards of conduct set forth in paragraph 1 of this Section B of
Article XII; or (b) outside legal counsel engaged by the Corporation (who may be
regular counsel of the Corporation) shall deliver to the corporation its written
opinion that such director, officer or employee has met such applicable
standards of conduct; or (c) a court of competent jurisdiction has determined
that such director, officer or employee has met such standards, in an action
brought either by the Corporation, or by the director, officer or employee
seeking indemnification, applying de novo such applicable standards of conduct.
The termination of any claim, action, suit or proceeding, civil or criminal, by
judgment, settlement (whether with or without court approval) or conviction or
upon a plea of guilty or of nolo contendere, or its equivalent, shall not create
a presumption that a director, officer or employee did not meet the applicable
standards of conduct set forth in paragraph 1 of this Section B of Article XII.
3. As used in this Section B of Article XII, the term "liability"
shall mean amounts paid in settlement or in satisfaction of judgments or fines
or penalties, and the term "expense" shall include, but shall not be limited to,
attorneys' fees and disbursements, incurred in connection with the claim,
action, suit or proceeding. The Corporation may advance expenses to, or where
appropriate may at its option and expense undertake the defense of, any such
director, officer or employee upon receipt of an undertaking by or on behalf of
such person to repay such expenses if it should ultimately be determined that
the person is not entitled to indemnification under this Section B of Article
XII.
4. The provisions of this Section B of Article XII shall be
applicable to claims, actions, suits or proceedings made or commenced after the
adoption hereof whether arising from acts or omissions to act occurring before
or after the adoption hereof. If several claims, issues or matters of action are
involved, any such director, officer or employee may be entitled to
indemnification as to some matters even though he is not so entitled as to
others. The rights of indemnification provided hereunder shall be in addition to
any rights to which any director, officer or employee concerned may otherwise be
entitled by contract or as a matter of law, and shall inure to the benefit of
the heirs, executors and administrators of any such director, officer or
employee.
Item 16. Exhibits
EX-5.1 Opinion of Robert W. McClelland re Legality of Shares
EX-23.1 Consent of Robert W. McClelland is contained in his
opinion filed as
Exhibit 5.1 to this Registration Statement
EX-24.1 Powers of Attorney
Item 17. Undertakings
A. Undertaking Regarding Documents Subsequently Filed under the Exchange Act.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Company's annual
report pursuant to Section 13(a) or 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
therein, and the offering of such securities at that time shall be deemed to the
initial bona fide offering thereof.
B. Undertaking in Respect of Indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to Item 15 above or otherwise, the Company has been advised
that in the opinion of the 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
C. Undertaking Pursuant to Rule 415.
The Corporation hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (i) and (ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Corporation pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Muncie, State of Indiana, on April 20, 1995.
BALL CORPORATION
(Registrant)
By: /S/ George A. Sissel
----------------------------------
George A. Sissel, Acting President
and Chief Executive Officer
April 20, 1995
Pursuant to the requirements of the Securities Exchange Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated. ( I ) Principal Executive Officer:
(1) Principal Executive Officer:
Acting President and
/S/ George A. Sissel Chief Executive Officer
George A. Sissel April 20, 1995
(2) Principal Financial Officer:
Senior Vice President and
/S/ R. David Hoover Chief Financial Officer
R. David Hoover April 20, 1995
(3) A Majority of the Board of Directors:
/S/ Howard M. Dean * Director
Howard M. Dean April 20, 1995
/S/ John T. Hackett * Director
John T. Hackett April 20, 1995
/S/ John F. Lehman * Director
John F. Lehman April 20, 1995
/S/ Jan Nicholson * Director
Jan Nicholson April 20, 1995
/S/ Alvin Owsley * Chairman of the Board
Alvin Owsley and Director
April 20, 1995
/S/ George A. Sissel * Acting President and
George A. Sissel Chief Executive Officer
and Director
April 20, 1995
/S/ Delbert C. Staley * Director
Delbert C. Staley April 20, 1995
/S/ W. Thomas Stephens * Director
W. Thomas Stephens April 20, 1995
/S/ William P. Stiritz * Director
William P. Stiritz April 20, 1995
*By George A. Sissel as Attorney-in-Fact pursuant to a Limited Power of Attorney
executed by the directors listed above, which Power of Attorney has been filed
with the Securities and Exchange Commission.
By: /S/ George A. Sissel
-------------------------------------
George A. Sissel, As Attorney-in-Fact
April 20, 1995
<PAGE>
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
January 23, 1995, which appears on page 17 of the 1994 Annual Report to
Shareholders of Ball Corporation which is incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended December 31, 1994. We
also consent to the reference to us under the heading "Financial Statements" in
such Prospectus.
PRICE WATERHOUSE LLP
/s/Price Waterhouse LLP
Indianapolis, Indiana
April 20, 1995
CONSENT OF COUNSEL
The consent of Robert W. McClelland, Assistant General Counsel, Ball
Corporation, is contained in his opinion filed as Exhibit 5.1 to this Form S-3
Registration Statement.
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
EX-5.1 Opinion of Robert W. McClelland re Legality of Shares
EX-23.1 Consent of Robert W. McClelland is contained in
his opinion filed as Exhibit 5 to this Registration
Statement
EX-24.1 Powers of Attorney
<PAGE>
Exhibit 5.1
Exhibit 23.1
April 20, 1995
Ball Corporation
345 South High Street
Muncie, Indiana 47305-2326
Gentlemen:
I refer to the registration statement of Ball Corporation (the "Company") on
Form S-3 proposed to be filed with the Securities and Exchange Commission for
the purpose of registering under the Securities Act of 1933, as amended, 500,000
shares of the Company's common stock to be purchased in connection with the Ball
Corporation Dividend Reinvestment and Voluntary Stock Purchase Plan (hereinafter
called the "Plan").
Based upon the foregoing, it is my opinion that the shares of common stock have
been duly authorized, and the shares of common stock currently outstanding are,
when purchased in accordance with the Plan for the participants in the Plan,
legally issued, fully paid and nonassessable.
I hereby consent to the reference to me under the heading "Legal Opinions" in
the Prospectus and under the heading of "Consent of Counsel" in the Registration
Statement prepared by the Company.
Very truly yours,
/s/Robert W. McClelland
RWMC/car
<PAGE>
Exhibit 24.1
Registration Statement
Limited Power of Attorney
KNOW ALL MEN BY THESE PRESENTS that the undersigned directors and
officers of Ball Corporation, an Indiana corporation, hereby constitute and
appoint R. David Hoover, Albert R. Schlesinger, and George A. Sissel, and any
one or all of them, the true and lawful agents and attorneys-in-fact of the
undersigned with full power and authority in said agents and attorneys-in-fact,
and in any one or more of them, to sign for the undersigned and in their
respective names as directors and officers of the Corporation the Form S-3
Registration Statement of the Corporation to be filed with the Securities and
Exchange Commission, Washington, D.C., under the Securities Exchange Act of
1933, as amended, and to sign any amendment or amendments (including
pre-effective and post-effective amendments) to such Registration Statement, in
the matter of the Corporation's Dividend Reinvestment and Voluntary Stock
Purchase Plan for Shareholders, hereby ratifying and confirming all acts taken
by such agents and attorneys-in-fact or any one of them, as herein authorized.
Dated: April 20, 1995
/S/R. David Hoover /S/Howard M. Dean
R. David Hoover Officer Howard M. Dean Director
/S/Albert R. Schlesinger /S/John T. Hackett
Albert R. Schlesinger Officer John T. Hackett Director
/S/George A. Sissel /S/John F. Lehman
George A. Sissel Officer John F. Lehman Director
/S/Jan Nicholson
Jan Nicholson Director
/S/Alvin Owlsey
Alvin Owsley Director
/S/George A. Sissel
George A. Sissel Director
/S/Delbert C. Staley
Delbert C. Staley Director
/S/W. Thomas Stephens
W. Thomas Stephens Director
/S/William P. Stiritz
William P. Stiritz Director
