SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K/A
AMENDMENT NO. 1
( X ) ANNUAL REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1995
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________________ to ________________
Commission File Number 1-7349
Ball Corporation
State of Indiana 35-0160610
345 South High Street, P.O. Box 2407
Muncie, Indiana 47307-0407
Registrant's telephone number, including area code: (317) 747-6100
- --------------------------------------------------------------------------------
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
--------------------------------- --------------------------------
Common Stock, without par value New York Stock Exchange, Inc.
Chicago Stock Exchange, Inc.
Pacific Stock Exchange, Inc.
Securities registered pursuant to Section 12(g) of the Act: NONE
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES [ X ] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of voting stock held by non-affiliates of the
registrant was $887.6 million based upon the closing market price on March 1,
1996 (excluding Series B ESOP Convertible Preferred Stock of the registrant,
which series is not publicly traded and which has an aggregate liquidation
preference of $65.6 million).
Number of shares outstanding as of the latest practicable date.
Class Outstanding at March 1, 1996
---------------------------------- ----------------------------
Common Stock, without par value 30,179,074
DOCUMENTS INCORPORATED BY REFERENCE
1. Annual Report to Shareholders for the year ended December 31, 1995, to the
extent indicated in Parts I, II, and IV. Except as to information
specifically incorporated, the 1995 Annual Report to Shareholders is not to
be deemed filed as part of this Form 10-K Annual Report.
2. Proxy statement filed with the Commission dated March 18, 1996, to the extent
indicated in Part III.
PORTIONS AMENDED
Parts III and IV of the Annual Report on Form 10-K for the year ended December
31, 1995 are amended as set forth in the following pages.
<PAGE>
Part III
Item 10. Directors and Executive Officers of the Registrant
The executive officers of the company are as follows:
1. George A. Sissel, 59, Chairman, President and Chief Executive Officer,
since April 1996; President and Chief Executive Officer, 1995-1996; Acting
President and Chief Executive Officer, 1994-1995; Senior Vice President,
Corporate Affairs; Corporate Secretary and General Counsel, 1993-1995;
Senior Vice President, Corporate Secretary and General Counsel, 1987-1992;
Vice President, Corporate Secretary and General Counsel, 1981-1987.
2. R. David Hoover, 50, Executive Vice President, Chief Financial Officer and
Treasurer, since April 1996; Executive Vice President and Chief Financial
Officer, 1995-1996; Senior Vice President and Chief Financial Officer,
1992-1995; Vice President and Treasurer, 1988-1992; Assistant Treasurer,
1987-1988; Vice President, Finance and Administration, Technical Products,
1985-1987; Vice President, Finance and Administration, Management Services
Division, 1983-1985.
3. Duane E. Emerson, 58, Senior Vice President and Chief Administrative
Officer, since July 1995; Senior Vice President, Administration,
1985-1995; Vice President, Administration, 1980-1985.
4. Donovan B. Hicks, 58, Group Vice President; President, Ball Aerospace &
Technologies Corp., since August 1995; Group Vice President; President,
Aerospace and Communications Group, 1988-1995; Group Vice President,
Technical Products, 1980-1988; President, Ball Brothers Research
Corporation/Division, 1978-1980.
5. David B. Sheldon, 54, Executive Vice President, Packaging Operations,
since October 1995; Executive Vice President, North American Packaging
Operations, 1995; Group Vice President; President, Metal Beverage
Container Group, 1993-1995; Group Vice President, Packaging Products,
1992-1993; Vice President and Group Executive, Sales and Marketing,
Packaging Products Group, 1988-1992; Vice President and Group Executive,
Sales and Marketing, Metal Container Group, 1985-1988.
6. Richard E. Durbin, 54, Vice President, Information Services, since April
1985; Corporate Director, Information Services, 1983-1985; Corporate
Director, Data Processing, 1981-1983.
7. Albert R. Schlesinger, 54, Vice President and Controller, since January
1987; Assistant Controller, 1976-1986.
8. Raymond J. Seabrook, 45, Vice President, Planning and Control, since April
1996; Vice President and Treasurer, 1992-1996; Senior Vice President and
Chief Financial Officer, Ball Packaging Products Canada, Inc., 1988-1992.
9. Harold L. Sohn, 50, Vice President, Corporate Relations, since March 1993;
Director, Industry Affairs, Packaging Products, 1988-1993.
10. David A. Westerlund, 45, Vice President, Human Resources, since December
1994; Senior Director, Corporate Human Resources, July 1994-December 1994;
Vice President, Human Resources and Administration, Ball Glass Container
Corporation, 1988-1994; Vice President, Human Resources, Ball Glass
Container Corporation, 1987-1988.
Other information required by Item 10 appearing under the caption, "Director
Nominees and Continuing Directors," on pages 3 through 5 and under the caption,
"Compliance with Section 16(a) of the Securities Exchange Act of 1934" on page
15 of the company's proxy statement filed pursuant to Regulation 14A dated March
18, 1996, is incorporated herein by reference. Effective April 24, 1996, the
Director Nominees named in the company's proxy statement were elected to their
positions and George A. Sissel was named Chairman of the Board of Directors,
succeeding Alvin Owsley, who retired.
Item 11. Executive Compensation
The information required by Item 11 appearing under the caption, "Executive
Compensation," on pages 7 through 14 of the company's proxy statement filed
pursuant to Regulation 14A dated March 18, 1996, is incorporated herein by
reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The information required by Item 12 appearing under the caption, "Voting
Securities and Principal Shareholders," on pages 1 and 2 of the company's proxy
statement filed pursuant to Regulation 14A dated March 18, 1996, is incorporated
herein by reference.
Item 13. Certain Relationships and Related Transactions
The information required by Item 13 appearing under the caption, "Relationship
with Independent Public Accountants and Certain Other Relationships and Related
Transactions," on page 15 of the company's proxy statement filed pursuant to
Regulation 14A dated March 18, 1996, is incorporated herein by reference.
<PAGE>
Part IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.
(a) (1) Financial Statements:
The following documents included in the 1995 Annual Report to
Shareholders are incorporated by reference in Part II, Item 8:
Consolidated statement of (loss) income - Years ended December 31,
1995, 1994 and 1993
Consolidated balance sheet - December 31, 1995 and 1994
Consolidated statement of cash flows - Years ended December 31, 1995,
1994 and 1993
Consolidated statement of changes in shareholders' equity - Years
ended December 31, 1995, 1994 and 1993
Notes to consolidated financial statements
Report of independent accountants
(2) Financial Statement Schedules:
There were no financial statement schedules required under this item.
(3) Exhibits:
See the Index to Exhibits which appears at the end of this document and
which is incorporated by reference herein.
(b) Reports on Form 8-K
Amendment No. 1 to the Current Report on Form 8-K dated September 15,
1995 to include the financial statements and proforma financial
information omitted from the original filing, filed November 29, 1995.
Current Report on Form 8-K dated January 24, 1996 announcing approval by
the Board of Directors of an extension of the benefits afforded by the
company's existing shareholder rights plan by the adoption of a new
shareholder rights plan, filed February 14, 1996.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Ball Corporation
(Registrant)
By: -------------------------------
R. David Hoover
Executive Vice President
Chief Financial Officer
and Treasurer
Date: -------------------------------
<PAGE>
Ball Corporation and Subsidiaries
Annual Report on Form 10-K
For the year ended December 31, 1995
Index to Exhibits
Exhibit
Number Description of Exhibit
------- ---------------------------------------------------------------
3.(i) Amended Articles of Incorporation as of November 26, 1990
(filed by incorporation by reference to the Current Report on
Form 8-K dated November 30, 1990) filed December 13, 1990.
3.(ii) Bylaws of Ball Corporation as amended January 25, 1994 (filed
by incorporation by reference to the Annual Report on Form 10-K
for the year ended December 31, 1993) filed March 29, 1994.
4.1 Ball Corporation and its subsidiaries have no long-term debt
instruments in which the total amount of securities authorized
under any instrument exceeds 10% of the total assets of the
registrant and its subsidiaries on a consolidated basis. Ball
Corporation hereby agrees to furnish a copy of any long-term
debt instruments upon the request of the Commission.
4.2 Dividend distribution payable to shareholders of record on
August 4, 1986, of one preferred stock purchase right for each
outstanding share of common stock under the Rights Agreement
dated as of July 22, 1986, and as amended by the Amended and
Restated Rights Agreement dated as of January 24, 1990, and the
First Amendment, dated as of July 27, 1990, between the
corporation and The First National Bank of Chicago (filed by
incorporation by reference to the Form 8-A Registration
Statement, No. 1-7349, dated July 25, 1986, as amended by Form
8, Amendment No. 1, dated January 24, 1990, and by Form 8,
Amendment No. 2, dated July 27, 1990) filed August 2, 1990.
4.3 Rights Agreement, dated as of January 24, 1996, between Ball
Corporation and First Chicago Trust Company of New York, as
Rights Agent, which includes as Exhibit A the description of
Preferences and Rights of the Series A Junior Participating
Preferred Stock and as Exhibit B the form of Rights Certificate
(filed by incorporation by reference to the Current Report on
Form 8-K dated January 24, 1996) filed February 14, 1996.
10.1 1975 Stock Option Plan as amended, 1980 Stock Option and Stock
Appreciation Rights Plan, as amended, 1983 Stock Option and
Stock Appreciation Rights Plan (filed by incorporation by
reference to the Form S-8 Registration Statement, No. 2-82925)
filed April 27, 1983.
10.2 Restricted Stock Plan (filed by incorporation by reference to
the Form S-8 Registration Statement, No. 2-61252) filed May 2,
1978.
<PAGE>
Exhibit
Number Description of Exhibit
------- ---------------------------------------------------------------
10.3 1988 Restricted Stock Plan and 1988 Stock Option and Stock
Appreciation Rights Plan (filed by incorporation by reference
to the Form S-8 Registration Statement, No. 33-21506) filed
April 27, 1988.
10.4 Ball Corporation Deferred Incentive Compensation Plan (filed by
incorporation by reference to the Annual Report on Form 10-K
for the year ended December 31, 1987) filed March 25, 1988.
10.5 Ball Corporation 1986 Deferred Compensation Plan, as amended
July 1, 1994 (filed by incorporation by reference to the
Quarterly Report on Form 10-Q for the quarter ended July 3,
1994) filed August 17, 1994.
10.6 Ball Corporation 1988 Deferred Compensation Plan, as amended
July 1, 1994 (filed by incorporation by reference to the
Quarterly Report on Form 10-Q for the quarter ended July 3,
1994) filed August 17, 1994.
10.7 Ball Corporation 1989 Deferred Compensation Plan, as amended
July 1, 1994 (filed by incorporation by reference to the
Quarterly Report on Form 10-Q for the quarter ended July 3,
1994) filed August 17, 1994.
10.8 Form of the Severance Benefit Agreement dated August 1, 1994
(filed by incorporation by reference to the Quarterly Report on
Form 10-Q for the quarter ended October 2, 1994) filed November
15, 1994.
10.9 An agreement dated September 15, 1988, between Ball Corporation
and Onex Corporation to form a joint venture company known as
Ball-Onex Packaging Corp., since renamed Ball Packaging
Products Canada, Inc. (filed by incorporation by reference to
the Current Report on Form 8-K dated December 8, 1988) filed
December 23, 1988.
10.10 Stock Purchase Agreement dated as of June 29, 1989, between
Ball Corporation and Mellon Bank, N.A. (filed by incorporation
by reference to the Quarterly Report on Form 10-Q for the
quarter ended July 2, 1989) filed August 15, 1989.
10.11 Ball Corporation 1986 Deferred Compensation Plan for Directors,
as amended October 27, 1987 (filed by incorporation by
reference to the Annual Report on Form 10-K for the year ended
December 31, 1990) filed April 1, 1991.
10.12 1991 Restricted Stock Plan for Nonemployee Directors of Ball
Corporation (filed by incorporation by reference to the Form
S-8 Registration Statement, No. 33-40199) filed April 26, 1991.
10.13 Agreement of Purchase and Sale, dated April 11, 1991, between
Ball Corporation and the term lenders of Ball Packaging
Products Canada, Inc., Citibank Canada, as Agent (filed by
incorporation by reference to the Quarterly Report on Form 10-Q
for the quarter ended March 31, 1991) filed May 15, 1991.
<PAGE>
Exhibit
Number Description of Exhibit
------- ---------------------------------------------------------------
10.14 Ball Corporation Economic Value Added Incentive Compensation
Plan dated January 1, 1994 (filed by incorporation by reference
to the Annual Report on Form 10-K for the year ended December
31, 1994) filed March 29, 1995.
10.15 Agreement and Plan of Merger among Ball Corporation, Ball Sub
Corp. and Heekin Can, Inc. dated as of December 1, 1992, and as
amended as of December 28, 1992 (filed by incorporation by
reference to the Registration Statement on Form S-4, No.
33-58516) filed February 19, 1993.
10.16 Distribution Agreement between Ball Corporation and Alltrista
(filed by incorporation by reference to the Alltrista
Corporation Form 8, Amendment No. 3 to Form 10, No. 0-21052,
dated December 31, 1992) filed March 17, 1993.
10.17 1993 Stock Option Plan (filed by incorporation by reference to
the Form S-8 Registration Statement, No. 33-61986) filed April
30, 1993.
10.18 Retirement Agreement dated June 17, 1994, between Delmont A.
Davis and Ball Corporation (filed by incorporation by reference
to the Quarterly Report on Form 10-Q for the quarter ended July
3, 1994) filed August 17, 1994.
10.19 Ball-InCon Glass Packaging Corp. Deferred Compensation Plan, as
amended July 1, 1994 (filed by incorporation by reference to
the Quarterly Report on Form 10-Q for the quarter ended July 3,
1994) filed August 17, 1994.
10.20 Retention Agreement dated June 22, 1994, between Donovan B.
Hicks and Ball Corporation (filed by incorporation by reference
to the Quarterly Report on Form 10-Q for the quarter ended July
3, 1994) filed August 17, 1994.
10.21 Ball Corporation Supplemental Executive Retirement Plan (filed
by incorporation by reference to the Quarterly Report on Form
10-Q for the quarter ended October 2, 1994) filed November 15,
1994.
10.22 Ball Corporation Split Dollar Life Insurance Plan (filed by
incorporation by reference to the Quarterly Report on Form 10-Q
for the quarter ended October 2, 1994) filed November 15, 1994.
10.23 Ball Corporation Long-Term Cash Incentive Plan, dated October
25, 1994 (filed by incorporation by reference to the Annual
Report on Form 10-K for the year ended December 31, 1994) filed
March 29, 1995.
<PAGE>
Exhibit
Number Description of Exhibit
------- ---------------------------------------------------------------
10.24 Asset Purchase Agreement dated June 26, 1995, among Foster
Ball, L.L.C. (since renamed Ball-Foster Glass Container Co.,
L.L.C.), Ball Glass Container Corporation and Ball Corporation
(filed by incorporation by reference to the Current Report on
Form 8-K dated September 15, 1995) filed September 29, 1995.
10.25 Foster Ball, L.L.C. (since renamed Ball-Foster Glass Container
Co., L.L.C.) Amended and Restated Limited Liability Company
Agreement dated June 26, 1995, among Saint-Gobain Holdings I
Corp., BG Holdings I, Inc. and BG Holdings II, Inc. (filed by
incorporation by reference to the Current Report on Form 8-K
dated September 15, 1995) filed September 29, 1995.
10.26 Form of Severance Agreement dated January 24, 1996 which exists
between the company and its executive officers. (Filed
herewith).
10.27 Form of Amendment dated January 24, 1996 to the Severance
Benefit Agreement which exists between the company and its
executive officers. (Filed herewith).
10.28 Amendment dated January 24, 1996 to the Retention Agreement
between Donovan B. Hicks and Ball Corporation. (Filed
herewith).
11.1 Statement re: Computation of Earnings Per Share is incorporated
herein by reference to the Annual Report on Form 10-K for the
year ended December 31, 1995, of which this Amendment No. 1 on
Form 10-K/A forms a part.
13.1 Ball Corporation 1995 Annual Report to Shareholders (The Annual
Report to Shareholders, except for those portions thereof
incorporated by reference, is furnished for the information of
the Commission and is not to be deemed filed as part of this
Form 10-K.) is incorporated herein by reference to the Annual
Report on Form 10-K for the year ended December 31, 1995, of
which this Amendment No. 1 on Form 10-K/A forms a part.
18.1 Letter re: Change in Accounting Principles (filed by
incorporation by reference to the Quarterly Report on Form 10-Q
for the quarterly period ended July 2, 1995) filed August 15,
1995.
21.1 List of Subsidiaries of Ball Corporation is incorporated herein
by reference to the Annual Report on Form 10-K for the year
ended December 31, 1995, of which this Amendment No. 1 on Form
10-K/A forms a part.
23.1 Consent of Independent Accountants is incorporated herein by
reference to the Annual Report on Form 10-K for the year ended
December 31, 1995, of which this Amendment No.
1 on Form 10-K/A forms a part.
Exhibit
Number Description of Exhibit
------- ---------------------------------------------------------------
24.1 Limited Power of Attorney is incorporated herein by reference
to the Annual Report on Form 10-K for the year ended December
31, 1995, of which this Amendment No. 1 on Form 10-K/A forms a
part.
27.1 Financial Data Schedule is incorporated herein by reference to
the Annual Report on Form 10-K for the year ended December 31,
1995, of which this Amendment No. 1 on Form 10-K/A forms a
part.
99.1 Specimen Certificate of Common Stock (filed by incorporation by
reference to the Annual Report on Form 10-K for the year ended
December 31, 1979) filed March 24, 1980.
Exhibit 10.26
Form of Severance Agreement dated January 24, 1996 which exists between the
company and its executive officers.
PERSONAL & CONFIDENTIAL
[DATE]
[NAME]
[STREET ADDRESS]
[CITY, STATE ZIP]
Dear [NAME]:
Ball Corporation (the "Corporation") considers it essential to the best
interests of its stockholders to foster the continuous employment of key
management personnel. In this connection, the Board of Directors of the
Corporation (the "Board") recognizes that the possibility of a change in control
of the Corporation exists and that such possibility, and the uncertainty and
questions which it may raise among management, may result in the departure or
distraction of management personnel to the detriment of the Corporation and its
stockholders.
The Board has determined that appropriate steps should be taken to reinforce and
encourage the continued attention and dedication of members of the Corporation's
management, including yourself, to their assigned duties without distraction in
the face of potentially disturbing circumstances arising from the possibility of
a change in control of the Corporation.
In order to induce you to remain in the employ of the Corporation or any wholly
owned subsidiary of the Corporation, the Corporation agrees that you shall
receive the severance benefits set forth in this letter agreement (the
"Agreement"), which amends and restates the agreement between you and the
Corporation, dated ____________, in the event your employment with the
Corporation is terminated under the circumstances described below subsequent to
a "Change in Control of the Corporation" (as defined in Section 2).
1. Term of Agreement. The Agreement shall continue in effect through
August 1, _____; provided, however, that commencing on August 1, _____, and each
August 1, thereafter, the term of this Agreement shall automatically be extended
for one additional year unless, not later than June 1 immediately preceding such
August 1, and every June 1, thereafter, the Corporation shall have given notice
that it does not wish to extend this Agreement; and provided, further, that if a
Change in Control of the Corporation as defined in Section 2, shall have
occurred during the original or extended term of this Agreement, this Agreement
shall continue in effect for a period of not less than twenty-four (24) months
beyond the month in which such Change in Control occurred.
2. Change in Control. No benefits shall be payable hereunder unless
there shall have been a Change in Control of the Corporation, as set forth
below. For purposes of this Agreement, a "Change in Control of the Corporation"
shall be deemed to have occurred upon the first to occur of the following
events:
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Corporation, any trustee or other fiduciary
holding securities under an employee benefit plan of the Corporation or
any subsidiary of the Corporation, or any corporation owned, directly
or indirectly, by the stockholders of the Corporation in substantially
the same proportions as their ownership of stock of the Corporation),
is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the
Corporation representing 30 percent or more of the combined voting
power of the Corporation's then outstanding securities;
(ii) at any time during any period of two consecutive years,
individuals, who at the beginning of such agreement with the
Corporation to effect a transaction described in Subsection (i), (iii)
or (iv) of this Section) whose election by the Board or nomination for
election by the Corporation's stockholders was approved by a vote of at
least two-thirds (2/3) of the directors at the beginning of the period
or whose election or nomination for election was previously so approved
cease for any reason to constitute at least a majority thereof;
(iii) the stockholders of the Corporation approve a merger or
consolidation of the Corporation with any other corporation, other than
(1) a merger or consolidation which would result in the voting
securities of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50
percent of the combined voting power of the voting securities of the
Corporation or such surviving entity outstanding immediately after such
merger or consolidation or (2) a merger or consolidation effected to
implement a recapitalization of the Corporation (or similar
transaction) in which no person acquires 50 percent or more of the
combined voting power of the Corporation's then outstanding securities;
or
(iv) the stockholders of the Corporation approve a plan of
complete liquidation of the Corporation or an agreement for the sale or
disposition by the Corporation of all or substantially all of the
Corporation's assets.
3. Takeover Threat. For purposes of this Agreement, a "Takeover Threat"
shall be deemed to have occurred if (i) the Corporation enters into an
agreement, the consummation of which would result in the occurrence of a Change
in Control of the Corporation; (ii) any person (including the Corporation)
publicly announces an intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control of the Corporation; (iii) any
"person," as such term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Corporation, any trustee or other fiduciary holding securities
under an employee benefit plan of the Corporation, or any subsidiary of the
Corporation, or any corporation owned, directly or indirectly, by the
stockholders of the Corporation in substantially the same proportions as their
ownership of stock of the Corporation), who is or has become the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly
of securities of the Corporation representing 10 percent or more of the combined
voting power of the Corporation's then outstanding securities increases such
ownership by 5 percentage points or more of such voting power over a period of
less than twenty-four (24) months; or (iv) the Board adopts a resolution to the
effect that a Takeover Threat for purposes of this Agreement has occurred.
Solely for purposes of determining your entitlement to payment of severance
benefits pursuant to this Agreement, you agree that, subject to the terms and
conditions of this Agreement, in the event of a Takeover Threat, you will remain
in the employ of the Corporation for a period of one (1) year from the
occurrence of such Takeover Threat, or until an actual Change in Control of the
Corporation, whichever occurs earlier.
4. Termination Following Change in Control.
(i) General. If any of the events described in Section 2
constituting a Change in Control of the Corporation shall have
occurred, (A) you shall be entitled to the benefits provided in Section
5(iii) upon the subsequent termination of your employment during the
term of this Agreement unless such termination is (a) because of your
death or Disability, (b) by the Corporation for Cause, or (c) by you
other than on account of Constructive Termination, and (B) you shall be
entitled to the benefits provided in Section 5(vi) whether or not your
employment with the Corporation is terminated. In the event your
employment with the Corporation is terminated for any reason at any
time prior to the occurrence of a Change in Control of the Corporation
and subsequently a Change in Control of the Corporation shall have
occurred, you shall not be entitled to any benefits hereunder.
(ii) Disability. If, as a result of your incapacity due to
physical or mental illness, you shall have been absent from the
full-time performance of your duties with the Corporation for six (6)
consecutive months, and within thirty (30) days after written notice of
termination is given you shall not have returned to the full-time
performance of your duties, your employment may be terminated for
"Disability."
(iii) Cause. Termination by the Corporation of your employment
for "Cause" shall mean termination (a) upon the willful and continued
failure by you to substantially perform your duties with the
Corporation (other than any such failure resulting from your incapacity
due to physical or mental illness or any such actual or anticipated
failure after the issuance of a Notice of Termination (as defined in
Subsection (v) hereof) by you or on account of Constructive Termination
(as defined in Subsection (iv) hereof)), after a written demand for
substantial performance is delivered to you by the Board, which demand
specifically identifies the manner in which the Board believes that you
have not substantially performed your duties, or (b) the willful
engaging by you in conduct which is demonstrably and materially
injurious to the Corporation, monetarily or otherwise. For purposes of
this Subsection, no act, or failure to act, on your part shall be
deemed "willful" unless done, or omitted to be done, by you not in good
faith and without reasonable belief that your action or omission was in
the best interest of the Corporation. Notwithstanding the foregoing,
you shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to you a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters
(3/4) of the entire membership of the Board at a meeting of the Board
called and held for such purpose (after reasonable notice to you and an
opportunity for you, together with your counsel, to be heard before the
Board), finding that in the good faith opinion of the Board you were
guilty of conduct set forth above in this Subsection and specifying the
particulars thereof in detail.
(iv) Constructive Termination. You shall be entitled to
terminate your employment upon the occurrence of Constructive
Termination. For purposes of this Agreement, "Constructive Termination"
shall mean, without your expressed written consent, the occurrence
after a Change in Control of the Corporation of any of the following
circumstances unless, in the case of paragraphs (a), (e), (f), (g) or
(h), such circumstances are fully corrected prior to the Date of
Termination (as defined in Subsection (vi) hereof) specified in the
Notice of Termination (as defined in Subsection (v) hereof) given in
respect thereof:
(a) the assignment to you of any duties inconsistent (unless
in the nature of a promotion) with the position in the Corporation that
you held immediately prior to the Change in Control of the Corporation,
or a significant adverse reduction or alteration in the nature or
status of your position, duties or responsibilities or the conditions
of your employment from those in effect immediately prior to such
Change in Control;
(b) a reduction by the Corporation in your annual base salary
as in effect immediately prior to the Change in Control of the
Corporation or as the same may be increased from time to time, except
for across-the-board salary reductions similarly affecting all
management personnel of the Corporation and all management personnel of
any person in control of the Corporation;
(c) the Corporation's requiring that your principal place of
business be at an office located more than twenty (20) miles from the
location where your principal place of business is located immediately
prior to the Change in Control of the Corporation, except for required
travel on the Corporation's business to an extent substantially
consistent with your present business travel obligations;
(d) the failure by the Corporation to pay to you any portion
of your current compensation except pursuant to an across-the-board
compensation deferral similarly affecting all management personnel of
the Corporation and all management personnel of any person in control
of the Corporation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of the
Corporation within seven (7) days of the date such compensation is due;
(e) the failure by the Corporation to continue in effect any
compensation or benefit plan in which you participate immediately prior
to the Change in Control of the Corporation that is material to your
total compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to
such plan, or the failure by the Corporation to continue your
participation therein (or in such substitute or alternative plan) on a
basis not materially less favorable, both in terms of the amount of
benefits provided and the level of your participation relative to other
participants, as existed at the time of the Change in Control of the
Corporation;
(f) the failure by the Corporation to continue to provide you
with benefits substantially similar to those enjoyed by you under any
of the Corporation's life insurance, medical, health and accident, or
disability plans in which you were participating at the time of the
Change in Control of the Corporation, the taking of any action by the
Corporation which would directly or indirectly materially reduce any of
such benefits or deprive you of any material fringe benefit enjoyed by
you at the time of the Change in Control of the Corporation, or the
failure by the Corporation to provide you with the number of paid
vacation days to which you are entitled on the basis of years of
service with the Corporation in accordance with the Corporation's
normal vacation policy in effect at the time of the Change in Control
of the Corporation;
(g) the failure of the Corporation to continue this Agreement
in effect, or to obtain a satisfactory agreement from any successor to
assume and agree to perform this Agreement, as contemplated in Section
6 hereof; or
(h) any purported termination of your employment that is not
effected strictly in accordance with the terms of this Agreement and
pursuant to a Notice of Termination satisfying the requirements of
Subsection (v) hereof (and, if applicable, the requirements of
Subsection (iii) hereof), which purported termination shall not be
effective for purposes of this Agreement.
Your right to terminate your employment pursuant to this Subsection shall not be
affected by your incapacity due to physical or mental illness. Your continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any circumstance constituting Constructive Termination hereunder.
(v) Notice of Termination. Any purported termination of your
employment by the Corporation or by you shall be communicated by
written Notice of Termination to the other party hereto in accordance
with Section 7. "Notice of Termination" shall mean a notice that shall
indicate the specific termination provision in this Agreement relied
upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your
employment under the provision so indicated.
(vi) Date of Termination, Etc. "Date of Termination" shall
mean (a) if your employment is terminated for Disability, thirty (30)
days after Notice of Termination is given (provided that you shall not
have returned to the full-time performance of your duties during such
thirty (30)-day period), and (b) if your employment is terminated
pursuant to Subsection (iii) or (iv) hereof or for any other reason
(other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination for Cause shall not be
less than thirty (30) days from the date such Notice of Termination is
given, and in the case of a termination on account of Constructive
Termination shall not be less than fifteen (15) nor more than sixty
(60) days from the date such Notice of Termination is given); provided,
however, that if within fifteen (15) days after any Notice of
Termination is given, or, if later, prior to the Date of Termination
(as determined without regard to this proviso), the party receiving
such Notice of Termination notifies the other party that a dispute
exists concerning the termination, then the Date of Termination shall
be the date on which the dispute is finally determined, either by
mutual written agreement of the parties, or by a binding arbitration
award; and provided, further, that the Date of Termination shall be
extended by a notice of dispute only if such notice is given in good
faith and the party giving such notice pursues the resolution of such
dispute with reasonable diligence. Notwithstanding the pendency of any
such dispute, the Corporation will continue to pay you your full
compensation in effect when the notice giving rise to the dispute was
given (including, but not limited to, base salary), and continue you as
a participant in all compensation, benefit and insurance plans in which
you were participating when the notice giving rise to the dispute was
given until the dispute is finally resolved in accordance with this
Subsection. Amounts paid under this Subsection, in addition to all
other amounts due under this Agreement, shall not be offset against or
reduce any other amounts due under this Agreement and shall not be
reduced by any compensation earned by you as the result of employment
by another employer.
5. Compensation Upon Termination or During Disability; Gross-up
Payment. Following a Change in Control of the Corporation, you shall be
entitled to the following benefits during a period of disability, or
upon termination of your employment, as the case may be, provided that
such period or termination occurs during the term of this Agreement or,
if earlier, within one year following such Change in Control of the
Corporation; provided further, however, that you shall be entitled to
the benefits described in Subsection (vi) hereof whether or not your
employment with the Corporation is terminated:
(i) During any period that you fail to perform your full-time
duties with the Corporation as a result of incapacity due to physical
or mental illness, you shall continue to receive your base salary at
the rate in effect at the commencement of any such period, reduced to
the extent disability benefits are actually received by you during this
period, until this Agreement is terminated pursuant to Section 4 (ii)
hereof. Thereafter, or in the event your employment shall be terminated
by reason of your death, your benefits shall be determined under the
Corporation's retirement, insurance, disability and other compensation
programs then in effect in accordance with the terms of such programs.
(ii) If your employment shall be terminated by the Corporation
for Cause or by you other than on account of Constructive Termination,
the Corporation shall pay you your full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is
given, plus all other amounts to which you are entitled under any
compensation or benefit plan of the Corporation at the time such
payments are due, and the Corporation shall have no further obligations
to you under this Agreement.
(iii) If your employment by the Corporation shall be terminated
by you on account of Constructive Termination or by the Corporation
other than for Cause or Disability, then you shall be entitled to the
benefits provided below:
(a) no later than the fifth day following the Date of
Termination, the Corporation shall pay to you your full base salary
through the Date of Termination at the rate in effect at the time
Notice of Termination is given, plus all other amounts to which you are
entitled under any incentive, bonus or other compensation plan of the
Corporation, at the time such payments are due;
(b) in lieu of any further salary payments to you for periods
subsequent to the Date of Termination, the Corporation shall pay as
severance pay to you, at the time specified in Subsection (iv) hereof,
a lump sum severance payment (together with the payments provided in
paragraph (c), below, the "Severance Payments") equal to two times the
sum of (1) your annual salary rate (including for this purpose any
deferred salary) as in effect as of the Date of Termination or
immediately prior to the Change in Control of the Corporation,
whichever is greater, and (2) your annual target bonus under the
applicable bonus or incentive compensation plans in respect of the
calendar years preceding that in which occurs the Date of Termination
or that in which occurs the Change in Control;
(c) in lieu of any payments under any bonus or annual
incentive compensation plan in effect for the year in which your Date
of Termination occurs, the Corporation shall pay you in a lump sum, at
the time specified in Subsection (iv) hereof, a pro rata portion (based
on the number of whole months, with a partial month treated as a whole
month, elapsed since the first day of the calendar year in which the
Date of Termination occurs), of the target amount of all contingent
awards granted under such plans for all uncompleted periods;
(d) in lieu of shares of common stock of the Corporation
("Corporation Shares") issuable upon the exercise of outstanding
options ("Options"), if any, granted to you under any Corporation stock
option plan (which Options shall be cancelled upon the making of the
payment, referred to below), you shall receive within the time provided
for in Subsection (iv) hereof an amount in cash equal to the product of
(A) the excess of, the higher of the closing price of Corporation
Shares as reported on The New York Stock Exchange on or nearest the
Date of Termination or the highest per share price for Corporation
Shares actually paid in connection with any Change in Control of the
Corporation, over the per share exercise price of each Option held by
you (whether or not then fully exercisable), times (B) the number of
Corporation Shares covered by each such Option;
(e) in addition to any retirement benefits to which you are
entitled under the Ball Corporation Pension Plan for Salaried Employees
(the "Qualified Plan") or any successor plans thereto, the Corporation
shall pay to you in a lump sum, at the time specified in Subsection
(iv) hereof, an amount equal to the actuarial present value of the
excess of (1) over (2), where (1) equals the aggregate retirement
pension (determined as a straight life annuity) to which you would have
been entitled under the terms of the Qualified Plan (without regard to
any amendment to the Qualified Plan made subsequent to a Change in
Control of the Corporation and on or prior to the Date of Termination,
which amendment adversely affects in any manner the computation of
retirement benefits under such plan), determined as if you had
accumulated thereunder two additional years of Benefit Service (after
any termination pursuant to Section 4) at your rate of Salary in
effect on the Date of Termination and where (2) equals the aggregate
retirement pension (determined as a straight life annuity) to which you
are entitled pursuant to the provisions of the Qualified Plan. All
defined terms used in this paragraph (e) shall have the same meaning as
in the Qualified Plan, unless otherwise defined herein or otherwise
required by the context;
(f) for a period beginning with your termination of employment
and not to exceed the earlier of two years or until your commencement
of employment with a subsequent employer, the Corporation shall arrange
to provide you with life, disability, accident and health insurance
benefits substantially similar to those which you were receiving
immediately prior to the Notice of Termination. Benefits otherwise
receivable by you pursuant to this paragraph (f) shall be reduced to
the extent comparable benefits are actually received by you from any
and all successor employers during the period following your
termination, and any such benefits actually received by you shall be
reported to the Corporation;
(g) the Corporation shall pay to you all reasonable legal fees
and expenses incurred by you as a result of such termination (including
all such fees and expenses, if any, incurred in contesting or disputing
any such termination or in seeking to obtain or enforce any right or
benefit provided by this Agreement); unless the decision-maker in any
proceeding, contest or dispute arising hereunder makes a formal finding
that you did not have a reasonable basis for instituting such
proceeding, contest or dispute;
(h) the Corporation shall provide you with individual
outplacement services in accordance with the general custom and
practice generally accorded to an executive of your position.
(iv) The payments provided for in Subsections (iii) (b) and
(c), above, and Subsection (vi) below, shall be made not later than the
fifth day following the Date of Termination; provided, however, that if
the amounts of such payments cannot be finally determined on or before
such day, the Corporation shall pay to you on such day an estimate, as
determined in good faith by the Corporation, of the minimum amount of
such payments and shall pay the remainder of such payments (together
with interest at the rate provided in section 1274(b)(2)(B) of the
Internal Revenue Code of 1986, as amended (the "Code")) as soon as the
amount thereof can be determined but in no event later than the
thirtieth day after the Date of Termination. In the event that the
amount of the estimated payments exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by the
Corporation to you, payable on the fifth day after demand by the
Corporation (together with interest at the rate provided in section
1274(b)(2)(B) of the Code).
(v) Except as provided in Subsection (iii)(f) hereof, you
shall not be required to mitigate the amount of any payment provided
for in this Section 5 by seeking other employment or otherwise, nor
shall the amount of any payment or benefit provided for in this Section
5 be reduced by any compensation earned by you as the result of
employment by another employer, by retirement benefits, by offset
against any amount claimed to be owed by you to the Corporation, or
otherwise.
(vi) (a) Whether or not you become entitled to the Severance
Payments, if any of the payments or benefits received or to be received
by you in connection with a Change in Control or your termination of
employment (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Corporation, any person
(as defined in Section 2(i)) whose actions result in a Change in
Control or any person affiliated with the Corporation or such person)
(such payments or benefits, excluding the Gross-Up Payment (as defined
below), being hereinafter referred to as the "Total Payments") will be
subject to any excise tax imposed under section 4999 of the Code (the
"Excise Tax"), the Corporation shall pay to you an additional amount
(the "Gross-Up Payment") such that the net amount retained by you,
after deduction of any Excise Tax on the Total Payments and any
federal, state and local income and employment taxes and Excise Tax
upon the Gross-Up Payment, shall be equal to the Total Payments.
(b) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such
Excise Tax, (i) all of the Total Payments shall be treated as
"parachute payments" (within the meaning of section 280G(b)(2) of the
Code) unless, in the opinion of tax counsel (the "Tax Counsel")
reasonably acceptable to you and selected by the accounting firm which
was, immediately prior to the Change in Control, the Corporation's
independent auditor (the "Auditor"), such payments or benefits (in
whole or in part) do not constitute parachute payments, including by
reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute
payments" within the meaning of section 280G(b)(l) of the Code shall be
treated as subject to the Excise Tax unless, in the opinion of the Tax
Counsel, such excess parachute payments (in whole or in part) represent
reasonable compensation for services actually rendered (within the
meaning of section 280G(b)(4)(B) of the Code) in excess of the base
amount (as defined in section 280G(b)(3) of the Code) allocable to such
reasonable compensation, or are otherwise not subject to the Excise
Tax, and (iii) the value of any noncash benefits or any deferred
payment or benefit shall be determined by the Auditor in accordance
with the principles of sections 280G(d)(3) and (4) of the Code. For
purposes of determining the amount of the Gross-Up Payment, you shall
be deemed to pay federal income tax at the highest marginal rate of
federal income taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at the highest
marginal rate of taxation in the state and locality of your residence
on the Date of Termination (or if there is no Date of Termination, then
the date that the Gross-Up Payment is calculated for purposes of this
Section), net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes.
(c) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at
the time of termination of your employment, you shall repay to the
Corporation, at the time that the amount of such reduction in Excise
Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction (plus that portion of the Gross-Up
Payment attributable to the Excise Tax and federal, state and local
income and employment taxes imposed on the Gross-Up Payment being
repaid by the Executive to the extent that such repayment results in a
reduction in Excise Tax and/or a federal, state or local income or
employment tax deduction) plus interest on the amount of such repayment
at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In
the event that the Excise Tax is determined to exceed the amount taken
into account hereunder (including by reason of any payment the
existence or amount of which cannot be determined at the time of the
Gross-Up Payment), the Corporation shall make an additional Gross-Up
Payment in respect of such excess (plus any interest, penalties or
additions payable by you with respect to such excess) at the time that
the amount of such excess is finally determined. You and the
Corporation shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning
the existence or amount of liability for Excise Tax with respect to the
Total Payments.
(vii) As soon as practicable, following a Takeover Threat, or
in any event, within twenty (20) business days thereafter, the
Corporation agrees it will establish and fund a so-called "Rabbi Trust"
in an amount sufficient to provide for all cash payments of benefits
specified in Section 5, assuming that you were entitled to such
benefits, plus an additional $50,000 to cover legal fees referred to in
Section 5(iii)(g).
6. Successors; Binding Agreement.
(i) The Corporation will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the
Corporation to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Corporation would be
required to perform it if no such succession had taken place. Failure
of the Corporation to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this
Agreement and shall entitle you to compensation from the Corporation in
the same amount and on the same terms to which you would be entitled
hereunder if you terminate your employment on account of Constructive
Termination following a Change in Control of the Corporation, except
that for the purposes of implementing the foregoing, the date on which
any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Corporation" shall mean the
Corporation as hereinbefore defined and any successor to its business
and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
(ii) This Agreement shall inure to the benefit of and be
enforceable by you and your personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees
and legatees. If you should die while any amount would still be payable
to you hereunder had you continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms
of this Agreement to your devisee, legatee or other designee or, if
there is no such designee, to your estate.
7. Notice. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by the United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth on the first page of this
Agreement, provided that all notices to the Corporation shall be directed to the
attention of the Board with a copy to the Secretary of the Corporation, or to
such other address as either party may have furnished to the other in writing in
accordance herewith, except that notice of change of address shall be effective
only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by you and such officer as may be specifically designated
by the Board. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Indiana without regard to its conflicts of law
principles. All references to section of the Exchange Act or the Code shall be
deemed also to refer to any successor provisions to such sections. Any payments
provided for hereunder shall be paid net of any applicable withholding required
under federal, state or local law. The obligations of the Corporation under
Section 5 shall survive the expiration of the term of this Agreement.
9. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
11. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in Muncie, Indiana, in accordance
with the rules of the American Arbitration Association then in effect. Judgment
may be entered on the arbitrator's award in any court having jurisdiction;
provided, however, that you shall be entitled to seek specific performance of
your right to be paid until the Date of Termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
12. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled.
If this letter sets forth our agreement on the subject matter hereof, kindly
sign both copies and return one, in the enclosed envelope, to the Corporation,
which will then constitute our agreement on this subject.
Sincerely,
BALL CORPORATION
By______________________________
Agreed to this ______ day of ___________
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Exhibit 10.27
Form of Amendment dated January 24, 1996 to the Severance Benefit Agreement
which exists between the company and its executive officers.
AMENDMENT NUMBER ONE EFFECTIVE JANUARY 24, 1996,
TO SEVERANCE BENEFIT AGREEMENT
DATED AUGUST 1, 1994
1. Amendment Number One:
"Subsection 2(f) of the Severance Benefit Agreement dated August 1, 1994,
(copy attached) is hereby amended to read in its entirety as follows:
`(f) Termination Following Change in Control. Notwithstanding
Subsection 3(a)(iii) hereof, in the case of termination, during the Term,
by the Corporation other than for Cause or by the Executive for
Constructive Termination, following the occurrence of a "Change in
Control," as defined in Section 2 of the Severance Agreement, the
Executive shall be entitled to (i) a benefit (the "Change in Control
Benefit") equal to the greater of each of the benefits otherwise provided
in Section 3 hereof, and each of the benefits provided under Section 5 of
the Severance Agreement (without regard to the "Gross-Up Payment"
provided pursuant to Section 5(vi) of the Severance Agreement), plus (ii)
an additional amount (the "Severance Gross-Up Payment") such that the net
amount retained by the Executive, after deduction of any Excise Tax (as
defined in Section 5(vi)(a) of the Severance Agreement) on the Change in
Control Benefit, and any federal, state and local income and employment
taxes and Excise Tax on the Severance Gross-Up Payment, shall be equal to
the Change in Control Benefit. Such Severance Gross-Up Payment shall be
calculated pursuant to the procedures set out in Section 5(vi) of the
Severance Agreement. Notwithstanding the foregoing, in the event that the
Executive receives the Change in Control Benefit pursuant to this
Subsection 2(f) and the Severance Gross-Up Payment pursuant to this
Subsection 2(f), the Executive shall not be entitled to receive any
additional benefits under the Severance Agreement.'"
2. The effective date of this Amendment Number One shall be January 24,
1996.
3. The effective date of the Severance Benefit Agreement is not amended and
shall continue to be August 1, 1994.
BALL CORPORATION
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Agreed to this 24th day of January 1996.
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Exhibit 10.28
Amendment dated January 24, 1996 to the Retention Agreement between Donovan B.
Hicks and Ball Corporation.
AMENDMENT NUMBER ONE EFFECTIVE JANUARY 24, 1996,
TO AEROSPACE RETENTION AGREEMENT
DATED JUNE 22, 1994
1. Amendment Number One:
"Subsection 4(f) of the Aerospace Retention Agreement dated June 22,
1994, (copy attached) is hereby amended to read in its entirety as
follows:
`(f) Termination Following Change in Control. In the case of
termination, during the Term, by the Corporation other than for Cause or
by the Executive for Constructive Termination, following the occurrence
of a "Change in Control," as defined in Section 2 of the Severance
Agreement, the Executive shall be entitled to (i) a benefit (the "Change
in Control Benefit") equal to the greater of each of the benefits
otherwise provided in Section 5 hereof, and each of the benefits provided
under Section 5 of the Severance Agreement (without regard to the
"Gross-Up Payment" provided pursuant to Section 5(vi) of the Severance
Agreement), plus (ii) an additional amount (the "Severance Gross-Up
Payment") such that the net amount retained by the Executive, after
deduction of any Excise Tax (as defined in Section 5(vi)(a) of the
Severance Agreement) on the Change in Control Benefit, and any federal,
state and local income and employment taxes and Excise Tax on the
Severance Gross-Up Payment, shall be equal to the Change in Control
Benefit. Such Severance Gross-Up Payment shall be calculated pursuant to
the procedures set out in Section 5(vi) of the Severance Agreement.
Notwithstanding the foregoing, in the event that the Executive receives
the Change in Control Benefit pursuant to this Subsection 4(f) and the
Severance Gross-Up Payment pursuant to this Subsection 4(f), the
Executive shall not be entitled to receive any additional benefits under
the Severance Agreement.'"
2. The effective date of this Amendment Number One shall be January 24,
1996.
3. The effective date of the Aerospace Retention Agreement is not amended
and shall continue to be June 22, 1994.
BALL CORPORATION
/s/ Duane E. Emerson
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Duane E. Emerson
Senior Vice President and
Chief Administrative Officer
Agreed to this 24th day of January 1996.
/s/ Donovan B. Hicks
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