As filed with the Securities and Exchange Commission on July 30, 1997
Registration No.
================================================================================
The Prospectus forming a part of this Registration Statement is a combined
Prospectus under Rule 429 of the General Rules and Regulations under the
Securities Act of 1993 and relates to this Registration Statement and to
Registration Statement No. 33-37548 on Form S-8 relating to Ball Corporation's
Common Stock Fund offered through the Ball Corporation Salary Conversion and
Employee Stock Ownership Plan.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
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 47305-2326
(Address of Principal Executive Offices)
-------------------------------
BALL COMMON STOCK FUND
THE BALL CORPORATION SALARY CONVERSION
AND EMPLOYEE STOCK OWNERSHIP PLAN
(Full Title of the Plan)
-------------------------------
CT Corporation System, One North Capitol Avenue, Indianapolis, Indiana 46204
(Name and address of agent for service)
Telephone number, including area code, of agent for service (317) 236-8011
-------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
Title of Each Amount to Proposed Proposed Amount
Class of Securities Registered Maximum Maximum of
to be Registered Offering Aggregate Registration
Price Offering Fee
Per Unit** Price***
- --------------------------------------------------------------------------------
Common Stock
(without par value) 1,000,000 shares $ 29.96875 $ 29,968,750 $ 9,080.53
(including Preferred
Stock Purchase
Rights)*
- --------------------------------------------------------------------------------
(*)Each share of Ball Corporation Common Stock includes a right ("Ball
Right") to purchase Series A Junior Participating Preferred Stock of Ball
or, under certain circumstances, Ball Common Stock, cash, property or other
securities of Ball.
(**)Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and (h) under the Securities Act of 1933 based upon the
average of the high (30 1/16) and low (29 7/8) reported sales prices of the
Registrant's Common Stock, without par value, as reported on the New York
Stock Exchange Composite Transactions Tape on July 28, 1997.
(***)The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act and is equal to 1/33rd of 1 per centum of the proposed
maximum aggregate offering price.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from the Registration Statement in accordance with Rule 428 under the
Securities Act of 1933 and the Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Ball Corporation (the "Registrant", "Company" or "Corporation")
hereby incorporates the following documents herein by reference:
(a) The Annual Report on Form 10-K of the Registrant for the
year ended December 31, 1996;
(b) All reports of the Registrant filed pursuant to Sections
13(a)or 15(d) of the Exchange Act sinceDecember 31, 1996.
(c) The Company's notice of the 1997 Annual Meeting of
Shareholders and Proxy Statement dated March 17, 1997
issued in connection with the Annual Meeting of
Shareholders on April 23, 1997.
(d) The description of the Company's Common Stock contained in
the Company's Form 8-A Registration Statement filed
October 31, 1973, including any amendment or report filed
for the purpose of updating such description.
(e) The Rights Agreement dated as of July 24, 1996, between
the Company and The First Chicago Trust Company of New
York (filed by incorporation by reference to the Form 8-A
Registration Statement, No.
1-7349 dated August 1, 1996, and filed August 2, 1996.
(f) The Company's Reports on Form 8-K dated February 14, 1996;
July 16, 1996; October 16, 1996; November 15, 1996;
December 31, 1996; and March 20, 1997.
<PAGE>
(g) All documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act, prior to the filing of a
post-effective amendment which indicates that all
securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof
from the date of filing such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated or deemed to
be incorporated by reference herein modified or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Robert W. McClelland, Associate General Counsel, Ball Corporation,
whose legal opinion is attached hereto as Exhibit 5.1, is eligible to
participate in the Ball Common Stock Fund.
Item 6. 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.
<PAGE>
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.
<PAGE>
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.
In addition, the Company has purchased and maintains insurance, as
permitted by Indiana law, on behalf of its directors and officers against
certain losses which may arise out of their employment and which are recoverable
under the indemnification provisions of Ball Corporation's Amended Articles of
Incorporation.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 Ball Common Stock Fund described in the Ball Corporation Salary
Conversion and Employee Stock Ownership Plan (the "Plan") (filed as
an Exhibit to Registrant's Registration Statement on Form S-8, dated
October 30, 1990, and incorporated herein by reference).
4.2 Amended Articles of Incorporation of the Registrant (filed as an
Exhibit to Registrant's Current Report on form 8-K dated November 30,
1990, and incorporated herein by reference).
4.3 Bylaws of Registrant, as amended (filed as an Exhibit to Registrant's
Registration Statement on Form S-4 dated February 19, 1993, and
incorporated herein by reference).
4.4 The Rights Agreement dated as of July 24, 1996, between the Company
and The First Chicago Trust Company of New York (filed by
incorporation by reference to the Form 8-A Registration Statement,
No. 1-7349 dated August 1, 1996, and filed August 2, 1996.
5.1 Opinion of Robert W. McClelland as to the legality of the securities
being registered.
24.1 Consent of Price Waterhouse.
24.2 Consent of Robert W. McClelland (included in the opinion filed as
Exhibit 5.1).
25.1 Powers of Attorney
Undertakings
- ------------
The Registrant has caused the Plan to be submitted to the Internal
Revenue Service ("IRS") and has made all changes required by the IRS in order to
qualify the Plan. The Plan has been qualified by the IRS. The Plan is not being
registered as a security.
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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 this
Registration Statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply to the
information required to be included in a post-effective amendment by those
paragraphs if contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 (and each filing of the annual report of the
plans pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the 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 be the initial bona
fide offering thereof.
(c) Insofar as indemnification of liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question 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.
<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 this Form S-8 and has duly caused this Form
S-8 Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Muncie, State of Indiana, on July 23,
1997.
BALL CORPORATION
(Registrant)
By: /S/ George A. Sissel
George A. Sissel, Chairman, President
and Chief Executive Officer
July 23, 1997
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.
(1) Principal Executive Officer:
/S/ George A. Sissel Chairman, President and Chief
George A. Sissel Executive Officer
July 23, 1997
(2) Principal Financial Accounting Officer:
/S/ R. David Hoover Executive Vice President and
R. David Hoover Chief Financial Officer
July 23, 1997
(3) A Majority of the Board of Directors:
/S/ Frank A. Bracken* Director
Frank A. Bracken July 23, 1997
/S/ Howard M. Dean * Director
Howard M. Dean July 23, 1997
/S/ John T. Hackett* Director
John T. Hackett July 23, 1997
/S/ R. David Hoover* Executive Vice President,
R. David Hoover Chief Financial Officer
and Director
July 23, 1997
/S/ John F. Lehman * Director
John F. Lehman July 23, 1997
/S/ George McFadden* Director
George McFadden July 23, 1997
/S/ Ruel C. Mercure, Jr.* Director
Ruel C. Mercure, Jr. July 23, 1997
/S/ Jan Nicholson* Director
Jan Nicholson July 23, 1997
/S/ George A. Sissel* Chairman, President and
George A. Sissel Chief Executive Officer
and Director
July 23, 1997
------------------ Director
William P. Stiritz July 23, 1997
* 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
July 23, 1997
<PAGE>
Exhibit
Number Description
4.1 Ball Common Stock Fund described in the Ball Corporation Salary
Conversion and Employee Stock Ownership Plan (the "Plan") (filed as
an Exhibit to Registrant's Registration Statement on Form S-8, dated
October 30, 1990, and incorporated herein by reference).
4.2 Amended Articles of Incorporation of the Registrant (filed as an
Exhibit to Registrant's Current Report on form 8-K dated November 30,
1990, and incorporated herein by reference).
4.3 Bylaws of Registrant, as amended (filed as an Exhibit to Registrant's
Registration Statement on Form S-4 dated February 19, 1993, and
incorporated herein by reference).
4.4 The Rights Agreement dated as of July 24, 1996, between the Company
and The First Chicago Trust Company of New York (filed by
incorporation by reference to the Form 8-A Registration Statement,
No. 1-7349 dated August 1, 1996, and filed August 2, 1996.
5.1 Opinion of Robert W. McClelland as to the legality of the securities
being registered.
24.1 Consent of Price Waterhouse.
24.2 Consent of Robert W. McClelland (included in the opinion filed as
Exhibit 5.1).
25.1 Powers of Attorney
July 30, 1997
Exhibit 5.1
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-8 proposed to be filed with the Securities and Exchange Commission for
the purpose of registering under the Securities Act of 1933, as amended,
1,000,000 shares (the "Shares") of the Company's common stock and the associated
rights (the "Rights") pursuant to the Ball Common Stock Fund offered through the
Ball Corporation Salary Conversion and Employee Stock Ownership Plan
(hereinafter called the "Plan").
I am familiar with the proceedings to date with respect to such proposed sale
and have examined such records, documents, and matters of law and satisfied
myself as to such matters of fact as I have considered relevant for the purposes
of this opinion.
Based upon the foregoing, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Indiana.
2. The Ball Corporation Salary Conversion and Employee Stock Ownership
Plan was adopted by Ball Corporation.
3. When the registration statement on Form S-8 becomes effective and the
certificates representing Shares and Rights are duly executed,
countersigned, registered, and delivered, the Shares issued by the
Company pursuant to the Ball Common Stock Fund will be legally issued,
fully paid, and nonassessable and the Rights will be duly authorized
and legally issued.
4. The Plan has been duly qualified with the Internal Revenue Service.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
registration statement and the reference to me under the heading of "Interests
of Named Experts and Counsel" in the Registration Statement prepared by the
Company.
Very truly yours,
/s/Robert W. McClelland
Exhibit 24.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Ball Corporation of our report dated January 21, 1997,
which appears on page 24 of the Ball Corporation Annual Report, which is
incorporated by reference in Ball Corporation's Annual Report on Form 10-K for
the year ended December 31, 1996. We also consent to the incorporation by
reference of our report on the Financial Statement Schedules, which appears in
the Annual Report on Form 10-K.
/s/Price Waterhouse LLP
PRICE WATERHOUSE LLP
INDIANAPOLIS, INDIANA
JULY 29, 1997
<PAGE>
Exhibit 25.1
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 S-8
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 S-8 Registration Statement
in the matter of the Corporation Common Stock Fund offered pursuant to the Ball
Corporation Salary Conversion and Employee Stock Ownership Plan, hereby
ratifying and confirming all acts taken by such agents and attorneys-in-fact or
any one of them, as herein authorized.
Dated: July 23, 1997
/S/ R. David Hoover /S/ Frank A. Bracken
R. David Hoover Officer Frank A. Bracken Director
/S/ Albert R. Schlesinger /S/ Howard M. Dean
Albert R. Schlesinger Officer Howard M. Dean Director
/S/ George A. Sissel /S/ John T. Hackett
George A. Sissel Officer John T. Hackett Director
/S/ R. David Hoover
R. David Hoover Director
/S/ John F. Lehman
John F. Lehman Director
/S/ George McFadden
George McFadden Director
/S/ Ruel C. Mercure, Jr.
Ruel C. Mercure, Jr. Director
/S/ Jan Nicholson
Jan Nicholson Director
/S/ George A. Sissel
George A. Sissel Director
William P. Stiritz Director
