As filed with the Securities and Exchange Commission on December 28, 2000
Registration No. 333-
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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
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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.)
10 Longs Peak Drive, Broomfield, Colorado 80021-2510
(Address of Principal Executive Offices)
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BALL CORPORATION 2000 DEFERRED COMPENSATION COMPANY STOCK PLAN
BALL CORPORATION 2001 DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
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CT Corporation System, 36 S. Pennsylvania Street, Suite 700,
Indianapolis, Indiana 46204
(Name and address of agent for service)
Telephone number, including area code, of agent for service (317) 236-8011
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Maximum Maximum Amount
Class of Amount Offering Aggregate of
Securities to to be Price Offering Registration
be Registered Registered Per Unit** Price*** Fee
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Common Stock
(without par 100,000 shares $41.285 $4,128,500 $1,089.92
value)
(including
Preferred Stock
Purchase Rights)*1
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Deferred $25,000,000 100% $25,000,000 $6,600.00
Compensation
Obligations2
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Total $29,128,500 $7,689.92
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(*)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 (the "Securities Act")
based upon the average of the low (40.38) and high (42.19) reported sales prices
of the Registrant's Common Stock, without par value, as reported on the New York
Stock Exchange Composite Transactions Tape on December 21, 2000.
(***) The registration fee has been calculated pursuant to Section 6(b) of the
Securities Act.
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1 Includes Deferred Compensation Obligations (units) (accounted for in the price
of Ball Common Stock) which are unsecured obligations of Ball Corporation to pay
deferred compensation, including Ball Corporation's matching contributions, in
the form of Ball Corporation Common Stock in the future in accordance with the
terms of the Ball Corporation 2000 Deferred Compensation Company Stock Plan.
2 Includes Deferred Compensation Obligations accounted for in U.S. dollars which
are unsecured obligations of Ball Corporation to pay deferred compensation in
the future in accordance with the terms of the Ball Corporation 2001 Deferred
Compensation Plan.
<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 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, 1999;
(b) All reports of the Registrant filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since December 31, 1998.
(c) The Company's Notice of the 2000 Annual Meeting of Shareholders and Proxy
Statement dated March 15, 2000 issued in connection with the Annual Meeting of
Shareholders on April 26, 2000.
(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) 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
(1) The Securities offered hereby are shares of Ball Corporation Common Stock
and Deferred Compensation Obligations under the Ball Corporation 2000 Deferred
Compensation Company Stock Plan ("2000 Plan") which are being offered to
eligible employees and directors of the Company and its participating affiliated
corporations under the 2000 Plan. The Securities offered under the Ball
Corporation 2001 Deferred Compensation Plan ("2001 Plan") are only Deferred
Compensation Obligations of Ball Corporation which are being offered to eligible
employees of the Company and its participating affiliated corporations under the
2001 Plan. The 2000 Plan and the 2001 Plan collectively are referred to as the
"Plans". The Plans permit participants to defer cash incentive compensation in
accordance with the terms of the Plans. The amount of compensation to be
deferred by each participant will be based on elections by each participant in
accordance with the terms of the Plans. The amounts of eligible cash incentive
compensation deferred by participants under the Plans are referred to as the
Deferred Compensation Obligations. Pursuant to the 2000 Plan, the Deferred
Compensation Obligations are denominated in U.S. dollars and cents and are
measured in units ("Units") under the 2000 Plan. Each Unit is equal to the value
of one share of the Company's common stock pursuant to the 2000 Plan. The 2000
Plan provides that the Company will match the participant's deferred
compensation up to twenty percent (20%) per annum, not to exceed $20,000 per
annum per participant. With respect to dividends, the Company will credit the
participant's account with Units equal to the value of the dividends, if any,
based on the closing price of one share of the Company's common stock on the New
York Stock Exchange Composite Listing on the date the dividends are paid. The
2000 Plan provides that the Deferred Compensation Obligations pursuant to the
Plan, the Company's twenty percent (20%) match, up to a maximum of $20,000 per
annum and Units credited to participants' accounts for dividends, if any,
credited to each participant's account, will be paid to the participant in
shares of the Company's common stock on the date or dates selected by each
participant in accordance with the terms of the Plan or such other date or dates
as specified in the Plan.
The Company will use treasury shares to pay the Deferred Compensation
Obligations under the Ball Corporation 2000 Deferred Compensation Company Stock
Plan. The participants will have no right to vote the shares until the shares
are issued to the participants.
(2) The Company is continuing a non-qualifying grantor trust (the "Trust"),
commonly known as a "Rabbi Trust" which will be used to pay benefits under the
Plans and predecessor deferred compensation plans. The assets of the Trust are
subject to the claims of general creditors of the Company. As a result, the
Deferred Compensation Obligations will be unfunded and unsecured obligations of
the Company to pay deferred compensation in the future in accordance with the
terms of the Plan, and will rank equally with other unsecured and unsubordinated
indebtedness to the Company, from time-to-time, outstanding.
Pursuant to the 2001 Plan, the Deferred Compensation Obligations are measured in
U.S. dollars and cents equal to the value of various investments that are made
by the participants under the 2001 Plan and which will be payable in the form of
U.S. dollars and cents on the date or dates selected by each participant in
accordance with the terms of the Plan or on such other date or dates as
specified in the Plan.
The amounts of cash incentive compensation deferred by a participant pursuant to
the 2001 Plan will be credited with investment gains and losses by treating the
deferral as if it were hypothetically invested in, or indexed to, one or more
investment options selected by the participant in accordance with the terms of
the 2001 Plan. The investment options include various investment funds with
different degrees of risk. Participants may allocate and reallocate amounts
among the various investment options periodically, subject to the terms and
conditions of the Plan and as provided by and approved by the Compensation
Committee. The 2001 Plan is an unfunded and unsecured obligation of the Company
to pay deferred obligations in the future in accordance with the terms of the
plan. Participants' accounts will be credited with the investment gains and
losses in accordance with the performance of the investment funds that each
participant has selected under the 2001 Plan.
The Company reserves the right to amend the Plans at any time, including the
right to completely terminate the Plans and distribute the benefits payable
under the Plans to the participants in the Plans. No amendment will reduce the
benefits credited to any participant's account as of the date of such amendment.
A participant's rights, or the rights of any other person to receive a payment
of Deferred Compensation Obligations under the 2000 Plan and the 2001 Plan may
not be sold, assigned, transferred, pledged, garnished, or encumbered, subject
to sequestration for the payment of any debts, judgments, alimony or separate
maintenance owed by a participant or any other person, nor be transferable by
operation of law in the event of a participant's or any other person's
bankruptcy or insolvency.
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 Corporation 2000
Deferred Compensation Company Stock Plan and the Ball Corporation
2001 Deferred Compensation Plan.
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.
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.
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
3(i) 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).
3(ii) Bylaws of Registrant, as amended (filed as an Exhibit to Registrant's
Annual Report on Form 10-K dated March 30, 2000, and incorporated
herein by reference).
4.1 Ball Corporation 2000 Deferred Compensation Company Stock Plan.
4.2 Ball Corporation 2001 Deferred Compensation Plan.
4.3 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.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Robert W. McClelland (included in the opinion filed as
Exhibit 5.1).
24.1 Powers of Attorney
Undertakings
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 (a)(1)(i) and (a)(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.
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 Broomfield, State of Colorado, on
December 14, 2000.
BALL CORPORATION
(Registrant)
By: /s/ George A. Sissel
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George A. Sissel, Chairman and
Chief Executive Officer
December 14, 2000
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 and
----------------------------------------- Chief Executive Officer
George A. Sissel December 14, 2000
(2) Principal Financial Accounting Officer:
/s/ Raymond J. Seabrook Senior Vice President and
----------------------------------------- Chief Financial Officer
Raymond J. Seabrook December 14, 2000
(3) A Majority of the Board of Directors:
/s/ Frank A. Bracken * Director
----------------------------------------- December 14, 2000
Frank A. Bracken
/s/ Howard M. Dean * Director
----------------------------------------- December 14, 2000
Howard M. Dean
/s/ John T. Hackett * Director
----------------------------------------- December 14, 2000
John T. Hackett
/s/ R. David Hoover * Vice Chairman, President,
----------------------------------------- Chief Operating Officer
R. David Hoover and Director
December 14, 2000
/s/ John F. Lehman * Director
----------------------------------------- December 14, 2000
John F. Lehman
/s/ Ruel C. Mercure, Jr. * Director
----------------------------------------- December 14, 2000
Ruel C. Mercure, Jr.
/s/ Jan Nicholson * Director
----------------------------------------- December 14, 2000
Jan Nicholson
/s/ George A. Sissel * Chairman and Chief
----------------------------------------- Executive Officer and
George A. Sissel Director
December 14, 2000
/s/ William P. Stiritz * Director
----------------------------------------- December 14, 2000
William P. Stiritz
/s/ Stuart A. Taylor II * Director
----------------------------------------- December 14, 2000
Stuart A. Taylor II
* 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
December 14, 2000
<PAGE>
Exhibit
Number Description
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3(i) 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).
3(ii) Bylaws of Registrant, as amended (filed as an Exhibit to Registrant's
Annual Report on Form 10-K dated March 30, 2000, and incorporated
herein by reference).
4.1 Ball Corporation 2000 Deferred Compensation Company Stock Plan.
4.2 Ball Corporation 2001 Deferred Compensation Plan.
4.3 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.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Robert W. McClelland (included in the opinion filed as
Exhibit 5.1).
24.1 Powers of Attorney
