EXHIBIT 3(II)
Published on October 27, 2005
Exhibit 3(ii)
Bylaws
of
Ball
Corporation
(As
of October 26, 2005)
Article One
Capital
Stock
Section A.
Classes of Stock.
The
capital stock of the corporation shall consist of shares of such kinds and
classes, with such designations and such relative rights, preferences,
qualifications, limitations and restrictions, including voting rights, and
for
such consideration as shall be stated in or determined in accordance with
the
Amended Articles of Incorporation and any amendment or amendments thereof,
or
the Indiana Business Corporation Law. Consistent with the Indiana Business
Corporation Law, capital stock of the corporation owned by the corporation
may
be referred to and accounted for as treasury stock.
Section B.
Certificates for Shares. All
share
certificates shall be consecutively numbered as issued and shall be signed
by
the chairman and the corporate secretary or assistant corporate secretary
of the
corporation.
Section C.
Transfer of Shares. The
shares of the capital stock of the corporation shall be transferred only
on the
books of the corporation by the holder thereof, or by his attorney, upon
the
surrender and cancellation of the stock certificate, whereupon a new certificate
shall be issued to the transferee. The transfer and assignment of such shares
of
stock shall be subject to the laws of the State of Indiana. The board of
directors shall have the right to appoint and employ one or more stock
registrars and/or transfer agents in the State of Indiana or in any other
state.
Section D.
Control Share Acquisition Statute Inapplicable. Chapter 42
of the Indiana Business Corporation Law (IC 23-1-42) shall not apply to control
share acquisitions of shares of the corporation.
Article Two
Shareholders
Section A.
Annual Meetings. The
regular annual meeting of the shareholders of the corporation shall be held
on
the fourth Wednesday in April of each year, or on such other date within
a
reasonable interval after the close of the corporation’s last fiscal year as may
be designated from time to time by the board of directors, for the election
of
the directors of the corporation, and for the transaction of such other business
as is authorized or required to be transacted by the shareholders.
Section B.
Special Meetings. Special
meetings of the shareholders may be called by the chairman of the board or
by
the board of directors or as otherwise may be required by law.
Section C.
Time and Place of Meetings. All
meetings of the shareholders shall be held at the principal office of the
corporation or at such other place within or without the State of Indiana
and at
such time as may be designated from time to time by the board of
directors.
Section D.
Notice of Shareholder Nominations of Directors.
Only
persons who are nominated in accordance with the following procedures shall
be
eligible for election as directors of the corporation, except as may be
otherwise provided in the Amended Articles of Incorporation of the corporation
with respect to the right of holders of preferred stock of the corporation
to
nominate and elect a specified number of directors in certain circumstances.
Nominations of persons for election to the board of directors may be made
at any
annual meeting of shareholders (a) by or at the direction of the board
of
directors (or any duly authorized committee thereof) or (b) by any
shareholder of the corporation (i) who is a shareholder of record
on the
date of the giving of the notice provided for in this Section D and
on the
record date for the determination of shareholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set
forth
in this Section D.
In
addition to any other applicable requirements, for a nomination to be made
by a
shareholder, such shareholder must have given timely notice thereof in proper
written form to the Secretary of the corporation.
To
be
timely, a shareholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the corporation not less
than
ninety (90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of shareholders;
provided,
however,
that in
the event that the annual meeting is called for a date that is not within
thirty
(30) days before or after such anniversary date, notice by the shareholder
in
order to be timely must be so received not later than the close of business
on
the tenth (10th) day following the day
on
which
such notice of the date of the annual meeting was mailed or such public
disclosure of the date of the annual meeting was made, whichever first occurs.
In no event shall the public disclosure of an adjournment of an annual meeting
commence a new time period for the giving of a shareholder’s notice as described
above.
To
be in
proper written form, a shareholder’s notice to the Secretary must set forth
(a) as to each person whom the shareholder proposes to nominate for
election as a director (i) the name, age, business address and residence
address of the person, (ii) the principal occupation or employment
of the
person, (iii) the class or series and number of shares of capital
stock of
the corporation which are owned beneficially or of record by the person and
(iv) any other information relating to the person that would be required
to
be disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant
to
Section 14 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and the rules and regulations promulgated thereunder; and
(b) as to the shareholder giving the notice (i) the name and
record
address of such shareholder, (ii) the class or series and number of
shares
of capital stock of the corporation which are owned beneficially or of record
by
such shareholder, (iii) a description of all arrangements or understandings
between such shareholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to
be
made by such shareholder, (iv) a representation that such shareholder
intends to appear in person or by proxy at the meeting to nominate the persons
named in its notice and (v) any other information relating to such
shareholder that would be required to be disclosed in a proxy statement or
other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Exchange Act and
the
rules and regulations promulgated thereunder. Such notice must be accompanied
by
a written consent of each proposed nominee to being named as a nominee and
to
serve as a director if elected.
No
person
shall be eligible for election as a director of the corporation unless nominated
in accordance with the procedures set forth in this Section D. If
the
Chairman of the meeting determines that a nomination was not made in accordance
with the foregoing procedures, the Chairman shall declare to the meeting
that
the nomination was defective and such defective nomination shall be
disregarded.
Notwithstanding
anything in the third paragraph of this Section D to the contrary,
in the
event that the number of directors to be elected to the board of directors
of
the corporation is increased and there is no public disclosure by the
corporation naming all of the nominees for director or specifying the size
of
the increased board of directors at least one hundred (100) days prior to
the
first anniversary of the preceding year’s annual meeting, a shareholder’s notice
required by this Bylaw shall also be considered timely, but only with respect
to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the corporation
not later than the close of business on the tenth (10th) day following the
day
on which such public disclosure is first made by the corporation.
Section E.
Notice of Shareholder Proposals of Business.
No
business may be transacted at an annual meeting of shareholders, other than
business that is either (a) specified in the notice of meeting (or
any
supplement thereto) given by or at the direction of the Board of Directors
(or
any duly authorized committee thereof), (b) otherwise properly brought
before the annual meeting by or at the direction of the board of directors
(or
any duly authorized committee thereof) or (c) otherwise properly brought
before the annual meeting by any shareholder of the corporation (i) who
is
a shareholder of record on the date of the giving of the notice provided
for in
this Section E and on the record date for the determination of shareholders
entitled to vote at such annual meeting and (ii) who complies with
the
notice procedures set forth in this Section E.
In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a shareholder, such shareholder must
have
given timely notice thereof in proper written form to the Secretary of the
corporation.
To
be
timely, a shareholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the corporation not less
than
ninety (90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of shareholders;
provided,
however,
that in
the event that the annual meeting is called for a date that is not within
thirty
(30) days before or after such anniversary date, notice by the shareholder
in
order to be timely must be so received not later than the close of business
on
the tenth (10th) day following the day on which such notice of the date of
the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs. In no event shall the public
disclosure of an adjournment of an annual meeting commence a new time period
for
the giving of a shareholder’s notice as described above.
To
be in
proper written form, a shareholder’s notice to the Secretary must set forth as
to each matter such shareholder proposes to bring before the annual meeting
(i) a brief description of the
-2-
business
desired to be brought before the annual meeting and the reasons for conducting
such business at the annual meeting, (ii) the name and record address
of
such shareholder, (iii) the class or series and number of shares of
capital
stock of the corporation which are owned beneficially or of record by such
shareholder, (iv) a description of all arrangements or understandings
between such shareholder and any other person or persons (including their
names)
in connection with the proposal of such business by such shareholder and
any
material interest of such shareholder in such business and (v) a
representation that such shareholder intends to appear in person or by proxy
at
the annual meeting to bring such business before the meeting.
No
business shall be conducted at the annual meeting of shareholders except
business brought before the annual meeting in accordance with the procedures
set
forth in this Section E; provided,
however,
that,
once business has been properly brought before the annual meeting in accordance
with such procedures, nothing in this Section E shall be deemed to
preclude
discussion by any shareholder of any such business. If the Chairman of an
annual
meeting determines that business was not properly brought before the annual
meeting in accordance with the foregoing procedures, the Chairman shall declare
to the meeting that the business was not properly brought before the meeting
and
such business shall not be transacted.
Section F.
Definitions.
For
purposes of this Bylaw, "public disclosure" shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable
national news service or in a document publicly filed by the corporation
with
the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d)
of the Exchange Act.
Article Three
Directors
Section A.
Number and Terms of Office. The
business of the corporation shall be controlled and managed in accordance
with
the Indiana Business Corporation Law by a board of ten directors, divided
into
classes as provided in the Amended Articles of Incorporation.
Section B.
Eligibility. No
person
shall be eligible for election or reelection as a director after having attained
the age of seventy prior to or on the day of election or reelection. A director
who attains the age of seventy during his term of office shall be eligible
to
serve only until the annual meeting of shareholders of the corporation next
following such director’s seventieth (70th) birthday.
Section C.
Regular Meetings. The
regular annual meeting of the board of directors shall be held immediately
after
the adjournment of each annual meeting of the shareholders. Regular quarterly
meetings of the board of directors shall be held on the fourth Wednesday
of
January, July, and October of each year, or on such other date as may be
designated from time to time by the board of directors.
Section D.
Special Meetings. Special
meetings of the board of directors may be called at any time by the chairman
of
the board or by the board, by giving to each director an oral or written
notice
setting the time, place and purpose of holding such meetings.
Section E.
Time and Place of Meetings. All
meetings of the board of directors shall be held at the principal office
of the
corporation, or at such other place within or without the State of Indiana
and
at such time as may be designated from time to time by the board of
directors.
Section F.
Notices. Any
notice, of meetings or otherwise, which is given or is required to be given
to
any director may be in the form of oral notice.
Section G.
Committees. The
board
of directors is expressly authorized to create committees and appoint members
of
the board of directors to serve on them, as follows:
(1) Temporary
and standing committees, including an executive committee, and the respective
chairmen thereof, may be appointed by the board of directors, from time to
time.
The board of directors may invest such committees with such powers and limit
the
authority of such committees as it may see fit, subject to conditions as
it may
prescribe. The executive committee shall consist of three or more members
of the
board. All other committees shall consist of one or more members of the board.
All committees so appointed shall keep regular minutes of the transactions
of
their meetings, shall cause them to be recorded in books kept for that purpose
in the office of the corporation, and shall report the same to the board
of
directors at its next meeting. Within its area of responsibility, each committee
shall have and exercise all of the authority of the board of directors, except
as limited by the board of directors or by law, and shall have the power
to
authorize the execution of an affixation of the seal of the corporation to
all
papers or documents which may require it.
(2) Neither
the designation of any of the foregoing committees or the delegation thereto
of
authority shall operate to relieve the board of directors, or any member
thereof, of any responsibility imposed by law.
-3-
Section H.
Loans to Directors. Except
as
consistent with the Indiana Business Corporation Law, the corporation shall
not
lend money to or guarantee the obligation of any director of the
corporation.
Article Four
Officers
Section A.
Election and Term of Office. The
officers of the corporation shall be elected by the board of directors at
the
regular annual meeting of the board, unless the board shall otherwise determine,
and shall consist of a chairman of the board of directors, if so designated
as
an officer by the board, a president, one or more vice presidents (any one
or
more of whom may be designated “corporate,”“group,” or other functionally
described vice president), a corporate secretary, a treasurer, and, if so
elected by the board, may include a vice-chairman of the board of directors
and
one or more assistant secretaries and assistant treasurers. The board of
directors shall, from time to time, designate either the chairman of the
board
of directors, the president or, if elected, the vice-chairman of the board
of
directors, as the chief executive officer of the corporation, who shall have
general supervision of the affairs of the corporation. The board of directors
may, from time to time, designate a chief operating officer and a chief
financial officer from among the officers of the corporation. Each officer
shall
continue in office until his successor shall have been duly elected and
qualified or until removed in the manner hereinafter provided. Vacancies
occasioned by any cause in any one or more of such offices may be filled
for the
unexpired portion of the term by the board of directors at any regular or
special meeting of the board.
Section B.
Chairman of the Board. The
chairman of the board shall be chosen from among the directors and shall
preside
at all meetings of the board of directors and shareholders. He shall confer
from
time to time with members of the board and the officers of the corporation
and
shall perform such other duties as may be assigned to him by the board. Except
where by law the signature of the president is required, the chairman of
the
board shall possess the same power as the president to sign all certificates,
contracts, and other instruments of the corporation which may be authorized
by
the board of directors. During the absence or disability of the president,
if
the president has been designated chief executive officer, the chairman of
the
board shall act as the chief executive officer of the corporation and shall
exercise all the powers and discharge all the duties of the
president.
Section C.
Vice-Chairman of the Board. The
vice-chairman of the board, if elected, shall be chosen from among the directors
and shall, in the absence of the chairman of the board, preside at all meetings
of the shareholders and directors. He shall have and exercise the powers
and
duties of the chairman of the board in the event of the chairman’s absence or
inability to act or during a vacancy in the office of chairman of the board.
He
shall possess the same power as the chairman to sign all certificates,
contracts, and other instruments of the corporation which may be authorized
by
the board of directors. He shall also have such other duties and
responsibilities as shall be assigned to him by the board of directors or
chairman.
Section D.
The President. The
president and his duties shall be subject to the control of the board of
directors and, if the chairman of the board has been designated chief executive
officer, to the control of the chairman of the board. The president shall
have
the power to sign and execute all deeds, mortgages, bonds, contracts, and
other
instruments of the corporation as authorized by the board of directors, except
in cases where the signing and execution thereof shall be expressly designated
by the board of directors or by these bylaws to some other officer, official
or
agent of the corporation. The president shall perform all duties incident
to the
office of president and such other duties as are properly required of him
by the
bylaws. During the absence or disability of the chairman of the board and
the
vice-chairman of the board, the president shall exercise all the powers and
discharge all the duties of the chairman of the board.
Section E.
The Vice Presidents. The
vice
presidents shall possess the same power as the president to sign all
certificates, contracts, and other instruments of the corporation which may
be
authorized by the board of directors, except where by law the signature of
the
president is required. All vice presidents shall perform such duties as may
from
time to time be assigned to them by the board of directors, the chairman
of the
board, and the president. In the event of the absence or disability of the
president, and at the request of the chairman of the board, or in his absence
or
disability, at the request of the vice-chairman of the board, or in his absence
or disability at the request of the board of directors, the vice presidents
in
the order designated by the chairman of the board, or in his absence or
disability by the vice-chairman of the board, or in his absence or disability
by
the board of directors, shall perform all of the duties of the president,
and
when so acting they shall have all of the powers of and be subject to the
restrictions upon the president and shall act as a member of, or as a chairman
of, any standing or special committee of which the president is a member
or
chairman by designation or ex officio.
-4-
Section F.
The Corporate Secretary. The
corporate secretary of the corporation shall:
(1) Keep
the
minutes of the meetings of the shareholders and the board of directors in
books
provided for that purpose.
(2) See
that
all notices are duly given in accordance with the provisions of these bylaws
and
as required by law.
(3) Be
custodian of the records and of the seal of the corporation and see that
the
seal is affixed to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the provisions
of these bylaws.
(4) Keep
a
register of the post office address of each shareholder, which shall be
furnished to the corporate secretary at his request by such shareholder,
and
make all proper changes in such register, retaining and filing his authority
for
all such entries.
(5) See
that
the books, reports, statements, certificates and all other documents and
records
required by law are properly kept, filed, and authenticated.
(6) In
general, perform all duties incident to the office of corporate secretary
and
such other duties as may from time to time be assigned to him by the board
of
directors.
(7) In
case
of absence or disability of the corporate secretary, the assistant secretaries,
in the order designated by the chief executive officer, shall perform the
duties
of corporate secretary.
Section G.
The Treasurer. The
treasurer of the corporation shall:
(1) Give
bond
for the faithful discharge of his duties if required by the board of
directors.
(2) Have
the
charge and custody of, and be responsible for, all funds and securities of
the
corporation, and deposit all such funds in the name of the corporation in
such
banks, trust companies, or other depositories as shall be selected in accordance
with the provisions of these bylaws.
(3) At
all
reasonable times, exhibit his books of account and records, and cause to
be
exhibited the books of account and records of any corporation a majority
of
whose stock is owned by the corporation, to any of the directors of the
corporation upon application during business hours at the office of this
corporation or such other corporation where such books and records are
kept.
(4) Render
a
statement of the conditions of the finances of the corporation at all regular
meetings of the board of directors, and a full financial report at the annual
meeting of the shareholders, if called upon so to do.
(5) Receive
and give receipts for monies due and payable to the corporation from any
source
whatsoever.
(6) In
general, perform all of the duties incident to the office of treasurer and
such
other duties as may from time to time be assigned to him by the board of
directors.
(7) In
case
of absence or disability of the treasurer, the assistant treasurers, in the
order designated by the chief executive officer, shall perform the duties
of
treasurer.
(8) All
acts
affecting the treasurer’s duties and responsibilities shall be subject to the
review and approval of the corporation’s chief financial officer.
Section
H. The Controller.
The
controller of the corporation shall:
(1) Direct
the financial closings and the preparation of monthly, quarterly and annual
consolidated historical financial statements and reports to executive and
operating management.
(2) Direct
the preparation of financial reports required by federal, state and local
regulatory agencies and the preparation of quarterly and annual financial
statements and reports to shareholders, the Securities and Exchange Commission
and other interested parties.
(3) Provide
primary contact for the corporation’s independent accountants and all of its
consolidated domestic and foreign subsidiaries and represent management to
the
corporation’s domestic and international independent accountants.
(4) Perform
and/or direct technical accounting and financial reporting research and monitor
developments in accounting and regulatory standards (e.g., FASB, SEC, EITF,
IRS).
(5) Direct
the corporation’s domestic and foreign tax planning, preparation and
compliance.
(6) In
general, perform all of the duties incident to the office of controller and
such
other duties as may from time to time be assigned by the board of
directors.
-5-
(7) In
case
of absence or disability of the controller, the assistant controllers, in
the
order designated by the chief financial officer, shall perform the duties
of
controller.
(8) All
acts
affecting the controller’s duties and responsibilities shall be subject to the
review and approval of the corporation’s chief financial officer.
Article Five
Indemnification
Section
A.
Indemnification
of Directors and Officers - General.
Certain
of the terms used herein are more specifically defined in Section F
of this
Article Five.
(1) The
corporation shall indemnify an individual made a party to a proceeding because
he is or was a director or officer of the corporation or any of its subsidiaries
against liability incurred in connection with a proceeding to the fullest
extent
permitted by the Indiana Business Corporation Law (the “IBCL”), as the same now
exist or may hereafter be amended (but only to the extent any such amendment
permits the corporation to provide broader indemnification rights than the
IBCL
permitted the corporation to provide prior to such amendment).
(2) The
termination of a proceeding by judgment, order, settlement, or conviction,
or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director or officer did not meet the standard of conduct
set forth in the IBCL.
(3) To
the
extent that a director or officer has been wholly successful, on the merits
or
otherwise, in the defense of any proceeding to which he was a party, or in
defense of any claim, issue, or matter therein, because he is or was a director
or officer of the corporation or any of its subsidiaries, the corporation
shall
indemnify the director or officer against reasonable expenses incurred by
him in
connection therewith regardless of whether the director or officer has met
the
standards set forth in the IBCL and without any action or determination under
Section D of this Article Five.
Section B.
Advancement of Expenses.
(1) The
corporation shall pay for or reimburse the reasonable expenses incurred by
a
director or officer who is a party to a proceeding in advance of final
disposition of the proceeding if:
(a) The
director or officer furnishes the corporation a written affirmation of his
good
faith belief that he has met the standard of conduct set forth in the
IBCL;
(b) The
director or officer furnishes the corporation a written undertaking, executed
personally or on his behalf, to repay any advances if it is ultimately
determined that he is not entitled to indemnification under this
Article Five; and
(c) A
determination is made that the facts then known to those making the
determination would not preclude indemnification under the IBCL.
(2) The
undertaking required by paragraph (b) of subsection (1) of
this
Section B must be an unlimited general obligation of the director
or
officer but need not be secured and may be accepted without reference to
financial ability to make repayment.
Section C.
Limitations on Indemnification.
(1) The
corporation shall not indemnify a director or officer under Section A
of
this Article Five unless a determination has been made in the specific
case
that indemnification of the director is permissible in the circumstances
because
he has met the standard of conduct set forth in the IBCL. Such determination
shall be made within sixty (60) days of the request for
indemnification:
(a) By
the
board of directors by majority vote of a quorum consisting of directors not
at
the time parties to the proceeding;
(b) If
a
quorum cannot be obtained under paragraph (a) of this subsection,
by
majority vote of a committee duly designated by the board of directors (in
which
designation directors who are parties may participate), consisting solely
of two
or more directors not at the time parties to the proceeding;
(c) By
special legal counsel:
(i) Selected
by the board of directors or its committee in the manner prescribed in
paragraph (a) or (b) of this subsection; or
(ii) If
a
quorum of the board of directors cannot be obtained under paragraph (a)
of
this subsection and a committee cannot be designated under
-6-
paragraph (b)
of this subsection, selected by majority vote of the full board of directors
(in
which selection directors who are parties may participate); or
(d) By
the
shareholders, but the shares owned by or voted under the control of the officers
and directors who are at the time parties to the proceeding may not be voted
on
the determination; provided, however, that following a change of control
of the
corporation, with respect to all matters thereafter arising out of acts,
omissions or events prior to the change of control of the corporation concerning
the rights of any person seeking indemnification under this Article Five,
such determination shall be made by special legal counsel selected by such
person and approved by the board of directors or its committee in the manner
described in Section C(1)(c) above (which approval shall not be
unreasonably withheld), which counsel has not otherwise performed services
(other than in connection with similar matters) within the five years preceding
its engagement to render such opinion for such person or for the corporation
or
any affiliates (as such term is defined in Rule 405 under the Securities
Act of 1933, as amended) of the corporation (whether or not they were affiliates
when services were so performed) (“Independent Counsel”). Unless such person has
theretofore selected Independent Counsel pursuant to this Section C
and
such Independent Counsel has been approved by the corporation, legal counsel
approved by a resolution or resolutions of the board of directors of the
corporation prior to a change of control of the corporation shall be deemed
to
have been approved by the corporation as required. Such Independent Counsel
shall determine as promptly as practicable whether and to what extent such
person would be permitted to be indemnified under applicable law and shall
render its written opinion to the corporation and such person to such effect.
In
making a determination under this Section C, the special legal counsel
and
Independent Counsel referred to above shall determine that indemnification
is
permissible unless clearly precluded by this Article Five or the applicable
provisions of the IBCL. The corporation agrees to pay the reasonable fees
of the
Independent Counsel referred to above and to fully indemnify such Independent
Counsel against any and all expenses, claims, liabilities and damages arising
out of or relating to this Article Five or its engagement pursuant
hereto.
(2) Authorization
of indemnification or an obligation to indemnify and evaluation as to
reasonableness of expenses shall be made as set forth in paragraph (a)
above, except that if the determination is made by special legal counsel
(pursuant to Section C(1)(c) above), authorization of indemnification
and
evaluation as to reasonableness of expenses shall be made by those entitled
under Section C(1)(c) above to select counsel.
(3) Indemnification
under this Article Five in connection with a proceeding by or in the
right
of the corporation shall be limited to reasonable expenses incurred in
connection with the proceeding.
Section D.
Enforceability. The
provisions of this Article Five shall be applicable to all proceedings
commenced after its adoption, whether such arise out of events, acts, omissions
or circumstances which occurred or existed prior or subsequent to such adoption,
and shall continue as to a person who has ceased to be a director or officer
and
shall inure to the benefit of the heirs, executors and administrators of
such
person. This Article Five shall be deemed to grant each person who
is
entitled to indemnification hereunder rights against the corporation to enforce
the provisions of this Article Five, and any repeal or other modification
of this Article Five or any repeal or modification of the IBCL or
any other
applicable law shall not limit any rights of indemnification then existing
or
arising out of events, acts, omissions, circumstances occurring or existing
prior to such repeal or modification, including, without limitation, the
right
to indemnification for proceedings commenced after such repeal or modification
to enforce this Article Five with regard to acts, omissions, events
or
circumstances occurring or existing prior to such repeal or
modification.
Section E.
Severability. If
this
Article Five or any portion hereof shall be invalidated on any ground
by
any court of competent jurisdiction, then the corporation shall nevertheless
indemnify each director or officer of the corporation as to liabilities incurred
in connection with any proceeding, including an action by or in the right
of the
corporation, to the full extent permitted by any applicable portion of this
Article Five that shall not have been invalidated and to the full
extent
permitted by the Articles and by applicable law.
Section F.
Definitions. As
used
in this Article, the term
(1) “change
of
control,” for purposes of this Article Five, means (i) an acquisition
by any person of thirty percent (30%) or more of the corporation’s voting
shares; (ii) a merger in which the shareholders of the corporation
before
the merger own fifty percent (50%) or less of the corporation’s (or the ultimate
parent corporation’s) voting shares after the merger; (iii) shareholder
approval of a plan of liquidation or to sell or dispose of substantially
all of
the assets of the corporation; and (iv) if, during any two-year period,
directors at the beginning of the period (and any new directors nominated
by a
majority of the directors at the beginning of such period) fail to constitute
a
majority of the board of directors.
-7-
Notwithstanding
the foregoing, a change of control shall not be deemed to occur solely because
thirty percent (30%) or more of the then outstanding voting securities is
acquired by (i) a trustee or other fiduciary holding securities under
one
or more employee benefit plans maintained by the corporation or any of its
subsidiaries or (ii) any corporation which, immediately prior to such
acquisition, is owned directly or indirectly by the shareholders of this
corporation in the same proportion as their ownership of shares in this
corporation immediately prior to such acquisition.
(2) “corporation”
includes Ball Corporation and any domestic or foreign predecessor entity
of the
corporation or a corporation in a merger or other transaction in which the
predecessor’s existence ceased upon consummation of the
transaction.
(3) “director”
means an individual who is or was a director of the corporation or an individual
who, while a director of the corporation, is or was serving at the corporation’s
request as a director, officer, partner, member, manager, trustee, employee,
or
agent of another foreign or domestic corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan, or other enterprise,
whether for profit or not. A director is considered to be serving an employee
benefit plan at the corporation’s request if his duties to the corporation also
impose duties on, or otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan. Director includes, unless the
context requires otherwise, the estate or personal representative of a
director.
(4) “expenses”
include attorneys’ fees.
(5) “liability”
means the obligation to pay a judgment, settlement, penalty, fine (including
an
excise tax assessed with respect to an employee benefit plan), or reasonable
expenses incurred with respect to a proceeding.
(6) “party”
includes an individual who was, is, or is threatened to be made a named
defendant or respondent in a proceeding.
(7) “proceeding”
means any threatened, pending, or completed action, suit, or proceeding,
whether
civil, criminal, administrative, or investigative and whether formal or
informal, except for a proceeding (or part thereof) initiated by a person
against the corporation or any director, officer, employee or agent thereof
(other than to enforce his rights under this Article Five) and not
consented to by the corporation.
Article Six
Corporate
Seal
The
corporate seal of the corporation shall be a round, metal disc with the words
“Ball Corporation” around the outer margin thereof, and the words “Corporate
Seal,” in the center thereof, so mounted that it may be used to impress words in
raised letters upon paper.
Article Seven
Amendment
These
bylaws may be altered, added to, amended, or repealed by the board of directors
of the corporation at any regular or special meeting thereof.
-8-