S-3: Registration statement for specified transactions by certain issuers
Published on October 28, 2005
As
filed with the Securities and Exchange Commission on October 28,
2005
Registration
No. 333-
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
FORM S-3
Registration
Statement
Under
the Securities Act of 1933
_______________________
BALL
CORPORATION
(Exact
name of issuer as specified in its charter)
|
Indiana
|
35-0160610
|
|
|
(State
or other jurisdiction of
|
(I.R.S.
Employer
|
|
|
incorporation
or organization)
|
Identification
No.)
|
10
Longs Peak Drive
Broomfield,
Colorado 80021-2510
Telephone
Number 303-469-3131
(Address,
including Zip Code and telephone number, including Area Code,
of
Registrant’s Principal Executive Offices)
_______________________________
Agent
for Service
CT
Corporation System
1675
Broadway, Suite 1200,
Denver,
Colorado 80202
Telephone
Number 303-629-2500
(Name,
address, including Zip Code and telephone number,
including
Area Code, of Agent for Service)
_______________________________
Approximate
date of commencement of proposed sale to the public: As soon as practicable
after the Registration Statement becomes effective.
_______________________________
If
the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. x
If
any of
the securities being registered on this Form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. o
If
this
Form is filed to register additional securities for an offering pursuant to
Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If
this
Form is a post-effective amendment filed pursuant to Rule 462(c) under
the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If
delivery of the prospectus is expected to be made pursuant to Rule 434, please
check the following box. o
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of
Securities
to be Registered
|
Amount
to be
Registered
|
Proposed
Maximum
Aggregate
Offering Price Per Unit*
|
Proposed
Maximum
Aggregate
Offering
Price**
|
Amount
of
Registration
Fee
|
|
Common
Stock*
(without
par value)
|
1,000,000
shares
|
$36.75
|
$36,750,000
|
$4,325.48
|
(*) 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.
(**) Computed
pursuant to Rule 457(b) solely for the purpose of determining the registration
fee for 1,000,000 shares which may be granted, on the basis of the average
of
the high and low prices of the Common Stock on the New York Stock
Exchange-Composite Transactions for October 25, 2005.
_______________________________________
Pursuant
to Rule 429 under the Securities Act of 1933, the prospectus relating
to
this registration statement is a combined prospectus relating also to
registration statement no. 033-58741 filed by the registrant on Form S-3
on
April 21, 1995.
The
issuer hereby amends this Registration Statement on such date or dates as may
be
necessary to delay its effective date until the issuer shall file a further
amendment which specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a) may determine.
CROSS
REFERENCE SHEET
Cross
Reference Sheet Pursuant to Item 501(b) of Regulation S-K Showing Location
in
Prospectus of Information Required by Items of Form S-3
|
Form
S-3 Item Number
|
Location
in Prospectus
|
|
|
1.
|
Forepart
of the Registration Statement and Outside Front Cover Page of
Prospectus
|
Front
Cover Page
|
|
2.
|
Inside
Front and Outside Back Cover Pages of Prospectus
|
Inside
Front Cover Page; Outside Back Cover Page
|
|
3.
|
Summary
Information, Risk Factors and Ratio of Earnings to Fixed
Charges
|
Inapplicable:
except address and telephone number of principal executive offices,
the
Corporation
|
|
4.
|
Use
of Proceeds
|
The
Plan - Question 1
|
|
5.
|
Determination
of Offering Price
|
The
Plan - Question 11
|
|
6.
|
Dilution
|
Inapplicable
|
|
7.
|
Selling
Security Holders
|
Inapplicable
|
|
8.
|
Plan
of Distribution
|
The
Plan
|
|
9.
|
Description
of Securities to be registered
|
Description
of Common Stock - Incorporated by Reference
|
|
10.
|
Interests
of Named Experts and Counsel
|
Experts
|
|
11.
|
Material
Changes
|
The
Plan
|
|
12.
|
Incorporation
of Certain Material by Reference
|
Documents
Incorporated by Reference
|
|
13.
|
Disclosure
of Commission Position on Indemnification for Securities Act
Liabilities
|
Inapplicable
|
BALL
CORPORATION
Dividend
Reinvestment and Voluntary Stock Purchase Plan for Shareholders
1,000,000
Shares of
Common
Stock
Without
par value
_______________________________
THESE
SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED
BY THE SECURITIES AND EXCHANGE
COMMISSION
NOR HAS THE COMMISSION PASSED UPON THE
ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________________________
The
Dividend Reinvestment and Voluntary Stock Purchase Plan for Shareholders (the
“Plan”) of Ball Corporation provides a simple and convenient method for the
Shareholders of the Company’s Common Stock to purchase shares of the Company’s
Common Stock without payment of a brokerage commission or service
charge.
Participants
in the Plan may have cash dividends on their shares of Common Stock
automatically reinvested and, if they choose, invest by making optional cash
payments of not less than $25 per payment nor more than a total of $2,000 per
month.
The
purchase price of the shares of Common Stock purchased by reinvestment of cash
dividends and by investment of optional cash payments will be 95 percent and
100
percent, respectively, of the average of the high and low sale prices of the
Company’s Common Stock (as published in The
Wall Street Journal
report
of the New York Stock Exchange - Composite Transactions, corrected for any
reporting errors) for the Investment Date, or, if the Common Stock is not traded
on the Investment Date, the last trading day preceding the Investment Date
on
which the Common Stock is traded.
This
Prospectus relates to 1,000,000 authorized and unissued shares of the Company’s
Common Stock registered for purchase under the Plan. The shares reserved for
the
Plan and held under the Plan shall be subject to adjustment through declaration
of stock dividends and through recapitalization resulting in stock split-ups,
combinations or exchanges or otherwise. It is suggested that this Prospectus
be
retained for future reference.
No
person
is authorized to give any information or to make any representations other
than
those contained in this Prospectus in connection with the offer contained in
this Prospectus, and, if given or made, such information must not be relied
upon
as having been authorized by the Company. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that there has been no change in the affairs of the Company
since the date thereof.
The
date
of this prospectus is October 28, 2005
1
THE
COMPANY
Ball
Corporation, an Indiana corporation (the “Company”), has its principal executive
offices at 10 Longs Peak Drive, Broomfield, Colorado 80021 (telephone number
(303) 469-3131).
DESCRIPTION
OF THE PLAN
The
following is a question and answer statement of the provisions of the Dividend
Reinvestment and Voluntary Stock Purchase Plan for Shareholders of the Company.
Questions and Answers 1 through 25 both explain and constitute the Plan, which
was adopted by the Board of Directors on October 25, 1977, as amended
and
renamed by action of the Board of Directors, acting by and through its Executive
Committee, on August 27, 1979, as amended on January 27, 1982, and on January
27, 1992.
PURPOSE
1. What
is the purpose of the Plan?
The
purpose of the Plan is to
provide participants with a simple and convenient method of investing cash
dividends and optional cash payments in shares of Common Stock of the Company,
without payment of any brokerage commission or service charge. Since such shares
of Common Stock will be purchased from the Company, the Company will receive
additional funds needed for the repayment of debt, for working capital, and
for
other corporate purposes.
ADVANTAGES
2. What
are the features of the Plan?
As
a participant in the Plan, (a)
you may purchase shares of Common Stock at a 5 percent discount from
the
market price by reinvesting cash dividends, as paid from time to time, on all
of
the shares of Common Stock registered in your name, or (b) you may purchase
shares of Common Stock by making optional cash payments of not less than $25
per
payment up to a maximum of $2,000 per month, or (c) you may do both. You do
not
pay any brokerage commission or service charge for your purchases under the
Plan. Full investment of funds is possible under the Plan because the Plan
permits fractions of shares, as well as full shares, to be credited to your
account. You can avoid the inconvenience and expense of safekeeping certificates
for shares credited to your account under the Plan. A statement of account
will
be mailed to you after each purchase to provide simplified record
keeping.
ADMINISTRATION
3. Who
administers the Plan for participants?
EquiServe
Trust Company, N.A.
(the “Agent”) a federally chartered trust institution, administers the Plan for
the Company, keeps records, sends statements of account to participants and
performs other duties relating to the Plan. EquiServe, Inc., an affiliate of
EquiServe and a transfer agent registered with the Securities and Exchange
Commission, acts as service agent for EquiServe.
ELIGIBILITY
4. Who
is eligible to participate?
All
holders of record of shares
of Common Stock of the Company are eligible to participate in the Plan.
Beneficial owners of shares of Common Stock whose shares are registered in
names
other than their own (for instance, in the name of a broker or bank nominee)
must either become shareholders of record by having shares transferred into
their own names or have their broker or nominee act for them.
2
PARTICIPATION
BY SHAREHOLDERS
5. How
do shareholders participate?
A
holder of record of shares of Common Stock may join the Plan at any time by
going online to www.equiserve.com or by completing and signing a shareholder
Authorization Card and returning it to the Agent. If your shareholder
Authorization Card is received by the Agent ON OR BEFORE the record date for
determining the shareholders entitled to the next dividend, reinvestment of
your
dividends will commence with such dividend. The record dates for quarterly
dividends customarily payable in the middle of March, June, September and
December are normally on the first day of the month or in the early part of
these months. (Historically, the Company has paid dividends at these times,
although there can be no assurance that this policy will continue.) If your
shareholder Authorization Card is received AFTER the record date, reinvestment
of your dividends will not start until payment of the next dividend declared
after your Authorization Card is received. For example, if the shareholder
Authorization Card is received by the Agent on or before the December dividend
record date, the December dividend will be reinvested. A shareholder
Authorization Card and a postage-paid return envelope may be obtained at any
time by writing to EquiServe Trust Company, N.A., Ball Corporation Dividend
Reinvestment and Voluntary Stock Purchase Plan for Shareholders, P.O. Box 43081,
Providence, Rhode Island 02940-3081, by calling the Agent at 1-800-446-2617
or
by going online to www.equiserve.com.
6.
What
are my options under the Plan?
You
may
choose either or both of the following investment options:
(a) To
reinvest automatically cash dividends on all shares registered in your name
at
95 percent of the current market price (see the answer to Question 11
for a
description of how this is computed); and/or
(b) To
invest
by making optional cash payments of not less than $25 per payment in any amount
up to a total maximum amount of $2,000 per month, whether or not your dividends
are being reinvested, at 100 percent of the current market price as defined
in
the Plan.
See
the
answer to Question 10 as to the timing of purchases.
7. May
I change options under the Plan?
Yes.
You
may change options at any time by going online at www.equiserve.com, by calling
the Agent at 1-800-446-2617 or completing and signing a new shareholder
Authorization Card and returning it to the Agent. The answer to Question 5
explains how to obtain an Authorization Card and return envelope. Any change
of
option concerning the reinvestment of dividends must be received by the Agent
on
or before the record date for a dividend (see Question 8) in order for
the
change to become effective with that dividend.
REINVESTMENT
OF DIVIDENDS
8. How
are dividends reinvested?
If
your shareholder Authorization
Card is received by the Agent on or before the record date for determining
the
holders of shares entitled to the next dividend, reinvestment of your dividends
will commence with such dividend. Your dividends will be used by the Agent
to
purchase full and/or fractional shares from the Company. The Agent will credit
the shares to the accounts of the individual participants. Shares held for
the
accounts of participants are registered in the name of the Agent’s
nominee.
3
OPTIONAL
CASH PAYMENTS
9. How
does the cash payment option work?
You
may invest in additional
shares of Common Stock by making optional cash payments of not less than $25
per
payment. Optional payments may be made at irregular intervals and the amount
of
each such payment may vary, but total payments invested may not exceed $2,000
per month. Participants in the Plan have no obligation to make any optional
cash
payments.
An
optional cash payment may be made by enclosing a check with the Authorization
Card when enrolling; or thereafter by forwarding a check to the Agent with
a
payment form which will be attached to each statement of account. Checks must
be
made payable to EquiServe-Ball Corporation, in United States dollars, drawn
on a
United States bank and sent to P.O. Box 15351, Newark, New Jersey 07188-0001.
No
interest will be paid on optional cash payments. The Agent will not accept
cash,
traveler’s checks, money orders or third party checks for optional cash
payments.
In
the
event that any deposit is returned unpaid for any reason, the Agent will
consider the request for investment of such funds null and void and shall
immediately remove from your account shares, if any, purchased upon the prior
credit of such funds. The Agent shall thereupon be entitled to sell these shares
to satisfy any uncollected balance. If the net proceeds of the sale of such
shares are insufficient to satisfy the balance of such uncollected amount,
the
Agent shall be entitled to sell additional shares from your account to satisfy
the uncollected balance. A $25 fee will be charged for any optional cash payment
returned unpaid.
PURCHASES
10. When
will purchases of Common Stock be made?
Optional
cash payments received by the Agent BEFORE the 15th
day of
any month will be applied by the Agent to the purchase of additional shares
of
Common Stock from the Company on, or shortly after, the 15th day of the month
during which cash payments have been received by the Agent. Optional cash
payments received by the Agent ON OR AFTER the 15th day of any month will be
held for investment on the 15th day of the next month unless the Agent is
specifically requested in writing to return the payment to the
shareholder.
Cash
dividends on shares registered in the names of participants and designated
for
reinvestment, and cash dividends on shares held by the Agent in Plan accounts
will be applied by the Agent on the Investment Date to the purchase of
additional shares of Common Stock. The “Investment Date” is the dividend payable
date, when, as and if declared by Ball Corporation. Historically, the Company
has paid dividends in March, June, September and December, although there can
be
no assurance that this policy will continue.
11. What
will be the price of shares purchased under the Plan?
The
purchase price of the shares of Common Stock purchased by reinvestment of cash
dividends and investment of optional cash payments will be 95 percent and 100
percent, respectively, of the average of the high and low sale prices of the
Company’s Common Stock (as published in The
Wall
Street Journal report of the New York Stock Exchange - Composite Transactions,
corrected for any reporting errors) for the Investment Date, or, if the Common
Stock is not traded on the Investment Date, for the last trading day preceding
the Investment Date on which the Common Stock is traded.
The
price
of all shares purchased will be computed to three decimal places.
12. How
will the number of shares purchased for a participant be
determined?
The
number of shares that will be purchased for you on any Investment Date will
depend on the amount of your dividend, the amount of any optional cash payments
and the applicable purchase price of the Common Stock. Your account will be
credited with the number of shares, both full and fractional, that results
from
dividing the amounts of your dividends and optional payments to be invested
by
the applicable purchase price (computed to three decimal places).
4
COSTS
13. Are
there any charges to me for my purchases under the Plan?
No.
There are no brokerage
fees for purchases because shares are purchased directly from the Company.
All
costs of administration of the Plan will be paid by the Company. However, if
you
request the Agent to sell your shares in the event of your withdrawal from
the
Plan, the Agent will deduct any brokerage commission and transfer tax incurred
(see Question 19).
DIVIDENDS
14. Will
dividends be paid on shares held in my Plan account?
Yes.
Cash dividends on full shares, and any fraction of a share, credited to your
account are automatically reinvested in additional shares and credited to your
account.
REPORTS
TO PARTICIPANTS
15. What
kind of reports will be sent to me?
Following
each purchase of shares for your account, the Agent will mail to you a statement
showing amounts invested, purchase price, the number of shares purchased, the
fair market value of the shares purchased and other similar information for
the
year-to-date. These statements are your record of the costs of your purchases
and should be retained for income tax and other purposes. In addition, you
will
receive copies of the same communications sent to all other holders of shares
of
Common Stock, including the Company’s quarterly reports and annual report to
shareholders, a notice of the annual meeting and proxy statement and Internal
Revenue Service information for reporting dividend income received. You may
also
view year-to-date transaction activity in your account under the Plan for the
current year, as well as activity in prior years, by accessing your account
at
www.equiserve.com.
CERTIFICATES
FOR SHARES
16. Will
I receive certificates for shares of Common Stock purchased under the
Plan?
Shares
of Common Stock purchased
by the Agent for your account will be registered in the name of the Agent’s
nominee and certificates for such shares will not be issued to you until
requested by you. The total number of shares credited to your account will
be
shown on each statement of account. This custodial service protects you against
the risk of loss, theft or destruction of stock certificates.
Certificates
for any number of whole shares credited to your account will be issued to you
at
any time upon written request to the Agent. Any remaining full shares and
fraction of a share will continue to be credited to your account. Certificates
for fractions of shares will not be issued under any circumstances.
17. May
shares held in my Plan account be pledged?
No.
If you wish to pledge shares
credited to your Plan account, you must request certificates for such
shares.
18. In
whose name will certificates be registered when issued?
When
issued to you upon your
request, certificates for shares will be registered in the name in which your
Plan account is maintained. Generally, this will be the name or names in which
your certificates are registered at the time you enroll in the
Plan.
5
WITHDRAWAL
FROM THE PLAN
19. How
do I withdraw from the Plan?
You
may
withdraw from the Plan at any time by accessing your account at
www.equiserve.com, by calling the Agent at 1-800-446-2617 or by sending a
written notice that you wish to withdraw to EquiServe Trust Company, N.A.,
Ball
Corporation Dividend Reinvestment and Voluntary Stock Purchase Plan for
Shareholders, P.O. Box 43081, Providence, Rhode Island 02940-3081. When you
withdraw from the Plan, or upon termination of the Plan by the Company,
certificates for whole shares credited to your account under the Plan will
be
issued to you and you will receive a cash payment for any fraction of a share
(see Question 20) and for any optional cash payments that you have made which
have not yet been used to purchase Common Stock.
Upon
withdrawal from the Plan, you may, if you desire, also request that all of
the
shares credited to your Plan account be sold by the Agent. If such sale is
requested, the sale of all whole shares in your Plan account will be made for
your account by the Agent within ten business days of the Agent’s receipt of the
request. You will receive from the Agent a check for the proceeds of the sale
minus any brokerage commission, if the services of a broker are used, and any
transfer fees incurred. You will also receive a cash payment for any fraction
of
a share (see Question 20) and for any optional cash payments that you have
made
which have not yet been used to purchase Common Stock.
20. What
happens to my fractional share when I withdraw from the
Plan?
When
you withdraw from the Plan,
a cash adjustment representing the proceeds from the sale of any fractional
share then credited to your account, less any brokerage commission, if the
services of a broker are used, and any transfer tax incurred, will be mailed
directly to you.
OTHER
INFORMATION
21. What
happens if I sell or transfer shares registered in my
name?
To
sell shares in your dividend
reinvestment account, you may either use the form which is part of your account
statement, telephone EquiServe Trust Company, N.A. at 1-800-446-2617 or access
your account at www.equiserve.com. All sale requests having an anticipated
market value of $100,000 or more are expected to be submitted in written form.
In addition, all sale requests within thirty days of an address change are
expected to be submitted in written form.
If
you
sell or transfer a portion of the shares of Common Stock registered in your
name, then the dividends on shares remaining in your name and in your account
will continue to be reinvested until you notify the Agent that you wish to
withdraw from the Plan.
If
you
dispose of all shares of Common Stock registered in your name, the dividends
on
the shares credited to your Plan account will continue to be reinvested until
you notify the Agent that you wish to withdraw from the Plan.
22. What
happens if the Company issues a stock dividend or declares a stock
split?
Any
shares distributed by the Company as a stock dividend on shares (including
fractional shares) credited to your account under the Plan, or upon any split
of
such shares, will be credited to your account. Stock dividends or splits
distributed on all other shares held by you and registered in your own name
will
be mailed directly to you.
23. Can
I vote shares in my Plan account at meetings of
shareholders?
Yes.
You will receive a proxy card for the total number of whole shares held-both
the
shares registered in your name and those credited to your Plan account. The
total number of whole shares held may also be voted by telephone or via the
Internet. Fractional shares held in Plan accounts will not be
voted.
6
24. What
is the responsibility of the Company and the Agent under the
Plan?
Neither
the Company nor the Agent, in administering the Plan, will accept liability
for
any act done in good faith or for any good-faith omission to act, including,
without limitation, any claim or liability arising out of failure to terminate
a
participant’s account upon such participant’s death prior to receipt by the
Agent of notice in writing of such death.
NEITHER
THE COMPANY NOR THE AGENT CAN ASSURE YOU OF A PROFIT OR PROTECT YOU AGAINST
A
LOSS ON SHARES PURCHASED UNDER THE PLAN.
25. May
the Plan be changed or discontinued?
The
Company reserves the right to modify, suspend or terminate the Plan at any
time.
Any such modification, suspension or termination will not affect previously
executed transactions. The Company also reserves the right to adopt, and from
time to time change, such administrative rules and regulations (not inconsistent
in substance with the basic provisions of the Plan as then in effect) as it
deems desirable or appropriate for the administration of the Plan. The Agent
reserves the right to resign at any time upon reasonable written notice to
the
Company.
USE
OF PROCEEDS
The
Company has no basis for estimating precisely either the number of shares of
Common Stock that ultimately may be sold pursuant to the Plan, or the prices
at
which such shares will be sold. However, the Company proposes to use the net
proceeds from the sale of shares of Common Stock pursuant to the Plan, when
and
as received, to repay debt of the Company, for working capital and for other
corporate purposes.
FEDERAL
INCOME TAX CONSEQUENCES
Under
Internal Revenue Service rulings in connection with similar plans, the full
fair
market value of the shares purchased with reinvested dividends is taxable as
dividend income to the participant. This means that in addition to the
reinvested dividends being taxable, the 5 percent discount allowed on the
purchase of shares with reinvested dividends under the Plan is also taxable
as
dividend income to the participant in the year the shares are purchased. Your
statements of account will show the fair market value of the Common Stock
purchased with reinvested dividends, and a statement mailed to you at year-end
will show total dividend income and the additional income which, under the
above
rulings, is deemed to result from the 5 percent discount.
Federal
law may require that income tax be withheld from the payment of dividends.
The
Agent shall apply to the purchase of shares of Common Stock on behalf of each
participant an amount equal to the dividends payable to such participant less
the amount of tax required to be withheld.
You
will
not realize any taxable income on the purchase of shares under the optional
cash
payment plan.
You
will
not realize any taxable income when you receive certificates for whole shares
credited to your account, either upon your request for such certificates or
upon
withdrawal from or termination of the Plan.
You
may
realize a gain or loss when shares are sold or exchanged, whether such sale
or
exchange is pursuant to your request to withdraw from the Plan or takes place
after withdrawal from or termination of the Plan. You may also realize a gain
or
loss if you withdraw from the Plan and receive a cash payment for a fraction
of
a share credited to your account. The amount of such gain or loss will be the
difference between the amount you receive for the shares or fraction of a share
and the tax basis thereof, as the tax basis is defined below for tax
purposes.
7
In
accordance with the rulings referred to above, your tax basis of shares acquired
under the Plan by reinvestment of dividends will be equal to the fair market
value of the shares on the dividend payment dates (Investment Dates under the
Plan) as of which the shares were purchased for your Plan account. The tax
basis
of shares purchased at fair market value with an optional cash payment will
be
the amount of such optional cash payment.
The
holding period of shares of Common Stock acquired under the Plan, whether
purchased with dividends or optional cash payments, will begin on the day
following the date as of which the shares were purchased for your
account.
In
the
case of foreign participants who elect to have their dividends reinvested and
whose dividends are subject to United States income tax withholding, an amount
equal to the dividends payable to such participants, less the amount of tax
required to be withheld, will be applied by the Agent to the purchase of shares
of Common Stock.
For
further information as to the tax consequences of participation in the Plan,
you
should consult your own tax advisor.
INCORPORATION
OF DOCUMENTS BY REFERENCE
The
following documents have been filed
or
furnished by the Company with the Securities and Exchange Commission and
are
incorporated herein by reference:
(1) The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31,
2004.
(2) The
Company’s Quarterly Reports for the first quarter ended April 3, 2005, and
the second quarter ended July 3, 2005.
(3) The
Company’s Notice of the 2005 Annual Meeting of Shareholders and Proxy Statement
dated March 21, 2005, issued in connection with the Annual Meeting of
Shareholders held on April 27, 2005.
(4) The
Company’s 8-K Reports dated January 27, 2005; April 28, 2005;
April 29, 2005; May 11, 2005; July 28, 2005; October 17,
2005, and October 27, 2005.
(5) The
description of the common stock contained in the Company’s Prospectus dated
May 17, 1979 (Registration No. 33-21506) and the restated Rights Agreement
dated July 25, 1986, as amended and restated on January 23, 1990, and as
amended
on Amendment No. 2 to Form 8 dated July 31, 1990.
All
documents filed pursuant to Section 13 or 14 of the Securities Exchange Act
of
1934 after the date of this Prospectus and prior to the termination of this
offering shall be deemed to be incorporated by reference in this Prospectus
and
to be part hereof from the date of filing of such documents.
MATERIAL CHANGES
During
the first three quarters of 2005, the Company has repurchased 9,060,309
shares
of its Common Stock pursuant to its repurchase program.
On
October 13, 2005, the Company announced that it had completed the closing
of its
new senior secured credit facility and that in the fourth quarter of
2005 it
would redeem all $249,000,000 (principal amount) of its outstanding 7¾ percent
Senior Notes due in 2006, which will result in an after-tax, one-time
charge of
approximately $3.9 million in the fourth quarter of 2005 relating to
payment of
the call premiums and the write-off of unamortized debt issuance costs.
The
refinancing and redemption of notes will result in the reduction of Ball’s 2006
interest expense.
8
ADDITIONAL
INFORMATION
Reports,
proxy statements and other information filed by the Company can be inspected
and
copied at the public reference facilities of the Securities and Exchange
Commission, 100 F. Street, N.E., Washington, District of Columbia
20549, or
can be viewed on the Securities and Exchange Commission’s website at
http://www.sec.gov.
Such material can also be inspected at the New York Stock Exchange, 20
Broad
Street, New York, New York 10005, The Chicago Stock Exchange, 440 South
LaSalle Street, Chicago, Illinois 60605 and Pacific Exchange, Inc., 115
Sansome
Street, San Francisco, California 94104. Copies can be obtained from the
Securities and Exchange Commission at prescribed rates. Requests should
be
directed to the Commission’s Public Reference Section, 100 F. Street, N.E.,
Washington, District of Columbia 20549.
EXPERTS
The
validity of the Common Stock offered hereby will be passed upon for the Company
by Robert W. McClelland, Associate General Counsel of the Company.
Mr. McClelland is paid a salary by the Company and participates in
the
various employee benefit plans offered by the Company.
The
financial statements and management’s assessment of the effectiveness of
internal control over financial reporting (which is included in Management’s
Report on Internal Control over Financial Reporting) incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 2004 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and
accounting.
9
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other
Expenses of Issuance and Distribution
| Commission Registration Fee ............................................................................ |
$
|
4,325.48
|
||
| Stock Exchange Listing Fees ............................................................................. |
|
13,500.00
|
||
| Miscellaneous Expenses .................................................................................... |
|
1,000.00
|
||
| Total ....................................................................................................................... |
$
|
18,825.48
|
||
Item
15. Indemnification
of Directors and Officers
Section
23-1-37-8 of the Indiana Business Corporation Law provides as
follows:
|
(a)
|
A
corporation may indemnify an individual made a party to a proceeding
because the individual is or was a director against liability incurred
in
the proceeding if
|
(1) The
individual's conduct was in good faith; and
(2) The
individual believed:
(A) In
the
case of conduct in the individual's official capacity with the corporation,
that
the individual's conduct was in its best interests; and
(B) In
all
other cases, that the individual's conduct was at least not opposed to its
best
interests; and
(3) In
the
case of any criminal proceeding, the individual either:
(A) Had
reasonable cause to believe the individual's conduct was lawful; or
(B) Had
no
reasonable cause to believe the individual's conduct was unlawful.
|
(b)
|
A
director's conduct with respect to an employee benefit plan for a
purpose
the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies
the requirement of subsection
(a)(2)(B).
|
|
(c)
|
The
termination of a proceeding by judgment, order, settlement, conviction,
or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director did not meet the standard of conduct
described in this section.
|
Section
B
of Article XII of the Company's Amended Articles of Incorporation provides
as
follows:
Indemnification
of directors, officers and employees shall be as follows:
II-1
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 X11, 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 X11.
II-2
4. The
provisions of this Section B of Article XII shall be applicable to claims,
actions, suits or proceedings made or commenced after the adoption hereof
whether arising from acts or omissions to act occurring before or after the
adoption hereof. If several claims, issues or matters of action are involved,
any such director, officer or employee may be entitled to indemnification as
to
some matters even though he is not so entitled as to others. The rights of
indemnification provided hereunder shall be in addition to any rights to which
any director, officer or employee concerned may otherwise be entitled by
contract or as a matter of law, and shall inure to the benefit of the heirs,
executors and administrators of any such director, officer or
employee.
|
Item
16.
|
Exhibits
|
|
|
EX-5
|
Opinion
of Robert W. McClelland re Legality of Shares
|
|
|
EX-23
|
Consent
of Robert W. McClelland is contained in his opinion filed as Exhibit
5 to
this Registration Statement
|
|
|
EX-24
|
Powers
of Attorney
|
|
|
Item
17.
|
Undertakings
|
|
(a) The
undersigned registrant hereby undertakes:
(1) To
file,
during any period in which offers or sales are being made, a post-effective
Amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act
of 1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however,
that
paragraphs (a((1)(i) and (a)(1)(ii) do not apply if the information required
to
be included in a post-effective amendment by those paragraphs is contained
in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That,
for
the purpose of determining any liability under the Securities Act of 1933,
each
such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide
offering
thereof.
(3) To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the
offering.
(b) The
undersigned registrant hereby undertakes that, for purposes 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, where applicable, each filing of an employee benefit plan’s
annual report 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.
II-3
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of
Broomfield, state of Colorado, on October 28, 2005.
|
BALL
CORPORATION
(Registrant)
By: /s/
R. David Hoover
R.
David Hoover
Chairman,
President and Chief Executive Officer
October 28,
2005
|
Pursuant
to the requirements of the Securities 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/
R. David Hoover
|
Chairman,
President and Chief Executive Officer
|
||
|
R.
David Hoover
|
October
28, 2005
|
||
|
(2)
|
Principal
Financial Officer:
|
||
|
/s/
Raymond J. Seabrook
|
Senior
Vice President and Chief Financial Officer
|
||
|
Raymond
J. Seabrook
|
October
28, 2005
|
||
|
(3)
|
Principal
Accounting Officer:
|
||
|
/s/
Douglas K. Bradford
|
Vice
President and Controller
|
||
|
Douglas
K. Bradford
|
October
28, 2005
|
||
|
(4)
|
A
Majority of the Board of Directors:
|
||
|
/s/
Howard M. Dean
|
*
|
Director
|
|
|
Howard
M. Dean
|
October
28, 2005
|
||
|
/s/
Hanno C. Fiedler
|
*
|
Director
|
|
|
Hanno
C. Fiedler
|
October
28, 2005
|
||
|
/s/
R. David Hoover
|
*
|
Chairman
of the Board and Director
|
|
|
R.
David Hoover
|
October
28, 2005
|
||
|
/s/
John F. Lehman
|
*
|
Director
|
|
|
John
F. Lehman
|
October
28, 2005
|
II-4
|
/s/
Jan Nicholson
|
*
|
Director
|
|
|
Jan
Nicholson
|
October
28, 2005
|
||
|
/s/
George A. Sissel
|
*
|
Director
|
|
|
George
A. Sissel
|
October
28, 2005
|
||
|
/s/
George M. Smart
|
*
|
Director
|
|
|
George
M. Smart
|
October
28, 2005
|
||
|
/s/
Theodore M. Solso
|
*
|
Director
|
|
|
Theodore
M. Solso
|
October
28, 2005
|
||
|
/s/
Stuart A. Taylor II
|
*
|
Director
|
|
|
Stuart
A. Taylor II
|
October
28, 2005
|
||
|
/s/
Erik H. van der Kaay
|
*
|
Director
|
|
|
Erik
H. van der Kaay
|
October
28, 2005
|
*By
R.
David Hoover 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/
R. David Hoover
|
|
|
R. David
Hoover
|
|
|
As
Attorney-in-Fact
|
|
|
October 28,
2005
|
II-5
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby
consent to the incorporation by reference in this Registration Statement on
Form
S-3 of our report dated February 22, 2005 relating to the financial statements,
management’s assessment of the effectiveness of internal control over financial
reporting and the effectiveness of internal control over financial reporting,
which appears in Ball Corporation’s Annual Report on Form 10-K for the year
ended December 31, 2004. We also consent to the reference to us under
the
heading “Experts” in such Registration Statement.
PRICEWATERHOUSECOOPERS
LLP
/s/
PricewaterhouseCoopers LLP
Denver,
Colorado
October 28,
2005
CONSENT
OF COUNSEL
The
consent of Robert W. McClelland, Assistant General Counsel, Ball Corporation,
is
contained in his opinion filed as Exhibit 5 to this Form S-3 Registration
Statement.
II-6
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
5
|
Opinion
of Robert W. McClelland re Legality of Shares
|
|
|
23
|
Consent
of Robert W. McClelland is contained in his opinion filed
as
Exhibit 5 to this Registration Statement
|
|
|
24
|
Powers
of Attorney
|
II-7