BALL CORPORATION 2005 DEFERRED COMPENSATION COMPANY STOCK PLAN, AS AMENDED AND RESTATED
Published on December 19, 2006
Exhibit
10.1
Ball
Corporation
2005
Deferred Compensation
Company
Stock Plan
As
Amended and Restated Effective January 1, 2007
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Article I
Establishment
and
Purpose....................................................................................................
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1
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Article II
Definitions..............................................................................................................................
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1
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Article III
Eligibility
and
Participation...................................................................................................
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9
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Article IV
Deferral
Elections...................................................................................................................
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9
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Article V
Modifications
to Payment
Schedules.....................................................................................
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13
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Article VI
Company
Awards...................................................................................................................
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14
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Article VII
Valuation
of Account Balances,
Earnings..............................................................................
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14
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Article VIII
Distributions
and
Withdrawals...............................................................................................
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16
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Article IX
Administration........................................................................................................................
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18
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Article X
Amendment
and
Termination.................................................................................................
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19
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Article XI
Informal
Funding....................................................................................................................
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21
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Article XII
Claims.....................................................................................................................................
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22
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Article XIII
General
Conditions.................................................................................................................
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24
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Schedule
A-Company Matching Contributions
Schedule
B-Eligible Employees
Schedule
C-Reallocation of Unit to Other Investments
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Ball
Corporation 2005 Deferred Compensation Company Stock Plan
Article I
Establishment
and Purpose
Ball
Corporation (the “Company”) maintains the Ball Corporation 2000 Deferred
Compensation Company Stock Plan and predecessor plans (the “Grandfathered
Plans”).
The
Company hereby amends and restates the Ball Corporation 2005 Deferred
Compensation Company Stock Plan, effective as of the Effective Date, except
as
otherwise noted below (the “Plan”). The purpose of the Plan continues to be to
attract and retain key Employees and Directors by providing such Employees
and
Directors with the opportunity to defer the cash portion of their annual
incentive awards (or, in the case of Directors, of their Annual Fixed Retainer
and Annual Incentive Retainer) and other cash compensation specified by the
Human Resources Committee (the “HR Committee”) of the Board of Directors under a
nonqualified plan that also aligns the interests of such Employees and Directors
with the Company stockholders.
The
terms
of the Plan were reflected in an interim document adopted by the Company
in
December, 2005, in response to proposed Treasury regulations published on
October 4, 2005, that required the Company to adopt written amendments
prior to December 31, 2005, with respect to items of transition relief
described in Notice 2005-1 and that expired on December 31, 2005. The
interim document was intended to satisfy the amendment requirements of the
proposed regulations without the amendment constituting a “material
modification” to the Grandfathered Plans, but subject to restatement in 2006 to
reflect the requirements of Code Section 409A. The Plan was subsequently
amended and restated effective as of January 1, 2005, to comply with the
requirements of Code Section 409A, and is now being further amended and
restated in order to permit Participants to elect to have their Accounts
valued
by reference to investments other than Units of Company Stock, and to make
certain other changes.
The
Plan
is intended to be an unfunded arrangement providing deferred compensation
to
eligible employees who are part of a select group of management or highly
compensated employees of the Company within the meaning of Sections 201(2),
301(a)(3) and 401(a)(1) of ERISA.
Article II
Definitions
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2.1
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Account.
Account means a bookkeeping account maintained by the Plan Administrator
to record the Company’s payment obligation to a Participant as determined
under the terms of the Plan. The Plan Administrator may maintain
an
Account to record the total obligation to a Participant and component
Accounts to reflect amounts payable at different times and in different
forms pursuant to the terms of a Participant’s Deferral Election. Without
limiting the Plan Administrator’s authority to establish Accounts as it
deems necessary, Accounts may include, for each Participant, Separation
Accounts up to a maximum number established by the Plan Administrator.
Reference to an Account means any such Account established by the
Plan
Administrator, as the context requires.
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Corporation 2005 Deferred Compensation Company Stock Plan
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Accounts
are intended to constitute unfunded obligations of the Company
within the
meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA.
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Accounts
under this Plan shall reflect only those amounts considered to
be
Deferrals as defined in this Plan. The provisions of this Plan
shall apply
only to such Accounts and shall not apply to any Grandfathered
Plan
accounts.
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2.2
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Account
Balance.
Account Balance means, with respect to any Account, the total amount
of
the Company’s payment obligation from such Account as of the most recent
Valuation Date.
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2.3
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Affiliate.
Affiliate means a corporation, trade or business that, together
with the
Company, is treated as a single employer under Code Section 414(b) or
(c).
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2.4
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Beneficiary.
Beneficiary means a natural person, estate, or trust designated
by a
Participant to receive benefits to which a Beneficiary is entitled
in
accordance with provisions of the Plan. The Participant’s spouse, if
living, otherwise the Participant’s estate, shall be the Beneficiary
if:
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(a)
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the
Participant has not designated a natural person or trust as Beneficiary,
or
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(b)
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all
designated Beneficiaries have predeceased the
Participant.
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A
former spouse shall have no interest under the Plan, as Beneficiary
or
otherwise, unless (i) the Participant designates such person as a
Beneficiary after dissolution of the marriage or (ii) such interest
is ordered under a domestic relations order described in
Section 8.7.
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2.5
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Business
Day.
A
Business Day is each day on which the New York Stock Exchange is
open for
business.
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2.6
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Change
in Control.
Change in Control occurs on the date on which there is (i) a change
in the ownership of the Company, (ii) a change in the effective
control of the Company or (iii) a change in the ownership of a
substantial portion of the Company’s assets. For purposes of this Section,
a change in ownership of the Company occurs on the date on which
any one
person or more than one person acting as a group acquires ownership
of
stock of the Company that, together with stock held by such person
or
group constitutes more than 50% of the total fair market value
or total
voting power of the stock of the Company. A change in the effective
control of the Company occurs on the date on which either (i) a
person or more than one person acting as a group acquires ownership
of
stock of the Company possessing 35% or more of the total voting
power of
the stock of the Company or (ii) a majority of members of the
Company’s Board of Directors is replaced during any twelve (12)-month
period by directors whose appointment or election is not endorsed
by a
majority of the members of the Company’s Board of Directors prior to the
date of the appointment or election. A change in the ownership
of a
substantial portion of assets occurs on the date on which any one
person
or more than one person acting as a
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Corporation 2005 Deferred Compensation Company Stock Plan
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group
acquires assets from the Company that have a total gross fair market
value
equal to or more than 40% of the total gross fair market value
of all of
the assets of the Company immediately prior to such acquisition
or
acquisitions.
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Reference
to the Company under this Section 2.6 also shall mean Affiliates for
whom a Participant is providing services at the time of a Change
in
Control affecting such Affiliate.
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The
determination as to the occurrence of a Change in Control shall
be based
on objective facts and in accordance with the requirements of Code
Section 409A.
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2.7
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Claimant.
Claimant means a Participant or Beneficiary filing a claim under
Article XII of this Plan.
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2.8
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Code.
Code means the Internal Revenue Code of 1986, as amended from time
to
time.
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2.9
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Code
Section 409A.
Code Section 409A means Section 409A of the Code, and the
regulations and other guidance issued by the Treasury Department
and
Internal Revenue Service
thereunder.
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2.10
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Company.
Company means Ball Corporation.
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2.11
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Company
Award.
Company Award means a credit by the Company to a Participant’s Account(s)
in accordance with the provisions of Article VI of the Plan. Except
as otherwise provided in Article VI, Company Awards are credited at
the sole discretion of the Company and the fact that a Company
Award is
credited in one year shall not obligate the Company to continue
to make
such Company Award in subsequent
years.
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2.12
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Company
Stock.
Company Stock means the common stock of Ball
Corporation.
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2.13
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Compensation.
Compensation means a Participant’s annual incentive awards, equity based
compensation, or other cash compensation (if any) that is determined
by
the HR Committee of the Board of Directors, in its sole discretion,
as
eligible for deferral under the terms of this Plan. Compensation
for
Directors includes the Annual Fixed Retainer, Annual Incentive
Retainer
and other compensation for services performed as a Director. Compensation
shall not include any compensation that has been previously deferred
under
this Plan or any other arrangement subject to Code Section 409A, or
accounts maintained under the Grandfathered
Plans.
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2.14
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Death
Benefit.
Death Benefit means payment to a Participant’s Beneficiary(ies) due to the
death of the Participant. Death Benefits will be paid in accordance
with
Section 8.2.
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2.15
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Deferral.
Deferral means the credits to a Participant’s Accounts attributable to
deferrals of compensation described in Prop. Treas. Reg.
Section 1.409A-1(b)(1) and Earnings on such amounts as provided in
Prop. Treas. Reg. Section 1.409A-1(b)(2), except where the context of
the Plan clearly indicates
otherwise.
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Corporation 2005 Deferred Compensation Company Stock Plan
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2.16
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Deferral
Election.
Deferral Election means an agreement between a Participant and
the Company
specifying any or all of the following: (i) the amount of each
component of Compensation subject to the Deferral Election; and
(ii) a Payment Schedule. The Plan Administrator may permit different
deferral amounts for each component of Compensation and may establish
a
minimum or maximum deferral amount for each such
component.
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A
Deferral Election must be submitted to the Company in accordance
with the
Plan and under procedures established by the Plan Administrator
from time
to time. A Deferral Election may be modified as described in
Article V if such modification is submitted to the Company in
accordance with the terms of this Plan and procedures adopted by
the Plan
Administrator.
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The
Plan Administrator may reduce a Participant’s Deferral Election as
necessary to permit sufficient non-deferred Compensation from which
the
Company may satisfy a Participant’s obligations regarding welfare plans
and from which to satisfy tax withholding obligations, and/or to
conform
the Deferral Election and the Plan to applicable
law.
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2.17
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Director.
Director means a non-employee member of the Board of Directors
of the
Company.
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2.18
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Disability.
Disability means disability under the Company’s long-term disability
programs for Eligible Employees.
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2.19
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Dividend.
Dividend means an amount credited to an Account concurrent with
the
quarterly dividend payable with respect to Company Stock. The amount
of
such credit will equal the number of Units credited to such Account
as of
the record date for determining dividends payable to shareholders
of the
Company multiplied by the amount of quarterly dividend payable
with
respect to one share of Company
Stock.
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2.20
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Earnings.
Earnings means an adjustment to the value of an Account in accordance
with
Article VII.
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2.21
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Effective
Date.
Effective Date means January 1, 2005, with respect to Compensation
“deferred” on or after such date. Deferrals of Compensation that were
earned and vested as of December 31, 2004, and credited to a
Participant’s account under the Ball Corporation 2000 Deferred
Compensation Company Stock Plan and predecessor plans shall not
be subject
to this Plan, even if such deferrals were credited after December 31,
2004.
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2.22
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Eligible
Employee.
Eligible Employee means a member of a “select group of management or
highly compensated employees” of the Company or an Affiliate within the
meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, as
determined by the HR Committee of the Board of Directors (or the
Plan
Administrator, if such authority is
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Corporation 2005 Deferred Compensation Company Stock Plan
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delegated
by the HR Committee) from time to time in its sole discretion.
An Eligible
Employee shall also include any member of the Company’s Board of
Directors, as the context requires.
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2.23
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Employee.
Employee means an employee of the Company and any former employee
who
continues to provide services to the Company pursuant to Prop.
Treas. Reg.
Section 1.409A-1(h)(1)(ii).
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2.24
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ERISA.
ERISA means the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
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2.25
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Participant.
Participant means an Eligible Employee who has received notification
of
his or her eligibility to defer Compensation under the Plan under
Section 3.1 and any other person with an Account Balance greater than
zero, regardless of whether such individual continues to be an
Eligible
Employee or a Director. A Participant’s continued participation in the
Plan shall be governed by Section 3.2 and Section 3.3 of the
Plan.
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2.26
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Payment
Schedule.
Payment Schedule means the date as of which payment under the Plan
will
commence and the form in which such payment will be
made.
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(a)
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Separation
Payments. A
Participant may as part of a Deferral Election establish a Separation
Account and specify the number of years following Separation from
Service
when payment will be made from the Account (e.g., “Third year following
Separation from Service”). Subject to the payment rules set forth below,
payment under such an election will be made on or after January 1 of
the specified year. If no payment year is specified, payment will
be made
in the year following the year in which the Participant’s Separation from
Service occurs.
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The
following rules apply to any Payment Schedule commencing in the
year
following the year in which a Participant’s Separation from Service
occurs. If the Separation from Service occurs prior to July 1,
payment will be made on or after January 1 of the following year. If
the Separation from Service occurs on or after July 1, payment will
be made on or after July 1 of the following year. Payments delayed to
a date later than the dates specified in the preceding sentence
pursuant
to the provisions of Sections 8.4 and 8.8 will be treated as payments
made as of such specified dates.
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Payment
will be made in a single lump sum unless the Participant specifies
an
alternative form of payment in the Deferral Election establishing
a
Separation Account. Alternative forms of payment include (i) a lump
sum payment between 0% and 100% of the Account Balance and (ii) any
remaining Account Balance payable in a series of substantially
equal
annual installments from two (2) to fifteen (15) years. For purposes
of
Article V, (i) each lump sum payment and (ii) each series
of substantially equal installments will be treated as separate
forms of
payment and any series of substantially equal annual installments
will be
treated as a single form of payment. If a partial lump sum is paid,
and
unless the
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Corporation 2005 Deferred Compensation Company Stock Plan
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Participant
specifies an alternative commencement date for the installment
payments or
modifies the installments pursuant to Article V, the payment
commencement date for the installments will be the first anniversary
of
the lump sum payment commencement
date.
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Notwithstanding
the foregoing, if a Participant that is an Employee of the Company
Separates from Service prior to attaining age 55, he or she will
receive
all Account Balances in a single lump sum, commencing in the year
following the year in which the Separation from Service occurs.
Such
Employee that is a Participant may not file an election under
Article V to modify the time or form of a payment described in this
paragraph.
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(b)
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Death
Payments.
Payment will be made from all Accounts according to the Payment
Schedule
in effect for each such Account, except that the commencement date
under
such Payment Schedules shall be on or after January 1 of the year
following the year in which the Participant’s death
occurs.
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2.27
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Performance-Based
Compensation.
Performance-Based Compensation means Compensation where the amount
of, or
entitlement to, the Compensation is contingent on the satisfaction
of
preestablished organizational or individual performance criteria
relating
to a performance period of at least twelve (12) consecutive months
in
which the Participant performs services for the Company. Organizational
or
individual performance criteria are considered preestablished if
established not later than ninety (90) days after the commencement
of the
period of service to which the criteria relate, provided that the
outcome
is substantially uncertain at the time the criteria are established.
Performance-Based Compensation may include payments based on performance
criteria that are not approved by the Board of Directors, a committee
of
the Board or by the stockholders of the Company. Performance-Based
Compensation does not include any amount or portion of any amount
that
will be paid either regardless of performance, or based upon a
level of
performance that is substantially certain to be met at the time
the
criteria is established. Performance criteria may be subjective
but must
relate to the performance of the Participant, a group of Employees
that
includes the Participant or a business unit (which may include
the
Company) for which the Participant provides services. For a Director,
the
performance criteria must relate to the performance of such Director,
a
Directors’ committee on which such Director serves or the Board of
Directors as a whole. The determination that any subjective performance
criteria have been met shall not be made by the Participant or
by a family
member of the Participant, or by a person under the supervision
of the
Participant or a Participant’s family members where any amount of the
compensation of such person is controlled in whole or in part by
the
Participant or such family member. Compensation based on Company
stock
performance may constitute Performance-Based Compensation if it
is based
solely on an increase in the value of such stock after the date
of grant
or award. The determination of whether Compensation qualifies as
“Performance-Based Compensation” will be made in accordance with Prop.
Treas. Reg. Section 1.409A-1(e) and subsequent
guidance.
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Corporation 2005 Deferred Compensation Company Stock Plan
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2.28
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Plan.
Plan means the Ball Corporation 2005 Deferred Compensation Company
Stock
Plan, as amended from time to time.
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2.29
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Plan
Administrator.
Plan Administrator means the Deferred Compensation Committee of
the
Company, acting pursuant to the powers and authority granted under
Section 9.1 of the Plan.
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2.30
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Plan
Year.
Plan Year means January 1 through
December 31.
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2.31
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Separation
Account.
Separation Account means an Account established under a Deferral
Election,
as described in Section 4.4 to record an amount payable to a
Participant due to his or her Separation from Service and the year
in
which payment from such Separation Account will be made. A Participant
may
establish and maintain at any one time no more than the maximum
number of
Separation Accounts specified by the Plan
Administrator.
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2.32
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Separation
from Service.
An Employee incurs a Separation from Service upon termination of
employment with the Company. A Director incurs a Separation from
Service
as of the first day on which he or she no longer performs services
for the
Company as a Director. The occurrence of a Separation from Service
is
determined by the Plan Administrator under the facts and circumstances,
in
accordance with Code Section 409A and the following
provisions.
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(a)
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Leaves
of Absence.
A
Participant remains an Employee or Director during military leave,
sick
leave, or other bona
fide
leave of absence (such as temporary employment by the government)
if the
period of such leave does not exceed six (6) months or such longer
period
as is provided either by statute or by contract. If the period
of leave
exceeds six (6) months and the Participant’s right to reemployment after
such extended leave is not provided either by statute or by contract,
the
employment relationship is deemed to terminate on the first day
immediately following such six (6)-month period. In this regard,
a
Participant who is an Eligible Employee at the time he or she is
placed on
disability leave of absence in accordance with the Company’s policies and
procedures shall continue to be an Employee and shall not incur
a
Separation from Service until the earlier of (i) termination of
employment, (ii) attainment of age 65, or (iii) the
Participant’s death.
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(b)
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Continuing
Services Post-Employment. A
former Employee or Director shall not be considered to have terminated
employment if he or she continues to provide more than “insignificant
services” as defined in Prop. Treas. Reg.
Section 1.409A-1(h)(ii).
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(c)
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Sale
of Assets. A
Separation from Service shall not include a termination of employment
provided under the terms of a sale of assets of the Company or
an
Affiliate if (i) the purchaser hires the Participant as an employee
or other service provider upon the closing of the transaction and
(ii) the purchaser assumes the liability under the Plan for payment
of such Participant’s Accounts.
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Corporation 2005 Deferred Compensation Company Stock Plan
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2.33
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Substantial
Risk of Forfeiture.
Substantial Risk of Forfeiture shall have the meaning specified
in Prop.
Treas. Reg.
Section 1.409A-1(d).
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2.34
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Unforeseeable
Emergency.
An Unforeseeable Emergency is a severe financial hardship of the
Participant or Beneficiary resulting from an illness or accident
of the
Participant or Beneficiary, the Participant’s or Beneficiary’s spouse, or
the Participant’s or Beneficiary’s dependent (as defined in Code
Section 152(a)); loss of the Participant’s or Beneficiary’s property
due to casualty (including the need to rebuild a home following
damage to
a home not otherwise covered by insurance, for example, not as
a result of
a natural disaster); or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control
of the
Participant or Beneficiary. For example, the imminent foreclosure
of or
eviction from the Participant’s or Beneficiary’s primary residence may
constitute an Unforeseeable Emergency. In addition, the need to
pay for
medical expenses, including nonrefundable deductibles, as well
as for the
costs of prescription drug medication, may constitute an Unforeseeable
Emergency. Finally, the need to pay for the funeral expenses of
a spouse
or a dependent (as defined in Code Section 152(a)) may also
constitute an Unforeseeable Emergency. Except as otherwise provided
in
this Section, the purchase of a home and the payment of college
tuition
are not Unforeseeable Emergencies. Whether a Participant or Beneficiary
is
faced with an Unforeseeable Emergency permitting a distribution
under
Section 8.3 of the Plan is to be determined by the Plan Administrator
based on the relevant facts and circumstances of each case, but,
in any
case, a distribution on account of Unforeseeable Emergency may
not be made
to the extent that such emergency is or may be reimbursed through
insurance or otherwise, by liquidation of the Participant’s assets, to the
extent the liquidation of such assets would not cause severe financial
hardship, or by cessation of deferrals under this
Plan.
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2.35
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Unit.
Unit means the Units credited to a Participant’s Accounts pursuant to
Article VII. For valuation and distribution purposes, each Unit shall
be equivalent to one share of Company Stock as of the applicable
Valuation
Date. All Deferrals and Company Awards shall be credited to a
Participant’s Accounts in Units, or fractional Units, with each Unit
having a value equivalent to one share of Company Stock. With respect
to
any amount credited to a Participant’s Accounts as of January 1 in
any year, the number of such credited Units shall be determined
by
dividing the amount credited to the Participant’s Account (including any
related matching contributions) by the closing price of one share
of
Company Stock indicated in the New York Stock Exchange Composite
Listing as of the preceding Business Day. With respect to any amount
credited to a Participant’s Accounts (including any related matching
contributions) as of any day of the year other than January 1, the
number of such credited Units shall be determined based on the
closing
price of one share of Company Stock indicated in the New York Stock
Exchange Composite Listing as of the Business Day on which the
Deferral is
credited.
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2.36
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Changes
in Capitalization.
If there is any change in the number or class of shares of Company
Stock
through the declaration of a stock dividend or other extraordinary
dividends, or recapitalization resulting in stock splits, or combinations
or exchanges of
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Corporation 2005 Deferred Compensation Company Stock Plan
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such
shares or in the event of similar corporate transactions, the Units
in
each Participant’s Deferred Compensation Account shall be equitably
adjusted to reflect any such change in the number or class of issued
shares of Company Stock or to reflect such similar corporate
transaction.
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2.37
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Valuation
Date.
Valuation Date shall mean each Business Day selected by the Plan
Administrator, in its discretion, for determining the value of
Accounts.
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Article III
Eligibility
and Participation
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3.1
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Eligibility
and Participation.
An Eligible Employee becomes eligible to file a Deferral Election
upon
receipt of notification of eligibility from the Plan Administrator.
Such
Eligible Employee becomes a Participant upon the earlier to occur
of
(i) a credit of Company Awards under Article VI or
(ii) filing his or her initial Deferral Election in accordance with
Article IV. A Director becomes eligible to file a Deferral Election
upon acceptance of his or her appointment as a
Director.
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3.2
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Duration.
A
Participant shall be eligible to defer Compensation and receive
allocations of Company Awards, subject to the terms of the Plan,
for as
long as such Participant is an Eligible Employee or Director. A
Participant who is no longer an Eligible Employee but continues
to be
employed by the Company may not defer Compensation but may otherwise
exercise all of the rights of a Participant under the Plan with
respect to
his or her Accounts. On and after a Separation from Service, a
Participant
shall remain a Participant as long as his or her Accounts are greater
than
zero and during such time may continue to make investment elections
under
Article VII. An individual shall cease participation in the Plan when
all benefits under the Plan to which he or she is entitled have
been
paid.
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3.3
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Revocation
of Future Participation.
Notwithstanding the provisions of Section 3.2, the Plan Administrator
may, in its discretion, revoke such Participant’s eligibility to make
future deferrals under this Plan. Such revocation will not affect
in any
manner a Participant’s Accounts or other terms of this
Plan.
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Article IV
Deferral
Elections
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4.1
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Deferral
Elections, Generally.
An Eligible Employee or Director shall make a Deferral Election
by
completing and submitting a deferral agreement during the enrollment
periods established by the Plan Administrator and in the manner
specified
by the Plan Administrator. The Deferral Election shall designate
a dollar
amount, Unit amount or whole percentage of Compensation to be
deferred.
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Corporation 2005 Deferred Compensation Company Stock Plan
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Deferral
Elections are considered to be effective on the date they become
irrevocable as of the dates set forth in Section 4.2 unless the form
of Deferral Agreement provided by the Plan Administrator specifies
an
earlier date. Notwithstanding the foregoing, a Deferral Election
may be
suspended in the event of an Unforeseeable Emergency (regardless
of
whether a payment is made to the Participant due to such Unforeseeable
Emergency). A Deferral Election that is not timely filed with respect
to a
service period or component of Compensation shall be considered
void and
shall have no effect with respect to such service period or
Compensation.
|
|
The
HR Committee of the Board of Directors, in its sole discretion,
may
specify the components of Compensation subject to deferral. The
Plan
Administrator may establish a minimum or maximum deferral amount
for each
component of Compensation and the timing of submission of Deferral
Elections with respect to such
Compensation.
|
|
4.2
|
Timing
Requirements for Deferral Elections.
|
|
(a)
|
First
Year of Eligibility.
An
Eligible Employee may submit a Deferral Election within thirty
(30) days
of receipt of the notification of his eligible status under
Section 3.1. A Director may submit a Deferral Election within thirty
(30) days of accepting his or her appointment as a Director. The
Deferral
Election described in this paragraph becomes irrevocable on the
first day
following such 30th day. An Eligible Employee or Director may file
a
Deferral Election under this Section 4.2(a) only if he or she does
not participate in any other “account balance plan” as defined in Prop.
Treas. Reg. Section 1.409A-1(c)(i)(A) maintained by the Company or an
Affiliate, other than as permitted in Prop. Treas. Reg.
Section 1.409A-1(c)(ii).
|
|
A
Deferral Election filed under this Section 4.2(a) applies to
Compensation earned on and after the date the Deferral Election
becomes
irrevocable. For Compensation that is earned based upon a specified
performance period (e.g., over a calendar year), where a Deferral
Election
is made in the first year of eligibility but after the beginning
of the
service period, the election will be deemed to apply to Compensation
paid
for services performed subsequent to the election if the election
applies
to the portion of the Compensation equal to the total amount of
the
Compensation for the service period multiplied by the ratio of
the number
of days remaining in the performance period after the Deferral
Election
becomes irrevocable over the total number of days in the service
period.
|
|
Eligibility
to submit a Deferral Election during the thirty (30)-day period
specified
in this Section 4.2(a) shall not preclude an Eligible Employee from
also filing any Deferral Elections in accordance with Section 4.2(b)
through (g) during or after such thirty (30)-day
period.
|
|
(b)
|
Salary
and Other Non-Performance-Based Compensation.
Subject to the authority of the HR Committee of the Board of Directors
to
identify deferrable components of Compensation under Section 4.1 and
the Plan Administrator’s
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Ball
Corporation 2005 Deferred Compensation Company Stock Plan
|
authority
to establish maximum and minimum deferrals under Sections 2.16 and
4.1, a Participant may defer salary and other non-Performance-Based
Compensation by filing a Deferral Election no later than December 31
of the year prior to the year in which such Compensation is earned.
A
Deferral Election described in this paragraph shall become irrevocable
with respect to such Compensation as of January 1 of the year in
which such Compensation is earned.
|
|
(c)
|
Performance-Based
Compensation.
A
Deferral Election may be filed with respect to Performance-Based
Compensation, provided that:
|
|
(1)
|
the
Participant performs services continuously from a date no later
than the
date upon which the performance criteria for such Performance-Based
Compensation are established through a date no earlier than the
date upon
which the Participant submits a Deferral
Election;
|
|
(2)
|
the
Deferral Election is submitted at the times and in the manner established
by the Plan Administrator, but in no event later than the date
that is six
(6) months before the end of the performance period during which
such
Performance-Based Compensation is earned;
and
|
|
(3)
|
in
no event may an election to defer Performance-Based Compensation
be made
after such Performance-Based Compensation has become both substantially
certain to be paid and readily
ascertainable.
|
|
A
Deferral Election becomes irrevocable with respect to Performance-Based
Compensation as of the day immediately following the latest date
described
in paragraph (c)(2).
|
|
Nothing
in Section 4.2(a) shall preclude an Eligible Employee from filing a
Deferral Election in his initial year of eligibility under this
Section 4.2(c), even if such election is made later than thirty (30)
days after notification of eligibility under
Section 3.1.
|
|
(d)
|
Short-Term
Deferrals.
Compensation that meets the definition of a “short-term deferral”
described in Prop. Treas. Reg. Section 1.409A-1(b)(4) may be deferred
under a Deferral Election filed not later than twelve (12) months
prior to
the date on which the substantial risk of forfeiture lapses. The
Payment
Schedule for such Deferral must specify a commencement date no
earlier
than five (5) years after the forfeiture restriction
lapses.
|
|
(e)
|
Deferral
Election With Respect to Certain Forfeitable
Rights.
With respect to a legally binding right to a payment in a subsequent
year
that is subject to a forfeiture condition requiring the Participant’s
continued services for a period of at least twelve (12) months
from the
date the Participant obtains the legally binding right, an election
to
defer such Compensation may be made on or before the 30th day after
the
Participant obtains the legally binding right to the
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Ball
Corporation 2005 Deferred Compensation Company Stock Plan
|
Compensation,
provided that the election is made at least twelve (12) months
in advance
of the earliest date at which the forfeiture condition could lapse.
The
Deferral Election described in this paragraph becomes irrevocable
after
such 30th day.
|
|
(f)
|
Deferral
Under Non-Elective Arrangement.
An
arrangement satisfying the requirements of Prop. Treas. Reg.
Section 1.409A-2(a)(12) shall be treated as a valid Deferral Election
subject to the terms of the Plan if such agreement (i) incorporates
the provisions of this Plan document by reference or conduct, (ii) is
classified as an “individual account plan” under Code Section 409A,
and (iii) otherwise complies with Code
Section 409A.
|
|
(g)
|
2005
Elections.
The Plan Administrator has the authority, effective January 1, 2005,
to allow any or all Participants to make or modify a Deferral Election
with respect to deferrals subject to Code Section 409A, which relate
all or in part to services performed prior to December 31, 2005. Such
election or modification must be filed with the Plan Administrator
no
later than March 15, 2005.
|
|
4.3
|
“Evergreen”
Deferral Elections.
The Plan Administrator may provide in the form of Deferral Election
that
such Deferral Election remain in effect until terminated or modified
by
the Participant. Such “evergreen” Deferral Elections become effective with
respect to an item of Compensation on the date such election becomes
irrevocable under Section 4.2. A Participant whose Deferral Election
is suspended due to an Unforeseeable Emergency will be required
to file a
new Deferral Election under this Article IV in order to continue
making Deferrals under the Plan.
|
|
4.4
|
Separation
Account Elections.
A
Participant’s Deferral Election may establish one or more Separation
Accounts (up to the maximum number of such Accounts established
by the
Plan Administrator) from which payment will be made due to a Participant’s
Separation from Service. The Deferral Election establishing a Separation
Account shall specify the Payment Schedule for such
Account.
|
|
4.5
|
Unspecified
Deferral Allocations.
Deferrals that are not allocated to a Separation Account under
the terms
of a Deferral Election will be allocated to the Separation Account
with
the earliest payment commencement year. If a Separation Account
has not
been established, the Plan Administrator shall establish a Separation
Account to receive such Deferrals. Subject to the modification
rules under
Article V, such Account will be payable in a single lump sum in the
year following the year in which the Participant’s Separation from Service
occurs.
|
|
4.6
|
Deductions
from Pay.
The Plan Administrator has the authority to determine the payroll
practices under which any component of Compensation subject to
a Deferral
election will be deducted from a Participant’s
Compensation.
|
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12 of 26
Ball
Corporation 2005 Deferred Compensation Company Stock Plan
Article V
Modifications
to Payment Schedules
|
5.1
|
Participant’s
Right to Modify.
Subject to Section 5.2, a Participant may modify the Payment Schedule
with respect to an Account, provided such modification complies
with the
requirements of Sections 5.1(a) and
(b).
|
|
(a)
|
Time
of Election. The
date on which a modification election is submitted to the Plan
Administrator must be at least twelve (12) months prior to the
January 1 or July 1 on which payment commences under the Payment
Schedule in effect prior to modification, and (ii) the date payments
commence under the modified Payment Schedule must occur no earlier
than
five (5) years after the January 1 or July 1 of the year the
payment would have commenced under the Payment Schedule in effect
prior to
the effective date of the modification. Under no circumstances
may a
modification election result in an acceleration of payments in
violation
of Code Section 409A.
|
|
(b)
|
Effective
Date. A
modification election described in Section 5.1(a) becomes effective
on the date that is twelve (12) months after the date the modification
is
filed with the Plan Administrator. Until such modification election
becomes effective, payment will be made in accordance with the
Payment
Schedule in effect prior to such
modification.
|
|
(c)
|
Effect
on Other Accounts. An
election to modify a Payment Schedule is specific to the Separation
Account to which it applies, and shall not be construed to affect
the
Payment Schedules of any other
Accounts.
|
|
(d)
|
Effect
of Modification Election Upon Death or Unforeseeable
Emergency.
A
modification election described in this Section shall have no effect
on
the commencement date of payments due to death or Unforeseeable
Emergency.
|
|
5.2
|
Modifications
Authorized Under Notice 2005-1, Notice 2006-79, and Proposed
Regulations.
Notwithstanding any provision of this Plan to the contrary, during
calendar years 2005, 2006, and 2007, a Participant may modify any
Payment
Schedule of any Account without regard to the requirements of
Section 5.1(a) and (b); provided, however, that any modification
election submitted during 2006 purporting to modify an Account
with a
Payment Schedule commencing during 2006 or which would cause the
commencement date of the Payment Schedule for an Account to be
accelerated
into 2006 shall be null and void. Similarly, any modification election
submitted during 2007 purporting to modify an Account with a Payment
Schedule commencing during 2007 or which would cause the commencement
date
of the Payment Schedule for an Account to be accelerated into 2007
shall
be null and void. The Plan Administrator has the authority to prescribe
the time and manner under which such modifications may be
made.
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13 of 26
Ball
Corporation 2005 Deferred Compensation Company Stock Plan
Article VI
Company
Awards
|
6.1
|
Company
Awards.
The HR Committee of the Board of Directors, or the Plan Administrator
if
such authority is delegated, may, in its sole and absolute discretion,
authorize Company Awards to one, some, or all of the Participant(s)
in an
amount determined in its sole and absolute discretion. A Company
Award may
be made at any time during the calendar year and may consist of
“matching”
contributions. The HR Committee of the Board of Directors or its
delegate
shall be under no obligation to make contributions to the Plan
unless the
Company has entered into a separate agreement (such as an employment
agreement) to make such
contributions.
|
|
6.2
|
Vesting.
Company Awards and the Earnings thereon, shall vest in accordance
with the
vesting schedule(s) established by the Plan Administrator at the
time that
the Company Award is made. The unvested portion shall be forfeited
upon
Separation from Service. The Plan Administrator may, at any time,
in its
sole discretion, increase a Participant’s vested interest in a Company
Award or restore any forfeiture. Notwithstanding the foregoing,
any
decision to accelerate vesting with respect to a Participant subject
to
SEC Rule 16b shall be approved by the HR Committee of the Board of
Directors.
|
Article VII
Valuation
of Account Balances; Investments; Earnings
|
7.1
|
Initial
Crediting of Deferrals to
Accounts
|
|
(a)
|
Crediting
Deferrals and Dividends. Deferrals
of annual incentive awards (and any related matching contributions
specified on Schedule A) shall be credited to the applicable
Participant Accounts and converted to Units as of the January 1
following the year in which services were performed. Deferrals
pertaining
to forms of Compensation other than annual incentive awards shall
be
credited to the applicable Participant’s Accounts as of the day such
Compensation otherwise would have been paid and shall be converted
to
Units as of such date. Dividends shall be credited to the applicable
Participant Accounts as of the dividend payment date for Company
Stock.
|
|
(b)
|
Conversion
to Units. Amounts
credited to a Participant’s Account shall be converted to Units. In the
case of annual incentive awards and any related matching contributions,
the number of Units shall be determined by dividing the amount
credited to
the Participant’s account on such day by the closing price of one share of
Company Stock indicated in the New York Stock Exchange Composite
Listing as of the preceding Business Day. For all other Deferrals,
Units
shall be determined using the closing price on the same day on
which the
Deferral is credited to the Participant’s
Accounts.
|
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14 of 26
Ball
Corporation 2005 Deferred Compensation Company Stock Plan
|
7.2
|
Investment
Options
|
|
(a)
|
Reallocation
of Units to Other Investments.
Effective January 1, 2007, and subject to implementation, procedures
and
limitations as specified by the Plan Administrator, a Participant
may
reallocate Units to other investment options made available by
the Plan
Administrator (“Investment Funds”), which may include stocks, bonds,
mutual fund shares and other investments. The Participant shall
specify
the Investment Funds in which the reallocated Units will be invested.
Units will be valued based on the closing stock price of the Company
Stock
on the day a reallocation election is made and must be allocated
among the
Investment Funds in increments of 1%. The Participant’s Unit reallocation
will become effective according to procedures adopted by the Plan
Administrator.
|
|
The
Plan Administrator, in its sole discretion, shall be permitted
to add or
remove Investment Funds from the Plan menu from time to time provided
that
any such additions or removals of Investments Funds shall not be
effective
with respect to any period prior to the effective date of such
change.
|
|
The
Participant’s investment allocation constitutes a deemed, not actual,
investment among the Investment Funds comprising the investment
menu. At
no time shall a Participant have any real or beneficial ownership
in any
Investment Fund included in the investment menu, nor shall the
Company or
any trustee acting on its behalf have any obligation to purchase
actual
securities as a result of a Participant’s investment allocation. A
Participant’s investment allocation shall be used solely for purposes of
adjusting the value of a Participant’s Account Balance and the amount of
the Company’s corresponding payment obligation under the terms of the
Plan.
|
|
(b)
|
Reallocation
of Account Balances Not Accounted for as
Units
|
|
Participants
may later reallocate current Account Balances invested in Investment
Funds
other than Units in increments of 1% by filing a new allocation
election
at the time and in the form specified by the Plan Administrator.
The
Participant’s investment allocation will become effective on the same
Business Day or, in the case of reallocations received after a
time
specified by the Plan Administrator, the next Business Day. The
allocation
election shall apply prospectively to the Account or Accounts identified
in the election.
|
|
(c)
|
Payments
and Forfeitures.
The number of Units or the value of the Participant’s Account Balance
shall be reduced to reflect payments and any forfeitures from the
applicable Participant Account(s) on such
day.
|
|
(d)
|
Earnings.
After the adjustments described in (a) through (c) above, a Participant’s
Accounts will be adjusted as of the close of business on such day
and each
subsequent Business Day to reflect the total value of Units credited
to
such Accounts or, subject to the Plan Administrator’s procedures for
valuing
|
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15 of 26
Ball
Corporation 2005 Deferred Compensation Company Stock Plan
|
Accounts,
to reflect earnings based upon the Participant’s allocation among the menu
of investment options. For Accounts containing Units, the value
of Units
in such Account shall be determined by multiplying the total number
of
Units and fractions thereof credited to each Account by the closing
price
of one share of Company Stock indicated in the New York Stock
Exchange Composite Listing as of each Business
Day.
|
Article VIII
Distributions
and Withdrawals
|
8.1
|
Separation
Account Payments.
Payments will be made from all Separation Accounts according to
the
Payment Schedule specified in Section 2.26(a). The amount of the
payments will be based on the Separation Account Balance and will
be paid
in accordance with the provisions of
Section 8.4.
|
|
8.2
|
Death
Benefit.
If payments have commenced from a Participant’s Accounts as of the time of
the Participant’s death, the Beneficiary(ies) will continue to receive the
remaining payments under the Payment Schedule in effect for such
Account.
If payments have not commenced from an Account, payment will be
made in
accordance with the Payment Schedule for a death benefit described
in
Section 2.26(b).
|
|
8.3
|
Unforeseeable
Emergency.
A
Participant may submit a written request to the Plan Administrator
to
receive a distribution from his or her vested Account Balance(s)
if the
Participant experiences an Unforeseeable Emergency. Distributions
of
amounts in the event of an Unforeseeable Emergency are limited
to the
extent reasonably needed to satisfy the emergency need which cannot
be met
with other resources of the Participant. The amount of such distribution
shall be subtracted first from the Participant’s Separation Account with
the latest payment commencement date until depleted and then from
the next
latest Separation Accounts.
|
|
A
withdrawal by a Participant who is a “16b Officer” must be approved by the
HR Committee of the Board of
Directors.
|
|
8.4
|
Valuation
and Payment.
Payment of benefits under the Plan will be based on the valuation
of the
applicable Account Balance as of the Valuation Date specified by
the Plan
Administrator in its discretion. Balances that are valued in Units
shall
be paid in Company Stock with one share distributed for each Unit
credited. All fractional Units, and all Balances that are valued
with
reference to an Investment Fund, will be payable in
cash.
|
|
Payment
is treated as made upon the payment commencement date under the
applicable
Payment Schedule if the payment is made on or after such date in
the same
calendar year or, if later, by the 15th day of the third calendar
month
following the date specified under the arrangement. If a calculation
of
the amount of the payment is not administratively
|
Page
16 of 26
Ball
Corporation 2005 Deferred Compensation Company Stock Plan
|
practical
due to events beyond the control of the Participant, the payment
will be
treated as made upon the date specified under the Payment Schedule
if the
payment is made during the first calendar year in which the payment
becomes administratively
practicable.
|
|
8.5
|
Installments;
Declining Balance Calculation.
If a Payment Schedule specifies installment payments, annual payments
will
be made beginning as of the payment commencement date for such
installments and shall continue on each anniversary thereof until
the
number of installment payments specified in the Payment Schedule
has been
paid. The amount of each installment payment shall be determined
by
dividing (a) by (b):
|
|
(a)
|
equals
the Account Balance as of the Valuation Date
and
|
|
(b)
|
equals
the remaining number of installment
payments.
|
|
8.6
|
“De
Minimis Account” Balance.
Any provision in this Plan to the contrary notwithstanding, payment
to a
Participant or Beneficiary will be made in a single lump sum, provided
(i) the payment accompanies the entirety of the Participant’s
interest in the Plan and all similar arrangements that constitute
a
nonqualified deferred compensation arrangement under Prop. Treas.
Reg.
Section 1.409A-1(c); (ii) the payment is made on or before the
later of December 31 of the calendar year in which occurs the
Participant’s Separation from Service, or the 15th day of the third month
following the Participant’s Separation from Service; and (iii) the payment
is not greater than $25,000. Any Payment Schedule contrary to the
provisions of this Section 8.6 shall be null and
void.
|
|
8.7
|
Domestic
Relations Order.
Notwithstanding any benefit, Payment Schedule or other provision
of this
Plan regarding the time and form of payment, the Plan Administrator
may
pay all or a portion of a Participant’s Accounts to an “alternate payee”
as specified under the terms of a domestic relations order (defined
in
Code Section 414(p)(1)(B)). If a time or form of payment is not
specified in such order, payment will be made to such alternate
payee(s)
in a single lump sum as soon as is administratively practical following
the Plan Administrator’s determination that the order meets the
requirements of this
Section 8.7.
|
|
8.8
|
Permissible
Payment Delays.
The Company may delay any payment to a Participant upon the Plan
Administrator’s reasonable anticipation of one or more of the
following:
|
|
(a)
|
The
Company’s income tax deduction with respect to such payment would be
limited or eliminated by application of Code Section 162(m);
or
|
|
(b)
|
Making
such payment would violate a term of a loan agreement to which
the Company
or an Affiliate is a party, or other similar contract to which
the
Company, or an Affiliate, is a party, and such violation would
cause
material harm to the Company or an Affiliate;
or
|
|
(c)
|
Making
such payment would violate federal securities laws or other applicable
law.
|
Page
17 of 26
Ball
Corporation 2005 Deferred Compensation Company Stock Plan
Article IX
Administration
|
9.1
|
Plan
Administration.
This Plan shall be administered by the Deferred Compensation Committee
of
the Company which shall act as the Plan Administrator. The Plan
Administrator shall have discretionary authority to make, amend,
interpret
and enforce all appropriate rules and regulations for the administration
of this Plan and to utilize its discretion to decide or resolve
any and
all questions, including but not limited to eligibility for benefits
and
interpretations of this Plan and its terms, as may arise in connection
with the Plan. Claims for benefits shall be filed with the Plan
Administrator and resolved in accordance with the claims procedures
in
Article XII. The Plan Administrator may exercise such additional
powers and authority as may be delegated to the Plan Administrator
by the
HR Committee of the Board of Directors and such powers as are conferred
under the terms of the Plan.
|
|
9.2
|
Administration
Upon Change in Control.
Upon a Change in Control the members of the HR Committee of the
Board of
Directors, as constituted immediately prior to such Change in Control,
shall act as the Plan
Administrator.
|
|
Upon
such Change in Control, the management of the successor to the
Company may
not act, directly or indirectly, to remove the Plan Administrator,
unless
2/3rds of the members of the Board of Directors of the Company
and a
majority of Participants and Beneficiaries with Account Balances
consent
to the removal and replacement of the Plan Administrator. The individual
who was the Chief Executive Officer of the Company (or if such
person is
unable or unwilling to act, the next highest ranking officer) prior
to the
Change in Control shall have the authority (but shall not be obligated)
to
appoint an independent third party to act as the Plan Administrator
in
lieu of the members of the HR Committee of the Board of Directors.
Notwithstanding the foregoing, neither the members of the HR Committee
of
the Board of Directors nor the officer described above shall have
authority to direct investment of trust assets under any rabbi
trust
described in Section 11.2.
|
|
The
members of the HR Committee of the Board of Directors, acting as
the Plan
Administrator, shall have the exclusive authority to interpret
the terms
of the Plan and resolve claims under the claims procedure (except
appeals
brought by a Participant or
Beneficiary).
|
|
The
successor organization to the Company shall, with respect to the
individuals acting as the Plan Administrator identified under this
Section, (i) pay all reasonable expenses and fees of the Plan
Administrator, (ii) indemnify the Plan Administrator (including
individual members of the HR Committee of the Board of Directors)
against
any costs, expenses and liabilities including, without limitation,
attorneys’ fees and expenses arising in connection with the performance of
the Plan Administrator hereunder, except with respect to matters
resulting
from the Plan Administrator’s gross negligence or willful misconduct and
(iii) supply full and timely information to the Plan Administrator on
all
|
Page
18 of 26
Ball
Corporation 2005 Deferred Compensation Company Stock Plan
|
matters
related to the Plan, any rabbi trust, Participants, Beneficiary(ies)
and
Accounts as the Plan Administrator may reasonably
require.
|
|
9.3
|
Withholding.
The Company shall have the right to withhold any taxes required
by law to
be withheld in respect of payments from the Plan or Deferrals to
the Plan,
either from the payments made or from Compensation not deferred
to the
Plan.
|
|
9.4
|
Indemnification.
The Company shall indemnify and hold harmless each employee, officer,
director, agent or organization, to whom or to which it delegated
duties,
responsibilities, and authority under the Plan or otherwise with
respect
to administration of the Plan, including, without limitation, the
Plan
Administrator, the HR Committee of the Board of Directors and their
agents, against all claims, liabilities, fines and penalties, and
all
expenses reasonably incurred by or imposed upon him or it (including
but
not limited to reasonable attorney fees) which arise as a result
of his or
its actions or failure to act in connection with the operation
and
administration of the Plan to the extent lawfully allowable and
to the
extent that such claim, liability, fine, penalty, or expense is
not paid
for by liability insurance purchased or paid for by the Company.
Notwithstanding the foregoing, the Company shall not indemnify
any person
or organization if his or its actions or failure to act are due
to gross
negligence or willful misconduct or for any such amount incurred
through
any settlement or compromise of any action unless the Company consents
in
writing to such settlement or
compromise.
|
|
9.5
|
Expenses.
The direct out of pocket expenses of administering the Plan shall
be paid
by the Company.
|
|
9.6
|
Delegation
of Authority.
In the administration of this Plan, the Plan Administrator may,
from time
to time, employ agents and delegate to them such administrative
duties as
it sees fit, and may from time to time consult with legal counsel
who
shall be legal counsel to the
Company.
|
|
9.7
|
Binding
Decisions or Actions.
The decision or action of the Plan Administrator in respect of
any
question arising out of or in connection with the administration,
interpretation and application of the Plan and the rules and regulations
thereunder shall be final and conclusive and binding upon all persons
having any interest in the Plan.
|
Article X
Amendment
and Termination
|
10.1
|
Amendment
and Termination.
The Plan is intended to be permanent, but the HR Committee of the
Board of
Directors of the Company may at any time and from time to time
amend the
Plan or may terminate the Plan as provided in this
Section 10.1
|
|
(a)
|
Amendments.
The
Company, by action taken by the HR Committee of the Board of Directors,
may amend the Plan at any time, provided that any such amendment
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Corporation 2005 Deferred Compensation Company Stock Plan
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shall
not reduce the vested Account Balances of any Participant accrued
as of
the date of any such amendment or restatement (as if the Participant
had
incurred a voluntary Separation from Service on such date) or reduce
any
rights of a Participant under the Plan or other Plan features with
respect
to vested Deferrals made prior to the date of any such amendment
or
restatement without the consent of the Participant. The HR Committee
of
the Board of Directors of the Company may delegate to the Plan
Administrator the authority to amend the Plan without the consent
of the
Board of Directors of the Company for the purpose of (i) conforming
the Plan to the requirements of law, (ii) to facilitate
administration, (iii) to clarify provisions based on the Plan
Administrator’s interpretation of the document and (iv) to make such
other amendments as the Board may
authorize.
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(b)
|
Termination.
The Company, by action taken by the HR Committee of the Board of
Directors, may terminate the Plan and pay Participants and Beneficiaries
their Account Balances in a single lump sum under the following
conditions:
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(1)
|
Company’s
Discretion.
The Company may terminate the Plan in its discretion, provided
that
(i) all arrangements sponsored by the Company that would be
aggregated with any terminated arrangement under Prop. Treas. Reg.
Section 1.409A-1(c) if the same Participant participated in all of
the arrangements, are terminated; (ii) no payments other than
payments that would be payable under the terms of the arrangements
if the
termination had not occurred are made within twelve (12) months
of the
termination of the arrangements; (iii) all payments are made within
twenty-four (24) months of the termination of the arrangements;
and
(iv) the Company or its Affiliates do not adopt a new arrangement
that would be aggregated with any terminated arrangement under
Prop.
Treas. Reg. Section 1.409A-1(c) if the same Participant participated
in both arrangements, at any time within five (5) years following
the date
of termination of the arrangement.
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(2)
|
Change
in Control.
The Company may terminate the Plan within the thirty (30) days
preceding
or the twelve (12) months following a Change in Control (as defined
in
Prop. Treas. Reg. Section 1.409A-2(g)(4)(i)). For purposes of this
paragraph, a Change in Control shall be defined as provided in
Prop.
Treas. Reg. Section 1.409A-2(g)(4)(i). The Plan is considered
terminated under this paragraph only if all substantially similar
arrangements are terminated, and all participants under such arrangements
are required to receive all amounts of compensation deferred under
the
terminated arrangements within twelve (12) months of the termination
of
such arrangements.
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(3)
|
Dissolution;
Bankruptcy Court Order.
The Company may terminate the Plan within twelve (12) months of
a
corporate dissolution taxed under Code Section 331, or with the
approval of a bankruptcy court pursuant to 11 U.S.C.
Section 403(b)(1)(A), provided that the vested Account
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Corporation 2005 Deferred Compensation Company Stock Plan
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Balances
are included in Participants’ gross incomes in the latest of (i) the
calendar year in which the Plan terminates; (ii) the calendar year in
which the amount is no longer subject to a substantial risk of
forfeiture;
or (iii) the first calendar year in which the payment is
administratively practicable.
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10.2
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Accounts
Taxable Under Code Section 409A.
The Plan is intended to constitute a plan of deferred compensation
that
meets the requirements for deferral of income taxation under Code
Section 409A. The Plan Administrator, pursuant to its authority to
interpret the Plan, may sever from the Plan or any Deferral Election
any
provision or exercise of a right that otherwise would result in
a
violation of Code Section 409A. If, after application of the
preceding sentence, the Plan Administrator determines that a Participant’s
Accounts are taxable or if such Participant receives a notice of
deficiency from the Internal Revenue Service due to a violation
of Code
Section 409A, such Participant will receive payment from his or her
Accounts in a single lump sum. The amount of the payment shall
not exceed
the lesser of (i) the Participant’s Account Balance or (ii) an
amount equal to the amount of income included in taxable income
as a
result of such violation, plus an additional amount, to the extent
permissible under Treasury Department regulations, for penalties
under
Code Section 409A, other taxes and interest or other costs. Payment
under this Section 10.2, including the amount of any taxes,
penalties, interest or other costs, shall be applied against the
Participant’s Accounts and shall constitute fulfillment of the Company’s
payment obligation to such Participant under the Plan to the extent
of any
such payments.
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Article XI
Informal
Funding
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11.1
|
General
Assets.
Obligations established under the terms of the Plan may be satisfied
from
the general funds of the Company, an Affiliate, or a trust described
in
Section 11.2. No Participant, spouse or Beneficiary shall have any
right, title or interest whatever in assets of the Company or an
Affiliate. Nothing contained in this Plan, and no action taken
pursuant to
its provisions, shall create or be construed to create a trust
of any
kind, or a fiduciary relationship, between the Company or its Affiliates
and any Employee, spouse, or Beneficiary. To the extent that any
person
acquires a right to receive payments from the Company hereunder,
such
rights are no greater than the right of an unsecured general creditor
of
the Company.
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11.2
|
Rabbi
Trust.
The Company or an Affiliate may, at its sole discretion, establish
a
grantor trust, commonly known as a rabbi trust, as a vehicle for
accumulating assets to pay benefits under the Plan. Payments under
the
Plan may be paid from the general assets of the Company or from
the assets
of any such rabbi trust. Payment from any such source shall reduce
the
Company’s obligation to the Participant or Beneficiary under the
Plan.
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Ball
Corporation 2005 Deferred Compensation Company Stock Plan
Article XII
Claims
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12.1
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Filing
a Claim.
Any controversy or claim arising out of or relating to the Plan
shall be
filed in writing with the Plan Administrator which shall make all
determinations concerning such claim. Any claim filed with the
Plan
Administrator and any decision by the Plan Administrator denying
such
claim shall be in writing and shall be delivered to the Participant
or
Beneficiary filing the claim
(Claimant).
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12.2
|
In
General.
Notice of a denial of benefits will be provided within ninety (90)
days of
the Plan Administrator’s receipt of the Claimant’s claim for benefits. If
the Plan Administrator determines that it needs additional time
to review
the claim, the Plan Administrator will provide the Claimant with
a notice
of the extension before the end of the initial ninety (90)-day
period. The
extension will not be more than ninety (90) days from the end of
the
initial ninety (90)-day period and the notice of extension will
explain
the special circumstances that require the extension and the date
by which
the Plan Administrator expects to make a
decision.
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12.3
|
Contents
of Notice.
If a claim for benefits is completely or partially denied, notice
of such
denial shall be in writing and shall set forth the reasons for
denial in
plain language. The notice shall (i) cite the pertinent provisions of
the Plan document and (ii) explain, where appropriate, how the
Claimant can perfect the claim, including a description of any
additional
material or information necessary to complete the claim and why
such
material or information is necessary. The claim denial also shall
include
an explanation of the claims review procedures and the time limits
applicable to such procedures, including a statement of the Claimant’s
right to bring a civil action under Section 502(a) of ERISA following
an adverse decision on review.
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12.4
|
Appeal
of Denied Claims.
A
Claimant whose claim has been completely or partially denied shall
be
entitled to appeal the claim denial by filing a written appeal
with the
Plan Administrator. A Claimant who timely requests a review of
the denied
claim (or his or her authorized representative) may review, upon
request
and free of charge, copies of all documents, records and other
information
relevant to the denial and may submit written comments, documents,
records
and other information relevant to the claim to the Plan Administrator.
All
written comments, documents, records, and other information shall
be
considered “relevant” if the information (i) was relied upon in
making a benefits determination, (ii) was submitted, considered or
generated in the course of making a benefits decision regardless
of
whether it was relied upon to make the decision, or
(iii) demonstrates compliance with administrative processes and
safeguards established for making benefit decisions. The Plan
Administrator may, in its sole discretion and if it deems appropriate
or
necessary, decide to hold a hearing with respect to the claim
appeal.
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|
(a)
|
In
General.
Appeal of a denied benefits claim must be filed in writing with
the Plan
Administrator no later than sixty (60) days after receipt of the
written
notification of such claim denial. The Plan Administrator shall
make its
decision
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Corporation 2005 Deferred Compensation Company Stock Plan
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regarding
the merits of the denied claim within sixty (60) days following
receipt of
the appeal (or within one hundred and twenty (120) days after such
receipt, in a case where there are special circumstances requiring
extension of time for reviewing the appealed claim). If an extension
of
time for reviewing the appeal is required because of special
circumstances, written notice of the extension shall be furnished
to the
Claimant prior to the commencement of the extension. The notice
will
indicate the special circumstances requiring the extension of time
and the
date by which the Plan Administrator expects to render the determination
on review. The review will take into account comments, documents,
records
and other information submitted by the Claimant relating to the
claim
without regard to whether such information was submitted or considered
in
the initial benefit determination.
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(b)
|
Contents
of Notice.
If
a benefits claim is completely or partially denied on review, notice
of
such denial shall be in writing and shall set forth the reasons
for denial
in plain language. The decision on review shall set forth (i) the
specific reason or reasons for the denial, (ii) specific references
to the pertinent Plan provisions on which the denial is based,
(iii) a statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to and copies of
all
documents, records, or other information relevant (as defined above)
to
the Claimant’s claim, and (iv) a statement describing any voluntary
appeal procedures offered by the plan and a statement of the Claimant’s
right to bring an action under Section 502(a) of
ERISA.
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(c)
|
Claims
Appeals Upon Change in Control.
Upon a Change in Control, the Plan Administrator, as constituted
immediately prior to such Change in Control, shall continue to
act as the
Plan Administrator.
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|
Upon
such Change in Control, the Company may not remove any member of
the Plan
Administrator, but may replace resigning members if 2/3rds of the
members
of the Board of Directors of the Company and a majority of Participants
and Beneficiaries with Account Balances consent to the
replacement.
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|
The
Plan Administrator shall have the exclusive authority at the appeals
stage
to interpret the terms of the Plan and resolve appeals under the
Claims
Procedure.
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The
Company shall, with respect to the Plan Administrator identified
under
this Section, (i) pay all reasonable expenses and fees of the Plan
Administrator, (ii) indemnify the Plan Administrator (including
individual committee members) against any costs, expenses and liabilities
including, without limitation, attorneys’ fees and expenses arising in
connection with the performance of the Plan Administrator hereunder,
except with respect to matters resulting from the Plan Administrator’s
gross negligence or willful misconduct, and (iii) supply full and
timely information to the Plan Administrator on all matters related
to the
Plan, any rabbi trust, Participants, Beneficiaries and Accounts
as the
Plan Administrator may reasonably
require.
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Corporation 2005 Deferred Compensation Company Stock Plan
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12.5
|
Legal
Action.
A
Claimant may not bring any legal action, including commencement
of any
arbitration, relating to a claim for benefits under the Plan unless
and
until the Claimant has followed the claims procedures under the
Plan and
exhausted his or her administrative remedies under such claims
procedures.
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|
If
a Participant or Beneficiary prevails in a legal proceeding brought
under
the Plan to enforce the rights of such Participant or any other
similarly
situated Participant or Beneficiary, in whole or in part, the Company
shall reimburse such Participant or Beneficiary for all legal costs,
expenses, attorneys’ fees and such other liabilities incurred as a result
of such proceedings. If the legal proceeding is brought in connection
with
a Change in Control, or a “change in control” as defined in a rabbi trust
described in Section 11.2, the Participant or Beneficiary may file a
claim directly with the trustees for reimbursement of such costs,
expenses
and fees. For purposes of the preceding sentence, the amount of
the claim
shall be treated as if it were an addition to the Participant’s or
Beneficiary’s Account Balance and will be in included in determining the
Company’s trust funding obligation under
Section 11.2.
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12.6
|
Discretion
of Plan Administrator.
All interpretations, determinations and decisions of the Plan
Administrator with respect to any claim shall be made in its sole
discretion, and shall be final and
conclusive.
|
Article XIII
General
Conditions
|
13.1
|
Anti-Assignment
Rule.
No interest of any Participant, spouse or Beneficiary under this
Plan and
no benefit payable hereunder shall be assigned as security for
a loan, and
any such purported assignment shall be null, void and of no effect,
nor
shall any such interest or any such benefit be subject in any manner,
either voluntarily or involuntarily, to anticipation, sale, transfer,
assignment or encumbrance by or through any Participant, spouse
or
Beneficiary, except as provided in Section
8.7.
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13.2
|
No
Legal or Equitable Rights or Interest.
No Participant or other person shall have any legal or equitable
rights or
interest in this Plan that are not expressly granted in this Plan.
Participation in this Plan does not give any person any right to
be
retained in the service of the Company or any of its subsidiaries
or
affiliated companies. The right and power of the Company to dismiss
or
discharge an Employee is expressly reserved. Notwithstand-ing the
provisions of Section 10.2, the Company makes no representations or
warranties as to the tax consequences to a Participant or a Participant’s
beneficiary(ies) resulting from a deferral of income pursuant to
the
Plan.
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13.3
|
No
Employment Contract.
Nothing contained herein shall be construed to constitute a contract
of
employment between an Employee and the Company or a Director and
the
Company or any of its subsidiaries or affiliated
companies.
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Corporation 2005 Deferred Compensation Company Stock Plan
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13.4
|
Notice.
Any notice or filing required or permitted to be delivered to the
Plan
Administrator under this Plan shall be delivered in writing, in
person, or
through such electronic means as is established by the Plan Administrator.
Notice shall be deemed given as of the date of delivery or, if
delivery is
made by mail, as of the date shown on the postmark on the receipt
for
registration or certification. Written transmission shall be sent
by
certified mail to:
|
Ball
Corporation
10
Longs Peak Drive
Broomfield,
CO 80021
Attn:
Deferred Compensation Plan Administrator
|
Any
notice or filing required or permitted to be given to a Participant
under
this Plan shall be sufficient if in writing or hand-delivered,
or sent by
mail to the last known address of the
Participant.
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13.5
|
Headings.
The headings of Sections are included solely for convenience of
reference,
and if there is any conflict between such headings and the text
of this
Plan, the text shall control.
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13.6
|
Invalid
or Unenforceable Provisions.
If any provision of this Plan shall be held invalid or unenforceable,
such
invalidity or unenforceability shall not affect any other provisions
hereof and the Plan Administrator may elect in its sole discretion
to
construe such invalid or unenforceable provisions in a manner that
conforms to applicable law or as if such provisions, to the extent
invalid
or unenforceable, had not been
included.
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13.7
|
Governing
Law.
To the extent not preempted by ERISA, the laws of the State of
Indiana
shall govern the construction and administration of the
Plan.
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Schedule A
Company
Matching Contributions
Until
modified by the HR Committee of the Board of Directors, Company Award includes
Company matching contributions. Such contributions shall be an additional
credit
to a Participant’s Accounts, which shall equal 20% of Deferrals credited to an
Account during a calendar year. The maximum Company Matching Contribution
credited to a Participant’s Deferred Compensation Account in a calendar year
shall be $20,000.
Company
matching contributions shall be 100% vested at all times.
Schedule
B
Eligible
Employees
Until
modified by the HR Committee of the Board of Directors, Eligible Employees
will
be defined as a current Employee of the Company with an Economic Value Added
(EVA) Incentive Compensation (I.C.) participation level of 20% or higher
and any
non-employee member of the Company’s Board of Directors.
Schedule
C
Reallocation
of Units to Other Investments
Until
modified by the HR Committee of the Board of Directors, Units may be reallocated
to other Investment Funds made available by the Plan Administrator subject
to
the following rules:
| · |
Deferrals
and Company Matching Contributions will be invested automatically
in
Units, as provided in the Plan.
|
| · |
50%
of the amounts deferred and invested as Units will be credited and
held in
an account(s) until Separation of Service. Units in this account(s)
are
not eligible for reallocation to other Investment Funds during the
Participant’s service with the Company.
|
| · |
The
other 50% of the amounts deferred and invested as Units will be credited
to other accounts as elected by the Participant. During each year,
the
Participant may reallocate up to 50% of the preceding December 31
Unit
balance of such accounts among other Investment Funds in accordance
with
procedures and limitations as specified by the Plan Administrator.
|
| · |
Units
derived from any Company Matching Contributions will be credited
to the
account(s) that must remain invested in Units until Separation of
Service.
|
| · |
Participants
who have attained age 55 upon Separation of Service may reallocate
any
remaining Units in any account (including any Units derived from
Matching
Contributions) among other Investment Funds in accordance with procedures
and limitations as specified b the Plan
Administrator.
|
| · |
At
time of distribution, any balances invested in Units will continue
to be
paid under the payment schedules specified in the Plan and the
Participant’s elections in the form of Company Stock. Any balances
invested in Investment Funds will be paid in the form of
cash.
|
The
implementation, procedures and limitations for the Reallocation of Units
to
Other Investments will be specified by the Plan Administrator.