AMENDMENT TO RIGHTS PLAN
Published on January 24, 2008
Exhibit
4
FIRST
AMENDMENT TO RIGHTS AGREEMENT
This
First Amendment to Rights Agreement (this “Amendment”), dated as of
January 23, 2008, is by and between Ball Corporation, an Indiana
corporation (the “Company”), and Computershare Investor Services, LLC, a
Delaware limited liability company (“Computershare”).
WITNESSETH
WHEREAS,
the Company
previously entered into a Rights Agreement, dated as of July 26, 2006 (the
“Rights Agreement”), with Computershare as Rights Agent (the “Rights
Agent”);
WHEREAS,
pursuant to
Section 27 of the Rights Agreement, the Company and Computershare may
supplement or amend the Rights Agreement from time to time in accordance with
the provisions of Section 27 thereof; and
WHEREAS,
the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is in the best interest of the Company and its
stockholders, and the Company and Computershare desire to evidence such
amendment in writing.
NOW,
THEREFORE, in
consideration of the premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
Section
1. Amendment of Rights Agreement. Paragraph (b) of
Section 1 of the Rights Agreement is amended by deleting such paragraph (b)
in its entirety and substituting a new paragraph (b) to read as
follows:
(b)
“Acquiring Person” shall mean any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of
ten
percent (10%) or more of the shares of Common Stock then outstanding, but shall
not include (i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or of any Subsidiary of the Company, or
any
Person organized, appointed or established by the Company for or pursuant to
the
terms of any such plan, (iv) any Person who becomes the Beneficial Owner of
ten
percent (10%) or more (or, in the case of a Person that is not deemed to be
an
Acquiring Person as a result of the application of clause (v) of this Paragraph
(b), fifteen percent (15%) or more) of the shares of Common Stock then
outstanding as a result of a reduction in the number of shares of Common Stock
outstanding due to the repurchase of shares of Common Stock by the Company
unless and until such Person, after becoming aware that such Person has become
the Beneficial Owner of ten percent (10%) or more (or, in the case of a Person
that is not deemed to be an Acquiring Person as a result of the application
of
clause (v) of this Paragraph (b), fifteen percent (15%) or more) of the then
outstanding shares of Common Stock, acquires beneficial ownership of additional
shares of Common Stock or (v) any such Person who has reported or is required
to
report such ownership (but less than 15%) on Schedule 13G under the Exchange
Act
(or any comparable or successor report) or on Schedule 13D under the Exchange
Act (or any comparable or successor report) which Schedule 13D does not state
any intention to or reserve the right to control or influence the management
or
policies of the Company or engage in any of the actions specified in Item 4
of
such schedule (other than the disposition of the Common
Stock);
provided, however, that if either (a) such Person acquires beneficial ownership
of additional shares of Common Stock such that such Person becomes the
Beneficial Owner of fifteen percent (15%) or more of the shares of Common Stock
then outstanding, or (b) such Person is the Beneficial Owner of ten percent
(10%) or more but less than fifteen percent (15%) of the shares of Common Stock
then outstanding and reports or is required to report such ownership of shares
of Common Stock on Schedule 13D under the Exchange Act (or any comparable or
successor report) which Schedule 13D reports the intention to or reserves the
right to control or influence the management or policies of the Company or
engage in any of the actions specified in Item 4 of such schedule (other than
the disposition of the Common Stock), then such Person shall become an Acquiring
Person immediately.
Section
2. Continued Effectiveness. The parties hereto hereby
acknowledge and agree that, except as specifically amended hereby, the Rights
Agreement shall remain in full force and effect in accordance with its
terms.
Section
3. Governing Law. This Amendment shall be deemed to be a
contract made under the laws of the State of Indiana and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such
State.
Section
4. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and each of such counterparts shall
for
all purposes be deemed to be an original, and all such counterparts shall
together constitute one and the same instrument.
Section
5. Defined Terms. Except as otherwise expressly provided
herein, or unless the context otherwise requires, all capitalized terms used
herein have the meanings assigned to them in the Rights Agreement.
IN
WITNESS WHEREOF, the
parties hereto have caused this Amendment to be duly executed and effective
as
of the day and year above written.
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BALL
CORPORATION
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By:
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/s/
Charles E.
Baker
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Name: Charles
E. Baker
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Title: Vice
President, General Counsel
and
Assistant Corporate Secretary
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COMPUTERSHARE
INVESTOR
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SERVICES,
LLC
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By:
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/s/
Dennis V.
Moccia
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Name: Dennis
V. Moccia
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Title: Managing
Director
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