S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on April 25, 2008
As
filed with the Securities and Exchange Commission on April 25,
2008
Registration
No.
The
Prospectus forming a part of this Registration Statement is a combined
Prospectus under Rule 429 of the General Rules and Regulations under the
Securities Act of 1933 and relates to this Registration Statement and to
Registration Statement Nos. 33-37548, 333-32393 and 333-67284 on
Form S-8 relating to Ball Corporation’s Common Stock Fund offered through
the Ball Corporation Salary Conversion and Employee Stock Ownership
Plan.
_____________________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
FORM S-8
Registration
Statement
Under
the Securities Act of 1933
_______________________
BALL
CORPORATION
(Exact
name of issuer as specified in its charter)
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Indiana
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35-0160610
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(State
or other jurisdiction of
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(I.R.S.
Employer
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incorporation
or organization)
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Identification
No.)
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10
Longs Peak Drive, Broomfield, Colorado 80021-2510
(Address
of Principal Executive Offices)
_______________________________
BALL
COMMON STOCK FUND
THE
BALL CORPORATION SALARY CONVERSION
AND
EMPLOYEE STOCK OWNERSHIP PLAN
(Full
Title of the Plan)
_______________________________
CT
Corporation System, 1675 Broadway, Suite 1200, Denver, Colorado
80202
(Name and
address of agent for service)
Telephone
number, including area code, of agent for service (303) 629-2500
_______________________________
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of
Securities
to be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering
Price
Per
Unit**
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Proposed
Maximum
Aggregate
Offering
Price***
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Amount
of
Registration
Fee
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Common
Stock
(without
par value)
(including
Preferred Stock
Purchase
Rights)*
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2,000,000
shares
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$50.24
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$100,480,000
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$3,948.86
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(*)
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Each
share of Ball Corporation Common Stock includes a right (“Ball Right”) to
purchase Series A Junior Participating Preferred Stock of Ball or, under
certain circumstances, Ball Common Stock, cash, property or other
securities of Ball.
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(**)
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Estimated
solely for purposes of calculating the registration fee pursuant to Rule
457(c) and (h) under the Securities Act of 1933 based upon the average of
high and low reported sales prices of the Registrant’s Common Stock,
without par value, as reported by the New York Stock Exchange Composite
Transactions Tape on April 22,
2008.
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(***)
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The
registration fee has been calculated pursuant to Section 6(b) of the
Securities Act and is equal to .00003930 of the proposed maximum aggregate
offering price.
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PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference
Ball Corporation (the “Registrant,”
“Company” or “Corporation”) hereby incorporates the following documents herein
by reference:
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(a)
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The
Annual Report on Form 10-K of the Registrant for the year ended
December 31, 2007;
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(b)
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All
reports of the Registrant filed pursuant to Sections 13(a) or 15(d)
of the Securities Exchange Act since December 31,
2007.
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(c)
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The
Company’s Notice of the 2008 Annual Meeting of Shareholders and Proxy
Statement dated March 17, 2008, issued in connection with the Annual
Meeting of Shareholders on April 23,
2008.
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(d)
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The
description of the Company’s Common Stock contained in the Company’s
Form 8-A Registration Statement dated August 3, 2006 and filed
August 3, 2006, including any amendment or report filed for the
purpose of updating such
description.
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(e)
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The
Rights Agreement dated as of July 20, 2006, between the Company and
The First Chicago Trust Company of New York (filed by incorporation by
reference to the Form 8-A Registration Statement, No. 001-07349
dated August 3, 2006, and filed August 3,
2006).
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(f)
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The
Company’s Reports on Form 8-K dated January 24, 2008 and
April 24, 2008.
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(g)
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All
documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of filing such
documents.
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Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is incorporated or deemed to
be incorporated by reference herein modified or supersedes such
statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
2
Item 4.
Description of Securities
Not
applicable.
Item 5.
Interests of Named Experts and Counsel
Robert W.
McClelland, Associate General Counsel, Ball Corporation, whose legal opinion is
attached hereto as Exhibit 5.1, is eligible to participate in the Ball
Common Stock Fund.
Item 6.
Indemnification of Directors and Officers
Section 23-1-37-8
of the Indiana Business Corporation Law provides as follows:
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(a)
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A
corporation may indemnify an individual made a party to a proceeding
because the individual is or was a director against liability incurred in
the proceeding if:
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(1) The
individual’s conduct was in good faith; and
(2) The
individual believed:
(A) In
the case of conduct in the individual’s official capacity with the corporation,
that the individual’s conduct was in its best interests; and
(B) In
all other cases, that the individual’s conduct was at least not opposed to its
best interests; and
(3) In
the case of any criminal proceeding, the individual either:
(A) Had
reasonable cause to believe the individual’s conduct was lawful; or
(B) Had
no reasonable cause to believe the individual’s conduct was
unlawful.
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(b)
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A
director’s conduct with respect to an employee benefit plan for a purpose
the director reasonably believed to be in the interests of the
participants and beneficiaries of the plan is conduct that satisfies the
requirement of subsection
(a)(2)(B).
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(c)
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The
termination of a proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director did not meet the standard of conduct
described in this section.
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Section B
of Article XII of the Company’s Amended Articles of Incorporation provides
as follows:
Indemnification
of directors, officers and employees shall be as follows:
1. The
Corporation shall indemnify each person who is or was a director, officer or
employee of the Corporation, or of any other corporation, partnership, joint
venture, trust or other enterprise which he is serving or served in any capacity
at the request of the Corporation, against
3
any and
all liability and reasonable expense that may be incurred by him in connection
with or resulting from any claim, actions, suit or proceeding (whether actual or
threatened, brought by or in the right of the Corporation or such other
corporation, partnership, joint venture, trust or other enterprise, or
otherwise, civil, criminal, administrative, investigative, or in connection with
an appeal relating thereto), in which he may become involved, as a party or
otherwise, by reason of his being or having been a director, officer or employee
of the Corporation or of such other corporation, partnership, joint venture,
trust or other enterprise or by reason of any past or future action taken or not
taken in his capacity as such director, officer or employee, whether or not he
continues to be such at the time such liability or expense is incurred, provided
that such person acted in good faith and in a manner he reasonably believed to
be in the best interests of the Corporation or such other corporation,
partnership, joint venture, trust or other enterprise, as the case may be, and,
in addition, in any criminal action or proceedings, had no reasonable cause to
believe that his conduct was unlawful. Notwithstanding the foregoing,
there shall be no indemnification (a) as to amounts paid or payable to the
Corporation or such other corporation, partnership, joint venture, trust or
other enterprise, as the case may be, for or based upon the director, officer or
employee having gained in fact any personal profit or advantage to which he was
not legally entitled; (b) as to amounts paid or payable to the Corporation
for an accounting of profits in fact made from the purchase or sale of
securities of the Corporation within the meaning of Section 16(b) of the
Securities Exchange Act of 1934 and amendments thereto or similar provisions of
any state statutory law; or (c) with respect to matters as to which
indemnification would be in contravention of the laws of the State of Indiana or
of the United States of America, whether as a matter of public policy or
pursuant to statutory provisions.
2. Any
such director, officer or employee who has been wholly successful, on the merits
or otherwise, with respect to any claim, action, suit or proceeding of the
character described herein shall be entitled to indemnification as of right,
except to the extent he has otherwise been indemnified. Except as
provided in the preceding sentence, any indemnification hereunder shall be
granted by the Corporation, but only if (a) the Board of Directors, acting
by a quorum consisting of directors who are not parties to or who have been
wholly successful with respect to such claim, action, suit or proceeding, shall
find that the director, officer or employee has met the applicable standards of
conduct set forth in paragraph 1 of this Section B of
Article XII; or (b) outside legal counsel engaged by the Corporation
(who may be regular counsel of the Corporation) shall deliver to the corporation
its written opinion that such director, officer or employee has met such
applicable standards of conduct; or (c) a court of competent jurisdiction
has determined that such director, officer or employee has met such standards,
in an action brought either by the Corporation, or by the director, officer or
employee seeking indemnification, applying de novo such applicable standards of
conduct. The termination of any claim, action, suit or proceeding,
civil or criminal, by judgment, settlement (whether with or without court
approval) or conviction or upon a plea of guilty or of nolo contendere, or its
equivalent, shall not create a presumption that a director, officer or employee
did not meet the applicable standards of conduct set forth in paragraph 1
of this Section B of Article XII.
3. As
used in this Section B of Article XII, the term “liability” shall mean
amounts paid in settlement or in satisfaction of judgments or fines or
penalties, and the term “expense” shall include, but shall not be limited to,
attorneys’ fees and disbursements, incurred in connection with the claim,
action, suit or proceeding. The Corporation may advance expenses to,
or where appropriate may at its option and expense undertake the defense of, any
such director,
4
4. The
provisions of this Section B of Article XII shall be applicable to
claims, actions, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before or after
the adoption hereof. If several claims, issues or matters of action
are involved, any such director, officer or employee may be entitled to
indemnification as to some matters even though he is not so entitled as to
others. The rights of indemnification provided hereunder shall be in
addition to any rights to which any director, officer or employee concerned may
otherwise be entitled by contract or as a matter of law, and shall inure to the
benefit of the heirs, executors and administrators of any such director, officer
or employee.
In
addition, the Company has purchased and maintains insurance, as permitted by
Indiana law, on behalf of its directors and officers against certain losses that
may arise out of their employment and which are recoverable under the
indemnification provisions of Ball Corporation’s Amended Articles of
Incorporation.
Item 7.
Exemption from Registration Claimed
Not
applicable.
Item 8.
Exhibits
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4.1
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Ball
Common Stock Fund described in the Ball Corporation Salary Conversation
and Employee Stock Ownership Plan (the “Plan”) (filed as an Exhibit to
Registrant’s Registration Statement on Form S-8, dated October 30,
1990, and incorporated herein by
reference).
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4.2
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Amended
Articles of Incorporation of the Registrant (filed as an Exhibit to
Registrant’s Current Report on Form 10-Q filed June 24, 2005, and
incorporated herein by reference).
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4.3
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Bylaws
of Registrant, as amended (filed as an Exhibit to Registrant’s
Form 8-K dated April 24, 2008, and incorporated herein by
reference).
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4.4
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The
Rights Agreement dated as of July 20, 2006, between the Company and
The First Chicago Trust Company of New York (filed by incorporation by
reference to the Form 8-A Registration Statement, No. 001-07349
dated August 3, 2006, and filed August 3,
2006).
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4.5
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The
Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2007, filed on February 25, 2008, which contains
audited financial statements for the most recent fiscal year for which
such statements have been filed, and incorporated herein by
reference.
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5
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4.6
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The
Registrant’s Current Report on Form 8-K, filed on January 25,
2007; January 29, 2007; April 26, 2007; July 26, 2007;
October 10, 2007; October 25, 2007; January 24, 2008 and
April 24, 2008, and incorporated herein by
reference.
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5.1
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Opinion
of Robert W. McClelland as to the legality of the securities being
registered.
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24.1
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Consent
of PricewaterhouseCoopers LLP
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24.2
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Consent
of Robert W. McClelland (included in the opinion filed as Exhibit
5.1).
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25.1
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Powers
of Attorney
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Item
9. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made of the
securities registered hereby, a post-effective amendment to this Registration
Statement:
(i) To
include any Prospectus required by Section 10(a)(3) of the Securities Act
of 1933;
(ii) To
reflect in the Prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC by the Registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
6
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant’s
Annual Report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and each filing of the annual report of the plans pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is incorporated
by reference in the Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel, the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The
undersigned Registrant hereby undertakes that it will submit or has submitted
the employee benefit plan subject to this Registration Statement and any
amendments thereto to the Internal Revenue Service (“IRS”) in a timely manner
and has made or will make all changes required by the IRS to qualify the
plan.
7
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on this Form S-8 and has duly caused this Form S-8 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Broomfield, State of Colorado, on April 25,
2008.
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BALL
CORPORATION
(Registrant)
By: /s/ R. David
Hoover
R. David Hoover
Chairman, President and Chief
Executive Officer
April 25,
2008
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Pursuant
to the requirements of the Securities Act of 1934, this report has been signed
below by the following persons on behalf of the Registrant and in the capacities
and on the dates indicated.
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(1)
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Principal
Executive Officer:
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/s/
R. David Hoover
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Chairman,
President and Chief Executive Officer
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R.
David Hoover
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April
25, 2008
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(2)
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Principal
Financial Officer:
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/s/
Raymond J. Seabrook
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Executive
Vice President and Chief Financial Officer
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Raymond
J. Seabrook
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April
25, 2008
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(3)
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Principal
Accounting Officer:
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/s/
Douglas K. Bradford
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Vice
President and Controller
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Douglas
K. Bradford
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April
25, 2008
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(4)
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A
Majority of the Board of Directors:
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/s/
Robert W. Alspaugh
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*
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Director
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Robert
W. Alspaugh
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April
25, 2008
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/s/
Hanno C. Fiedler
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*
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Director
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Hanno
C. Fiedler
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April
25, 2008
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||
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/s/
R. David Hoover
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*
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Chairman
of the Board and Director
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R.
David Hoover
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April
25, 2008
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||
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/s/
John F. Lehman
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*
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Director
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John
F. Lehman
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April
25, 2008
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||
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/s/
Georgia R. Nelson
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*
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Director
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Georgia
R. Nelson
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April
25, 2008
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/s/
Jan Nicholson
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*
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Director
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Jan
Nicholson
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April
25, 2008
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/s/
George M. Smart
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*
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Director
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George
M. Smart
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April
25, 2008
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||
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/s/
Theodore M. Solso
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*
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Director
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Theodore
M. Solso
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April
25, 2008
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/s/
Stuart A. Taylor II
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*
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Director
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Stuart
A. Taylor II
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April
25, 2008
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/s/
Erik H. van der Kaay
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*
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Director
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Erik
H. van der Kaay
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April
25, 2008
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*By R.
David Hoover as Attorney-in-Fact pursuant to a Limited Power of Attorney
executed by the directors listed above, which Power of Attorney has been filed
with the Securities and Exchange Commission.
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By:
/s/ R. David
Hoover
R. David
Hoover
As
Attorney-in-Fact
April 25,
2008
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8
Exhibit
Number
Description
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4.1
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Ball
Common Stock Fund described in the Ball Corporation Salary Conversation
and Employee Stock Ownership Plan (the “Plan”) (filed as an Exhibit to
Registrant’s Registration Statement on Form S-8, dated October 30,
1990, and incorporated herein by
reference).
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4.2
|
Amended
Articles of Incorporation of the Registrant (filed as
an Exhibit to Registrant’s Current Report on Form 10-Q filed June 24,
2005, and incorporated herein by
reference).
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|
4.3
|
Bylaws
of Registrant, as amended (filed as an Exhibit to Registrant’s
Form 8-K dated April 24, 2008, and incorporated herein by
reference).
|
|
4.4
|
The
Rights Agreement dated as of July 20, 2006, between the Company and
The First Chicago Trust Company of New York (filed by incorporation by
reference to the Form 8-A Registration Statement, No. 001-07349
dated August 3, 2006, and filed August 3,
2006).
|
|
4.5
|
The
Registrant’s Annual Report on Form 10-K for the year ended
December 31, 2007, filed on February 25, 2008, which contains
audited financial statements for the most recent fiscal year for which
such statements have been filed, and incorporated herein by
reference.
|
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4.6
|
The
Registrant’s Current Report on Form 8-K, filed on January 25,
2007; January 29, 2007; April 26, 2007; July 26, 2007;
October 10, 2007; October 25, 2007; January 24, 2008 and
April 24, 2008, and incorporated herein by
reference.
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5.1
|
Opinion
of Robert W. McClelland as to the legality of the securities being
registered.
|
|
24.1
|
Consent
of PricewaterhouseCoopers LLP
|
| 24.2 | Consent of Robert W. McClelland (included in the opinion filed as Exhibit 5.1). |
| 25.1 | Powers of Attorney |
9