Dear Ms. Long:

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We are responsible for the adequacy and accuracy of the disclosures in our filings;

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United States Securities and Exchange Commission staff comments or changes to disclosures in response to staff comments do not foreclose the Commission from taking any action with respect to our filings; and

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We may not assert staff comments as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.

 

1.

We note that you registered preferred stock purchase rights under Exchange Act Section 12(b). In this regard, we note the Form 8-A filed on August 3, 2006. Please revise the cover page of the Form 10-K in future filings accordingly.

2.

We note the prospectus supplements filed pursuant to Rule 424(b)(2) on March 19, 2010 and November 17, 2010. We are unable to locate the exhibit 5.1 legality opinions for the specific securities sold in these particular offerings, which refer to the shelf registration statement filed on Form S-3 on February 26, 2009. Please file the legality opinions by post-effective amendment or incorporate them by reference from Form 8-K, or advise.

3.

In future filings, please provide the following information in accordance with Item 101 of Regulation S-K:

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the year the company was organized;

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revenues from external customers, a measure of profit or loss, and total assets for each industry segment for each of the last three fiscal years or an appropriate cross-reference to this information if it is included elsewhere in the filing;

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the competitive conditions relating to the aerospace and technology segment, including the principal methods of competition; and

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the financial information relating to geographic segments or an appropriate cross-reference to this information if it is included elsewhere in the filing.

4.

We note your statement on page 7 that you depend on relatively few major customers and your disclosure on page 42 that The Pepsi Bottling Group, Inc. accounted for 10.4 percent of your consolidated net sales in 2010. In future filings, as appropriate, please provide the disclosure required by Item 101(c)(1)(vii) of Regulation S-K.

5.

We note your disclosure that none of your active patents are essential to the successful operation of your business as a whole. With a view towards future disclosure, please tell us whether any group of patents or trademarks is material to your company.

6.

Please revise in future filings to discuss the duration of your intellectual property. Refer to Item 101(c)(1)(iv) of Regulation S-K.

7.

We note the cross-reference to the risk factor on page 10. Please revise in future filings to disclose the expiration dates of the collective bargaining agreements.

8.

We note your cross-reference to Note 21 of your financial statements. However, the disclosure in Note 21 does not provide all of the information required by Regulation S-K Item 103, such as the relief sought in each lawsuit or administrative proceeding. Please revise accordingly in future filings.

 

9.

We note from your Q4 2010 Earnings Conference Call that one of your key focuses for 2011 will be executing capital spending projects. In future filings, please describe your material commitments for capital expenditures as of the end of the latest fiscal period, and indicate the general purpose of such commitments and the anticipated source of funds needed to fulfill such commitments. See Item 303(a)(2) of Regulation S-K.

10.

We note your disclosure of certain non-GAAP measures on page 24. In future filings, please briefly explain why management believes that presentation of the non-GAAP financial measure provides useful information to investors regarding your financial condition and results of operations and provide a reconciliation of the differences between the non-GAAP financial measures disclosed with the most directly comparable financial measures calculated and presented in accordance with GAAP. See Item 10(e)(1)(i) of Regulation S-K.

11.

We note your discussion of the senior credit facility which will expire in December 2015, the $20 million credit facility available to your PRC operations, and the short-term uncommitted credit facility. We further note that you were in compliance with all loan agreements as of December 31, 2010 and that you have met all debt payment obligations. In future filings, please disclose any applicable covenants associated with your various credit facilities, whether you were in compliance with such covenants, and the applicable interest rates associated with the facilities. Additionally, it does not appear that you have filed with this Form 10-K or incorporated by reference to other filings the credit agreements for the PRC and short-term facilities. Please advise us as to whether these agreements have been filed previously with another Exchange Act report or file them, with all schedules and exhibits, in your next Exchange Act filing. Alternatively, please advise us as to why you are not required to file them.

12.

We note that you file multiple exhibits under the same exhibit number. For example, we note that the rights agreement and an amendment to the rights agreement are both filed as exhibit 4.1(k). Please revise in future filings to file each exhibit under a separate number.

13.

In future filings, please file your Section 302 Certifications exactly as set forth in Item 601(b)(31)(i) of Regulation S-K. For example, please do not remove the word “fiscal” from the parenthetical in paragraph 4(d). Additionally, please file the CEO certification as Exhibit 31.1 and the CFO certification as Exhibit 31.2.

14.

We note that Towers Watson provided certain other services to the company. In future filings, to the extent the compensation consultant or its affiliates provide other services to the company, please disclose whether the Human Resources Committee or the Board of Directors approved such other services. See Item 407(e)(3)(iii)(A) of Regulation S-K.

15.

From your disclosure in this section and throughout the CD&A, it appears that you benchmark total compensation and certain elements of compensation, such as annual incentive compensation, at the 50th percentile of the competitive market. Please revise in future filings to disclose where actual compensation fell as compared to the benchmark and, if applicable, explain why actual compensation fell above or below the benchmark. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like. For additional guidance, please refer to Question 118.05 of our Regulation S-K Compliance and Disclosure Interpretations.

16.

It appears that the base salaries of the named executive officers increased between 2009 and 2010. However, you have not provided any disclosure explaining the decisions to increase base salaries. Please revise in future filings to clearly explain these increases. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like.

17.

In future filings, please provide more information regarding how you determined the amount of annual cash incentive compensation to pay each name executive officer. See Item 402(b)(1)(v) of Regulation S-K. Specifically, please disclose the actual EVA and target EVA, including the relevant numbers for determining these amounts pursuant to the formulas disclosed on pages 24 and 25, and how you evaluated the actual results achieved against the performance goals to determine the amount of compensation to award the named executive officers. Refer to Item 402(b)(2)(v) of Regulation S-K. Additionally, we note that targets are established for each operating unit and for the company as a whole. Please disclose whether the target annual incentive percent for each named executive officer is related to the performance goal for an operating unit, the company, or both. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like.

18.

We note the disclosure that amounts awarded above 200% are “banked” and paid out over time in one-third increments based on certain performance measures. Please revise in future filings to disclose these performance measures and the timing of payouts. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like.

 

19.

We note that the total amount of long-term incentives was based in part on individual performance. In future filings, for each named executive officer, please detail the elements of individual performance and contribution that are taken into account when making this determination. Refer to Item 402(b)(2)(vii) of Regulation S-K. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like.

20.

In future filings, please provide more information regarding how you determined the long-term performance-based cash awards for each named executive officer. See Item 402(b)(1)(v) of Regulation S-K. Please clarify the meaning of “target annual incentive over the three-year performance period” and disclose the target incentive percentages for the performance period ending in the most recently completed fiscal year. Finally, it may be helpful for investors if you provide an example using one of your named executive officers to show how you arrived at the amounts listed in the Summary Compensation Table. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like.

21.

We note that you have not disclosed your performance measures under this plan due to the competitive sensitive nature of these financial metrics. Please provide your analysis supplementally as to how you would be competitively harmed if the specific performance goals or targets for the special acquisition incentive plan were disclosed, using the standard that would apply if you were requesting confidential treatment of information pursuant to Securities Act Rule 406 and Exchange Act Rule 24b-2. In future filings, please disclose the threshold, target, and maximum performance levels for each performance goal. See Item 402(b)(2)(v) and (vi) of Regulation S-K. In the event that you determine that disclosure of future target levels would result in competitive harm to the company pursuant to Securities Act Rule 406 or Securities Exchange Act Rule 24b-2, please discuss in future filings how difficult it will be for you to achieve the undisclosed target levels. Please refer to Instruction No. 4 to Item 402(b). We note your disclosure that a payout at or near target is the most likely outcome.

22.

Although you provide general disclosure relating to how the Human Resources Committee determined the total amount of the long-term incentive awards, your disclosure does not meaningfully convey the reasons why the Human Resources Committee awarded the specific amounts of stock options and stock appreciation rights, performance contingent restricted stock units, and restricted stock and restricted stock units pursuant to the Deposit Share Program. In future filings, for each type of long-term equity-

based incentive award, please discuss in more detail how you determined the amount awarded to each named executive officer. See Item 402(b)(1)(v) of Regulation S-K. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like.

23.

In future filings, please discuss the awards for the performance period ending in the most recently completed fiscal year. Specifically, please disclose the performance goal and actual results achieved. Using information for your most recently completed fiscal year, please show us in your response what your revised disclosure will look like.

●	Attract, motivate and retain a highly capable and performance-focused executive team;
●	Promote a culture of employee owners whose financial interests are aligned with those of the Corporation’s shareholders;
●	Pay for performance such that total compensation reflects the individual performance of executives and the absolute and relative performance of Ball; and
●	Efficiently manage the potential stock dilution, cash flow, tax and reported earnings implications of executive compensation, consistent with the other objectives of the program.

 

●	Anheuser-Busch InBev	●	H.J. Heinz Company	●	Owens-Illinois, Inc.
●	Campbell Soup Company	●	The Hershey Company	●	Smurfit-Stone Container Company
●	The Clorox Company	●	Jarden Corporation	●	Sonoco Products Company
●	Colgate-Palmolive Company	●	Kellogg Company	●	Temple-Inland, Inc.
●	Fortune Brands, Inc.	●	Molson Coors Brewing Company	●	Wm. Wrigley Jr. Company

●	Qualitative elements
	○	Reflect the labor market for the Company’s executive talent, in terms of both industry and organizational complexity
	○	Focus on direct peers from Ball’s primary industry (containers and packaging)

 

As a result of this assessment, the composition of the Peer Group was modified to include the following companies, which will be utilized for 2011 executive compensation planning:

●	Avery Dennison Corporation	●	Greif, Inc.	●	Pactiv Corp.
●	Bemis Company, Inc.	●	H.J. Heinz Company	●	PPG Industries, Inc.
●	Campbell Soup Company	●	ITT Corporation	●	Sara Lee Corp.
●	ConAgra Foods, Inc.	●	MeadWestvaco Corporation	●	Sealed Air Corporation
●	Crown Holdings Inc.	●	Molson Coors Brewing Company	●	Silgan Holdings, Inc.
●	Eastman Chemical Company	●	Owens-Illinois, Inc.	●	Sonoco Products Company
●	Goodrich Corp.			●	United States Steel Corp.

Companies in the New Ball Peer Group Market Capitalization, Enterprise Value, Revenue and Net Income
In millions		Market Capitalization*				Enterprise Value*				Revenue**				Net Income**
25th Percentile		$	3,700			$	5,100			$	3,600			$	150
50th Percentile		$	4,800			$	7,700			$	6,400			$	285
75th Percentile		$	8,900			$	10,300			$	10,200			$	600
Ball Corporation		$	5,469			$	8,105			$	7,345			$	388

Executive		Ownership Multiple (of Base Salary)
CEO		5 times
CFO, EVPs and SVPs		3 times
Other Executives		1 to 2 times

Component	Element	Purpose	Performance Measures	2010 Performance
Base Compensation—Current Year	Annual Base Salary	Fixed element of pay based on an individual’s primary duties and responsibilities.	Individual performance and contribution based on primary duties and responsibilities.	All NEOs received base pay increases. Non-promotion related increases were less than 3 percent.
Annual Incentive— Performance Based Cash	Annual Economic Value Added Incentive Compensation Plan	Designed to reward achievement of specified annual corporate and/or operating unit financial goals pursuant to economic value added principles.	Actual 2010 economic value added based on the amount of corporate net operating profit after-tax, less a charge for capital employed in the business, as compared to the 2010 economic value added target.	Resulted in an award of 202 percent of target for all NEOs. Amounts in excess of 200 percent were banked and remain at risk.
Long-Term Incentive— Performance Based Cash	Acquisition-Related Special Incentive Plan	Designed to promote the successful integration of newly acquired businesses thereby enhancing financial returns and cash flow.	Cumulative earnings before interest and taxes and cumulative cash flow of the Metal Beverage Packaging Division, Americas.	The first 15-month cycle ended December 31, 2010, resulted in an interim award payment of 23 percent of the total target award.
	Long-Term Cash Incentive Plan	Designed to promote long-term creation of shareholder value in absolute terms (ROAIC) and relative terms (performance versus a group of companies in the S&P 500) and provide an executive retention incentive.	50 percent based on total shareholder return over three years relative to a group of S&P 500 companies and 50 percent based on ROAIC over three years, as compared to targets.	The 2008-2010 cycle resulted in an award payment of 200 percent of target for all NEOs based on perfor­mance above target for three years relative total shareholder return (84th percentile) and ROAIC (11.1 percent).

 

Component	Element	Purpose	Performance Measures	2010 Performance
Long-Term Incentive— Performance Based Equity	Stock Options and Stock-Settled Stock Appreciation Rights	Designed to promote share ownership and long-term performance resulting in the creation of shareholder value.	Stock price performance relative to the grant date stock price (exercise price) of the stock options/SAR grants.	Stock price performance ending December 31, 2010, excluding dividends: Ball vs. S&P 500 one-year: 31.6 percent vs. 12.8 percent. Ball vs. S&P 500 three-year: 53.89 percent vs. negative 14.35 percent.
	Restricted Stock/ Restricted Stock Units	Designed to promote share ownership, provide a retention incentive, and provide long-term incentive for the creation of shareholder value.	Attainment of required holding period and stock price performance.
	Deposit Shares	Designed to promote executive financial investment in the Corporation, promote share ownership and provide long-term incentive for performance resulting in the creation of shareholder value.	Attainment of required holding period and stock price performance.
	Performance Contingent Restricted Stock Units	Designed to promote share ownership through the achievement of financial returns in excess of the Corporation’s estimated weighted average cost of capital.	Actual ROAIC over three years, equal to or exceeds the Corporation’s estimated weighted average cost of capital established at the beginning of the performance period.	For all NEOs, resulted in 100 percent vesting on January 31, 2011, of the 2008-2010 performance-contingent restricted stock unit award, based on actual ROAIC over the three-year period exceeding the weighted average cost of capital target.
Benefits	Life and Pension Benefits	Support basic life and retirement income security needs.	N/A	N/A
	Supplemental Executive Retirement Plan	Replicates benefits provided under the qualified pension plan, not otherwise payable due to IRS qualified plan limits.
	Non-Qualified Deferred Compensation	Provides eligible participants the ability to defer certain pretax compensation into a savings plan to support retirement income or other needs.
	Perquisites and Other Personal Benefits	Noncash compensation generally nominal in value ranging from 2 to 3 percent of total compensation, which may consist of components such as financial planning, company contribu­tions, aircraft usage and insurance premiums. The percent of total com­pen­sation may exceed the nominal range for an executive on foreign assignment.

Specifics Related to the 2010 Executive Compensation Elements

 

Name	Base Percentage Increase
R. David Hoover	2.2percent
Scott C. Morrison	53.9percent
John A. Hayes	26.1percent
Raymond J. Seabrook	22.3percent
David A. Westerlund	2.2percent

 

 

EVA =

Net Operating Profits After Taxes (NOPAT)

Minus

Capital Charge (the amount of capital invested by Ball multiplied by the after-tax cost of capital)

 

 

 

Name	Target Incentive Percentage
R. David Hoover	40 percent
Scott C. Morrison	25 percent
John A. Hayes	30 percent
Raymond J. Seabrook	25 percent
David A. Westerlund	25 percent

 

Name	Target Incentive Percentage
R. David Hoover	40 percent
Scott C. Morrison	40 percent
John A. Hayes	40 percent
Raymond J. Seabrook	40 percent
David A. Westerlund	40 percent

Name	Percent weighting SARs/ISOs	Percent weighting Performance Contigent RSU
R. David Hoover	44 percent	56 percent
Scott C. Morrison	42 percent	58 percent
John A. Hayes	50 percent	50 percent
Raymond J. Seabrook	49 percent	51 percent
David A. Westerlund	43 percent	57 percent

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Stock Options and Stock-Settled Stock Appreciation Rights: SARs, ISOs and NQOs are granted in order to reward executives for the creation of shareholder value, and will only provide value to executives if the price of Ball’s stock increases. Such awards generally vest at 25 percent per year for four years and expire in 10 years. The grant value of each SAR, ISO and/or NQO is based on the closing price of Ball stock on the date of grant. In 2006, Ball began granting to certain key executives stock-settled SARs based on the view that stock-settled SARs are an effective way to both manage equity dilution and promote share ownership. In 2007, the Board of Directors authorized for options or SAR grants on or after such date, that for certain participants who retire early, defined as the first to occur of either attaining both age 55 and 15 years of service or age 60 and 10 years of service, upon the execution of an agreement not to compete with the Corporation, a participant’s unvested stock

		options and/or SARs will continue to vest under the regular vesting schedule and such participants will have five years from the retirement date or up to the original expiration date, whichever is sooner, to exercise vested stock options and/or SARs. In January 2010, the Committee approved the award of both SARs and ISOs to certain executives, including NEOs, which is reported in the Grants of Plan-Based Awards Table.
	●	Performance Contingent Restricted Stock Units: The performance contingent restricted stock units are granted in order to encourage executives to assure long-term return on the Corporation’s invested capital in excess of its current estimated weighted average cost of capital. The award of performance contingent restricted stock units provides participants with the opportunity to receive common shares if the Corporation’s ROAIC during a three-year period is equal to or exceeds the Corporation’s estimated cost of capital as established at the beginning of the performance period. Units not vested at the end of the performance period are forfeited. In January 2010, the Board of Directors approved the award of performance contingent restricted stock units pursuant to the provisions of the 2005 Stock and Cash Incentive Plan. The performance period for the 2010 grants is a 36-month period that extends from January 2010 to December 2012 and the estimated weighted average cost of capital and required return for the performance period was established at 6.6 percent. The number of performance contingent restricted stock units awarded in 2010 to the CEO and other NEOs is reported in the Grants of Plan-Based Awards Table. Vesting of the units is solely based on meeting or exceeding the above-described performance goal of 6.6 percent. If the goal is met, all of the participant’s awarded units vest. If the goal is not met, all of the participant’s awarded units are forfeited. On February 1, 2010, performance contingent restricted stock units granted to NEOs in 2007, with a three-year performance period ending in 2009, vested as a result of the actual ROAIC during that three year performance period exceeding the estimated weighted average cost of capital target of 6.1 percent established at the time of grant. In 2007, the Committee authorized for performance contingent restricted stock units grants on or after such date, that for certain participants who retire early, defined as the first to occur of either attaining both age 55 and 15 years of service or age 60 and 10 years of service, upon the execution of an agreement not to compete with the Corporation, the participant’s units will vest at the end of the performance period if the performance goal is achieved.
	●	Restricted Stock/Restricted Stock Units: The Corporation may grant restricted stock or restricted stock units pursuant to the Deposit Share Program (“DSP”), which was instituted in 2001. The DSP is intended to increase share ownership among certain executives who must make additional investments in the Corporation’s stock in order to participate. Under this program, an executive receives one share of restricted stock or one restricted stock unit for every share newly acquired by the participant (either in the market, through the exercise and holding of stock options or settlement of SARs, or deferral of incentive compensation to the deferred compensation company stock plan) during a preestablished acquisition period, up to a preestablished maximum number of shares. As long as the executive continues to hold the newly acquired shares, the restricted stock or units granted cliff vest four years from the date of grant; or, if stock ownership guidelines are met, 30 percent of the shares or units will vest at the end of the second year and third year and 40 percent will vest at the end of the fourth year. Restricted stock or units granted pursuant to the DSP are made on the 15th day of each month following the executive’s submission of adequate documentation to the Corporation detailing the acquisition of the newly acquired shares. In April 2010, the Committee approved a DSP opportunity award to a selected group of executives that included the CFO. Mr. Morrison was awarded the DSP opportunity in recognition of his promotion and to encourage increased stock ownership levels.
		Restricted stock or restricted stock units not related to the DSP may also be granted to executives by the Committee or the CEO. Pursuant to the provisions of the 2010 Stock and Cash Incentive Plan, the Committee delegated to the CEO the authority to grant up to a maximum of 6,000 restricted shares or restricted stock units to any one individual in a calendar year, except the CEO may not make such grants to officers of the Corporation. Any such grant is ratified by the Committee at the first Committee meeting following such grant. Grants made are generally effective at the closing stock price on the day of the grant or may be effective at the closing stock price on a specific day in the future as defined by the Committee or the CEO. As an example, the future grant of a restricted stock award may be approved pending the effective date of a promotion, employment or a specific date. These awards generally vest in either 20 or 25 percent increments on each anniversary of the grant date. These grants serve as a long-term incentive element, promote share ownership and may provide an executive retention incentive.