EXHIBIT 3.3
Published on November 5, 1998
Exhibit 3.3
CERTIFICATE OF INCORPORATION
OF
BALL AEROSPACE & TECHNOLOGIES CORP.
Ball Aerospace & Technologies Corp., a corporation organized and
existing under Delaware law (the "Corporation"), certifies that this
Certificate of Incorporation was duly adopted in accordance with the General
Corporation Law of Delaware.
1. NAME. The name of the Corporation is Ball Aerospace & Technologies Corp.
2. REGISTERED OFFICE AND AGENT. The address of the Corporation's registered
office is 1209 Orange Street in Wilmington, New Castle County,
Delaware 19801. The name of the Corporation's registered agent is The
Corporation Trust Company.
3. BUSINESS PURPOSES. The Corporation's purpose is to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. CAPITAL STOCK. The total number of shares of stock which the Corporation
shall have authority to issue is Forty Million shares of Common Stock,
with a par value of one cent per share and Forty Million shares of
Preferred Stock, with a par value of one cent per share. The Board of
Directors is expressly authorized to provide for the issuance of all
or any shares of the Preferred Stock in one or more classes or series,
and to fix for each such class or series such voting powers, full or
limited, or no voting powers, and such distinctive designations,
preferences and relative, participating, optional or other special
rights and such qualifications, limitations or restrictions thereof, as
shall be stated and expressed in the resolution or resolutions
adopted by the Board of Directors providing for the issuance of such
class or series and as may be permitted by the General Corporation Law
of the State of Delaware, including, without limitation, the authority
to provide that any such class or series may be (i) subject to
redemption at such time or times and at such price or prices;
(ii) entitled to receive dividends (which may be cumulative or
noncumulative) at such rates, on such conditions, and at such times,
and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) entitled
to such rights upon the dissolution of, or upon any distribution of the
assets of, the Corporation; or (iv) convertible into, or exchangeable for,
shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, of the
Corporation at such price or prices or at such rates of exchange
and with such adjustments, all as may be stated in such resolution
or resolutions.
5. MANAGEMENT. The Corporation shall be managed by the Board of Directors,
which shall exercise all powers conferred under the laws of the State of
Delaware. The Board shall consist of not less than one and no more than
15 directors. The initial Board of Directors shall consist of the
following sole member, who shall serve until the first annual meeting
of shareholders and until his successor is elected and qualified.
Director Address
-------- -------
George A. Sissel 345 South High Street
Muncie, IN 47307
Upon the occurrence of any vacancies in the Board, otherwise than by
expiration of a term of office, a successor shall be elected by a majority of
the directors then in office.
6. AMEND OR REPEAL OF BYLAWS. The Board shall have the power to
adopt, amend, alter or repeal the Corporation's Bylaws as
provided in the Bylaws.
7. INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES.
(a) The Corporation shall indemnify each person who is or was a director,
officer or employee of the Corporation, or of any other corporation,
partnership, joint venture, trust or other enterprise which he is
serving or served in any capacity at the request of the Corporation,
against any and all liability and reasonable expense that may be
incurred by him in connection with or resulting from any claim,
actions, suit or proceeding. (whether actual or threatened, brought
by or in the right of the corporation or such other corporation,
partnership, joint venture, trust or other enterprise, or otherwise,
civil, criminal, administrative, investigative, or in connection with
an appeal relating thereto), in which he may become involved, as a
party or otherwise, by reason of his being or having been a director,
officer or employee of the Corporation or of such other corporation,
partnership, joint venture, trust or other enterprise or by reason of
any past or future action taken or not taken in his capacity as such
director, officer or employee, whether or not he continues to be such
at the time such liability or expense is incurred, provided that such
person acted in good faith and in a manner he reasonably believed to
be in the best interests of the Corporation or such other corporation,
partnership, joint venture, trust or other enterprise, as the case may
be, and, in addition, in any criminal action
2
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 or 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 provision of any state
statutory law; or (c) with respect to matters to which
indemnification would be in contravention of the laws of
the State of Delaware or of the United States of America
whether as a matter of public policy or pursuant to
statutory provisions.
(b) 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 a of this
Section 7; 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 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 A of this
Section 7.
(c) As used in this Section 7, the term "liability" shall mean
amounts paid in settlement or in satisfaction of judgments
or fines or penalties, and
3
the term "expense" shall include, but shall not be
limited to, attorneys' fees and disbursements, incurred
in connection with the claim, action, suit or proceeding.
The Corporation may advance expenses to, or where
appropriate may at its option and expense undertake the
defense of, any such director, officer or employee upon
receipt of an undertaking by or on behalf of such person
to repay such expenses if it should ultimately be
determined that the person is not entitled to
indemnification under this Section 7.
(d) The provisions of this Section 7 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.
8. MEETINGS AND BOOKS. Meeting of stockholders may be held within or
without the State of Delaware, as the Bylaws may provide. The
books of the Corporation may be kept (subject to Delaware
statute) outside the State of Delaware at such place or places or
may be denigrated from time to time by the Board of Directors or
in the Bylaws of the Corporation.
IN WITNESS WHEREOF, I have signed this Certificate of Incorporation this 20
day of July 1995.
/s/ Hillary Earnest Johnson
--------------------------------
Hillary Earnest Johnson
Sole Incorporator
P.O. Box 1235
Broomfield, CO 80038-1235
4
CERTIFICATE OF AMENDMENT
OF
*CERTIFICATE OF INCORPORATION
Ball Aerospace and Technologies Corp., a corporation organized and
existing under and by virtue of the General Corporation Law of the State of
Delaware,
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said corporation, by the
unanimous written consent of its members, filed with the minutes of the
Board, adopted a resolution proposing and declaring advisable the following
amendment to the *Certificate of Incorporation of said corporation:
RESOLVED, that the Certificate of Incorporation of this corporation
be amended by changing the Fourth Article thereof so that, as amended,
said Article shall be and read as follows:
4. Capital Stock. The total number of shares of stock which the
Corporation shall have authority to issue is Ten Thousand shares of
Common Stock, with a par value of one cent per share.
(*If the corporation has filed a Restated Certificate of Incorporation,
insert the word "Restated" before the words "Certificate of Incorporation.")
(**If by written consent without a meeting, substitute the following in the
above paragraph: "by the unanimous written consent of its members, filed
with the minutes of the Board")
5
SECOND: That in lieu of a meeting and vote of stockholders, the
stockholders have given *unanimous* written consent to said amendment in
accordance with the provisions of Sections 228 of the General Corporation Law
of the State of Delaware.**
THIRD: That the aforesaid amendment was duly adopted in accordance with
the applicable provisions of Sections 242 and 228 of the General Corporation
Law of the State of Delaware.***
(*Omit if not by unanimous written consent)
(**If written consent is not unanimous include the following "and written notice
of the adoption of the amendment has been given as provided in Section 228 of
the general Corporation Law of the State of Delaware to every stockholder
entitled to such notice.")
(***The statute provides that any instrument filed is effective upon its
filing date. Any instrument may provide that it is not to become effective
until a specified time subsequent to the time it is filed, but not later than
the 90th day after the date of its filing. If it is desired to have such a
provision, state: "That this Certificate of Amendment of the (Note: insert
the word "Restated" here if the corporation had adopted a Restated
Certificate of Incorporation) Certificate of Incorporation shall be effective
on ____________________.)
6
IN WITNESS WHEREOF, said Ball Aerospace & Technologies Corp. has caused
this certificate to be signed by Donald C. Lewis, its secretary, this 6th day
of September, 1995.
/s/ Donald C. Lewis
---------------------------------
By Secretary
------------------------------
(Title)
* Any authorized officer or the Chairman or Vice Chairman of the Board of
Directors may execute this certificate.
7
Ball Aerospace & Technologies Corp.
Minutes of Action of the Board of Directors
by
Unanimous Written Consent
in Lieu of an Organizational Meeting
The undersigned, being all of the directors of Ball Aerospace &
Technologies Corp., a Delaware corporation, hereby adopt the following
resolutions by unanimous consent pursuant to the provisions of Section 8-108
of the Delaware General Corporation Law, as amended, as if such action had
been taken at a meeting of the Board of Directors of the Corporation duly
called and held on August 31, 1995.
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Fourth Article thereof so that, as amended, the
Article shall be read as follows:
4. CAPITAL STOCK. The total number of shares of stock which the Corporation
shall have authority to issue is Ten Thousand shares of Common Stock, with
a par value of one cent per share.
BE IT FURTHER RESOLVED, that a special meeting of the stockholders of the
Corporation be duly called and held upon written Waiver of Notice signed by
all stockholders to also approve this amendment.
Date: August 31, 1995 /s/ George A. Sissel
--------------------------------
George A. Sissel
8
Ball Aerospace & Technologies Corp.
Minutes of Action of the Shareholders
by
Unanimous Written Consent
The undersigned, being all the shareholders of Ball Aerospace &
Technologies Corp., a Delaware corporation, hereby adopt the following
resolutions by unanimous consent pursuant to the Delaware General Corporation
Law, as amended, as if such action had been taken at a meeting of the
shareholders of the Corporation duly called and held on September 1, 1995.
RESOLVED, that the Certificate of Incorporation of this corporation be
amended by changing the Fourth Article thereof so that, as amended,
the Article shall be read as follows:
4. CAPITAL STOCK. The total number of shares of stock which the
Corporation shall have authority to issue is Ten Thousand shares of
Common Stock, with a par value of one cent per share.
Date: September 1, 1995 Ball Corporation, the sole shareholder
By:/s/ George A. Sissel
-----------------------------------
George A. Sissel
President, Chief Executive Officer
Notice with respect to the above action and meeting is hereby waived by all
of the shareholders.
Ball Corporation, the sole shareholder
By:/s/ George A. Sissel
-----------------------------------
George A. Sissel
President, Chief Executive Officer
9