EXHIBIT 3.5
Published on November 5, 1998
Exhibit 3.5
ARTICLES of INCORPORATION
OF
Ball Asia Pacific Limited
ARTICLE I
The name of the Corporation is Ball Asia Pacific Limited.
ARTICLE II
The Corporation is incorporated under Colorado law.
ARTICLE III
The purposes for which the Corporation is organized and its powers are
as follows:
1. To engage in the transaction of all lawful business or pursue
any other lawful purpose or purposes for which a corporation may be
incorporated under Colorado law.
2. To have, enjoy, and exercise all of the rights, powers, and
privileges conferred upon corporations incorporated pursuant to Colorado law,
whether now or hereafter in effect, and whether or not herein specifically
mentioned.
The foregoing enumeration of purposes and powers shall not limit or
restrict in any manner the transaction of other business, the pursuit of
other purposes, or the exercise of other and further rights and powers that
may now or hereafter be permitted or provided by law.
ARTICLE IV
The Corporation shall have authority to issue a total of one thousand
(1,000) shares, which shall consist of one class only, designated "common
stock" without par value.
1. Shareholders shall have no preemptive rights to acquire
unissued or treasury shares of the Corporation, securities convertible into
shares, or carrying a right to subscribe for or acquire shares, or stock
options.
2. Cumulative voting shall not be permitted in the election of
directors.
ARTICLE V
By the affirmative vote or concurrence of the holders of a majority of
the outstanding shares of the Corporation, or any class or series thereof,
the shareholders may take any action that, but for this Article, would
require a two-thirds affirmative vote or concurrence of the holders of the
outstanding shares, or of any class or series thereof, under the Colorado
Corporation Code.
ARTICLE VI
1. The business and affairs of the Corporation shall be managed
by a board of directors, which shall be elected at annual meeting of the
shareholders or at a special meeting called for that purpose.
2. The initial board of directors shall consist of the following
members, each of whom shall serve until the first annual meeting of
shareholders and until his successor is elected and qualified.
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3. The number of directors may be increased or decreased from
time to time in the manner provided in the bylaws of the Corporation, but no
decrease shall have the effect of shortening the term of any incumbent
director.
ARTICLE VII
The initial registered office of the Corporation shall be 1675 Broadway,
Denver, CO 80202, and the initial registered agent at such address shall be
The Corporation Company.
ARTICLE VIII
No contract or any other transaction between the Corporation and one or
more of its directors or any other corporation, partnership, joint venture,
trust, association, other entity, or employee benefit plan in which one or
more of the Corporation's directors or officers are directors or officers or
are in any similar managerial or fiduciary position or are financially
interested shall be either void or voidable solely because of such
relationship or interest or solely because such directors or officers are
present at the meeting of the board of directors or a committee thereof which
authorizes, approves, or ratifies such contract or transaction or solely
because their votes are counted for such purpose, so long as such contract or
transaction satisfies the requirements explicitly set forth in the Colorado
Corporation Code for contracts between a corporation and its directors.
ARTICLE IX
Indemnification
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, action, 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
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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 Colorado or of the United States of America,
whether as a matter of public policy or pursuant to statutory provisions.
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 the 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 the
first paragraph of this Article IX; 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
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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 the
first paragraph of this Article IX.
As used in this Article IX, 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,
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 Article IX.
The provisions of this Article IX shall be applicable to claims,
actions, suits or proceedings made or commenced after the adoption thereof,
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.
ARTICLE X
The name and address of the incorporator, a natural person at least
eighteen years old, is:
Hillary Johnson 10 Longs Peak Drive
Broomfield, CO 80021
Verified this 29 day of April 1994.
/s/ Hillary Johnson
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Incorporator
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