Attached files
Exhibit
3.ii
Bylaws
of
Ball
Corporation
(As
of January 1, 2010)
Article One
Capital
Stock
Section A. Classes of
Stock. The capital stock of the corporation shall consist of
shares of such kinds and classes, with such designations and such relative
rights, preferences, qualifications, limitations and restrictions, including
voting rights, and for such consideration as shall be stated in or determined in
accordance with the Amended Articles of Incorporation and any amendment or
amendments thereof, or the Indiana Business Corporation
Law. Consistent with the Indiana Business Corporation Law, capital
stock of the corporation owned by the corporation may be referred to and
accounted for as treasury stock.
Section B. Certificates
for Shares. All share certificates shall be consecutively
numbered as issued and shall be signed by the chairman and the corporate
secretary or assistant corporate secretary of the corporation.
Section C. Transfer
of Shares. The shares of the capital stock of the corporation
shall be transferred only on the books of the corporation by the holder thereof,
or by his attorney, upon the surrender and cancellation of the stock
certificate, whereupon a new certificate shall be issued to the
transferee. The transfer and assignment of such shares of stock shall
be subject to the laws of the State of Indiana. The board of
directors shall have the right to appoint and employ one or more stock
registrars and/or transfer agents in the State of Indiana or in any other
state.
Section D. Control
Share Acquisition Statute Inapplicable. Chapter 42 of the
Indiana Business Corporation Law (IC 23-1-42) shall not apply to control share
acquisitions of shares of the corporation.
Article Two
Shareholders
Section A. Annual
Meetings. The regular annual meeting of the shareholders of
the corporation shall be held on the fourth Wednesday in April of each year, or
on such other date within a reasonable interval after the close of the
corporation’s last fiscal year as may be designated from time to time by the
board of directors, for the election of the directors of the corporation, and
for the transaction of such other business as is authorized or required to be
transacted by the shareholders.
Section B. Special
Meetings. Special meetings of the shareholders may be called
by the chairman of the board or by the board of directors or as otherwise may be
required by law.
Section C. Time and Place of
Meetings. All meetings of the shareholders shall be held at
the principal office of the corporation or at such other place within or without
the State of Indiana and at such time as may be designated from time to time by
the board of directors.
Section D. Notice of
Shareholder Nominations of Directors. Only persons who are
nominated in accordance with the following procedures shall be eligible for
election as directors of the corporation, except as may be otherwise provided in
the Amended Articles of Incorporation of the corporation with respect to the
right of holders of preferred stock of the corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations
of persons for election to the board of directors may be made at any annual
meeting of shareholders (a) by or at the direction of the board of
directors (or any duly authorized committee thereof) or (b) by any
shareholder of the corporation (i) who is a shareholder of record on the
date of the giving of the notice provided for in this Section D and on the
record date for the determination of shareholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth
in this Section D.
In
addition to any other applicable requirements, for a nomination to be made by a
shareholder, such shareholder must have given timely notice thereof in proper
written form to the Secretary of the corporation.
To be
timely, a shareholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the corporation not less than
ninety (90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of shareholders;
provided, however, that in the
event that the annual meeting is called for a date that is not within thirty
(30) days before or after such anniversary date, notice by the shareholder in
order to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs. In no event shall the
public disclosure of an adjournment of an annual meeting commence a new time
period for the giving of a shareholder’s notice as described above.
To be in
proper written form, a shareholder’s notice to the Secretary must set forth as
to each person whom the shareholder proposes to nominate for election as a
director and as to the shareholder giving the notice and any Shareholder
Associated Person (as defined below) (i) the name, age, business address,
residence address and record address of such person, (ii) the principal
occupation or employment of such person, (iii) the class or series and
number of shares of capital stock of the corporation which are owned
beneficially or of record by such person, (iv) any information relating to
such person that would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of proxies for
election of directors pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and the rules and regulations
promulgated thereunder, (v) the nominee holder for, and number of, shares
owned beneficially but not of record by such person, (vi) whether and the
extent to which any hedging or other transaction or series of transactions has
been entered into by or on behalf of, or any other agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options or borrowed or loaned shares) has been made, the effect or intent of
which is to mitigate loss to or manage risk or benefit of share price changes
for, or to increase or decrease the voting power of, such
person
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with
respect to any share of stock of the corporation, (vii) to the extent known
by the shareholder giving the notice, the name and address of any other
shareholder supporting the nominee for election or reelection as a director on
the date of such shareholder’s notice, (viii) a description of all
arrangements or understandings between or among such persons pursuant to which
the nomination(s) are to be made by the shareholder and any relationship between
or among the shareholder giving notice and any Shareholder Associated Person, on
the one hand, and each proposed nominee, on the other hand, and (ix) a
representation that the shareholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice. Any
information required by this paragraph shall be supplemented by the shareholder
giving the notice not later than ten (10) days after the record date for the
meeting as of the record date. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a nominee and to
serve as a director if elected. The corporation may require any
proposed nominee to furnish such other information as may reasonably be required
by the corporation to determine the eligibility of such proposed nominee to
serve as an independent director of the corporation or that could be material to
a reasonable shareholder’s understanding of the independence, or lack thereof,
of such nominee.
No person
shall be eligible for election as a director of the corporation unless nominated
in accordance with the procedures set forth in this Section D (including
the provision of the information required pursuant to the immediately preceding
paragraph). If the Chairman of the meeting determines that a
nomination was not made in accordance with the foregoing procedures, the
Chairman shall declare to the meeting that the nomination was defective and such
defective nomination shall be disregarded.
Notwithstanding
anything in the third paragraph of this Section D to the contrary, in the
event that the number of directors to be elected to the board of directors of
the corporation is increased and there is no public disclosure by the
corporation naming all of the nominees for director or specifying the size of
the increased board of directors at least 100 days prior to the first
anniversary of the preceding year’s annual meeting, a shareholder’s notice
required by this Bylaw shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be
delivered to the Secretary at the principal executive offices of the corporation
not later than the close of business on the 10th day following the day on which
such public disclosure is first made by the corporation.
Section E. Notice of Shareholder Proposals of
Business. No business may be transacted at an annual meeting
of shareholders, other than business that is either (a) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors (or any duly authorized committee thereof),
(b) otherwise properly brought before the annual meeting by or at the
direction of the board of directors (or any duly authorized committee thereof)
or (c) otherwise properly brought before the annual meeting by any
shareholder of the corporation (i) who is a shareholder of record on the
date of the giving of the notice provided for in this Section E and on the
record date for the determination of shareholders entitled to vote at such
annual meeting and (ii) who complies with the notice procedures set forth
in this Section E.
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In
addition to any other applicable requirements, for business to be properly
brought before an annual meeting by a shareholder, such shareholder must have
given timely notice thereof in proper written form to the Secretary of the
corporation.
To be
timely, a shareholder’s notice to the Secretary must be delivered to or mailed
and received at the principal executive offices of the corporation not less than
ninety (90) days nor more than one hundred twenty (120) days prior to the
anniversary date of the immediately preceding annual meeting of shareholders;
provided, however, that in the
event that the annual meeting is called for a date that is not within thirty
(30) days before or after such anniversary date, notice by the shareholder in
order to be timely must be so received not later than the close of business on
the tenth (10th) day following the day on which such notice of the date of the
annual meeting was mailed or such public disclosure of the date of the annual
meeting was made, whichever first occurs. In no event shall the
public disclosure of an adjournment of an annual meeting commence a new time
period for the giving of a shareholder’s notice as described above.
To be in
proper written form, a shareholder’s notice to the Secretary must set forth as
to each matter such shareholder proposes to bring before the annual meeting a
brief description of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting and
as to the shareholder giving the notice and any Shareholder Associated Person,
(i) the name and record address of such person, (ii) the class or
series and number of shares of capital stock of the corporation which are owned
beneficially or of record by such person, (iii) the nominee holder for, and
number of, shares owned beneficially but not of record by such person,
(iv) whether and the extent to which any hedging or other transaction or
series of transactions has been entered into by or on behalf of, or any other
agreement, arrangement or understanding (including any derivative or short
positions, profit interests, options or borrowed or loaned shares) has been
made, the effect or intent of which is to mitigate loss to or manage risk or
benefit of share price changes for, or to increase or decrease the voting power
of, such person with respect to any share of stock of the corporation,
(v) to the extent known by the shareholder giving the notice, the name and
address of any other shareholder supporting the proposal of business on the date
of such shareholder’s notice, (vi) a description of all arrangements or
understandings between or among such persons in connection with the proposal of
such business by such shareholder and any material interest in such business and
(vii) a representation that the shareholder giving the notice intends to
appear in person or by proxy at the annual meeting to bring such business before
the meeting. Any information required pursuant to this paragraph
shall be supplemented by the shareholder giving the notice not later than ten
(10) days after the record date for the meeting as of the record
date.
No
business shall be conducted at the annual meeting of shareholders except
business brought before the annual meeting in accordance with the procedures set
forth in this Section E (including the provision of the information
required pursuant to the immediately preceding paragraph); provided, however, that, once
business has been properly brought before the annual meeting in accordance with
such procedures, nothing in this Section E shall be deemed to preclude
discussion by any shareholder of any such business. If the Chairman
of an annual meeting determines that business was not properly brought before
the annual meeting in accordance with the foregoing procedures, the Chairman
shall declare to the meeting that the business was not properly brought before
the meeting and such business shall not be transacted.
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Section F. Definitions.
For
purposes of Article Two of these Bylaws:
“public
disclosure” shall mean disclosure in a press release reported by the Dow Jones
News Service, Associated Press or comparable national news service or in a
document publicly filed by the corporation with the Securities and Exchange
Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
“Shareholder
Associated Person” of any shareholder shall mean (i) any person acting in
concert, directly or indirectly, with such shareholder and (ii) any person
controlling, controlled by or under common control with such shareholder or any
Shareholder Associated Person.
Article Three
Directors
Section A. Number and
Terms of Office. The business of the corporation shall be
controlled and managed in accordance with the Indiana Business Corporation Law
by a board of eleven directors, divided into classes as provided in the Amended
Articles of Incorporation.
Section B. Eligibility. No
person shall be eligible for election or reelection as a director after having
attained the age of seventy prior to or on the day of election or
reelection. A director who attains the age of seventy during his term
of office shall be eligible to serve only until the annual meeting of
shareholders of the corporation next following such director’s seventieth
birthday.
Section C. Regular
Meetings. The regular annual meeting of the board of directors
shall be held immediately after the adjournment of each annual meeting of the
shareholders. Regular quarterly meetings of the board of directors
shall be held on the fourth Wednesday of January, July, and October of each
year, or on such other date as may be designated from time to time by the board
of directors.
Section D. Special
Meetings. Special meetings of the board of directors may be
called at any time by the chairman of the board or by the board, by giving to
each director an oral or written notice setting the time, place and purpose of
holding such meetings.
Section E. Time and
Place of Meetings. All meetings of the board of directors
shall be held at the principal office of the corporation, or at such other place
within or without the State of Indiana and at such time as may be designated
from time to time by the board of directors.
Section F. Notices. Any
notice, of meetings or otherwise, which is given or is required to be given to
any director may be in the form of oral notice.
Section G. Committees. The
board of directors is expressly authorized to create committees and appoint
members of the board of directors to serve on them, as follows:
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(1) Temporary
and standing committees, including an executive committee, and the respective
chairmen thereof, may be appointed by the board of directors, from time to
time. The board of directors may invest such committees with such
powers and limit the authority of such committees as it may see fit, subject to
conditions as it may prescribe. The executive committee shall consist
of three or more members of the board. All other committees shall
consist of one or more members of the board. All committees so
appointed shall keep regular minutes of the transactions of their meetings,
shall cause them to be recorded in books kept for that purpose in the office of
the corporation, and shall report the same to the board of directors at its next
meeting. Within its area of responsibility, each committee shall have
and exercise all of the authority of the board of directors, except as limited
by the board of directors or by law, and shall have the power to authorize the
execution of an affixation of the seal of the corporation to all papers or
documents which may require it.
(2) Neither
the designation of any of the foregoing committees or the delegation thereto of
authority shall operate to relieve the board of directors, or any member
thereof, of any responsibility imposed by law.
Section H. Loans to
Directors. Except as consistent with the Indiana Business
Corporation Law, the corporation shall not lend money to or guarantee the
obligation of any director of the corporation.
Article Four
Officers
Section A. Election
and Term of Office. The officers of the corporation shall be
elected by the board of directors at the regular annual meeting of the board,
unless the board shall otherwise determine, and shall consist of a chairman of
the board of directors, if so designated as an officer by the board, a chief
executive officer, a president, one or more vice presidents (any one or more of
whom may be designated “corporate,” “group,” or other functionally described
vice president), a corporate secretary, a treasurer, a controller, and may
include a vice-chairman of the board of directors and one or more assistant
secretaries and assistant treasurers. The board of directors may,
from time to time, designate a chief operating officer and a chief financial
officer from among the officers of the corporation. At any one time a
person may hold more than one office of the corporation. Only the
chairman and any vice-chairman of the board must be a director of the
corporation. Each officer shall continue in office until his
successor shall have been duly elected and qualified or until removed with or
without cause by the board of directors. Vacancies in any of such
offices may be filled for the unexpired portion of the term by the board of
directors.
Section B. Chairman
of the Board. The chairman of the board shall preside at all
meetings of the board of directors and of the shareholders. He shall
confer from time to time with members of the board and the officers of the
corporation and shall perform such other duties as may be assigned to him by the
board. Except where by law the signature of another officer is
required, the chairman of the board shall possess the power to sign all
certificates, deeds, mortgages, bonds, contracts and other instruments of the
corporation which may be authorized by the board of directors. During
the absence or inability to act of the chief executive officer, the chairman of
the board shall act as the chief executive officer of the corporation and shall
exercise all the powers and discharge all the duties of the chief executive
officer.
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Section C. Vice-Chairman
of the Board. The vice-chairman of the board, if elected,
shall, in the absence of the chairman of the board, preside at all meetings of
the board of directors and of the shareholders. He shall have and
exercise the powers and duties of the chairman of the board in the event of the
chairman’s absence or inability to act or during a vacancy in the office of
chairman of the board. He shall possess the same power as the
chairman to sign all certificates, contracts, and other instruments of the
corporation which may be authorized by the board of directors. He
shall also have such other duties and responsibilities as shall be assigned to
him by the board of directors or the chairman.
Section D. The Chief
Executive Officer. The chief executive officer shall have
general charge, supervision and management of the business, affairs and
operations of the corporation in all respects, subject to such directions as the
board of directors may from time to time provide. The chief executive
officer shall be the senior executive officer of the corporation, shall perform
such other duties as are customarily incident to such office and shall have full
power and authority to see that all directions and resolutions of the board of
directors are carried out and, without limitation, the power and authority to
determine and direct:
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(a)
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the
management, supervision and coordination of all business divisions and
functional areas;
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(b)
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the
implementation of strategic objectives, the setting of operating
priorities and the allocation of human and material
resources;
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(c)
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the
management, supervision and coordination of all other executive officers
and all business division heads;
and
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(d)
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the
briefing of the directors at meetings of the board of directors concerning
the corporation's business, affairs and
operations.
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The chief executive officer shall have
the power to sign and execute all certificates, deeds, mortgages, bonds,
contracts, and other instruments of the corporation as authorized by the board
of directors, except in cases where the signing and execution thereof shall be
expressly designated by the board of directors or by these bylaws to some other
officer or agent of the corporation.
Section E. The
President. The president shall perform such duties as the
board of directors or the chief executive officer shall from time to time
specify and other duties incident to the office of president and as are required
of him by these bylaws. The president shall have the power to sign
and execute all certificates, deeds, mortgages, bonds, contracts and other
instruments of the corporation as authorized by the board of directors, except
in cases where the signing and execution thereof shall be expressly designated
by the board of directors or by these bylaws to some other officer or agent of
the corporation.
Section F. The Vice
Presidents. The vice presidents shall possess the same power
as the president to sign all certificates, contracts, and other instruments of
the corporation which may be authorized by the board of directors, except where
by law the signature of the president is required. All vice
presidents shall perform such duties as may from time to time be assigned to
them by the board of directors, the chairman of the board, and the
president. In the event of the
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absence
or disability of the president, and at the request of the chairman of the board,
or in his absence or disability, at the request of the vice-chairman of the
board, or in his absence or disability at the request of the board of directors,
the vice presidents in the order designated by the chairman of the board, or in
his absence or disability by the vice-chairman of the board, or in his absence
or disability by the board of directors, shall perform all of the duties of the
president, and when so acting they shall have all of the powers of and be
subject to the restrictions upon the president and shall act as a member of, or
as a chairman of, any standing or special committee of which the president is a
member or chairman by designation or ex officio.
Section G. The
Corporate Secretary. The corporate secretary of the
corporation shall:
(1) Keep
the minutes of the meetings of the shareholders and the board of directors in
books provided for that purpose.
(2) See
that all notices are duly given in accordance with the provisions of these
bylaws and as required by law.
(3) Be
custodian of the records and of the seal of the corporation and see that the
seal is affixed to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized in accordance with the provisions
of these bylaws.
(4) Keep
a register of the post office address of each shareholder, which shall be
furnished to the corporate secretary at his request by such shareholder, and
make all proper changes in such register, retaining and filing his authority for
all such entries.
(5) See
that the books, reports, statements, certificates and all other documents and
records required by law are properly kept, filed, and
authenticated.
(6) In
general, perform all duties incident to the office of corporate secretary and
such other duties as may from time to time be assigned to him by the board of
directors.
(7) In
case of absence or disability of the corporate secretary, the assistant
secretaries, in the order designated by the chief executive officer, shall
perform the duties of corporate secretary.
Section H. The
Treasurer. The treasurer of the corporation
shall:
(1) Give
bond for the faithful discharge of his duties if required by the board of
directors.
(2) Have
the charge and custody of, and be responsible for, all funds and securities of
the corporation, and deposit all such funds in the name of the corporation in
such banks, trust companies, or other depositories as shall be selected in
accordance with the provisions of these bylaws.
(3) At
all reasonable times, exhibit his books of account and records, and cause to be
exhibited the books of account and records of any corporation a majority of
whose stock is owned by the corporation, to any of the directors of the
corporation upon application during
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business
hours at the office of this corporation or such other corporation where such
books and records are kept.
(4) Render
a statement of the conditions of the finances of the corporation at all regular
meetings of the board of directors, and a full financial report at the annual
meeting of the shareholders, if called upon so to do.
(5) Receive
and give receipts for monies due and payable to the corporation from any source
whatsoever.
(6) In
general, perform all of the duties incident to the office of treasurer and such
other duties as may from time to time be assigned to him by the board of
directors.
(7) In
case of absence or disability of the treasurer, the assistant treasurers, in the
order designated by the chief executive officer, shall perform the duties of
treasurer.
(8) All
acts affecting the treasurer’s duties and responsibilities shall be subject to
the review and approval of the corporation’s chief financial
officer.
Section I. The
Controller. The controller of the corporation
shall:
(1) Direct
the financial closings and the preparation of monthly, quarterly and annual
consolidated historical financial statements and reports to executive and
operating management.
(2) Direct
the preparation of financial reports required by federal, state and local
regulatory agencies and the preparation of quarterly and annual financial
statements and reports to shareholders, the Securities and Exchange Commission
and other interested parties.
(3) Provide
primary contact for the corporation’s independent accountants and all of its
consolidated domestic and foreign subsidiaries and represent management to the
corporation’s domestic and international independent accountants.
(4) Perform
and/or direct technical accounting and financial reporting research and monitor
developments in accounting and regulatory standards (e.g., FASB, SEC, EITF,
IRS).
(5) Direct
the corporation’s domestic and foreign tax planning, preparation and
compliance.
(6) In
general, perform all of the duties incident to the office of controller and such
other duties as may from time to time be assigned by the board of
directors.
(7) In
case of absence or disability of the controller, the assistant controllers, in
the order designated by the chief financial officer, shall perform the duties of
controller.
(8) All
acts affecting the controller’s duties and responsibilities shall be subject to
the review and approval of the corporation’s chief financial
officer.
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Article Five
Indemnification
Section A. Indemnification of Directors and
Officers - General. Certain of the terms used herein are more
specifically defined in Section F of this Article Five.
(1) The
corporation shall indemnify an individual made a party to a proceeding because
he is or was a director or officer of the corporation against liability incurred
in connection with a proceeding to the fullest extent permitted by the Indiana
Business Corporation Law (the “IBCL”), as the same now exist or may hereafter be
amended (but only to the extent any such amendment permits the corporation to
provide broader indemnification rights than the IBCL permitted the corporation
to provide prior to such amendment).
(2) The
termination of a proceeding by judgment, order, settlement, or conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director or officer did not meet the standard of conduct
set forth in the IBCL.
(3) To
the extent that a director or officer has been wholly successful, on the merits
or otherwise, in the defense of any proceeding to which he was a party, or in
defense of any claim, issue, or matter therein, because he is or was a director
or officer of the corporation, the corporation shall indemnify the director or
officer against reasonable expenses incurred by him in connection therewith
regardless of whether the director or officer has met the standards set forth in
the IBCL and without any action or determination under Section D of this
Article Five.
Section B. Advancement
of Expenses.
(1) The
corporation shall pay for or reimburse the reasonable expenses incurred by a
director or officer who is a party to a proceeding in advance of final
disposition of the proceeding if:
(a) The
director or officer furnishes the corporation a written affirmation of his good
faith belief that he has met the standard of conduct set forth in the
IBCL;
(b) The
director or officer furnishes the corporation a written undertaking, executed
personally or on his behalf, to repay any advances if it is ultimately
determined that he is not entitled to indemnification under this
Article Five; and
(c) A
determination is made that the facts then known to those making the
determination would not preclude indemnification under the IBCL.
(2) The
undertaking required by paragraph (b) of subsection (1) of this Section B
must be an unlimited general obligation of the director or officer but need not
be secured and may be accepted without reference to financial ability to make
repayment.
Section C. Limitations
on Indemnification.
(1) The
corporation shall not indemnify a director or officer under Section A of
this Article Five unless a determination has been made in the specific case
that indemnification of the director is permissible in the circumstances because
he has met the standard of conduct set forth
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in the
IBCL. Such determination shall be made within 60 days of the request
for indemnification:
(a) By
the board of directors by majority vote of a quorum consisting of directors not
at the time parties to the proceeding;
(b) If
a quorum cannot be obtained under paragraph (a) of this subsection, by
majority vote of a committee duly designated by the board of directors (in which
designation directors who are parties may participate), consisting solely of two
or more directors not at the time parties to the proceeding;
(c) By
special legal counsel:
(i) Selected
by the board of directors or its committee in the manner prescribed in paragraph
(a) or (b) of this subsection; or
(ii) If
a quorum of the board of directors cannot be obtained under paragraph (a)
of this subsection and a committee cannot be designated under paragraph (b)
of this subsection, selected by majority vote of the full board of directors (in
which selection directors who are parties may participate); or
(d) By
the shareholders, but the shares owned by or voted under the control of the
officers and directors who are at the time parties to the proceeding may not be
voted on the determination; provided, however, that following a change of
control of the corporation, with respect to all matters thereafter arising out
of acts, omissions or events prior to the change of control of the corporation
concerning the rights of any person seeking indemnification under this
Article Five, such determination shall be made by special legal counsel
selected by such person and approved by the board of directors or its committee
in the manner described in Section C(1)(c) above (which approval shall not
be unreasonably withheld), which counsel has not otherwise performed services
(other than in connection with similar matters) within the five years preceding
its engagement to render such opinion for such person or for the corporation or
any affiliates (as such term is defined in Rule 405 under the Securities Act of
1933, as amended) of the corporation (whether or not they were affiliates when
services were so performed) (“Independent Counsel”). Unless such
person has theretofore selected Independent Counsel pursuant to this
Section C and such Independent Counsel has been approved by the
corporation, legal counsel approved by a resolution or resolutions of the board
of directors of the corporation prior to a change of control of the corporation
shall be deemed to have been approved by the corporation as
required. Such Independent Counsel shall determine as promptly as
practicable whether and to what extent such person would be permitted to be
indemnified under applicable law and shall render its written opinion to the
corporation and such person to such effect. In making a determination
under this Section C, the special legal counsel and Independent Counsel
referred to above shall determine that indemnification is permissible unless
clearly precluded by this Article Five or the applicable provisions of the
IBCL. The corporation agrees to pay the reasonable fees of the
Independent Counsel referred to above and to fully indemnify such Independent
Counsel against any and all expenses, claims, liabilities and damages arising
out of or relating to this Article Five or its engagement pursuant
hereto.
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(2) Authorization
of indemnification or an obligation to indemnify and evaluation as to
reasonableness of expenses shall be made as set forth in paragraph (a) above,
except that if the determination is made by special legal counsel (pursuant to
Section C(1)(c) above), authorization of indemnification and evaluation as
to reasonableness of expenses shall be made by those entitled under
Section C(1)(c) above to select counsel.
(3) Indemnification
under this Article Five in connection with a proceeding by or in the right
of the corporation shall be limited to reasonable expenses incurred in
connection with the proceeding.
Section D. Enforceability. The
provisions of this Article Five shall be applicable to all proceedings
commenced after its adoption, whether such arise out of events, acts, omissions
or circumstances which occurred or existed prior or subsequent to such adoption,
and shall continue as to a person who has ceased to be a director or officer and
shall inure to the benefit of the heirs, executors and administrators of such
person. This Article Five shall be deemed to grant each person
who is entitled to indemnification hereunder rights against the corporation to
enforce the provisions of this Article Five, and any repeal or other
modification of this Article Five or any repeal or modification of the IBCL
or any other applicable law shall not limit any rights of indemnification then
existing or arising out of events, acts, omissions, circumstances occurring or
existing prior to such repeal or modification, including, without limitation,
the right to indemnification for proceedings commenced after such repeal or
modification to enforce this Article Five with regard to acts, omissions,
events or circumstances occurring or existing prior to such repeal or
modification.
Section E. Severability. If
this Article Five or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, then the corporation shall nevertheless
indemnify each director or officer of the corporation as to liabilities incurred
in connection with any proceeding, including an action by or in the right of the
corporation, to the full extent permitted by any applicable portion of this
Article Five that shall not have been invalidated and to the full extent
permitted by the Articles and by applicable law.
Section F. Definitions.
As used
in this Article, the term:
(1) “change
of control,” for purposes of this Article Five, means (i) an
acquisition by any person of 30 percent or more of the corporation’s voting
shares; (ii) a merger in which the shareholders of the corporation before
the merger own 50 percent or less of the corporation’s (or the ultimate parent
corporation’s) voting shares after the merger; (iii) shareholder approval
of a plan of liquidation or to sell or dispose of substantially all of the
assets of the corporation; and (iv) if, during any two-year period,
directors at the beginning of the period (and any new directors nominated by a
majority of the directors at the beginning of such period) fail to constitute a
majority of the board of directors. Notwithstanding the foregoing, a
change of control shall not be deemed to occur solely because thirty percent
(30%) or more of the then outstanding voting securities is acquired by
(i) a trustee or other fiduciary holding securities under one or more
employee benefit plans maintained by the corporation or any of its subsidiaries
or (ii) any corporation which, immediately prior to such acquisition, is
owned
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directly
or indirectly by the shareholders of this corporation in the same proportion as
their ownership of shares in this corporation immediately prior to such
acquisition.
(2) “corporation”
includes Ball Corporation and any domestic or foreign predecessor entity of the
corporation or a corporation in a merger or other transaction in which the
predecessor’s existence ceased upon consummation of the
transaction.
(3) “director”
means an individual who is or was a director of the corporation or an individual
who, while a director of the corporation, is or was serving at the corporation’s
request as a director, officer, partner, member, manager, trustee, employee, or
agent of another foreign or domestic corporation, partnership, limited liability
company, joint venture, trust, employee benefit plan, or other enterprise,
whether for profit or not. A director is considered to be serving an
employee benefit plan at the corporation’s request if his duties to the
corporation also impose duties on, or otherwise involve services by, him to the
plan or to participants in or beneficiaries of the plan. Director
includes, unless the context requires otherwise, the estate or personal
representative of a director.
(4) “expenses”
include attorneys’ fees.
(5) “liability”
means the obligation to pay a judgment, settlement, penalty, fine (including an
excise tax assessed with respect to an employee benefit plan), or reasonable
expenses incurred with respect to a proceeding.
(6) “party”
includes an individual who was, is, or is threatened to be made a named
defendant or respondent in a proceeding.
(7) “proceeding”
means any threatened, pending, or completed action, suit, or proceeding, whether
civil, criminal, administrative, or investigative and whether formal or
informal, except for a proceeding (or part thereof) initiated by a person
against the corporation or any director, officer, employee or agent thereof
(other than to enforce his rights under this Article Five) and not
consented to by the corporation.
Article Six
Corporate
Seal
The
corporate seal of the corporation shall be a round, metal disc with the words
“Ball Corporation” around the outer margin thereof, and the words “Corporate
Seal,” in the center thereof, so mounted that it may be used to impress words in
raised letters upon paper.
Article Seven
Amendment
These
bylaws may be altered, added to, amended, or repealed by the board of directors
of the corporation at any regular or special meeting thereof.
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