- Current report filing (8-K)
November 19 2010 - 2:44PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
November 15,
2010
BALL CORPORATION
(Exact name of Registrant as Specified in Charter)
Indiana
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001-07349
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35-0160610
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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10 Longs Peak Drive, P.O. Box 5000,
Broomfield, Colorado
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80021-2510
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrants
telephone number, including area code
(303)
469-3131
Not Applicable
(Former Name or Former Address, if Changed
Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
o
Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01
Entry Into a Material Definitive Agreement.
On November 18, 2010, Ball Corporation (the Company)
completed the sale of $500,000,000 in aggregate principal amount of 5.75%
senior notes due 2021 (the 2021 Notes). The Notes were sold under the Companys
shelf registration statement (Registration No. 333-157537) (the Registration
Statement).
The Company entered into an underwriting agreement,
dated November 15, 2010 (the Underwriting Agreement), among the Company,
the subsidiary guarantors (the Guarantors) and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as representative of the several underwriters named therein
(the Underwriters), in connection with the issuance and sale by the Company
of the 2021 Notes. The Underwriting Agreement includes customary
representations, warranties and covenants. It also provides for customary
indemnification by each of the Company, the Guarantors and the Underwriters
against certain liabilities and customary contribution provisions in respect of
those liabilities.
The
public offering price of the 2021 Notes was 100.000% of the principal amount.
The Company intends to use the net proceeds from the offering to repay the
borrowings under its U.S. dollar denominated secured term loan facility (the Term
D loan facility) and for general corporate purposes, which may include
potential investments in strategic alliances and acquisitions, the refinancing
or repayment of debt, working capital, share repurchases or capital
expenditures.
The 2021 Notes were issued under an Indenture,
dated March 27, 2006 (the Base Indenture), between the Company and The
Bank of New York Mellon Trust Company, N.A. (successor to The Bank of New York
Mellon (formerly known as The Bank of New York)), as supplemented by a Fifth
Supplemental Indenture, dated November 18, 2010, among the Company, the
Guarantors and the Trustee (the Fifth Supplemental Indenture and, together
with the Base Indenture, the Indenture). The Indenture and the form of note,
which is attached as an exhibit to the Indenture, provide, among other things,
that the 2021 Notes will be senior unsecured obligations of the Company.
Interest is payable on the 2021 Notes on May 15
and November 15 of each year beginning on May 15, 2011 until their
maturity date of May 15, 2021. The Company may redeem some or all of the
2021 Notes at any time prior to November 15, 2015 at a price equal to 100%
of the principal amount of the 2021 Notes redeemed plus an applicable
make-whole premium. On or after November 15, 2015, the Company may redeem
some or all of the 2021 Notes at redemption prices set forth in the Fifth
Supplemental Indenture. In addition, at any time prior to November 15,
2013, the Company may redeem up to 35% of the aggregate principal amount of the
2021 Notes at a redemption price of 105.75% of the principal amount of the 2021
Notes redeemed with the net cash proceeds of certain equity offerings.
The Companys payment obligations under the 2021
Notes are fully and unconditionally guaranteed on an unsecured senior basis by
certain of its current domestic subsidiaries (and will be guaranteed by certain
of its future domestic subsidiaries), other than certain excluded subsidiaries
and unrestricted subsidiaries. The 2021 Notes are not guaranteed by any of the
Companys foreign subsidiaries.
The terms of the Indenture, among other things,
limit in certain respects the ability of the Company and its restricted
subsidiaries to incur additional debt and issue preferred stock; pay dividends
or make other restricted payments; make certain investments; create liens;
allow restrictions on the ability of certain of its subsidiaries to pay
dividends or make other payments to it; sell assets; engage in certain sale and
leaseback transactions; merge or consolidate with other entities; and enter
into transactions with affiliates. If the 2021 Notes are, in the future, rated
investment grade by any two of Moodys Investors Services, Inc., Standard &
Poors Ratings Services and Fitch Inc., certain covenants, as set forth in the
Indenture, will, thereafter, no longer apply to the 2021 Notes, irrespective of
whether the 2021 Notes continue to be rated investment grade.
Subject to certain limitations, in the event of a
change of control of the Company, the Company will be required to make an offer
to purchase the 2021 Notes at a price equal to 101% of the principal amount of
the 2021 Notes, plus accrued and unpaid interest to the date of repurchase.
The Indenture provides for customary events of
default which include (subject in certain cases to customary grace and cure
periods), among others, nonpayment of principal or interest; breach of other
agreements in the Indenture; defaults in failure to pay certain other
indebtedness; the failure to pay certain final judgments; the failure
2
of certain guarantees to be enforceable; and
certain events of bankruptcy or insolvency. Generally, if an event of default
occurs, the Trustee or the holders of at least 25% in aggregate principal
amount of the then outstanding 2021 Notes may declare all the 2021 Notes to be
due and payable immediately.
Deutsche
Bank AG, New York Branch, an affiliate of Deutsche Bank Securities Inc., is the
administrative agent and collateral agent under the Companys existing credit
facilities. Bank of America, N.A., an affiliate of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, is a co-syndication agent under the
existing credit facilities. Deutsche Bank Securities Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC act
as joint lead arrangers, joint mandated arrangers and joint book managers for
the existing credit facilities and jointly manage the syndication of the
existing credit facilities. Affiliates of Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Goldman, Sachs & Co., Deutsche Bank Securities
Inc., J.P. Morgan Securities LLC and Barclays Capital Inc. are lenders under
the existing credit facilities, which include the Term D loan facility and the
Companys revolving credit facility. Such affiliates will receive a portion of
the proceeds from the offering assuming repayment of the Term D loan facility.
In the event that the Company uses a portion of the proceeds from the offering
to repay borrowings under the revolving credit facility, these affiliates will
receive a portion of the proceeds from the offering. An affiliate of J.P.
Morgan Securities LLC is lead arranger of the Companys accounts receivable
securitization facility. The Underwriters and their affiliates may in the
future perform various investment banking, commercial lending, financial
advisory and other services for the Company.
Copies
of the Underwriting Agreement, the Base Indenture and the Fifth Supplemental
Indenture are attached hereto as Exhibits 1.1, 4.1 and 4.2 to this Current
Report on Form 8-K, respectively, and are incorporated by reference
herein. The above description of the material terms of the Underwriting
Agreement, the Indenture and the 2021 Notes does not purport to be complete and
is qualified in its entirety by reference to such Exhibits.
Item 2.03.
Creation of a Direct Financial Obligation or an
Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth in
Item 1.01 above with respect to the Notes, the Indenture and the Underwriting
Agreement is hereby incorporated by reference into this Item 2.03, insofar as
it relates to the creation of a direct financial obligation.
Item 9.01.
Financial Statements and Exhibits.
The
agreements included as Exhibits to this Current Report on Form 8-K contain
representations and warranties by each of the parties to the applicable
agreement. These representations and warranties were made solely for the
benefit of the other parties to the applicable agreement and (i) were not
intended to be treated as categorical statements of fact, but rather as a way
of allocating the risk to one of the parties if those statements prove to be
inaccurate; (ii) may have been qualified in such agreement by disclosures
that were made to the other party in connection with the negotiation of the
applicable agreement; (iii) may apply contract standards of materiality
that are different from materiality under the applicable securities laws; and
(iv) were made only as of the date of the applicable agreement or such
other date or dates as may be specified in the agreement.
The
Company acknowledges that, notwithstanding the inclusion of the foregoing
cautionary statements, it is responsible for considering whether additional
specific disclosures of material information regarding material contractual
provisions are required to make the statements in this Current Report on Form 8-K
not misleading.
(d) Exhibits.
Exhibit
Number
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Description
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1.1
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Underwriting
Agreement, dated November 15, 2010.
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4.1
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Indenture,
dated March 27, 2006, between Ball Corporation and The Bank of New York
Mellon Trust Company, N.A. (successor to The Bank of New York Mellon
(formerly known as The Bank of New York)) (filed by incorporation by
reference to the Current Report on Form 8-K dated March 27, 2006)
filed March 30, 2006.
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3
4.2
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Fifth
Supplemental Indenture, dated November 18, 2010, among Ball Corporation,
the guarantors named therein and The Bank of New York Mellon Trust Company,
N.A. (successor to The Bank of New York Mellon (formerly known as The Bank of
New York)).
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4
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Dated:
November 19, 2010
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BALL
CORPORATION
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By:
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/s/
Charles E. Baker
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Name:
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Charles
E. Baker
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Title:
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Vice
President, General Counsel and Assistant Corporate Secretary
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5
EXHIBIT INDEX
Exhibit
Number
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Description
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1.1
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Underwriting
Agreement, dated November 15, 2010.
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4.1
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Indenture,
dated March 27, 2006, between Ball Corporation and The Bank of New York
Mellon Trust Company, N.A. (successor to The Bank of New York Mellon
(formerly known as The Bank of New York)) (filed by incorporation by
reference to the Current Report on Form 8-K dated March 27, 2006)
filed March 30, 2006.
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4.2
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Fifth
Supplemental Indenture, dated November 18, 2010, among Ball Corporation,
the guarantors named therein and The Bank of New York Mellon Trust Company,
N.A. (successor to The Bank of New York Mellon (formerly known as The Bank of
New York)).
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