BALL Corp S-3ASR, filed Mar 4, 2021
BALL Corp (BALL)
UNDER
THE SECURITIES ACT OF 1933
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Indiana
(State or other jurisdiction of incorporation or organization) |
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35-0160610
(I.R.S. Employer Identification Number) |
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Westminster, CO 80021-2510
(303) 469-3131
Vice President, General Counsel and Corporate Secretary
Ball Corporation
9200 W. 108th Circle, P.O. Box 5000
Westminster, CO 80021-2510
(303) 469-3131
Skadden, Arps, Slate, Meagher & Flom LLP
155 North Wacker Drive
Chicago, Illinois 60606
(312) 407-0700
(Approximate date of commencement of proposed sale to the public)
| | Large accelerated filer ☒ | | | Accelerated filer ☐ | | |
Non-accelerated filer ☐
(do not check if smaller reporting company) |
| | Smaller reporting company ☐ | |
| | Emerging growth company ☐ | | | | | | | | | | |
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Title of Each Class of Securities
to be Registered(1) |
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Amount to be
Registered(2) |
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Proposed Maximum
Offering Price per Security(2) |
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Proposed Maximum
Aggregate Offering Price(2) |
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Amount of
Registration Fee(3) |
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Debt Securities
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Common Stock, without par value
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Preferred Stock
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Warrants
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Guarantees of the Debt Securities(4)
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Exact Name of Additional Registrants
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Jurisdiction of
Incorporation |
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I.R.S. Employer
Identification Number |
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Ball Advanced Aluminum Technologies Corp.*
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| | Delaware | | | | | 54-1344175 | | |
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Ball Aerospace & Technologies Corp.*
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| | Delaware | | | | | 84-1315001 | | |
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Ball Asia Services Limited*
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| | Delaware | | | | | 35-1266192 | | |
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Ball Beverage Can Americas Inc.*
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| | Delaware | | | | | 36-4287015 | | |
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Ball BP Holding Company*
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| | Delaware | | | | | 62-1821843 | | |
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Ball Container LLC*
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| | Delaware | | | | | 27-0671085 | | |
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Ball Corporation*
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| | Nevada | | | | | 35-1687923 | | |
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Ball Delaware Holdings, LLC*
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| | Delaware | | | | | 26-4668418 | | |
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Ball Glass Containers, Inc.*
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| | Delaware | | | | | 35-1602255 | | |
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Ball Global Business Services Corp.*
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| | Delaware | | | | | 35-2513110 | | |
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Ball Holdings Corp.*
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| | Delaware | | | | | 84-1428301 | | |
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Ball Holdings LLC*
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| | Delaware | | | | | 27-0670877 | | |
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Ball Inc.*
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| | Delaware | | | | | 06-1122239 | | |
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Ball Metal Beverage Container Corp.*
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| | Colorado | | | | | 84-1326644 | | |
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Ball Metal Container Corporation*
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| | Indiana | | | | | 35-1779013 | | |
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Ball Packaging, LLC*
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| | Colorado | | | | | 84-1326640 | | |
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Ball Pan-European Holdings, LLC
2400 Huntington Drive, Fairfield, CA, 94533 (909) 517-2700 |
| | Delaware | | | | | 33-1022314 | | |
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Ball Technologies Holdings Corp.*
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| | Colorado | | | | | 84-1220333 | | |
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Latas de Aluminio Ball, Inc.*
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| | Delaware | | | | | 54-1088943 | | |
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Rexam Beverage Can Company*
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| | Delaware | | | | | 36-2241181 | | |
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USC May Verpackungen Holding Inc.*
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| | Delaware | | | | | 36-4335392 | | |
Common Stock
Preferred Stock
Warrants
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Page
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Westminster, CO 80021-2510
(303) 469-3131
Attention: General Counsel
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Amount to
be Paid |
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SEC registration fee
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*
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Trustee’s fees and expenses
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**
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Printing and engraving fees and expenses
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**
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Accounting fees and expenses
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**
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Legal fees and expenses
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**
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Rating agency fees
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**
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Miscellaneous
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**
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Total
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**
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Exhibit
Number |
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Description
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| | | 1.1 | | | | Form of underwriting agreement with respect to debt securities, common stock, preferred stock and warrants.* | |
| | | 4.1 | | | | Indenture, dated as of November 27, 2015, by and between Ball Corporation and Deutsche Bank Trust Company Americas, as Trustee (incorporated by reference to Exhibit 4.7 to Ball Corporation’s Registration Statement on Form S-3 dated November 27, 2015). | |
| | | 4.2 | | | | Form of debt securities.* | |
| | | 4.3 | | | | Specimen Certificate of Common Stock (incorporated by reference to Ball Corporation’s Annual Report on Form 10-K for the year ended December 31, 1979, filed with the SEC on March 24, 1980). | |
| | | 4.4 | | | | Form of any certificate of designation, preferences and rights with respect to any preferred stock issued hereunder.* | |
| | | 4.5 | | | | Form of any preferred stock certificate.* | |
| | | 4.6 | | | | Form of warrant agreement.* | |
| | | 5.1 | | | | | |
| | | 5.2 | | | | | |
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Exhibit
Number |
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Description
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| | | 5.3 | | | | | |
| | | 23.1 | | | | | |
| | | 23.2 | | | | | |
| | | 23.3 | | | | | |
| | | 23.4 | | | | | |
| | | 24.1 | | | | | |
| | | 25.1 | | | | Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of Deutsche Bank Trust Company Americas, as trustee under the Indenture dated as of November 27, 2015. | |
Chairman and Chief Executive Officer
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Signature
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Title
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/s/ John A. Hayes
John A. Hayes
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| | Chairman and Chief Executive Officer (principal executive officer) | |
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/s/ Daniel W. Fisher
Daniel W. Fisher
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| | President | |
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/s/ Scott C. Morrison
Scott C. Morrison
|
| | Executive Vice President and Chief Financial Officer (principal financial officer) | |
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/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President and Controller (principal accounting officer) | |
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/s/ John Bryant
John Bryant
|
| | Director | |
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/s/ Michael J. Cave
Michael J. Cave
|
| | Director | |
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/s/ Daniel J. Heinrich
Daniel J. Heinrich
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| | Director | |
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/s/ Pedro Henrique Mariani
Pedro Henrique Mariani
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| | Director | |
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Signature
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Title
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|
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/s/ Georgia Nelson
Georgia Nelson
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| | Director | |
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/s/ Cynthia A. Niekamp
Cynthia A. Niekamp
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| | Director | |
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/s/ Todd Penegor
Todd Penegor
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| | Director | |
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/s/ Cathy Ross
Cathy Ross
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| | Director | |
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/s/ Betty Sapp
Betty Sapp
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| | Director | |
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/s/ Stuart A. Taylor II
Stuart A. Taylor II
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| | Director | |
Vice President
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Signature
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Title
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/s/ Stanley M. Platek
Stanley M. Platek
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| | Director (principal executive officer) | |
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/s/ Scott C. Morrison
Scott C. Morrison
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| | Vice President (principal financial officer) | |
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/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
| |
/s/ John A. Hayes
John A. Hayes
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| | Director | |
Vice President
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Signature
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Title
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/s/ John A. Hayes
John A. Hayes
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| | Director and Chairman | |
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/s/ David Kaufman
David Kaufman
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| | President and Director (principal executive officer) | |
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/s/ Scott C. Morrison
Scott C. Morrison
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| | Vice President (principal financial officer) | |
| |
/s/ Charles E. Baker
Charles E. Baker
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| | Director | |
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/s/ Nate C. Carey
Nate C. Carey
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| | Vice President (principal accounting officer) | |
Chairman and Chief Executive Officer
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Signature
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Title
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|
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/s/ Gihan Atapattu
Gihan Atapattu
|
| | Chairman, Chief Executive Officer and Director (principal executive officer) | |
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/s/ John A. Hayes
John A. Hayes
|
| | Director | |
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/s/ Scott C. Morrison
Scott C. Morrison
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| | Vice President and Director (principal financial officer) | |
| |
/s/ Charles E. Baker
Charles E. Baker
|
| | Director | |
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/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
President and Director
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Signature
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Title
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/s/ Charles E. Baker
Charles E. Baker
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| | Director and President | |
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/s/ Jeffrey A. Knobel
Jeffrey A. Knobel
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| | Director and Treasurer | |
President and Director
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Signature
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Title
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/s/ Charles E. Baker
Charles E. Baker
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| | Director and President | |
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/s/ Jeffrey A. Knobel
Jeffrey A. Knobel
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| | Director and Treasurer | |
President and Secretary
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Signature
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Title
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/s/ Charles E. Baker
Charles E. Baker
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President and Secretary (principal executive officer)
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| | | |
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/s/ Scott C. Morrison
Scott C. Morrison
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| | Treasurer (principal financial and accounting officer) | | | | |
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Ball Holdings LLC
|
| | Sole member of Ball Container LLC | | | ||
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By:
/s/ Charles E. Baker
Charles E. Baker
President and Secretary |
| | | | | ||
Vice President and Secretary
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Signature
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Title
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/s/ Charles E. Baker
Charles E. Baker
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| | Vice President, Secretary and Director (principal executive officer) | |
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/s/ Jeff A. Knobel
Jeff A. Knobel
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| | Treasurer (principal financial officer) | |
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/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
Vice President
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Signature
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Title
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/s/ Nate C. Carey
Nate C. Carey
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President and Manager (principal executive officer)
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|
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/s/ Scott C. Morrison
Scott C. Morrison
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| | Vice President and Manager (principal financial officer) | |
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/s/ Jeff A. Knobel
Jeff A. Knobel
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| | Treasurer (principal accounting officer) | |
| |
/s/ Charles E. Baker
Charles E. Baker
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| | Secretary and Manager | |
President and Secretary
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Signature
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Title
|
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/s/ Charles E. Baker
Charles E. Baker
|
| | President, Secretary and Director (principal executive officer) | |
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/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal financial and accounting officer) | |
Vice President
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Signature
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Title
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/s/ John A. Hayes
John A. Hayes
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| |
Chairman and Director (principal executive officer)
|
|
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/s/ Scott C. Morrison
Scott C. Morrison
|
| | Director | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal financial and accounting officer) | |
President
| |
Signature
|
| |
Title
|
|
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/s/ David Kaufman
David Kaufman
|
| | President (principal executive officer) | |
| |
/s/ Scott C. Morrison
Scott C. Morrison
|
| | Vice President (principal financial officer) | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
| |
/s/ John A. Hayes
John A. Hayes
|
| | Director | |
President and Secretary
| |
Signature
|
| |
Title
|
| | | |
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/s/ Charles E. Baker
Charles E. Baker
|
| |
President and Secretary (principal executive officer)
|
| | | |
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/s/ Jeff A. Knobel
Jeff A. Knobel
|
| | Treasurer (principal financial and accounting officer) | | | ||
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Ball Packaging, LLC
|
| | Sole member of Ball Holdings LLC | | | ||
| |
By:
/s/ Charles E. Baker
Charles E. Baker
Vice President and Secretary |
| | | ||||
President and Secretary
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Signature
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Title
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|
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/s/ Charles E. Baker
Charles E. Baker
|
| | President and Secretary and Director (principal executive officer) | |
| |
/s/ Jeffrey A. Knobel
Jeffrey A. Knobel
|
| | Treasurer (principal financial officer) | |
Vice President
| |
Signature
|
| |
Title
|
|
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/s/ John A. Hayes
John A. Hayes
|
| |
Chairman and Director (principal executive officer)
|
|
| |
/s/ Scott C. Morrison
Scott C. Morrison
|
| | Vice President and Director (principal financial officer) | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
President
| |
Signature
|
| |
Title
|
|
| |
/s/ John A. Hayes
John A. Hayes
|
| | President (principal executive officer) | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal financial and accounting officer) | |
| |
/s/ Charles E. Baker
Charles E. Baker
|
| | Director | |
Vice President
| |
Signature
|
| |
Title
|
|
| |
/s/ John A. Hayes
John A. Hayes
|
| |
Chairman and Manager (principal executive officer)
|
|
| |
/s/ Scott C. Morrison
Scott C. Morrison
|
| | Vice President and Manager (principal financial officer) | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
Assistant Secretary
| |
Signature
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| |
Title
|
|
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/s/ John A. Hayes
John A. Hayes
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| |
Secretary and Manager (principal executive officer)
|
|
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal financial and accounting officer) | |
Vice President
| |
Signature
|
| |
Title
|
|
| |
/s/ David Kaufman
David Kaufman
|
| | President (principal executive officer) | |
| |
/s/ Scott C. Morrison
Scott C. Morrison
|
| | Vice President (principal financial officer) | |
| |
/s/ John A. Hayes
John A. Hayes
|
| | Director | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
Vice President
| |
Signature
|
| |
Title
|
|
| |
/s/ John A. Hayes
John A. Hayes
|
| |
Chairman and Director (principal executive officer)
|
|
| |
/s/ Scott C. Morrison
Scott C. Morrison
|
| | Vice President and Director (principal financial officer) | |
| |
/s/ Charles E. Baker
Charles E. Baker
|
| | Vice President and Secretary and Director | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
President and Director
| |
Signature
|
| |
Title
|
|
| |
/s/ Daniel Fisher
Daniel Fisher
|
| | President and Director (principal executive officer) | |
| |
/s/ John A. Hayes
John A. Hayes
|
| | Director | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
| |
/s/ Charles E. Baker
Charles E. Baker
|
| | Director | |
Vice President
| |
Signature
|
| |
Title
|
|
| |
/s/ John A. Hayes
John A. Hayes
|
| |
Chairman and President (principal executive officer)
|
|
| |
/s/ Scott C. Morrison
Scott C. Morrison
|
| | Vice President and Director (principal financial officer) | |
| |
/s/ Nate C. Carey
Nate C. Carey
|
| | Vice President (principal accounting officer) | |
| |
/s/ Charles E. Baker
Charles E. Baker
|
| | Director | |
Exhibit 5.1
[LETTERHEAD OF BALL CORPORATION]
March 4, 2021
Ball Corporation
9200 W. 108th Circle, P.O. Box 5000
Westminster, CO 80021-2510
| Re: | Ball Corporation Registration Statement on Form S-3 |
Ladies and Gentlemen:
I am General Counsel of Ball Corporation, an Indiana corporation (the “Company”), and have acted as counsel to the Company in connection with the automatic registration statement on Form S-3 (the “Registration Statement”) to be filed on the date hereof by the Company and the guarantors listed on Schedule I hereto (collectively, the “Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the issuance and sale by the Company from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act (the “Rules and Regulations”), of (i) shares of common stock, without par value, of the Company (“Common Stock”); (ii) shares of preferred stock, without par value, of the Company (“Preferred Stock”), which may be issued in one or more series; (iii) debt securities of the Company (“Debt Securities”), which may be issued in one or more series under the Indenture, dated as of November 27, 2015 (the “Indenture”), by and between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), which is filed as an exhibit to the Registration Statement; (iv) warrants to purchase shares of Common Stock, shares of Preferred Stock or Debt Securities (the “Warrants”), which may be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into by the Company and one or more warrant agents to be named therein and (v) such indeterminate number of shares of Common Stock or Preferred Stock and indeterminate amount of Debt Securities as may be issued upon conversion, exchange or exercise, as applicable, of any Preferred Stock, Debt Securities or Warrants, including such shares of Common Stock or Preferred Stock as may be issued pursuant to anti-dilution adjustments determined at the time of offering (collectively, “Indeterminate Securities”). The Registration Statement also relates to the issuance and sale from time to time by the Guarantors of guarantees of the Debt Securities (the “Guarantees”). The Common Stock, the Preferred Stock, Debt Securities, the Warrants, the Indeterminate Securities and the Guarantees offered pursuant to the Registration Statement are collectively referred to herein as the “Securities.”
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions stated herein, I have examined and relied upon the following:
(a) the Registration Statement;
(b) an executed copy of the Indenture;
(c) a copy of the amended articles of incorporation of the Company, as amended (the “Articles”) and of each of the other Opinion Parties that are corporations, as certified by the applicable secretary of state;
(d) a copy of the bylaws of the Company (the “Bylaws”) and of each of the other Opinion Parties that are corporations, as amended and in effect as of the date hereof;
(e) a copy of the certificate of formation of each of the Opinion Parties that are limited liability companies, as certified by the applicable secretary of state;
(f) a copy of the limited liability company agreement or operating agreement of each of the Opinion Parties that are limited liability companies, as amended and in effect as of the date hereof;
(g) a copy of certain resolutions adopted by the board of directors or other governing body, as applicable, of each Opinion Party relating to the Registration Statement and the registration of the Securities and related matters; and
(h) a specimen certificate evidencing the Common Stock.
I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Company and the Guarantors and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Guarantors and others, and such other documents as I have deemed necessary or appropriate as a basis for the opinions stated below.
In my examination, I have assumed the genuineness of all signatures including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that I did not independently establish or verify, I have relied upon statements and representations of officers and other representatives of the Company and the Guarantors and others and of public officials.
My opinions set forth below are limited to the corporate laws of the States of Delaware, Indiana and Colorado and those laws of the State of New York that, in my experience, are normally applicable to transactions of the type contemplated by the Indenture and the Registration Statement (all of the foregoing being referred to as “Opined on Law”). I am a member of the Bar in the State of Colorado, and I have relied as to matters of Indiana law on the opinion of Todd A. Mikesell, Assistant General Counsel of the Company, dated the date hereof and to be filed as Exhibit 5.2 to the Registration Statement, and I have relied as to matters of New York law on the opinion of Skadden, Arps, Slate, Meagher & Flom LLP dated the date hereof and to be filed as Exhibit 5.3 to the Registration Statement.
As used herein, (i) “Opinion Parties” means the Company and each of the Guarantors listed on Schedule II hereto and “Non-Opinion Party” means each of the Guarantors listed on Schedule III hereto and (ii) “Transaction Agreements” means the Indenture and the supplemental indentures thereto, the Guarantees and the Warrant Agreements.
The opinions stated in paragraphs 1 through 5 below presume that all of the following (collectively, the “general conditions”) shall have occurred prior to the issuance of the Securities referred to therein: (i) the Registration Statement, as finally amended (including all necessary post-effective amendments) has become effective under the Securities Act; (ii) an appropriate prospectus supplement or term sheet with respect to such Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable Rules and Regulations; (iii) the applicable Transaction Agreements shall have been duly authorized, executed and delivered by the Company and the other parties thereto, including, if such Securities are to be sold or otherwise distributed pursuant to a firm commitment underwritten offering, the underwriting agreement or purchase agreement with respect thereto; (iv) the Board of Directors of the Company and similar governing body of the Guarantors, including any duly authorized committee thereof, shall have taken all necessary corporate action to approve the issuance and sale of such Securities and related matters, and appropriate officers of the Company and the Guarantors have taken all related action as directed by or under the direction of the Board of Directors of the Company or similar governing body of the Guarantors, as the case may be; and (v) the terms of the applicable Transaction Agreements and the issuance and sale of such Securities have been duly established in conformity with the certificate of incorporation of the Company and organization documents of the Guarantors, as applicable so as not to violate any applicable law, the certificate of incorporation of the Company or the bylaws of the Company or organizational documents of the Guarantor, or result in a default under or breach of any agreement or instrument binding upon the Company or the Guarantors, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, I am of the opinion that:
(1) With respect to any series of Debt Securities offered by the Company, including any Indeterminate Securities constituting Debt Securities of such series (the “Offered Debt Securities”), when (a) the general conditions shall have been satisfied, (b) the issuance, sale and terms of the Offered Debt Securities and related matters have been approved and established in conformity with the applicable Transaction Agreements and (c) the certificates evidencing the Offered Debt Securities have been issued in a form that complies with the provisions of the applicable Transaction Agreements and have been duly executed and authenticated in accordance with the provisions of the Indenture and any other applicable Transaction Agreements and issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Agreement upon payment of the agreed upon consideration therefor, the Offered Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
2
(2) With respect to any Guarantee of any series of Offered Debt Securities, including any Guarantee of any Indeterminate Securities constituting Offered Debt Securities of such series (the “Offered Guarantees”), when (a) the general conditions shall have been satisfied, (b) the issuance, sale and terms of the Offered Guarantees and related matters have been approved and established in conformity with the applicable Transaction Agreements, (c) certificates (if any) evidencing the Offered Guarantees and the certificates evidencing the Debt Securities guaranteed thereby have been duly executed and, if applicable, authenticated in accordance with the provisions of the Indenture and any other applicable Transaction Agreements and (d) such Debt Securities have been issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Agreement upon payment of the agreed upon consideration therefor, the Offered Guarantees will constitute valid and binding obligations, of such Guarantor, enforceable against such Guarantor in accordance with their respective terms under the laws of the State of New York.
(3) With respect to any shares of Common Stock offered by the Company, including any Indeterminate Securities constituting Common Stock (the “Offered Common Shares”), when (a) the general conditions shall have been satisfied and (b) certificates in the form required under the Indiana Business Corporation Law, as amended (the “IBCL”), representing the Offered Common Shares are duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor, the Offered Common Shares (including any shares of Common Stock duly issued upon conversion, exchange or exercise of any Securities), when issued and sold in accordance with the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof, if any. In rendering the opinion set forth in this Paragraph 3, I have assumed that, at the time of issuance of any Offered Common Shares, (i) the Articles, the Bylaws and the IBCL shall not have been amended after the date hereof so as to affect the validity of such issuance and (ii) there shall be sufficient shares of Common Stock authorized under the Articles (as then in effect) and not otherwise reserved for issuance.
(4) With respect to the shares of any series of Preferred Stock offered by the Company, including any Indeterminate Securities constituting shares of Preferred Stock of such series (the “Offered Preferred Shares”), when (a) the general conditions shall have been satisfied, (b) the Board of Directors of the Company, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to adopt articles of amendment to the Articles for such Offered Preferred Shares (the “Designation Amendment”) in accordance with the applicable provisions of the IBCL; (c) the filing of the Designation Amendment with the Secretary of State of the State of Indiana has duly occurred; (d) the terms of the Offered Preferred Shares and of their issuance and sale have been duly established in conformity with the Articles (as then in effect), including the Designation Amendment relating to the Offered Preferred Shares, and the Bylaws (as then in effect); and (e) certificates in the form required under the IBCL representing the Offered Preferred Shares are duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor, the Offered Preferred Shares (including any shares of Preferred Stock duly issued upon conversion, exchange or exercise of any Securities), when issued and sold in accordance with the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof, if any. In rendering the opinion set forth in this Paragraph 4, I have assumed that, at the time of issuance of any Offered Preferred Shares, (i) the Articles, the Bylaws and the IBCL shall not have been amended after the date hereof so as to affect the validity of such issuance and (ii) there shall be sufficient shares of Preferred Stock authorized under the Articles (as then in effect) and not otherwise reserved for issuance.
(5) With respect to any Warrants offered by the Company (the “Offered Warrants”), when (a) the general conditions shall have been satisfied, (b) the Common Stock, Preferred Stock and/or Debt Securities for which the Offered Warrants are exercisable have been duly authorized for issuance by the Company and (c) certificates evidencing the Offered Warrants have been duly executed, delivered and countersigned in accordance with the provisions of the applicable Warrant Agreement, the Offered Warrants, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Agreement upon payment of the agreed upon consideration therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
The opinions stated herein are subject to the following qualifications:
(a) the opinions stated herein are limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) I do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Agreements or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
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(c) except to the extent expressly stated in the opinions contained herein, I have assumed that each of the Transaction Agreements constitutes the valid and binding obligation of each party to such Transaction Agreement, enforceable against such party in accordance with its terms;
(d) I do not express any opinion with respect to the enforceability of any provision contained in any Transaction Agreement relating to any indemnification, contribution, exculpation, release or waiver that may be contrary to public policy or violative of federal or state securities laws, rules or regulations;
(e) I do not express any opinion with respect to the enforceability of any provision of any Transaction Agreement to the extent that such section purports to bind any Opinion Party to the exclusive jurisdiction of any particular federal court or courts;
(f) I call to your attention that irrespective of the agreement of the parties to any Transaction Agreement, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in addition, I call to your attention that I do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the United States of America in any action arising out of or relating to any Transaction Agreement;
(g) I have assumed that the choice of New York law to govern the Indenture, any supplemental indenture thereto and the Guarantees is a valid and legal provision;
(h) I have assumed that the Indenture will be duly authorized, executed and delivered by the trustee in substantially the form reviewed by me, and that any Debt Securities and Warrants that may be issued will be manually authenticated, signed or countersigned, as the case may be, by duly authorized officers of any trustee and warrant agent, as the case may be;
(i) I do not express any opinion with respect to the enforceability of any provisions contained in the Offered Guarantees or the related Transaction Agreements to the extent that such provisions provide that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions herein stated;
(j) I do not express any opinion with respect to the enforceability of any provision contained in the Offered Guarantees or the related Transaction Agreements to the extent that such provisions limit the obligation of the Guarantors under the Indenture or any right of contribution of any party with respect to the Offered Guarantees; and
(k) to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Agreement, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity and constitutionality.
In addition, in rendering the foregoing opinions I have assumed that:
(a) each Non-Opinion Party (i) is duly incorporated or formed, as applicable, and is validly existing and in good standing, (ii) has requisite legal status and legal capacity under the laws of the jurisdiction of its organization or formation, as applicable, and (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its organization or formation, as applicable, in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Agreements to which such Non-Opinion Party is a party;
(b) each Non-Opinion Party has the corporate or limited liability company, as applicable, power and authority to execute, deliver and perform all its obligations under each of the Transaction Agreements to which such Non-Opinion Party is a party;
(c) neither the execution and delivery by the Company and each Guarantor of the Transaction Agreements to which the Company or such Guarantor is a party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the applicable Securities: (i) conflicts or will conflict with the certificate of incorporation, certificate of formation, bylaws or limited liability company agreement, as applicable, or any other comparable organizational document of the Company or any Guarantor, (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company or any Guarantor or its property is subject, (iii) contravened or will contravene any order or decree of any governmental authority to which the Company or any Guarantor or its property is subject, or (iv) violates or will violate any law, rule or regulation to which the Company or any Guarantor or its property is subject (except that I do not make the assumption set forth in this clause (iv) with respect to the Opined-on Law); and
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(d) neither the execution and delivery by the Company or any Guarantor of the Transaction Agreements to which the Company or such Guarantor is a party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the applicable Securities, requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
I hereby consent to the use of my name under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. I also hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and I disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| Very truly yours, | |
| /s/ Charles E. Baker | |
| Charles E. Baker |
5
Schedule I
Ball Advanced Aluminum Technologies Corp.
Ball Aerospace & Technologies Corp.
Ball Asia Services Limited
Ball Beverage Can Americas Inc.
Ball BP Holding Company
Ball Container LLC
Ball Corporation
Ball Delaware Holdings, LLC
Ball Glass Containers, Inc.
Ball Global Business Services Corp.
Ball Holdings Corp.
Ball Holdings LLC
Ball Inc.
Ball Metal Beverage Container Corp.
Ball Metal Container Corporation
Ball Packaging, LLC
Ball Pan-European Holdings, LLC
Ball Technologies Holdings Corp.
Latas de Aluminio Ball, Inc.
Rexam Beverage Can Company
USC May Verpackungen Holding Inc.
Schedule II
Ball Packaging, LLC, a Colorado limited liability company
Ball Metal Container Corporation, an Indiana corporation
Ball Technologies Holdings Corp., a Colorado corporation
Ball Metal Beverage Container Corp., a Colorado corporation
Schedule III
Ball Advanced Aluminum Technologies Corp., a Delaware corporation
Ball Aerospace & Technologies Corp., a Delaware corporation
Ball Asia Services Limited, a Delaware corporation
Ball Beverage Can Americas Inc., a Delaware corporation
Ball BP Holding Company, a Delaware corporation
Ball Container LLC, a Delaware limited liability company
Ball Corporation, a Nevada corporation
Ball Delaware Holdings, LLC, a Delaware limited liability company
Ball Glass Containers, Inc., a Delaware corporation
Ball Global Business Services Corp., a Delaware corporation
Ball Holdings Corp., a Delaware corporation
Ball Holdings LLC, a Delaware limited liability company
Ball Inc., a Delaware corporation
Ball Pan-European Holdings, LLC, a Delaware limited liability company
Latas de Aluminio Ball, Inc., a Delaware corporation
Rexam Beverage Can Company, a Delaware corporation
USC May Verpackungen Holding Inc., a Delaware corporation
Exhibit 5.2
[LETTERHEAD OF BALL CORPORATION]
March 4, 2021
Charles E. Baker
Vice President and General Counsel
Ball Corporation
9200 W. 108th Circle, P.O. Box 5000
Westminster, CO 80021-2510
| Re: | Ball Corporation Registration Statement on Form S-3 |
Dear Mr. Baker:
I am Assistant General Counsel of Ball Corporation, an Indiana corporation (the “Company”), and have acted as counsel to the Company in connection with the automatic registration statement on Form S-3 (the “Registration Statement”) to be filed on the date hereof by the Company and the guarantors listed on Schedule I hereto (collectively, the “Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the issuance and sale by the Company from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act (the “Rules and Regulations”): (i) shares of common stock, without par value, of the Company (“Common Stock”); (ii) shares of the preferred stock, without par value, of the Company (“Preferred Stock”), which may be issued in one or more series; (iii) debt securities of the Company (“Debt Securities”), which may be issued in one or more series under the Indenture, dated as of November 27, 2015 (the “Indenture”), by and between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), which is filed as an exhibit to the Registration Statement; (iv) warrants to purchase shares of Common Stock, shares of Preferred Stock or Debt Securities (“Warrants”), which may be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into by the Company and one or more warrant agents to be named therein and (v) such indeterminate number of shares of Common Stock or Preferred Stock and indeterminate amount of Debt Securities as may be issued upon conversion, exchange or exercise, as applicable, of any Preferred Stock, Debt Securities or Warrants, including such shares of Common Stock or Preferred Stock as may be issued pursuant to anti-dilution adjustments determined at the time of offering (collectively, “Indeterminate Securities”). The Registration Statement also relates to the issuance and sale from time to time by the Guarantors of guarantees of the Debt Securities (the “Guarantees”). The Common Stock, Preferred Stock, Debt Securities, Warrants, Indeterminate Securities and the Guarantees offered pursuant to the Registration Statement are collectively referred to herein as the “Securities.”
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions stated herein, I have examined and relied upon the following:
(a) the Registration Statement;
(b) an executed copy of the Indenture;
(c) a copy of the amended articles of incorporation of the Company, as amended (the “Articles”) and of the other Opinion Party, as certified by the Secretary of State of the State of Indiana ;
(d) a copy of the bylaws of the Company (the “Bylaws”) and of the other Opinion Party, as amended and in effect as of the date hereof;
(e) a copy of certain resolutions adopted by the board of directors or other governing body, as applicable, of each Opinion Party relating to the Registration Statement and the registration of the Securities and related matters; and
(f) a specimen certificate evidencing the Common Stock.
I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such records of the Company and the Guarantors and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Guarantors and others, and such other documents as I have deemed necessary or appropriate as a basis for the opinions stated below.
In my examination, I have assumed the genuineness of all signatures including endorsements, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that I did not independently establish or verify, I have relied upon statements and representations of officers and other representatives of the Company and the Guarantors and others and of public officials.
My opinions set forth below are limited to the corporate laws of the States of Indiana and those laws of the State of New York that, in my experience, are normally applicable to transactions of the type contemplated by the Indenture and the Registration Statement (all of the foregoing being referred to as “Opined on Law”). I am a member of the Bar in the State of Indiana, and I have relied as to matters of New York law on the opinion of Skadden, Arps, Slate, Meagher & Flom LLP dated the date hereof and to be filed as Exhibit 5.3 to the Registration Statement.
As used herein, (i) “Opinion Parties” means the Company and the Guarantor listed on Schedule II hereto and “Non-Opinion Party” means each of the Guarantors listed on Schedule III hereto and (ii) “Transaction Agreements” means the Indenture and the supplemental indentures thereto, the Guarantees and the Warrant Agreements.
The opinions stated in paragraphs 1 through 5 below presume that all of the following (collectively, the “general conditions”) shall have occurred prior to the issuance of the Securities referred to therein: (i) the Registration Statement, as finally amended (including all necessary post-effective amendments) has become effective under the Securities Act; (ii) an appropriate prospectus supplement or term sheet with respect to such Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable Rules and Regulations; (iii) the applicable Transaction Agreements shall have been duly authorized, executed and delivered by the Company and the other parties thereto, including, if such Securities are to be sold or otherwise distributed pursuant to a firm commitment underwritten offering, the underwriting agreement or purchase agreement with respect thereto; (iv) the Board of Directors of the Company and similar governing body of the Guarantors, including any duly authorized committee thereof, shall have taken all necessary corporate action to approve the issuance and sale of such Securities and related matters, and appropriate officers of the Company and the Guarantors have taken all related action as directed by or under the direction of the Board of Directors of the Company or similar governing body of the Guarantors, as the case may be; and (v) the terms of the applicable Transaction Agreements and the issuance and sale of such Securities have been duly established in conformity with the certificate of incorporation of the Company and organization documents of the Guarantors, as applicable so as not to violate any applicable law, the certificate of incorporation of the Company or the bylaws of the Company or organizational documents of the Guarantor, or result in a default under or breach of any agreement or instrument binding upon the Company or the Guarantors, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
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Based upon the foregoing and subject to the qualifications and assumptions stated herein, I am of the opinion that:
(1) With respect to any series of Debt Securities offered by the Company, including any Indeterminate Securities constituting Debt Securities of such series (the “Offered Debt Securities”), when (a) the general conditions shall have been satisfied, (b) the issuance, sale and terms of the Offered Debt Securities and related matters have been approved and established in conformity with the applicable Transaction Agreements and (c) the certificates evidencing the Offered Debt Securities have been issued in a form that complies with the provisions of the applicable Transaction Agreements and have been duly executed and authenticated in accordance with the provisions of the Indenture and any other applicable Transaction Agreements and issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Agreement upon payment of the agreed upon consideration therefor, the Offered Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
(2) With respect to any Guarantee of any series of Offered Debt Securities, including any Guarantee of any Indeterminate Securities constituting Offered Debt Securities of such series (the “Offered Guarantees”), when (a) the general conditions shall have been satisfied, (b) the issuance, sale and terms of the Offered Guarantees and related matters have been approved and established in conformity with the applicable Transaction Agreements, (c) certificates (if any) evidencing the Offered Guarantees and the certificates evidencing the Debt Securities guaranteed thereby have been duly executed and, if applicable, authenticated in accordance with the provisions of the Indenture and any other applicable Transaction Agreements and (d) such Debt Securities have been issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Agreement upon payment of the agreed upon consideration therefor, the Offered Guarantees will constitute valid and binding obligations, of such Guarantor, enforceable against such Guarantor in accordance with their respective terms under the laws of the State of New York.
(3) With respect to any shares of Common Stock offered by the Company, including any Indeterminate Securities constituting Common Stock (the “Offered Common Shares”), when (a) the general conditions shall have been satisfied and (b) certificates in the form required under the Indiana Business Corporation Law, as amended (the “IBCL”), representing the Offered Common Shares are duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor, the Offered Common Shares (including any shares of Common Stock duly issued upon conversion, exchange or exercise of any Securities), when issued and sold in accordance with the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof, if any. In rendering the opinion set forth in this Paragraph 3, I have assumed that, at the time of issuance of any Offered Common Shares, (i) the Articles, the Bylaws and the IBCL shall not have been amended after the date hereof so as to affect the validity of such issuance and (ii) there shall be sufficient shares of Common Stock authorized under the Articles (as then in effect) and not otherwise reserved for issuance.
(4) With respect to the shares of any series of Preferred Stock offered by the Company, including any Indeterminate Securities constituting shares of Preferred Stock of such series (the “Offered Preferred Shares”), when (a) the general conditions shall have been satisfied, (b) the Board of Directors of the Company, including any appropriate committee appointed thereby, and appropriate officers of the Company have taken all necessary corporate action to adopt articles of amendment to the Articles for such Offered Preferred Shares (the “Designation Amendment”) in accordance with the applicable provisions of the IBCL; (c) the filing of the Designation Amendment with the Secretary of State of the State of Indiana has duly occurred; (d) the terms of the Offered Preferred Shares and of their issuance and sale have been duly established in conformity with the Articles (as then in effect), including the Designation Amendment relating to the Offered Preferred Shares, and the Bylaws (as then in effect); and (e) certificates in the form required under the IBCL representing the Offered Preferred Shares are duly executed, countersigned, registered and delivered upon payment of the agreed-upon consideration therefor, the Offered Preferred Shares (including any shares of Preferred Stock duly issued upon conversion, exchange or exercise of any Securities), when issued and sold in accordance with the applicable underwriting agreement, if any, or any other duly authorized, executed and delivered valid and binding purchase or agency agreement, will be duly authorized, validly issued, fully paid and nonassessable, provided that the consideration therefor is not less than the par value thereof, if any. In rendering the opinion set forth in this Paragraph 4, I have assumed that, at the time of issuance of any Offered Preferred Shares, (i) the Articles, the Bylaws and the IBCL shall not have been amended after the date hereof so as to affect the validity of such issuance and (ii) there shall be sufficient shares of Preferred Stock authorized under the Articles (as then in effect) and not otherwise reserved for issuance.
(5) With respect to any Warrants offered by the Company (the “Offered Warrants”), when (a) the general conditions shall have been satisfied, (b) the Common Stock, Preferred Stock and/or Debt Securities for which the Offered Warrants are exercisable have been duly authorized for issuance by the Company and (c) certificates evidencing the Offered Warrants have been duly executed, delivered and countersigned in accordance with the provisions of the applicable Warrant Agreement, the Offered Warrants, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Agreement upon payment of the agreed upon consideration therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
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The opinions stated herein are subject to the following qualifications:
(a) the opinions stated herein are limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws affecting creditors’ rights generally, and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) I do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Agreements or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(c) except to the extent expressly stated in the opinions contained herein, I have assumed that each of the Transaction Agreements constitutes the valid and binding obligation of each party to such Transaction Agreement, enforceable against such party in accordance with its terms;
(d) I do not express any opinion with respect to the enforceability of any provision contained in any Transaction Agreement relating to any indemnification, contribution, exculpation, release or waiver that may be contrary to public policy or violative of federal or state securities laws, rules or regulations;
(e) I do not express any opinion with respect to the enforceability of any provision of any Transaction Agreement to the extent that such section purports to bind any Opinion Party to the exclusive jurisdiction of any particular federal court or courts;
(f) I call to your attention that irrespective of the agreement of the parties to any Transaction Agreement, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in addition, I call to your attention that I do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the United States of America in any action arising out of or relating to any Transaction Agreement;
(g) I have assumed that the choice of New York law to govern the Indenture, any supplemental indenture thereto and the Guarantees is a valid and legal provision;
(h) I have assumed that the Indenture will be duly authorized, executed and delivered by the trustee in substantially the form reviewed by me, and that any Debt Securities and Warrants that may be issued will be manually authenticated, signed or countersigned, as the case may be, by duly authorized officers of any trustee and warrant agent, as the case may be;
(i) I do not express any opinion with respect to the enforceability of any provisions contained in the Offered Guarantees or the related Transaction Agreements to the extent that such provisions provide that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions herein stated;
(j) I do not express any opinion with respect to the enforceability of any provision contained in the Offered Guarantees or the related Transaction Agreements to the extent that such provisions limit the obligation of the Guarantors under the Indenture or any right of contribution of any party with respect to the Offered Guarantees; and
(k) to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Agreement, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity and constitutionality.
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In addition, in rendering the foregoing opinions I have assumed that:
(a) each Non-Opinion Party (i) is duly incorporated or formed, as applicable, and is validly existing and in good standing, (ii) has requisite legal status and legal capacity under the laws of the jurisdiction of its organization or formation, as applicable, and (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its organization or formation, as applicable, in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Agreements to which such Non-Opinion Party is a party;
(b) each Non-Opinion Party has the corporate or limited liability company, as applicable, power and authority to execute, deliver and perform all its obligations under each of the Transaction Agreements to which such Non-Opinion Party is a party;
(c) neither the execution and delivery by the Company and each Guarantor of the Transaction Agreements to which the Company or such Guarantor is a party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the applicable Securities: (i) conflicts or will conflict with the certificate of incorporation, certificate of formation, bylaws or limited liability company agreement, as applicable, or any other comparable organizational document of the Company or any Guarantor, (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company or any Guarantor or its property is subject, (iii) contravened or will contravene any order or decree of any governmental authority to which the Company or any Guarantor or its property is subject, or (iv) violates or will violate any law, rule or regulation to which the Company or any Guarantor or its property is subject (except that I do not make the assumption set forth in this clause (iv) with respect to the Opined-on Law); and
(d) neither the execution and delivery by the Company or any Guarantor of the Transaction Agreements to which the Company or such Guarantor is a party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the applicable Securities, requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
I understand that you intend to rely on this opinion for purposes of rendering an opinion in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, which opinion will be filed with the Commission as Exhibit 5.1 to the Registration Statement. I hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, I do not thereby admit that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and I disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| Very truly yours, | |
| /s/ Todd A. Mikesell | |
| Todd A. Mikesell | |
| Assistant General Counsel |
5
Schedule I
| Ball Advanced Aluminum Technologies Corp. | |
| Ball Aerospace & Technologies Corp. | |
| Ball Asia Services Limited | |
| Ball Beverage Can Americas Inc. | |
| Ball BP Holding Company | |
| Ball Container LLC | |
| Ball Corporation | |
| Ball Delaware Holdings, LLC | |
| Ball Glass Containers, Inc. | |
| Ball Global Business Services Corp. | |
| Ball Holdings Corp. | |
| Ball Holdings LLC | |
| Ball Inc. | |
| Ball Metal Beverage Container Corp. | |
| Ball Metal Container Corporation | |
| Ball Packaging, LLC | |
| Ball Pan-European Holdings, LLC | |
| Ball Technologies Holdings Corp. | |
| Latas de Aluminio Ball, Inc. | |
| Rexam Beverage Can Company | |
| USC May Verpackungen Holding Inc. |
Schedule II
Ball Metal Container Corporation, an Indiana corporation
Schedule III
Ball Advanced Aluminum Technologies Corp., a Delaware corporation
Ball Aerospace & Technologies Corp., a Delaware corporation
Ball Asia Services Limited, a Delaware corporation
Ball Beverage Can Americas Inc., a Delaware corporation
Ball BP Holding Company, a Delaware corporation
Ball Container LLC, a Delaware limited liability company
Ball Corporation, a Nevada corporation
Ball Delaware Holdings, LLC, a Delaware limited liability company
Ball Glass Containers, Inc., a Delaware corporation
Ball Global Business Services Corp., a Delaware corporation
Ball Holdings Corp., a Delaware corporation
Ball Holdings LLC, a Delaware limited liability company
Ball Inc., a Delaware corporation
Ball Metal Beverage Container Corp., a Colorado corporation
Ball Pan-European Holdings, LLC, a Delaware limited liability company
Ball Packaging, LLC, a Colorado limited liability company
Ball Technologies Holdings Corp., a Colorado corporation
Latas de Aluminio Ball, Inc., a Delaware corporation
Rexam Beverage Can Company, a Delaware corporation
USC May Verpackungen Holding Inc., a Delaware corporation
Exhibit 5.3
[LETTERHEAD OF SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP]
March 4, 2021
Ball Corporation
9200 W. 108th Circle, P.O. Box 5000
Westminster, CO 80021-2510
| Re: | Ball Corporation Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special counsel to Ball Corporation, an Indiana corporation (the “Company”), in connection with the automatic registration statement on Form S-3 (the “Registration Statement”) to be filed on the date hereof by the Company and the guarantors listed on Schedule I hereto (collectively, the “Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”). The Registration Statement relates to the issuance and sale by the Company from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act (the “Rules and Regulations”), of (i) shares of common stock, without par value, of the Company (“Common Stock”); (ii) shares of preferred stock, without par value, of the Company (“Preferred Stock”), which may be issued in one or more series; (iii) debt securities of the Company (“Debt Securities”), which may be issued in one or more series under the Indenture, dated as of November 27, 2015 (the “Indenture”), between the Company and Deutsche Bank Trust Company Americas, as trustee, which is filed as an exhibit to the Registration Statement; (iv) warrants to purchase shares of Common Stock, shares of Preferred Stock or Debt Securities (“Warrants”), which may be issued pursuant to one or more warrant agreements (each, a “Warrant Agreement”) proposed to be entered into by the Company and one or more warrant agents to be named therein; and (v) such indeterminate number of shares of Common Stock or Preferred Stock and indeterminate amount of Debt Securities as may be issued upon conversion, exchange or exercise, as applicable, of any Preferred Stock, Debt Securities or Warrants, including such shares of Common Stock or Preferred Stock as may be issued pursuant to anti-dilution adjustments determined at the time of offering (collectively, “Indeterminate Securities”). The Registration Statement also relates to the sale of shares of Common Stock from time to time by certain shareholders of the Company to be named in a prospectus supplement pursuant to Rule 415 of the Rules and Regulations (such shares of Common Stock, “Secondary Shares”), and the issuance and sale from time to time by the Guarantors of guarantees of the Debt Securities (“Guarantees”). The Common Stock, Preferred Stock, Debt Securities, Warrants, Indeterminate Securities, Secondary Shares and the Guarantees offered pursuant to the Registration Statement are collectively referred to herein as the “Securities.”
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In rendering the opinions stated herein, we have examined and relied upon the following:
(a) the Registration Statement;
(b) an executed copy of the Indenture;
(c) an executed copy of a certificate for each Opinion Party (as defined below) of the Secretary or Assistant Secretary of each Opinion Party, dated the date hereof (collectively, the “Secretary’s Certificates”);
(d) a copy of the articles of incorporation of each of the Opinion Parties that are corporations, as certified by the Secretary of State of the State of Delaware as of March 3, 2021, and certified pursuant to the Secretary’s Certificates, as applicable;
(e) a copy of the bylaws of each of the Opinion Parties that are corporations, as amended and in effect as of the date hereof, and certified pursuant to the Secretary’s Certificates, as applicable;
(f) a copy of the certificate of formation of each of the Opinion Parties that are limited liability companies, as certified by the Secretary of State of the State of Delaware as of March 3, 2021, and certified pursuant to the Secretary’s Certificates, as applicable; and
(g) a copy of the limited liability company agreement or operating agreement of each of the Opinion Parties that are limited liability companies, as amended and in effect as of the date hereof (each, an “LLC Agreement”), and certified pursuant to the Secretary’s Certificates.
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the Guarantors and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and the Guarantors and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. As to any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and the Guarantors and others and of public officials, including those in the Secretary’s Certificates.
We do not express any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York, (ii) the General Corporation Law of the State of Delaware (the “DGCL”) and (iii) the Delaware Limited Liability Company Act (the “DLLCA”) (all of the foregoing being referred to as “Opined on Law”). Charles E. Baker, Vice President, General Counsel and Corporate Secretary of the Company, and Todd A. Mikesell, Assistant General Counsel of the Company, may rely on this opinion in rendering their respective opinions each to be dated the date hereof and filed as Exhibits 5.1 and 5.2, respectively, to the Registration Statement.
As used herein, (i) “Opinion Parties” means each of the Guarantors listed on Schedule II hereto and “Non-Opinion Party” means the Company and each of the Guarantors listed on Schedule III hereto and (ii) “Transaction Documents” means the Indenture and the supplemental indentures thereto, the Guarantees and the Warrant Agreements.
The opinions stated in paragraphs 1 through 3 below presume that all of the following (collectively, the “general conditions”) shall have occurred prior to the issuance of the Securities referred to therein: (i) the Registration Statement, as finally amended (including all necessary post-effective amendments) has become effective under the Securities Act; (ii) an appropriate prospectus supplement or term sheet with respect to such Securities has been prepared, delivered and filed in compliance with the Securities Act and the applicable Rules and Regulations; (iii) the applicable Transaction Documents shall have been duly authorized, executed and delivered by the Company and the other parties thereto, including, if such Securities are to be sold or otherwise distributed pursuant to a firm commitment underwritten offering, the underwriting agreement or purchase agreement with respect thereto; (iv) the Board of Directors of the Company and similar governing body of the Guarantors, including any duly authorized committee thereof, shall have taken all necessary corporate action to approve the issuance and sale of such Securities and related matters, and appropriate officers of the Company and the Guarantors have taken all related action as directed by or under the direction of the Board of Directors of the Company or similar governing body of the Guarantors, as the case may be; and (v) the terms of the applicable Transaction Documents and the issuance and sale of such Securities have been duly established in conformity with the certificate of incorporation of the Company and organization documents of the Guarantors, as applicable so as not to violate any applicable law, the certificate of incorporation of the Company or the bylaws of the Company or organizational documents of the Guarantor, or result in a default under or breach of any agreement or instrument binding upon the Company or the Guarantors, as the case may be, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. With respect to any series of Debt Securities offered by the Company, including any Indeterminate Securities constituting Debt Securities of such series (the “Offered Debt Securities”), when (a) the general conditions shall have been satisfied, (b) the issuance, sale and terms of the Offered Debt Securities and related matters have been approved and established in conformity with the applicable Transaction Documents and (c) the certificates evidencing the Offered Debt Securities have been issued in a form that complies with the provisions of the applicable Transaction Documents and have been duly executed and authenticated in accordance with the provisions of the Indenture and any other applicable Transaction Documents and issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment of the agreed upon consideration therefor, the Offered Debt Securities will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
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2. With respect to any Guarantee of any series of Offered Debt Securities, including any Guarantee of any Indeterminate Securities constituting Offered Debt Securities of such series (the “Offered Guarantees”), when (a) the general conditions shall have been satisfied, (b) the issuance, sale and terms of the Offered Guarantees and related matters have been approved and established in conformity with the applicable Transaction Documents, (c) certificates (if any) evidencing the Offered Guarantees and the certificates evidencing the Debt Securities guaranteed thereby have been duly executed and, if applicable, authenticated in accordance with the provisions of the Indenture and any other applicable Transaction Documents and (d) such Debt Securities have been issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment of the agreed upon consideration therefor, the Offered Guarantees will constitute valid and binding obligations, of such Guarantor, enforceable against such Guarantor in accordance with their respective terms under the laws of the State of New York.
3. With respect to any Warrants offered by the Company (the “Offered Warrants”), when (a) the general conditions shall have been satisfied, (b) the Common Stock, Preferred Stock and/or Debt Securities for which the Offered Warrants are exercisable have been duly authorized for issuance by the Company and (c) certificates evidencing the Offered Warrants have been duly executed, delivered and countersigned in accordance with the provisions of the applicable Warrant Agreement, the Offered Warrants, when issued and sold or otherwise distributed in accordance with the provisions of the applicable Transaction Document upon payment of the agreed upon consideration therefor, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms under the laws of the State of New York.
The opinions stated herein are subject to the following qualifications:
(a) we do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, preference and other similar laws affecting creditors’ rights generally, and the opinions stated herein are limited by such laws and by general principles of equity (regardless of whether enforcement is sought in equity or at law);
(b) we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Documents or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(c) except to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the valid and binding obligation of each party to such Transaction Document, enforceable against such party in accordance with its terms;
(d) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any indemnification, contribution, non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having similar effect that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, or to the extent any such provision purports to, or has the effect of, waiving or altering any statute of limitations;
(e) we do not express any opinion with respect to the enforceability of any provision of any Transaction Document to the extent that such section purports to bind any Opinion Party to the exclusive jurisdiction of any particular federal court or courts;
(f) we call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case on grounds of forum non conveniens or other doctrine limiting the availability of such court as a forum for resolution of disputes; in addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the United States of America in any action arising out of or relating to any Transaction Document;
(g) we have assumed that the choice of New York law to govern the Indenture, any supplemental indenture thereto and the Guarantees is a valid and legal provision;
(h) we do not express any opinion with respect to the enforceability of any provisions contained in the Offered Guarantees or the related Transaction Documents to the extent that such provisions provide that the obligations of the Guarantors are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions herein stated;
(i) we do not express any opinion with respect to the enforceability of any provisions contained in the Offered Guarantees or the related Transaction Documents to the extent that such provisions limit the obligation of the Guarantors under the Indenture or any right of contribution of any party with respect to the Offered Guarantees; and
(j) to the extent that any opinion relates to the enforceability of the choice of New York law and choice of New York forum provisions contained in any Transaction Document, the opinions stated herein are subject to the qualification that such enforceability may be subject to, in each case, (i) the exceptions and limitations in New York General Obligations Law sections 5-1401 and 5-1402 and (ii) principles of comity and constitutionality.
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In addition, in rendering the foregoing opinions we have assumed that:
(a) the Company and each Non-Opinion Party (i) is duly incorporated or formed, as applicable, and is validly existing and in good standing, (ii) has requisite legal status and legal capacity under the laws of the jurisdiction of its organization or formation, as applicable, and (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its organization or formation, as applicable, in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Documents to which the Company or such Non-Opinion Party is a party;
(b) the Company and each Non-Opinion Party has the corporate or limited liability company, as applicable, power and authority to execute, deliver and perform all its obligations under each of the Transaction Documents to which the Company or such Non-Opinion Party is a party;
(c) neither the execution and delivery by the Company and each Guarantor of the Transaction Documents to which the Company or such Guarantor is a party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the applicable Securities: (i) conflicts or will conflict with the certificate of incorporation, certificate of formation, bylaws or limited liability company agreement, as applicable, or any other comparable organizational document of the Company or any Guarantor, (ii) constitutes or will constitute a violation of, or a default under, any lease, indenture, instrument or other agreement to which the Company or any Guarantor or its property is subject, (iii) contravened or will contravene any order or decree of any governmental authority to which the Company or any Guarantor or its property is subject, or (iv) violates or will violate any law, rule or regulation to which the Company or any Guarantor or its property is subject (except that we do not make the assumption set forth in this clause (iv) with respect to the Opined on Law); and
(d) neither the execution and delivery by the Company or any Guarantor of the Transaction Documents to which the Company or such Guarantor is a party nor the performance by the Company and such Guarantor of its obligations thereunder, including the issuance and sale of the applicable Securities, requires or will require the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of any jurisdiction.
We hereby consent to the reference to our firm under the heading “Legal Matters” in the prospectus forming part of the Registration Statement. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
| Very truly yours, | |
| /s/ Skadden, Arps, Slate, Meagher & Flom LLP |
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Schedule I
Ball Advanced Aluminum Technologies Corp.
Ball Aerospace & Technologies Corp.
Ball Asia Services Limited
Ball Beverage Can Americas Inc.
Ball BP Holding Company
Ball Container LLC
Ball Corporation
Ball Delaware Holdings, LLC
Ball Glass Containers, Inc.
Ball Global Business Services Corp.
Ball Holdings Corp.
Ball Holdings LLC
Ball Inc.
Ball Metal Beverage Container Corp.
Ball Metal Container Corporation
Ball Packaging, LLC
Ball Pan-European Holdings, LLC
Ball Technologies Holdings Corp.
Latas de Aluminio Ball, Inc.
Rexam Beverage Can Company
USC May Verpackungen Holding Inc.
Schedule II
Ball Advanced Aluminum Technologies Corp., a Delaware corporation
Ball Aerospace & Technologies Corp., a Delaware corporation
Ball Asia Services Limited, a Delaware corporation
Ball Beverage Can Americas Inc., a Delaware corporation
Ball BP Holding Company, a Delaware corporation
Ball Container LLC, a Delaware limited liability company
Ball Delaware Holdings, LLC, a Delaware limited liability company
Ball Glass Containers, Inc., a Delaware corporation
Ball Global Business Services Corp., a Delaware corporation
Ball Holdings Corp., a Delaware corporation
Ball Holdings LLC, a Delaware limited liability company
Ball Inc., a Delaware corporation
Ball Pan-European Holdings, LLC, a Delaware limited liability company
Latas de Aluminio Ball, Inc., a Delaware corporation
Rexam Beverage Can Company, a Delaware corporation
USC May Verpackungen Holding Inc., a Delaware corporation
Schedule III
Ball Corporation, a Nevada corporation
Ball Metal Beverage Container Corp., a Colorado corporation
Ball Metal Container Corporation, an Indiana corporation
Ball Packaging, LLC, a Colorado limited liability company
Ball Technologies Holdings Corp., a Colorado corporation
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-3 of Ball Corporation of our report dated February 17, 2021 relating to the financial statements and the effectiveness of internal control over financial reporting, which appears in Ball Corporation’s Annual Report on Form 10-K for the year ended December 31, 2020. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Denver, Colorado
March 4, 2021
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
¨ STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
¨ CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
______________________________
DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
| NEW YORK | 13-4941247 | |
| (Jurisdiction of Incorporation or | (I.R.S. Employer | |
| organization if not a U.S. national bank) | Identification no.) |
| 60 WALL STREET | ||
| NEW YORK, NEW YORK | 10005 | |
| (Address of principal | (Zip Code) | |
| executive offices) |
Deutsche Bank Trust Company Americas
Attention: Mirko Mieth
Legal Department
60 Wall Street, 36th Floor
New York, New York 10005
(212) 250 – 1663
(Name, address and telephone number of agent for service)
______________________________________________________
BALL CORPORATION
(Exact name of obligor as specified in its charter)
| Indiana | 35-0160610 |
| (State or other jurisdiction of | (I.R.S. Employer |
| incorporation or organization) | Identification No.) |
| 9200 W. 108th Circle | |
| Westminster, Colorado | 80021 |
| (Address of principal executive offices) | (Zip code) |
_____________________________
Debt
Securities
(Title of the Indenture securities)
| Item 1. | General Information. |
Furnish the following information as to the trustee.
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name | Address |
| Federal Reserve Bank (2nd District) | New York, NY |
| Federal Deposit Insurance Corporation | Washington, D.C. |
| New York State Banking Department | Albany, NY |
| (b) | Whether it is authorized to exercise corporate trust powers. |
| Yes. |
| Item 2. | Affiliations with Obligor. |
If the obligor is an affiliate of the Trustee, describe each such affiliation.
Not applicable.
| Item 3. -15. | Not Applicable |
| Item 16. | List of Exhibits. |
| Exhibit 1 - | Restated Organization Certificate of Bankers Trust Company dated August 31, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998; Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 18, 1998;Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 3, 1999; and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated March 14, 2002, copies attached. |
| Exhibit 2 - | Certificate of Authority to commence business, copy attached. |
| Exhibit 3 - | Authorization of the Trustee to exercise corporate trust powers, copy attached. |
| Exhibit 4 - | Existing By-Laws of Deutsche Bank Trust Company Americas, dated March 29, 2019, copy attached. |
| Exhibit 5 - | Not applicable. |
| Exhibit 6 - | Consent of Bankers Trust Company required by Section 321(b) of the Act, copy attached. |
| Exhibit 7 - | A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. |
| Exhibit 8 - | Not Applicable. |
| Exhibit 9 - | Not Applicable. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 4th day of March, 2021.
| DEUTSCHE BANK TRUST COMPANY AMERICAS | |||
| /s/ Jacqueline Bartnick | |||
| By: | Name: Jacqueline Bartnick | ||
| Title: Director | |||