Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BERRY PLASTICS GROUP, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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20-5234618
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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101 Oakley Street
Evansville, IN 47710
(Address of principal executive offices) (Zip Code)
Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan
(Full title of the Plan)
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Jason K. Greene
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General Counsel and Secretary
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Berry Plastics Group, Inc.
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101 Oakley Street
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Evansville, IN 47710
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(Name and address of agent for service)
(812) 424-2904
(Telephone number, including area code, of agent for service)
Copies to:
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Jason K. Greene
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Eliot W. Robinson
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General Counsel and Secretary
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Bryan Cave LLP
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Berry Plastics Group, Inc.
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One Atlantic Center, Fourteenth Floor
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101 Oakley Street
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1201 West Peachtree Street, NW
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Evansville, IN 47710
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Atlanta, GA 30309
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Telephone: (812) 424-2904
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Telephone: (404) 572-6600
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer x
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Accelerated filer o
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Non-accelerated filer o (Do not check if a smaller reporting company)
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Smaller reporting company o
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be registered (1)
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Proposed maximum offering price per share
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Proposed maximum aggregate offering price
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Amount of registration fee
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Common stock, $0.01 par value, to be issued under Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan
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7,500,000
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$34.99 (2)
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$262,425,000 (2)
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$30,493.79
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(1) The number of shares represents the estimated maximum number issuable under the Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan. Pursuant to Rule 416(a) under the Securities Act of 1933 (the “Securities Act”), this registration statement shall also be deemed to cover any additional securities to be offered or issued in connection with the provisions of the above-referenced plans, which provide for adjustments in the amount of securities to be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar events.
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(2) Pursuant to 457(c) and Rule 457(h) under the Securities Act, the per share and aggregate offering price are estimated solely for the purpose of calculating the registration fee and are based upon the average high and low prices for the Registrant’s common stock on March 26, 2015, which was $34.99.
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INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of this Form S-8 Registration Statement (the “Registration Statement”) will be sent or given to employees eligible for participation in the Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan (the “2015 Plan”), as specified by Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed, and are not being filed, with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Berry Plastics Group, Inc. (“we,” “our,” “us,” “Berry,” the “Company” or the “Registrant”) pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated by reference into this Registration Statement and made a part hereof:
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1.
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended September 27, 2014, filed on November 24, 2014, as amended by the Form 10-K/A filed on February 2, 2015;
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2.
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The Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended December 27, 2014, filed on January 30, 2014;
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3.
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The Registrant’s Current Reports on Form 8-K* filed on October 6, 2014, November 19, 2014, January 8, 2015, and March 10, 2015; and
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4.
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The description of the common stock, par value $0.01 per share (the “Common Stock”) set forth in the Company’s Prospectus filed August 8, 2014 (Commission File Number 333-194030) and any amendments, reports or other filings filed with the Commission for the purpose of updating that description.
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* We are not incorporating and will not incorporate by reference into this Registration Statement past or future information on reports furnished under Items 2.02 and/or 7.01 of, or otherwise with, Form 8-K.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to filing a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents, except for the documents, or portions thereof, that are “furnished” (e.g., the portions of those documents set forth under Items 2.02 or 7.01 of Form 8-K or other information “furnished” to the Commission) rather than filed with the Commission. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Jason K. Greene, who is issuing the opinion of the Registrant’s Legal Department on the legality of the Registrant’s Common Stock offered hereby, is General Counsel and Secretary of the Registrant, owns Common Stock of the Registrant, and holds employee stock options to purchase Common Stock of the Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation.
Section 145(a) of the General Corporation Law of the State of Delaware (the “DGCL”) provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine that despite the adjudication of liability, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper.
Section 145(c) of the DGCL further provides that to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in Sections 145(a) or (b) or in defense of any claim, issue, or matter therein, such person shall be indemnified against expenses actually and reasonably incurred by such person in connection therewith. Section 145(f) provides that indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled.
Article X of our amended and restated certificate of incorporation provides for the indemnification of directors, officers, employees or agents to the fullest extent permitted by the DGCL. Article X of our amended and restated certificate of incorporation also provides that, in any action initiated by a person seeking indemnification, we shall bear the burden of proof that the person is not entitled to indemnification.
Section 102(b)(7) of the DGCL provides that a Delaware corporation may, with certain limitations, set forth in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of a fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. Article IX of our amended and restated certificate of incorporation includes such a provision.
Section 145(g) of the DGCL provides that a Delaware corporation has the power to purchase and maintain insurance on behalf of any current or former director, officer, employee or other agent of the corporation or, if serving in such capacity at the request of the corporation, of another enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation has the power to indemnify such person against such liability under the DGCL. Article X of our amended and restated certificate of incorporation permits us to maintain insurance, at our expense, to protect us or any directors, officers, employees or agents of the company or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not we would have the power to indemnify such person against such expense, liability or loss under the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
ITEM 8. EXHIBITS.
The list of exhibits is set forth under “Exhibit Index” at the end of this registration statement and is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, New York, April 1, 2015.
| Berry Plastics Group, Inc. | |||
| (Registrant) | |||
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By:
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/s/ Jonathan D. Rich | |
| Jonathan D. Rich | |||
| Chairman and Chief Executive Officer | |||
Each person whose signature appears below constitutes and appoints Jonathan D. Rich and Mark W. Miles and each of them, his true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, severally, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement and any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated below.
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Signature
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Title
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Date
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/s/ Jonathan D. Rich
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Chairman of the Board of Directors, Chief Executive Officer
and Director (Principal Executive Officer)
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April 1, 2015
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Jonathan D. Rich
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/s/ Mark W. Miles
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Chief Financial Officer
(Principal Financial Officer)
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April 1, 2015
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Mark W. Miles
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| /s/ James M. Till |
Executive Vice President
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April 1, 2015
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| James M. Till | and Controller (Principal Accounting Officer) | |
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/s/ B. Evan Bayh
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Director
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April 1, 2015
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B. Evan Bayh
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/s/ Jonathan F. Foster
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Director
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April 1, 2015
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Jonathan F. Foster
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/s/ Idalene F. Kesner
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Director
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April 1, 2015
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Idalene F. Kesner
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/s/ Carl J. Rickertsen
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Director
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April 1, 2015
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Carl J. Rickertsen
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/s/ Ronald S. Rolfe
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Director
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April 1, 2015
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Ronald S. Rolfe
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/s/ Robert V. Seminara
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Director
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April 1, 2015
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Robert V. Seminara
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/s/ Robert A. Steele
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Director
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April 1, 2015
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Robert A. Steele
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| /s/ Stephen E. Sterrett | Director |
April 1, 2015
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| Stephen E. Sterrett |
EXHIBIT INDEX
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Exhibit
Number
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Description
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5.1
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Opinion of Counsel
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23.1
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Consent of Counsel (included in Exhibit 5.1)
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23.2
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Consent of Independent Registered Public Accounting Firm
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24.1
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Power of Attorney (included on signature page)
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99.1
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Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan (incorporated herein by reference to Annex B to the Proxy Statement filed on January 26, 2015)
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Exhibit 5.1
April 1, 2015
Berry Plastics Group, Inc.
101 Oakley Street
Evansville, Indiana 47710
Re: Registration Statement on Form S-8
Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan
Ladies and Gentlemen:
The undersigned, General Counsel and Secretary of Berry Plastics Group, Inc., a Delaware corporation (the “Company”), is delivering this opinion in connection with the Company’s filing of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the proposed offer and sale of 7,500,000 shares of the Company’s common stock, par value $0.01 per share (the “Shares”), issuable pursuant to the Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan (the “Plan”).
In connection herewith, I have examined:
(1) The Second Amended and Restated Certificate of Incorporation of the Company,
(2) the Amended and Restated Bylaws of the Company,
(3) the Plan, and
(4) the Registration Statement.
I have also examined originals or copies, certified or otherwise identified to my satisfaction, of such other corporate records, agreements and instruments of the Company, certificates of public officials and officers of the Company, and such other documents, records and instruments, and I have made such legal and factual inquiries, as I have deemed necessary or appropriate as a basis to render the opinion hereinafter expressed. In my examination of the foregoing, I have assumed the genuineness of all signatures, the legal competence and capacity of natural persons, the authenticity of documents submitted to me as originals and the conformity with authentic original documents of all documents submitted to us as copies or by facsimile or other means of electronic transmission, or which I obtained from the SEC’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”) or other sites maintained by a court or governmental authority or regulatory body and the authenticity of the originals of such latter documents. If any documents I examined in printed, word processed or similar form has been filed with the SEC on EDGAR or such court or governmental authority or regulatory body, I have assumed that the document so filed is identical to the document I examined except for formatting changes. When relevant facts were not independently established, I have relied without independent investigation as to matters of fact upon statements of governmental officials and upon representations, certificates and statements of appropriate representatives of the Company.
Based upon the foregoing and in reliance thereon, and subject to the assumptions, comments, qualifications, limitations and exceptions set forth herein, I am of the opinion that the Shares have been duly authorized and, when issued pursuant to and in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and non-assessable.
My opinion herein reflects only the application of the General Corporation Law of the State of Delaware. The opinion set forth herein is made as of the date hereof and is subject to, and may be limited by, future changes in the factual matters set forth herein, and I undertake no duty to advise you of the same. The opinion expressed herein is based upon the law in effect (and published or otherwise generally available) on the date hereof, and I assume no obligation to revise or supplement this opinion should such law be changed by legislative action, judicial decision or otherwise. In rendering my opinion, I have not considered, and hereby disclaim any opinion as to, the application or impact of any laws, cases, decisions, rules or regulations of any other jurisdiction, court or administrative agency.
I hereby consent to the filing of this opinion letter as Exhibit 5 to the Registration Statement. In giving such consent, I do not thereby concede that I am within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
I do not render any opinion except as set forth above. By your acceptance of this opinion letter, you agree that it may not be relied upon, circulated, quoted or otherwise referred to by any other person or for any other purpose without my prior written consent in each instance.
| Very truly yours, | ||
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/s/ Jason K. Greene | |
| Jason K. Greene | ||
| General Counsel and Secretary | ||
| Berry Plastics Group, Inc. |
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Berry Plastics Group, Inc. 2015 Long-Term Incentive Plan of our reports dated November 24, 2014, with respect to the consolidated financial statements of Berry Plastics Group, Inc. and the effectiveness of internal control over financial reporting of Berry Plastics Group, Inc. included in the Annual Report (Form 10-K, as amended by Form 10-K/A) of Berry Plastics Group, Inc. for the year ended September 27, 2014.
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By:
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/s/ Ernst & Young LLP | |
| Indianapolis, Indiana | |||
| April 1, 2015 |