UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): September 30, 2010
BERRY PLASTICS CORPORATION (Exact name of Registrant as specified in its charter) |
Delaware (State of Incorporation) | 033-75706-01 (Commission File Numbers) | 35-1814673 (I.R.S. Employer Identification No.) |
101 Oakley Street Evansville, Indiana (Address of principal executive offices) | (Zip Code) 47710 |
(812) 424-2904 (Registrant’s telephone number, including area code) |
N.A. (Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Table of Additional Guarantors
| Exact Name | Jurisdiction of Organization | Primary Standard Industrial Classification Code Number | I.R.S. Employer Identification No. | Name, Address and Telephone Number of Principal Executive Offices |
| Aerocon, LLC | Delaware | 3089 | 35-1948748 | (a) |
| Berry Iowa, LLC | Delaware | 3089 | 42-1382173 | (a) |
| Berry Plastics Design, LLC | Delaware | 3089 | 62-1689708 | (a) |
| Berry Plastics Technical Services, Inc. | Delaware | 3089 | 57-1029638 | (a) |
| Berry Sterling Corporation | Delaware | 3089 | 54-1749681 | (a) |
| CPI Holding Corporation | Delaware | 3089 | 34-1820303 | (a) |
| Knight Plastics, Inc. | Delaware | 3089 | 35-2056610 | (a) |
| Packerware Corporation | Delaware | 3089 | 48-0759852 | (a) |
| Pescor, Inc. | Delaware | 3089 | 74-3002028 | (a) |
| Poly-Seal, LLC | Delaware | 3089 | 52-0892112 | (a) |
| Venture Packaging, Inc. | Delaware | 3089 | 51-0368479 | (a) |
| Venture Packaging Midwest, Inc. | Delaware | 3089 | 34-1809003 | (a) |
| Berry Plastics Acquisition Corporation III | Delaware | 3089 | 37-1445502 | (a) |
| Berry Plastics Opco, Inc. | Delaware | 3089 | 30-0120989 | (a) |
| Berry Plastics Acquisition Corporation V | Delaware | 3089 | 36-4509933 | (a) |
| Berry Plastics Acquisition Corporation VIII | Delaware | 3089 | 32-0036809 | (a) |
| Berry Plastics Acquisition Corporation IX | Delaware | 3089 | 35-2184302 | (a) |
| Berry Plastics Acquisition Corporation X | Delaware | 3089 | 35-2184301 | (a) |
| Berry Plastics Acquisition Corporation XI | Delaware | 3089 | 35-2184300 | (a) |
| Berry Plastics Acquisition Corporation XII | Delaware | 3089 | 35-2184299 | (a) |
| Berry Plastics Acquisition Corporation XIII | Delaware | 3089 | 35-2184298 | (a) |
| Berry Plastics Acquisition Corporation XV, LLC | Delaware | 3089 | 35-2184293 | (a) |
| Kerr Group, LLC | Delaware | 3089 | 95-0898810 | (a) |
| Saffron Acquisition, LLC | Delaware | 3089 | 94-3293114 | (a) |
| Setco, LLC | Delaware | 3089 | 56-2374074 | (a) |
| Sun Coast Industries, LLC | Delaware | 3089 | 59-1952968 | (a) |
| Cardinal Packaging, Inc. | Ohio | 3089 | 56-1396561 | (a) |
| Covalence Specialty Adhesives LLC | Delaware | 2672 | 20-4104683 | (a) |
| Covalence Specialty Coatings LLC | Delaware | 2672 | 20-4104683 | (a) |
| Caplas LLC | Delaware | 3089 | 20-3888603 | (a) |
| Caplas Neptune, LLC | Delaware | 3089 | 20-5557864 | (a) |
| Captive Plastics Holding LLC | Delaware | 3089 | 20-1290475 | (a) |
| Captive Plastics, LLC | Delaware | 3089 | 22-1890735 | (a) |
| Grafco Industries Limited Partnership | Maryland | 3089 | 52-1729327 | (a) |
| Rollpak Acquisition Corporation | Indiana | 3089 | 03-0512845 | (a) |
| Rollpak Corporation | Indiana | 3089 | 35-1582626 | (a) |
| Pliant, LLC | Delaware | 2673 | 43-2107725 | (a) |
| Pliant Corporation International | Utah | 2673 | 87-0473075 | (a) |
| Pliant Film Products of Mexico, Inc. | Utah | 2673 | 87-0500805 | (a) |
| Pliant Packaging of Canada, LLC | Utah | 2673 | 87-0580929 | (a) |
| Uniplast Holdings, LLC | Delaware | 2673 | 13-3999589 | (a) |
| Uniplast U.S., Inc. | Delaware | 2673 | 04-3199066 | (a) |
| Berry Plastics SP, Inc. | Virginia | 3089 | 52-1444795 | (a) |
(a) 101 Oakley Street, Evansville, IN 47710
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
As previously disclosed, on September 24, 2010, Berry Plastics Corporation (the “Company”) announced that Ira G. Boots has decided to retire as Chairman of the Board and Chief Executive Officer of the Company, and that Dr. Jonathan Rich has replaced Mr. Boots, effective October 4, 2010.
The Company and Mr. Boots have entered into a letter agreement, dated September 30, 2010, regarding Mr. Boots’ retirement as an employee of the Company on December 31, 2010 (“Retirement”), his subsequent engagement as a Company consultant and other related matters (the “Letter Agreement”), the material terms of which are described below. Following his Retirement, Mr. Boots (i) will be eligible to earn the full amount of his 2010 bonus, if any, (ii) may continue to use a Company leased vehicle until August 10, 2013, and (iii) will be entitled to post-retirement medical insurance coverage under the Company’s Health and Welfare Plan for Early Retirees. In addition, following the Retirement, Mr. Boots’ vested options to purchase common stock of Berry Plastics Group, Inc. (“Berry”) generall y will terminate in equal installments over a five-year period beginning on March 31, 2011 and Mr. Boots will forfeit all of his unvested options to purchase Berry common stock. On September 30, 2010, Berry purchased 23,879 shares of Berry common stock held by Mr. Boots at $75 per share, representing the fair market value of the shares, and, following his Retirement, Berry will purchase the remainder of Mr. Boots’ shares of Berry common stock in four equal annual installments, commencing on December 31, 2011, at the Fair Value Per Share (as defined in the Amended and Restated Berry Stockholders Agreement, dated April 3, 2007). Mr. Boots will provide consulting services over a five-year period beginning on January 1, 2011 and will be paid 20 quarterly payments of $112,500 for his services. Following his Retirement, Mr. Boots will continue to be subject to a business non-compete and employee non-solicitation provisions until December 31, 2015. The foregoing description of the Letter Agreement is qualifie d in its entirety by the full text of the Letter Agreement, which is included as Exhibit 10.1 hereto and is incorporated herein by reference.
The Company and Dr. Rich have entered into an employment agreement, dated October 1, 2010 (the “Employment Agreement”). The material terms of the Employment Agreement include: (i) an annual base salary of $850,000, (ii) an annual target incentive of 68.5% of base salary, (iii) reimbursement for financial planning and tax preparation fees and (iv) a one-time grant of stock options to purchase 100,000 shares of Berry common stock at an exercise price (the “Option Exercise Price”) per share equal to the Fair Market Value (as defined in the Berry 2006 Equity Incentive Plan) of a share on the date of grant. In addition, Dr. Rich has agreed to purchase 33,333 shares of Berry common stock at a price equal to the Option Exercise Price. Under the terms of the Employment Agreement, in the event Dr. Rich’s employment is terminated without Cause or for Good Reason (each as defined under the Employment Agreement), Dr. Rich will be entitled, subject to his execution of a release of claims, to receive (i) an amount equal to Dr. Rich’s annual base salary for 18 months, payable in monthly installments, (ii) a prorated bonus based on actual performance for the year in which termination occurs and (iii) an amount equal to the monthly amount of the COBRA continuation coverage premium under the Company’s group medical plans. The employment agreement also contains confidentiality, non-solicitation and non-compete provisions. The foregoing description of the Employment Agreement is qualified in its entirety by the full text of the Letter Agreement, which is included as Exhibit 10.2 hereto and is incorporated herein by reference.
Under the terms of the form of option agreement pursuant to which the Company will grant to Dr. Rich the options described in the immediately preceding paragraph, time-vested stock options will vest in equal annual installments over a five-year period. In the event of Dr. Rich’s termination without Cause or for Good Reason (each as defined in the Employment Agreement) (collectively, a “Qualifying Termination”), fifty-percent (50%) or one-hundred percent (100%) of the next tranche of time-vested stock options may vest, depending on when the Qualifying Termination takes place. Additionally, in the event that applicable performance targets are met in connection with a change in control of the Company, fifty-percent (50%) or one-hundred percent (100%) of each installment of the time-vested stock options will vest, depending on the performance targets achieved, upon the earlier of 12 months of continued employment after such change in control or a Qualifying Termination during this 12-month period. Performance-based stock options will vest to the extent the applicable performance targets are met.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed herewith.
| Exhibit No. | Description |
| 10.1 | Letter Agreement, dated September 30, 2010, between Berry Plastics Corporation and Ira G. Boots |
| 10.2 | Employment Agreement, dated October 1, 2010, between the Company and Jonathan Rich |
| | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| | | BERRY PLASTICS CORPORATION |
| | | |
| | Date: October 5, 2010 | By: | /s/ James M. Kratochvil | |
| | | Name: James M. Kratochvil Title: Executive Vice President, Chief Financial Officer, Treasurer and Secretary |
| | | |
EXHIBIT INDEX
The following exhibits are filed herewith.
| Exhibit No. | Description |
| 10.1 | Letter Agreement, dated September 30, 2010, between Berry Plastics Corporation and Ira G. Boots |
| 10.2 | Employment Agreement dated October 1, 2010 between Berry Plastics Corporation and Jon Rich |
