-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, VackYXDcJxCTvy+iM1k9Y7v+7OmFnvhQ1mDSmJL22j3yo7ElAZTfctW4R2CkR2Pk +q5+Fzkr9Ban9SLS/X2Lrw== 0000895345-06-000712.txt : 20060727 0000895345-06-000712.hdr.sgml : 20060727 20060727112607 ACCESSION NUMBER: 0000895345-06-000712 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20060724 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Material Modifications to Rights of Security Holders ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060727 DATE AS OF CHANGE: 20060727 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BPC HOLDING CORP CENTRAL INDEX KEY: 0000919465 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 351814673 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 033-75706-01 FILM NUMBER: 06983472 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BERRY PLASTICS CORP CENTRAL INDEX KEY: 0000919463 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 351813706 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 033-75706 FILM NUMBER: 06983473 BUSINESS ADDRESS: STREET 1: 101 OAKLEY ST STREET 2: P O BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47710 BUSINESS PHONE: 8124242904 MAIL ADDRESS: STREET 1: PO BOX 959 CITY: EVANSVILLE STATE: IN ZIP: 47706-0959 8-K 1 wd8k.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 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): JULY 24, 2006 033-75706 (Commission File Number) BPC HOLDING CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 35-1814673 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) BERRY PLASTICS CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 35-1813706 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) 101 OAKLEY STREET EVANSVILLE, INDIANA 47710 (Address of principal executive (Zip Code) offices) (812) 424-2904 (Registrant's telephone number, including area code) 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: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT. THIRD SUPPLEMENTAL INDENTURE On July 24, 2006, Berry Plastics Corporation entered into a third supplemental indenture, dated as of July 24, 2006, to the Indenture dated July 22, 2002, as amended, among Berry Plastics Corporation, the note guarantors party thereto and U.S. Bank Trust National Association, as Trustee. Pursuant to this third supplemental indenture, additional note guarantors, each an indirect subsidiary of Berry Plastics Corporation, which is a wholly owned subsidiary of BPC Holding Corporation, agreed to jointly and severally, unconditionally guarantee Berry Plastics Corporation's obligations under the 10-3/4% Senior Subordinated Notes due 2012 on the terms and subject to the conditions set forth in the Indenture relating thereto. A copy of the third supplemental indenture is attached to this current report on Form 8-K as Exhibit 4.1 and is incorporated herein by reference. The description of the material terms of the third supplemental indenture is qualified in its entirety by reference to such exhibit. ITEM 3.03. MATERIAL MODIFICATION TO RIGHTS OF SECURITY HOLDERS. The disclosure provided by Berry Plastics Corporation pursuant to Item 1.01 above is incorporated into this Item 3.03 by reference. ITEM 8.01. OTHER EVENTS. On July 25, 2006, Berry Plastics Corporation issued a press release announcing the commencement of a cash tender offer for any and all of its outstanding $335 million of 10-3/4% Senior Subordinated Notes due 2012, a copy of which is attached to this current report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference. ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS. (a) Not Applicable. (b) Not Applicable. (c) The exhibits listed below and in the accompanying Exhibit Index are furnished as part of this Current Report on Form 8-K. Exhibit Description 4.1 Third Supplemental Indenture, dated as July 24, 2006, to the Indenture dated July 22, 2002 as amended, among Berry Plastics Corporation, the note guarantors party thereto and U.S. Bank Trust National Association, as Trustee. 99.1 Press release dated July 25, 2006. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned hereunto duly authorized. Dated: July 27, 2006. BPC Holding Corporation Berry Plastics Corporation By: /s/ JAMES M. KRATOCHVIL ------------------------ James M. Kratochvil Executive Vice President, Chief Financial Officer, Treasurer and Secretary of the entities listed above EXHIBIT INDEX Exhibit Description 4.1 Third Supplemental Indenture, dated as July 24, 2006, to the Indenture dated July 22, 2002 as amended, among Berry Plastics Corporation, the note guarantors party thereto and U.S. Bank Trust National Association, as Trustee. 99.1 Press release dated July 25, 2006. EX-4.1 2 supindent.txt EXECUTION COPY THIRD SUPPLEMENTAL INDENTURE (this "Third Supplemental Indenture") dated as of July 24, 2006, among SETCO, LLC and TUBED PRODUCTS, LLC, each a Delaware limited liability company, and SAFFRON ACQUISITION CORPORATION and SUN COAST INDUSTRIES, INC., each a Delaware corporation (each, a "New Guarantor" and, collectively the "New Guarantors"), each an indirect subsidiary of BERRY PLASTICS CORPORATION (or its successor), a Delaware corporation (the "Company"), the Company, BPC HOLDING CORPORATION, BERRY IOWA CORPORATION, PACKERWARE CORPORATION, KNIGHT PLASTICS, INC., BERRY STERLING CORPORATION, BERRY PLASTICS DESIGN CORPORATION, POLY-SEAL CORPORATION, BERRY PLASTICS ACQUISITION CORPORATION III, VENTURE PACKAGING, INC., VENTURE PACKAGING MIDWEST, INC., BERRY PLASTICS TECHNICAL SERVICES, INC., CPI HOLDING CORPORATION, AEROCON, INC., PESCOR, INC., BERRY PLASTICS ACQUISITION CORPORATION V, KERR GROUP, INC. (formerly known as BERRY PLASTICS ACQUISITION CORPORATION VI), BERRY PLASTICS ACQUISITION CORPORATION VII, BERRY PLASTICS ACQUISITION CORPORATION VIII, BERRY PLASTICS ACQUISITION CORPORATION IX, BERRY PLASTICS ACQUISITION CORPORATION X, BERRY PLASTICS ACQUISITION CORPORATION XI, BERRY PLASTICS ACQUISITION CORPORATION XII, BERRY PLASTICS ACQUISITION CORPORATION XIII, each a Delaware corporation, BERRY PLASTICS ACQUISITION CORPORATION XIV, LLC and BERRY PLASTICS ACQUISITION CORPORATION XV, LLC, each a Delaware limited liability company, CARDINAL PACKAGING, INC., an Ohio corporation and LANDIS PLASTICS, INC., an Illinois corporation (each, an "Existing Guarantor" and, collectively the "Existing Guarantors"), and U.S. BANK TRUST NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the "Trustee"). W I T N E S S E T H : WHEREAS, the Company and BPC HOLDING CORPORATION, BERRY IOWA CORPORATION, PACKERWARE CORPORATION, KNIGHT PLASTICS, INC., BERRY STERLING CORPORATION, BERRY PLASTICS DESIGN CORPORATION, POLY-SEAL CORPORATION, BERRY PLASTICS ACQUISITION CORPORATION III, VENTURE PACKAGING, INC., VENTURE PACKAGING MIDWEST, INC., BERRY PLASTICS TECHNICAL SERVICES, INC., CPI HOLDING CORPORATION, AEROCON, INC., PESCOR, INC., CARDINAL PACKAGING, INC. have heretofore executed and delivered to the Trustee an Indenture (the "Indenture") dated as of July 22, 2002, providing for the issuance of an unlimited aggregate principal amount of 10-3/4% Senior Subordinated Notes due 2012 (the "Notes"); WHEREAS, the Indenture was amended and supplemented pursuant to the terms of a Supplemental Indenture dated as of August 6, 2002 causing BERRY PLASTICS ACQUISITION CORPORATION IV, BERRY PLASTICS ACQUISITION CORPORATION V, KERR GROUP, INC., BERRY PLASTICS ACQUISITION CORPORATION VII, BERRY PLASTICS ACQUISITION CORPORATION VIII, BERRY PLASTICS ACQUISITION CORPORATION IX, BERRY PLASTICS ACQUISITION CORPORATION X, BERRY PLASTICS ACQUISITION CORPORATION XI, BERRY PLASTICS ACQUISITION CORPORATION XII, BERRY PLASTICS ACQUISITION CORPORATION XIII, BERRY PLASTICS ACQUISITION CORPORATION IV, LLC, and BERRY PLASTICS ACQUISITION CORPORATION XV, LLC, to become Note Guarantors (as defined in the Indenture); WHEREAS, the Indenture was amended and supplemented pursuant to the terms of a Second Supplemental Indenture dated as of November 30, 2003 causing LANDIS PLASTICS, INC., to become a Note Guarantor; WHEREAS, Section 4.11 of the Indenture provides that under certain circumstances the Company is required to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall unconditionally guarantee all the Company's obligations under the Notes pursuant to Note Guarantees on the terms and conditions set forth herein; and WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the Existing Guarantors are authorized to execute and deliver this Third Supplemental Indenture; NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantors, the Company, the Existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Notes as follows: 1. Agreement to Guarantee. The New Guarantors hereby agree, jointly and severally with all the Existing Guarantors, to unconditionally guarantee the Company's obligations under the Notes on the terms and subject to the conditions set forth in Articles 11 and 12 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Notes. 2. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Third Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby. 3. Governing Law. THIS THIRD SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 4. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Third Supplemental Indenture. 5. Counterparts. The parties may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. 6. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof. IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the date first above written. SETCO, LLC, TUBED PRODUCTS, LLC, SAFFRON ACQUISITION CORPORATION, SUN COAST INDUSTRIES, INC. By: /s/ JAMES M. KRATOCHVIL ---------------------------------- Name: James M. Kratochvil Title: EVP & CFO BERRY PLASTICS CORPORATION By: /s/ JAMES M. KRATOCHVIL ---------------------------------- Name: James M. Kratochvil Title: EVP & CFO BPC HOLDING CORPORATION, BERRY IOWA CORPORATION, PACKERWARE CORPORATION, KNIGHT PLASTICS, INC., BERRY STERLING CORPORATION, BERRY PLASTICS DESIGN CORPORATION, POLY-SEAL CORPORATION, BERRY PLASTICS ACQUISITION CORPORATION III, VENTURE PACKAGING, INC., VENTURE PACKAGING MIDWEST, INC., BERRY PLASTICS TECHNICAL SERVICES, INC., CPI HOLDING CORPORATION, AEROCON, INC., PESCOR, INC., CARDINAL PACKAGING, INC., BERRY PLASTICS ACQUISITION CORPORATION V, KERR GROUP, INC., LANDIS PLASTICS, INC. BERRY PLASTICS ACQUISITION CORPORATION VII, BERRY PLASTICS ACQUISITION CORPORATION VIII, BERRY PLASTICS ACQUISITION CORPORATION IX, BERRY PLASTICS ACQUISITION CORPORATION X, BERRY PLASTICS ACQUISITION CORPORATION XI, BERRY PLASTICS ACQUISITION CORPORATION XII, BERRY PLASTICS ACQUISITION CORPORATION XIII, BERRY PLASTICS ACQUISITION CORPORATION XIV, LLC, BERRY PLASTICS ACQUISITION CORPORATION XV, LLC By: /s/ JAMES M. KRATOCHVIL ---------------------------------- Name: James M. Kratochvil Title: EVP & CFO U.S.BANK TRUST NATIONAL ASSOCIATION, as Trustee, By: /s/ BEVERLY A. FREENEY ---------------------------------- Name: Beverly A. Freeney Title: Vice President EX-99.1 3 pressrel.txt [LOGO - BERRY (TM) - PLASTICS CORPORATION AND SUBSIDIARIES] BERRY PLASTICS CORPORATION ANNOUNCES TENDER OFFER AND CONSENT SOLICITATION FOR 10.75% SENIOR SUBORDINATED NOTES DUE 2012 EVANSVILLE, IN - (July 25, 2006) - Berry Plastics Corporation (the "Company") announced today that it has commenced a cash tender offer for any and all of its outstanding $335 million of 10.75% Senior Subordinated Notes due 2012 (CUSIP No. 085790AJ2) (the "Notes"). The total consideration per $1,000 principal amount of Notes validly tendered and not withdrawn prior to 5:00 p.m., New York City time, on August 7, 2006, unless extended (the "Consent Date"), will be calculated based on the present value on the payment date of the sum of $1,053.75 (the redemption price for the Notes on July 15, 2007, which is the earliest redemption date for the Notes) plus interest payments through July 15, 2007, determined using a discount factor equal to the yield on the Price Determination Date (as described below) of the 3-5/8% U.S. Treasury Note due June 30, 2007, plus a fixed spread of 50 basis points. The Company currently expects that the Price Determination Date will be 2:00 p.m., New York City time, on August 7, 2006, although such date may be extended if the Company extends the expiration date of the tender offer. In order to receive the total consideration, holders are required to tender and not withdraw their Notes on or prior to the execution of the supplemental indenture that will effect the amendments to the indenture described below, which is expected to occur promptly after the Consent Date. In connection with the tender offer, the Company is soliciting consents to proposed amendments to the indenture governing the Notes that would eliminate substantially all of the restrictive covenants and certain events of default in the indenture. The Company is offering to make a consent payment (which is included in the total consideration described above) of $30.00 per $1,000 principal amount of Notes to holders who validly tender their Notes and deliver their consents on or prior to the Consent Date. Holders may not tender their Notes without delivering consents, and may not deliver consents without tendering their Notes. The tender offer is scheduled to expire at 12:00 midnight, New York City time, on August 21, 2006, unless extended or earlier terminated. Accrued and unpaid interest to but not including the payment date, which is expected to be on or about August 22, 2006, will be paid on all Notes tendered and accepted. However, no consent payments will be made in respect of Notes tendered after the Consent Date. Holders who tender their Notes after the Consent Date but on or prior to the expiration date will receive the total consideration referred to above per $1,000 principal amount of Notes validly tendered and not withdrawn, less $30.00 per $1,000 principal amount. Tendered Notes may not be withdrawn and consents may not be revoked after the date on which the Company, the guarantors of the Notes, and the trustee for the Notes execute a supplemental indenture to effect the proposed amendments to the indenture governing the Notes, which is expected to be promptly after the Consent Date. The proposed amendments will not take effect, however, until a majority of principal amount of outstanding Notes, whose holders have delivered consents to the proposed amendments, have been accepted for payment. The tender offer and consent solicitation are subject to the satisfaction of certain conditions, including the receipt of tenders from holders of a majority in principal amount of the outstanding Notes; the consummation of the previously announced acquisition of BPC Holding Corporation, the Company's parent, by affiliates of the private equity firms Apollo Management, L.P. and Graham Partners and their affiliates; the availability of sufficient funds to pay the total consideration with respect to all Notes, such funds to be raised from borrowing under a credit facility and sale of newly issued notes; and the execution of a supplemental indenture on or prior to the acceptance date implementing the proposed amendments. The complete terms and conditions of the tender offer and consent solicitation are described in the Offer to Purchase and Consent Solicitation Statement of the Company dated July 25, 2006, copies of which may be obtained by contacting MacKenzie Partners, Inc., the information agent for the offer, at (212) 929-5500 (collect) or (800) 322-2885 (U.S. toll-free). Deutsche Bank Securities Inc. is the exclusive dealer manager and solicitation agent for the tender offer and consent solicitation. Additional information concerning the tender offer and consent solicitation may be obtained by contacting Deutsche Bank Securities Inc., at (212) 250-6008. This press release does not constitute an offer to sell or a solicitation of an offer to buy any Notes or other securities, nor shall there be any sale of any Notes or other securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. This announcement is also not an offer to purchase, a solicitation of an offer to purchase or a solicitation of consents with respect to any Notes or other securities. The tender offer and consent solicitation are being made solely by the Offer to Purchase and Consent Solicitation Statement dated July 25, 2006. BUSINESS DESCRIPTION Berry Plastics Corporation is a leading manufacturer and marketer of rigid plastic packaging products. The company is headquartered in Evansville, IN, and, together with its subsidiaries, has plants in Ahoskie, NC; Anaheim, CA; Baltimore, MD; Bowling Green, KY; Charlotte, NC; Chicago, IL; Chicago Ridge, IL; Easthampton, MA; Henderson, NV; Iowa Falls, IA; Jackson, TN; Lancaster, PA; Lawrence, KS; Milan, Italy; Mexico City, Mexico; Monroeville, OH; Monroe Township, NJ; Norwich, England; Oxnard, CA; Phoenix, AZ; Richmond, IN; Sarasota, FL; Streetsboro, OH; Suffolk, VA; Syracuse, NY; and Woodstock, IL. Please contact: Jim Kratochvil Executive Vice President, CFO, Treasurer and Secretary Berry Plastics Corporation 101 Oakley Street Evansville, Indiana 47710 Telephone: (812) 424-2904 -----END PRIVACY-ENHANCED MESSAGE-----