AGREEMENT AND PLAN OF MERGER AND CORPORATE REORGANIZATION

 

 

AGREEMENT AND PLAN OF MERGER

AND CORPORATE REORGANIZATION

dated as of March 9, 2007

between

COVALENCE SPECIALTY MATERIALS HOLDING CORP.

and

BERRY PLASTICS GROUP, INC.

 

 

 

TABLE OF CONTENTS

	ARTICLE I
	THE MERGER
1.1.	Effective Time of the Merger	1
1.2.	Closing	2
1.3.	Effects of the Merger	2
1.4.	Certificate of Incorporation and By-laws	2
	ARTICLE II
	EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
	CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES;
	CORPORATE REORGANIZATION
2.1.	Effect on Capital Stock	2
	(a)Cancellation of Treasury Stock	2
	(b)Conversion of Berry Common Stock	2
	(c)Conversion of Covalence Common Stock	3
	(d)Conversion of Covalence Preferred Stock	3
	(e)Appraisal Rights	4
2.2.	Exchange of Certificates	4
	(a)Exchange Agent	4
	(b)Exchange Procedures	4
	(c)Distributions with Respect to Unexchanged Shares	5
	(d)No Further Ownership Rights in Capital Stock	5
	(e)No Fractional Shares	5
	(f)Termination of Exchange Fund	6
	(g)No Liability	6
	(h)Withholding	6
	(i)Adjustment to Exchange Ratios	6
2.3.	Corporate Reorganization	6
	ARTICLE III
	REPRESENTATIONS AND WARRANTIES
3.1.	Representations and Warranties of Berry	7
	(a)Organization, Standing and Power	7
	(b)Capital Structure	8
	(c)Authority	9
	(d)SEC Documents; Financial Statements; Regulatory Reports; Undisclosed Liabilities	10
	(e)Information Supplied	11
	(f)Compliance with Applicable Laws and Reporting Requirements	11
	(g)Legal Proceedings	12

	(h)Taxes	12
	(i)Certain Agreements	12
	(j)Benefit Plans	13
	(k)Subsidiaries	14
	(l)Agreements with Regulators	14
	(m)Absence of Certain Changes or Events	14
	(n)Board Approval	14
	(o)Vote Required	14
	(p)Properties	15
	(q)Intellectual Property	15
	(r)Brokers or Finders	15
	(s)Opinion of Berry Financial Advisor	15
3.2.	Representations and Warranties of Covalence	16
	(a)Organization, Standing and Power	16
	(b)Capital Structure	16
	(c)Authority	17
	(d)SEC Documents; Financial Statements; Regulatory Reports; Undisclosed Liabilities	18
	(e)Information Supplied	19
	(f)Compliance with Applicable Laws and Reporting Requirements	19
	(g)Legal Proceedings	20
	(h)Taxes	20
	(i)Certain Agreements	20
	(j)Benefit Plans	21
	(k)Subsidiaries	21
	(l)Agreements with Regulators	22
	(m)Absence of Certain Changes or Events	22
	(n)Board Approval	22
	(o)Vote Required	22
	(p)Properties	22
	(q)Intellectual Property	23
	(r)Brokers or Finders	23
	(s)Opinion of Covalence Financial Advisor	23
	ARTICLE IV
	COVENANTS RELATING TO CONDUCT OF BUSINESS
4.1.	Covenants of Berry	23
	(a)Ordinary Course	24
	(b)Dividends; Changes in Stock	24
	(c)Issuance of Securities	24
	(d)Governing Documents, Etc.	24
	(e)No Acquisitions	24
	(f)No Dispositions	25
	(g)Indebtedness	25

	(h)Other Actions	25
	(i)Accounting Methods	26
	(j)Tax-Free Reorganization Treatment	26
	(k)No Liquidation	26
	(l)Other Agreements	26
4.2.	Covenants of Covalence	26
	(a)Ordinary Course	26
	(b)Dividends; Changes in Stock	26
	(c)Issuance of Securities	27
	(d)Governing Documents	27
	(e)No Acquisitions	27
	(f)No Dispositions	27
	(g)Indebtedness	28
	(h)Other Actions	28
	(i)Accounting Methods	28
	(j)Tax-Free Reorganization Treatment	28
	(k)Compensation and Benefit Plans	28
	(l)No Liquidation	29
	(m)Other Agreements	29
4.3.	Transition	29
4.4.	Advice of Changes; Government Filings	29
4.5.	Control of Other Party’s Business	30
	ARTICLE V
	ADDITIONAL AGREEMENTS
5.1.	Preparation of Joint Information Statement	30
5.2.	Access to Information	31
5.3.	Reasonable Best Efforts	31
5.4	Equity Awards	32
	(a)Berry Stock Options and SARs	32
	(b)Covalence Stock Options	33
	(c)Covalence Restricted Stock Unit Awards	33
5.5.	Fees and Expenses	33
5.6.	Indemnification; Directors’ and Officers’ Insurance	33
5.7.	Public Announcements	34
5.8.	Debt Refinancing	34
5.9.	Management Agreements	35
5.10.	Additional Agreements	35
	ARTICLE VI
	CONDITIONS PRECEDENT
6.1.	Conditions to Each Party’s Obligation to Effect the Merger	35
	(a)Stockholder Approval	35
	(b)Other Approvals	35

	(c)No Injunctions or Restraints; Illegality	36
	(d)Burdensome Condition	36
	(f)Solvency Opinion	36
	(g)Debt Refinancing	36
6.2.	Conditions to Obligations of Covalence	36
	(a)Representations and Warranties	36
	(b)Performance of Obligations of Berry	36
6.3.	Conditions to Obligations of Berry	36
	(a)Representations and Warranties	37
	(b)Performance of Obligations of Covalence	37
	ARTICLE VII
	TERMINATION AND AMENDMENT
7.1.	Termination	37
7.2.	Effect of Termination	38
7.3.	Amendment	38
7.4.	Extension; Waiver	38
	ARTICLE VIII
	GENERAL PROVISIONS
8.1.	Non-survival of Representations, Warranties and Agreements	38
8.2.	Notices	39
8.3.	Interpretation	39
8.4.	Counterparts	40
8.5.	Entire Agreement; No Third Party Beneficiaries	40
8.6.	Governing Law	40
8.7.	Severability	40
8.8.	Assignment	40
8.9.	Submission to Jurisdiction	40
8.10.	Enforcement	41
8.11.	WAIVER OF JURY TRIAL	41

 

 

 

 

 

INDEX OF DEFINED TERMS

	Section
Acquisitions	4.1(e)
Agreement	Preamble
Berry	Preamble
Berry Benefit Plans	3.1(j)
Berry Board Approval	3.1(n)
Berry Common Stock	2.1
Berry Exchange Ratio	2.1(a)(ii)
Berry Contracts	3.1(i)
Berry Disclosure Schedule	3.1
Berry Incentive Plan	3.1(b)(i)
Berry Intellectual Property	3.1(q)
Berry Permits	3.1(f)
Berry SEC Documents	3.1(d)
Berry Stock Option	3.1(b)(iii)
Berry Stockholders Agreement	3.1(b)(iii)
Benefit Plans	3.1(j)
Certificate of Merger	1.1
Certificate and Certificates	2.2(a)
Closing	1.2
Closing Date	1.2
Code	Recitals
Constituent Corporations	1.3
Covalence	Preamble
Covalence Benefit Plans	3.2(j)
Covalence Board Approval	3.2(n)
Covalence Common Stock	2.1(a)
Covalence Common Stock Exchange Ratio	2.1(a)(ii)
Covalence Contracts	3.2(i)
Covalence Disclosure Schedule	3.2
Covalence Exchange Ratio	2.1(a)(iii)
Covalence Incentive Plan	3.2(b)
Covalence Intellectual Property	3.2(q)
Covalence Permits	3.2(f)
Covalence Preferred Stock	2.1(a)
Covalence Preferred Stock Amount	2.1(a)(iii)
Covalence Preferred Stock Exchange Ratio	2.1(a)(iii)
Covalence RSUs	5.4(c)
Covalence SEC Documents	3.2(b)
Debt Commitment Letter	1.1
Debt Refinancing	5.8
DGCL	1.1
Dissenting Shares	2.1(b)
Effective Time	1.1

 

 

 

AGREEMENT AND PLAN OF MERGER AND CORPORATE REORGANIZATION, dated as of March 9, 2007 (this “ Agreement ”), between COVALENCE SPECIALTY MATERIALS HOLDING CORP., a Delaware corporation (“ Covalence ”), and BERRY PLASTICS GROUP, INC., a Delaware corporation (“ Berry ”).

WHEREAS, the Boards of Directors of Covalence and Berry have approved, and deem it advisable, fair and in the best interests of their respective companies and their respective stockholders to consummate, the business combination transaction provided for herein in which Berry would merge with and into Covalence (the “ Merger ”);

WHEREAS, the Boards of Directors of Covalence and Berry have each determined that the Merger and the other transactions contemplated hereby are consistent with, and in furtherance of, their respective business strategies and goals;

WHEREAS, Covalence and Berry desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe various conditions to the Merger;

WHEREAS, for federal income tax purposes, it is intended that the Merger and the Operating Company Merger shall each qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “ Code ”), and the parties intend, by executing this Agreement, to adopt a plan of reorganization within the meaning of Treasury Regulation Section 1.368-2(g);

WHEREAS, the advisory board of (i) Apollo Investment Fund V, L.P. and Apollo Overseas Partners V, L.P. (with respect to their interest in Covalence) and (ii) Apollo Investment Fund VI, L.P., Apollo Overseas Partners VI, L.P., Apollo Overseas Partners (Delaware) VI, L.P., Apollo Overseas Partners (Delaware 892) VI, L.P. and Apollo Overseas Partners (Germany) VI, L.P. (with respect to their interest in Berry) have approved this Agreement and the Merger, to the extent required by the relevant limited partnership agreements; and

WHEREAS, immediately following the execution and delivery of this Agreement, the holders of (i) a majority of the outstanding shares of Berry Common Stock have delivered to Berry and (ii) a majority of the outstanding shares of Covalence Common Stock have delivered to Covalence a written consent in lieu of a meeting, in accordance with Section 228 of the DGCL, pursuant to which such stockholders have approved the Merger, adopted this Agreement and approved the transactions contemplated hereby.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth herein, the parties hereto agree as follows:

 

ARTICLE I

THE MERGER

provided in the Delaware General Corporation Law (the “ DGCL ”), on the Closing Date (as defined in Section 1.2). The Merger shall become effective upon the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such time thereafter as is provided in the Certificate of Merger (the “ Effective

Time ”).

1.2.    Closing . The closing of the Merger (the “ Closing ”) will take place at 10:00 a.m. on the date (the “ Closing Date ”) that is the second business day after the satisfaction or waiver (subject to applicable law) of the conditions set forth in Article VI (excluding conditions that, by their terms, are to be satisfied on the Closing Date), unless another time or date is agreed to in writing by the parties hereto, provided that in no event shall the Closing occur on a date that is prior to April 2, 2007. The Closing shall be held at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019, unless another place is agreed to in writing by the parties hereto.

EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE

CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES;

CORPORATE REORGANIZATION

2.1.    Effect on Capital Stock . (a) As of the Effective Time, by virtue of the Merger and without any action on the part of the holder of any shares of (i) Common Stock, par value $0.01 per share, of Berry (the “ Berry Common Stock ”), (ii) Common Stock, par value $0.01 per share, of Covalence (the “ Covalence Common Stock ”) or (iii) Preferred Stock, par value $0.01 per share, of Covalence (the “ Covalence Preferred Stock ”):

nonassessable shares of Common Stock, par value $0.01 per share, of the Surviving Corporation (“ Surviving Corporation Common Stock ”). All such shares of Berry Common Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each certificate previously representing any such shares shall thereafter represent the shares of Surviving Corporation Common Stock into which such Berry Common Stock has been converted; and

(iii)    Conversion of Covalence Common Stock . Subject to Section 2.2(e), each share of Covalence Common Stock issued and outstanding immediately prior to the Effective Time (other than Dissenting Shares) shall be converted into the number of fully paid and nonassessable shares of Surviving Corporation Common Stock equal to:

(such ratio rounded to the nearest hundred-thousandth (or rounded down to the next hundred-thousandth if there is no nearest hundred-thousandth), the “ Covalence Common Stock Exchange Ratio ”).

(iv)    Conversion of Covalence Preferred Stock . Subject to Section 2.2(e), each share of Covalence Preferred Stock (other than Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall be converted into the number of fully paid and nonassessable shares of Surviving Corporation Common Stock equal to:

(such ratio rounded to the nearest hundred-thousandth (or rounded down to the next hundred-thousandth if there is no nearest hundred-thousandth), the “ Covalence Preferred Exchange Ratio ”).

All such shares of Berry Common Stock, Covalence Common Stock and Covalence Preferred Stock shall no longer be outstanding and shall automatically be cancelled and retired and shall cease to exist, and each certificate previously representing any such shares shall thereafter represent the shares of Surviving Corporation Common Stock into which such stock has been converted. Certificates previously representing shares of such stock shall be exchanged for certificates representing whole shares of Surviving Corporation Common Stock issued in consideration therefor upon the surrender of such certificates in accordance with Section 2.2, without interest.

(b)    Appraisal Rights . Notwithstanding anything in this Agreement to the contrary, shares of Berry Common Stock, Covalence Common Stock and Covalence Preferred Stock that are issued and outstanding immediately prior to the Effective Time and that are owned by stockholders that have properly perfected their right of appraisal within the meaning of Section 262 of the DGCL (the “ Dissenting Shares ”) shall not remain outstanding, and the holders thereof shall be entitled to payment of the appraised value of such Dissenting Shares in accordance with Section 262 of the DGCL. If any such holder shall have failed to perfect or shall have effectively withdrawn or lost such right of appraisal, each share of such Berry Common Stock, Covalence Common Stock and Covalence Preferred Stock held by such person shall be converted into shares of the Surviving Corporation in accordance with Section 2.1(a).

2.2.    Exchange of Certificates .

(a)    Exchange Agent . The Surviving Corporation shall serve as the exchange agent in connection with the Merger (the “ Exchange Agent ”). Therefore, immediately following the Effective Time, the Surviving Corporation shall issue and hold, for the benefit of the holders of certificates or evidence of shares in book entry form which immediately prior to the Effective Time evidenced shares of Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock (each a “ Certificate ” and, collectively, the “ Certificates ”), for exchange in accordance with this Article II, the shares of Surviving Corporation Common Stock issuable pursuant to Section 2.1(a) in exchange for such shares. Such shares of Surviving Corporation Common Stock, together with any dividends or distributions with respect thereto, are hereinafter referred to as the “ Exchange Fund .”

(b)    Exchange Procedures . As soon as reasonably practicable after the Effective Time, the Exchange Agent shall send or provide to each holder of record of shares of Berry Common Stock, Covalence Common Stock and Covalence Preferred Stock immediately prior to the Effective Time whose shares were converted into shares of Surviving Corporation Common Stock pursuant to Section 2.1, (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent, and which shall be in such form and have such other provisions as Covalence and Berry may reasonably specify) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of Surviving Corporation Common Stock. Upon surrender of a Certificate for cancellation to the Exchange Agent together with such letter of transmittal, duly executed, and such other documents as the Exchange Agent may reasonably require, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of Surviving Corporation Common Stock which such holder has the right to receive in respect of the Certificate surrendered pursuant to the provisions of this Article II (after taking into account all shares of Berry Common Stock, Covalence Common Stock and Covalence Preferred Stock then held by such holder), and the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock which is not registered in the transfer records of Berry or Covalence, as applicable, a certificate representing the proper number of shares of Surviving Corporation Common Stock may be issued to a transferee if the Certificate representing such Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer taxes have been paid. Until surrendered as contemplated by this Section 2.2, each Certificate shall be deemed at any time after the Effective Time to represent only the Surviving Corporation Common Stock into which the shares of Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock represented by such Certificate have been converted as provided in this Article II and the right to receive upon such surrender cash in lieu of any fractional shares of Surviving Corporation Common Stock as contemplated by this Section 2.2.

(c)    Distributions with Respect to Unexchanged Shares . No dividends or other distributions declared or made with respect to Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Surviving Corporation Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2(e), until the holder of such Certificate shall surrender such Certificate. Subject to the effect of applicable laws, following the surrender of any such Certificate, there shall be paid to the holder of the certificates representing whole shares of Surviving Corporation Common Stock issued in exchange therefor, without interest, (A) at the time of such surrender the amount of any cash payable with respect to a fractional share of Surviving Corporation Common Stock to which such holder is entitled pursuant to Section 2.2(e) and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid (but withheld pursuant to the immediately preceding sentence) with respect to such whole shares of Surviving Corporation Common Stock, and (B) at the appropriate payment date, the amount of dividends or other distributions with a record date after the Effective Time but prior to surrender and a payment date subsequent to surrender payable with respect to such whole shares of Surviving Corporation Common Stock.

(d)    No Further Ownership Rights in Capital Stock . All shares of Surviving Corporation Common Stock issued upon conversion of shares of Berry Common Stock, Covalence Common Stock and Covalence Preferred Stock in accordance with the terms hereof (including any cash paid pursuant to Section 2.2(c) or 2.2(e)) shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares; subject, however , to the Surviving Corporation’s obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been declared or made by Berry or Covalence, as applicable on such shares in accordance with the terms of this Agreement on or prior to the Effective Time and which remain unpaid at the Effective Time, and there shall be no further registration of transfers on the stock transfer books of the Surviving Corporation of the shares of Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock which were outstanding immediately prior to the Effective Time. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Article II.

(e)    No Fractional Shares . No certificates or scrip representing fractional shares of Surviving Corporation Common Stock shall be issued upon the surrender for exchange of Certificates evidencing Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock, and such fractional share interests will not entitle the owner thereof to vote or to any rights of a stockholder of the Surviving Corporation. In lieu thereof, upon surrender of the applicable Certificates, the Surviving Corporation shall pay each holder an amount in cash equal to the product obtained by multiplying the fractional share interest to which such holder (after taking into account all shares of Surviving Corporation Common Stock held at the Effective Time by such holder) would otherwise be entitled by $100.

(f)    Termination of Exchange Fund . Any portion of the Exchange Fund which remains undistributed to the stockholders of Berry or Covalence, as applicable, for six months after the Effective Time shall be delivered to the Surviving Corporation, upon demand, and any stockholders of Berry or Covalence, as applicable, who have not theretofore complied with this Article II shall thereafter look only to the Surviving Corporation for payment of their claim for Surviving Corporation Common Stock, any cash in lieu of fractional shares of Surviving Corporation Common Stock and any dividends or distributions with respect to Surviving Corporation Common Stock.

(g)    No Liability . None of Covalence, Berry or the Surviving Corporation shall be liable to any holder of shares of Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock for shares of Surviving Corporation Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar law.

(h)    Withholding . The Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of shares of Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock, or Dissenting Shares, such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code and the rules and regulations promulgated thereunder, or any provision of state, local or foreign tax law. To the extent that amounts are so withheld by the Surviving Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the shares of Berry Common Stock, Covalence Common Stock or Covalence Preferred Stock, or Dissenting Shares, in respect of which such deduction and withholding was made by the Surviving Corporation.

(i)    Adjustment to Exchange Ratios . In the event of a stock dividend, stock split, reverse stock split or similar change in the capital structure of either Berry or Covalence after the date hereof, the exchange ratio or ratios applicable to such capital stock shall be equitably adjusted, such that the number of shares of Surviving Corporation Common Stock to which such holder is entitled is the same as it would have been prior to such dividend, split or change.

2.3.    Corporate Reorganization . Immediately following the Effective Time, the Surviving Corporation will contribute 100% of the shares of its wholly owned subsidiary Berry Plastics Holding Corporation to its wholly owned subsidiary Covalence Specialty Materials Corp. Immediately thereafter, Covalence Specialty Materials Corp. will be merged with and into Berry Plastics Holding Corporation and the separate existence of Covalence Specialty Materials Corp. shall cease (the “ Operating Company Merger ”). The Operating Company Merger will have the effects set forth in the DGCL. By virtue of the Operating Company Merger, each share of common stock of (i) Covalence Specialty Materials Corp. will be cancelled and retired and shall cease to exist and (ii) each share of common stock of Berry Plastics Holding Corporation shall remain outstanding as shares of the surviving company in the Operating Company Merger. The Certificate of Incorporation and Bylaws of Berry Plastics Holding Corporation as in effect immediately prior to the Operating Company Merger shall be the Certificate of Incorporation of Berry Plastics Holding Corporation following the Operating Company Merger. Each of Covalence and Berry shall, and shall cause their subsidiaries to, enter into such documents, and make such filings as may be required to effect the share contribution described in this Section and the Operating Company Merger.

REPRESENTATIONS AND WARRANTIES

3.1.    Representations and Warranties of Berry . Except (x) with respect to any subsection of this Section 3.1, as set forth in the correspondingly identified subsection of the disclosure schedule delivered by Berry to Covalence concurrently herewith (the “ Berry Disclosure Schedule ”) or (y) as disclosed in the Berry SEC Documents (as defined in Section 3.1(d), but excluding any Risk Factors disclosure or similar cautionary or precatory language) filed with the Securities and Exchange Commission (the “ SEC ”) prior to the date hereof, Berry represents and warrants to Covalence as follows:

(a)    Organization, Standing and Power . Each of Berry and its Subsidiaries is a corporation, limited liability company or partnership duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, has all requisite power and authority to own, lease and operate its properties and to carry on its business as now being conducted and is duly qualified and in good standing to do business in each jurisdiction in which the nature of its business or the ownership or leasing of its properties makes such qualification necessary, other than in such jurisdictions where the failure so to qualify would not, either individually or in the aggregate, reasonably be expected to have a material adverse effect on Berry. The Certificate of Incorporation and Bylaws (or equivalent) of Berry and its Subsidiaries, copies of which were previously furnished to Covalence, are true, complete and correct copies of such documents as in effect on the date of this Agreement. As used in this Agreement, (i) the word “ Subsidiary ” when used with respect to any party means any corporation or other organization, whether incorporated or unincorporated, (x) of which such party or any other Subsidiary of such party is a general partner (excluding partnerships, the general partnership interests of which held by such party or any Subsidiary of such party do not have a majority of the voting interests in such partnership), or (y) at least a majority of the securities or other interests of which that have by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other organization is directly or indirectly owned or controlled by such party or by any one or more of its Subsidiaries, or by such party and one or more of its Subsidiaries; (ii) any reference to any event, change or effect being “ material ” with respect to any entity means an event, change or effect which is material in relation to the financial condition, properties, assets, liabilities, businesses or results of operations of such entity and its Subsidiaries taken as a whole; and (iii) the term “ material adverse effect ” means, with respect to any entity, a material adverse effect on the financial condition, properties, assets, liabilities, businesses or results of operations of such entity and its Subsidiaries taken as a whole or on the ability of such entity to perform its obligations hereunder; provided that, in any such case referred to in clause (ii) or (iii) the following shall not be deemed “material”

 

or to have a “material adverse effect”: any change or event caused by or resulting from (A) changes in prevailing interest rates, currency exchange rates or other economic or monetary conditions in the United States or elsewhere, (B) changes in United States or foreign securities markets, including changes in price levels or trading volumes, (C) changes or events, after the date hereof, affecting the plastics industry generally and not specifically relating to Berry or Covalence or their respective Subsidiaries, as the case may be, (D) changes, after the date hereof, in generally accepted accounting principles, (E) changes, after the date hereof, in laws, rules or regulations of general applicability or interpretations thereof by any Governmental Entity (as defined in Section 3.1(c)(iii)), (F) actions or omissions of Covalence or Berry taken with the prior written consent of the other or required hereunder, (G) the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the announcement thereof, or (H) any outbreak of major hostilities in which the United States is involved or any act of terrorism within the United States or directed against its facilities or citizens wherever located.

(b)    Capital Structure . (i) The authorized capital stock of Berry consists of 200,000,000 shares of Berry Common Stock. As of the close of business on March 8, 2007, 4,937,196 shares of Berry Common Stock were issued (including shares held in treasury), 577,252 shares of Berry Common Stock were reserved for issuance upon the exercise or payment of outstanding stock options, stock units or other awards or pursuant to Berry’s 2006 Equity Incentive Plan (the “ Berry Incentive Plan ”), and no shares of Berry Common Stock were held by Berry in its treasury or by its Subsidiaries. All outstanding shares of Berry Common Stock have been duly authorized and validly issued and are fully paid and non-assessable and not subject to preemptive rights. The shares of Berry Common Stock which may be issued pursuant to the Berry Incentive Plan have been duly authorized and, if and when issued pursuant to the terms thereof, will be validly issued, fully paid and non-assessable and not subject to preemptive rights.

(ii)    No bonds, debentures, notes or other indebtedness having the right to vote on any matters on which stockholders may vote (“ Voting Debt ”) of Berry are issued or outstanding.

(iii)    Except for (A) this Agreement, (B) options to purchase shares of Berry Common Stock (each, a “ Berry Stock Option ”) which represented, as of March 8, 2007, the right to acquire up to an aggregate of 550,425 shares of Berry Common Stock, (C) the Berry Incentive Plan, (D) the Stockholders Agreement, dated September 20, 2006 (the “ Berry Stockholders Agreement ”) among Berry and its stockholders, and (E) agreements entered into and securities and other instruments issued after the date of this Agreement as permitted by Section 4.1, there are no options, warrants, calls, rights, commitments or agreements of any character to which Berry or any Subsidiary of Berry is a party or by which it or any such Subsidiary is bound obligating Berry or any Subsidiary of Berry to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock or any Voting Debt or stock appreciation rights of Berry or of any Subsidiary of Berry or obligating Berry or any Subsidiary of Berry to grant, extend or enter into any such option, warrant, call, right, commitment or agreement. There are no outstanding contractual obligations of Berry or any of its Subsidiaries (A) to repurchase, redeem or otherwise acquire any shares of capital stock of Berry or any of its Subsidiaries or (B) pursuant to which Berry or any of its Subsidiaries is or could be required to register shares of Berry Common Stock or other securities under the Securities Act of 1933, as amended (the “ Securities Act ”), except in the case of clauses (A) and (B) the Berry Incentive Plan, the Berry Stockholders Agreement and any contractual obligations entered into after the date hereof as permitted by Section 4.1.

(iv)    Since March 8, 2007, Berry has not (A) issued or permitted to be issued any shares of capital stock, stock appreciation rights or securities exercisable or exchangeable for or convertible into shares of capital stock of Berry or any of its Subsidiaries, other than pursuant to and as required by the terms of the Berry Incentive Plan, and any employee stock options and other awards issued prior to the date hereof under the Berry Incentive Plan (or issued after the date hereof in compliance with Sections 4.1(c) and 4.1(k)); (B) repurchased, redeemed or otherwise acquired, directly or indirectly through one or more Berry Subsidiaries, any shares of capital stock of Berry or any of its Subsidiaries; or (C) declared, set aside, made or paid to the stockholders of Berry dividends or other distributions on the outstanding shares of capital stock of Berry.

(c)    Authority . (i) Berry has all requisite corporate power and authority to enter into this Agreement and, subject in the case of the consummation of the Merger to obtaining the Required Berry Vote, to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Berry, subject in the case of the consummation of the Merger to the adoption of this Agreement by the stockholders of Berry. This Agreement has been duly executed and delivered by Berry and constitutes a valid and binding obligation of Berry, enforceable against Berry in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equitable principles.

(ii)    The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby will not, (A) conflict with, or result in any violation of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or the loss of a material benefit under, or the creation of a lien, pledge, security interest, charge or other encumbrance on any assets (any such conflict, violation, default, right of termination, cancellation or acceleration, loss or creation, a “ Violation ”) pursuant to, any provision of the Certificate of Incorporation or Bylaws of Berry or any Subsidiary of Berry, or (B) subject to obtaining or making the consents, approvals, orders, authorizations, registrations, declarations and filings referred to in paragraph (iii) below, result in any Violation of any loan or credit agreement, note, mortgage, indenture, lease, Berry Benefit Plan (as defined in Section 3.1(j)) or other agreement, obligation, instrument, permit, concession, franchise, license, judgment, order, decree, statute, law, ordinance, rule or regulation applicable to Berry or any Subsidiary of Berry or their respective properties or assets, which Violation, individually or in the aggregate, would reasonably be expected to have a material adverse effect on Berry.

(iii)    No consent, approval, order or authorization of, or registration, declaration or filing with, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or industry self-regulatory organization (a “ Governmental Entity ”), is required

 

 

by or with respect to Berry or any Subsidiary of Berry in connection with the execution and delivery of this Agreement by Berry or the consummation by Berry of the transactions contemplated hereby, the failure to make or obtain which would have a material adverse effect on Berry, except for (A) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (B) consents, authorizations, approvals, filings or exemptions in connection with compliance with the applicable provisions of federal or state securities laws, (C) notices or filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “ HSR Act ”) and (D) such filings, approvals and authorizations as may be required pursuant to applicable antitrust or competition laws of any foreign Governmental Entity (the “ Foreign Antitrust Approvals ”).

(d)    SEC Documents; Financial Statements; Regulatory Reports; Undisclosed Liabilities . (i)  Berry Plastics Holding Corporation has filed all required reports, schedules, registration statements and other documents with the SEC since January 10, 2007 (the “ Berry SEC Documents ”). As of their respective dates of filing with the SEC (or, if amended or superseded by a filing prior to the date hereof, as of the date of such filing), the Berry SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act of 1934, as amended (the “ Exchange Act ”), as the case may be, and the rules and regulations of the SEC thereunder applicable to such Berry SEC Documents, and none of the Berry SEC Documents when filed contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of Berry included in the Berry SEC Documents complied as to form, as of their respective dates of filing with the SEC, in all material respects with all applicable accounting requirements and with the published rules and regulations of the SEC with respect thereto (except, in the case of unaudited statements, as permitted by Form 10-Q of the SEC), have been prepared in accordance with generally accepted accounting principles applied on a consistent basis during the periods involved (except as may be disclosed therein) and fairly present in all material respects the consolidated financial position of Berry and its consolidated Subsidiaries and the consolidated results of operations, changes in stockholders’ equity and cash flows of such companies as of the dates and for the periods shown.

(ii)    Other than the Berry SEC Documents, which are addressed in clause (i) above, Berry and each of its Subsidiaries have timely filed all reports, registrations and statements, together with any amendments required to be made with respect thereto, that they were required to file since September 20, 2006 with any Governmental Entity, and have paid all fees and assessments due and payable in connection therewith, except where the failure to file such report, registration or statement or to pay such fees and assessments is not reasonably likely to have, either individually or in the aggregate, a material adverse effect on Berry.

(iii)    Except for (A) those liabilities that are fully reflected or reserved for in the consolidated financial statements of Berry included in its Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2006, as filed with the SEC prior to the date of this Agreement, (B) liabilities incurred since September 30, 2006, in the ordinary course of business consistent with past practice, and (C) liabilities which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Berry, Berry and its Subsidiaries do not have, and since September 30, 2006, Berry and its Subsidiaries have not incurred (except as permitted by Section 4.1), any liabilities or obligations of any nature whatsoever (whether accrued, absolute, contingent or otherwise and whether or not required to be reflected in Berry’s financial statements in accordance with generally accepted accounting principles).

(e)    Information Supplied . None of the information supplied or to be supplied by Berry for inclusion or incorporation by reference in the Joint Information Statement   will, at the date of mailing to stockholders in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Joint Information Statement will comply as to form in all material respects with the requirements of the DGCL, except that no representation or warranty is made by Berry with respect to statements made or incorporated by reference therein based on information supplied by Covalence for inclusion or incorporation by reference in the Joint Information Statement.

(f)    Compliance with Applicable Laws and Reporting Requirements . (i) Berry and its Subsidiaries hold all permits, licenses, variances, exemptions, orders and approvals of all Governmental Entities which are material to the operation of the businesses of Berry and its Subsidiaries, taken as a whole (the “ Berry Permits ”), and Berry and its Subsidiaries are in compliance with the terms of the Berry Permits and all applicable laws and regulations, except where the failure so to hold or comply, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on Berry. The businesses of Berry and its Subsidiaries are not being conducted in violation of any law, ordinance or regulation of any Governmental Entity (including but not limited to the Sarbanes-Oxley Act of 2002 and the USA PATRIOT Act of 2001), except for possible violations which, individually or in the aggregate, do not have, and would not reasonably be expected to have, a material adverse effect on Berry. To the knowledge of Berry, no investigation by any Governmental Entity with respect to Berry or any of its Subsidiaries is pending or threatened, other than, in each case, those the outcome of which, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on Berry.

(ii)    The records, systems, controls, data and information of Berry and its Subsidiaries are recorded, stored, maintained and operated under means (including any electronic, mechanical or photographic process, whether computerized or not) that are under the exclusive ownership and direct control of Berry or its Subsidiaries or accountants (including all means of access thereto and therefrom), except for any non-exclusive ownership and non-direct control that would not reasonably be expected to have a materially adverse effect on the system of internal accounting controls described in the following sentence. Berry and its Subsidiaries have devised and maintain a system of internal accounting controls sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements in accordance with generally accepted accounting principles. Berry (A) has designed disclosure controls and procedures to ensure that material information relating to Berry, including its consolidated Subsidiaries, is made known to the management of Berry by others within those entities, and (B) has disclosed, based on its most recent evaluation prior to the date hereof, to Berry’s auditors and the audit committee of Berry’s Board of Directors (1) any significant deficiencies in the design or operation of internal controls which could adversely affect in any material respect Berry’s ability to record, process, summarize and report financial data and have identified for Berry’s auditors any material weaknesses in internal controls and (2) any fraud, whether or not material, that involves management or other employees who have a significant role in Berry’s internal controls. Berry has made available to Covalence a summary of any such disclosure made by management to Berry’s auditors and audit committee since September 30, 2006.

(g)    Legal Proceedings . There is no suit, action, investigation or proceeding (whether judicial, arbitral, administrative or other) pending or, to the knowledge of Berry, threatened, against or affecting Berry or any Subsidiary of Berry as to which there is a significant possibility of an adverse outcome which would, individually or in the aggregate, have a material adverse effect on Berry, nor is there any judgment, decree, injunction, rule or order of any Governmental Entity or arbitrator outstanding against Berry or any Subsidiary of Berry having or which would reasonably be expected to have, individually or in the aggregate, a material adverse effect on Berry or on the Surviving Corporation.

(h)    Taxes . Except as would not reasonably be expected to have a material adverse effect: (i) Berry and each of its Subsidiaries have filed all tax returns required to be filed by any of them and have paid (or Berry has paid on their behalf), or have set up an adequate reserve for the payment of, all taxes required to be paid as shown on such returns, and the most recent financial statements contained in the Berry SEC Documents reflect an adequate reserve, in accordance with generally accepted accounting principles, for all taxes payable by Berry and its Subsidiaries accrued through the date of such financial statements; and (ii) no deficiencies or other claims for any taxes have been proposed, asserted or assessed against Berry or any of its Subsidiaries that are not adequately reserved for. For the purpose of this Agreement, the term “ tax ” (including, with correlative meaning, the terms “ taxes ” and “ taxable ”) shall mean (I) all federal, state, local and foreign income, profits, franchise, gross receipts, payroll, sales, employment, use, property, withholding, excise, occupancy and other taxes, duties or assessments of any nature whatsoever, together with all interest, penalties and additions imposed with respect to such amounts, (II) liability for the payment of any amounts of the type described in clause (I) as a result of being or having been a member of an affiliated, consolidated, combined or unitary group, and (III) liability for the payment of any amounts as a result of being party to any tax sharing agreement or as a result of any express or implied obligation to indemnify any other person with respect to the payment of any amounts of the type described in clause (I) or (II). Neither Berry nor any of its Subsidiaries has taken any action or knows of any fact, agreement, plan or other circumstance that is reasonably likely to prevent the Merger or the Operating Company Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

(i)    Certain Agreements . Except for this Agreement, neither Berry nor any of its Subsidiaries is a party to or bound by any contract, arrangement, commitment or understanding (i) with respect to the employment of any directors or executive officers, or with any consultants that are natural persons, involving the payment of $5 million or more per annum, (ii) which is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC), (iii) which limits the ability of Berry or any of its Subsidiaries to compete in any line of business, in any geographic area or with any person, or which requires referrals of

 

business or requires Berry or any of its affiliates to make available investment opportunities to any person on a priority, equal or exclusive basis, and in each case which limitation or requirement would reasonably be expected to be material to Berry and its Subsidiaries taken as a whole, (iv) with or to a labor union or guild (including any collective bargaining agreement), (v) in the case of a Berry Benefit Plan, any of the benefits of which will be increased, or the vesting of the benefits of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement, or the value of any of the benefits of which will be calculated on the basis of any of the transactions contemplated by this Agreement, or (vi) which would prohibit or delay the consummation of any of the transactions contemplated by this Agreement. Berry has previously made available to Covalence complete and accurate copies of each contract, arrangement, commitment or understanding of the type described in this Section 3.1(i) (collectively referred to herein as the “ Berry Contracts ”). All of the Berry Contracts are valid and in full force and effect, except to the extent they have previously expired in accordance with their terms or if the failure to be in full force and effect, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on Berry. Neither Berry nor any of its Subsidiaries has, and to the knowledge of Berry, none of the other parties thereto have, violated any provision of, or committed or failed to perform any act, and no event or condition exists, which with or without notice, lapse of time or both would constitute a default under the provisions of, any Berry Contract, except in each case for those violations and defaults which, individually or in the aggregate, would not reasonably be expected to result in a material adverse effect on Berry.

(j)    Benefit Plans . (i) With respect to each employee benefit plan (including, without limitation, any “ employee benefit plan, ” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ ERISA ”), including, without limitation, multiemployer plans within the meaning of ERISA Section 3(37)) and all stock purchase, stock option, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and other material employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, whether formal or informal, oral or written, legally binding or not (all the foregoing being herein called “ Benefit Plans ”), under which any employee or former employee of Berry or any of its Subsidiaries has any present or future right to benefits, maintained or contributed to by Berry or any of its Subsidiaries or under which Berry or any of its Subsidiaries has any present or future liability (the “ Berry Benefit Plans ”), Berry has made available, or within 30 days after the execution hereof will make available upon request, to Covalence a true and correct copy of (A) the most recent annual report (Form 5500) filed with the IRS, (B) such Berry Benefit Plan, (C) each trust agreement relating to such Berry Benefit Plan, (D) the most recent summary plan description for each Berry Benefit Plan for which a summary plan description is required by ERISA, (E) the most recent actuarial report or valuation relating to a Berry Benefit Plan subject to Title IV of ERISA and (F) the most recent determination letter issued by the IRS with respect to any Berry Benefit Plan qualified under Section 401(a) of the Code.

(ii)    Except as would not reasonably be expected, individually or in the aggregate, to have a material adverse effect on Berry or any of its Subsidiaries or, following the Effective Time, the Surviving Corporation, with respect to each Berry Benefit Plan, Berry and its Subsidiaries have complied, and are now in compliance, in all material respects, with all provisions of ERISA, the Code and all laws and regulations applicable to such Berry Benefit Plans and each Berry Benefit Plan has been administered in all material respects in accordance with its terms.

(iii)    No Berry Benefit Plan exists that could result in the payment to any present or former employee of Berry or any Subsidiary of Berry of any money or other property or accelerate or provide any other rights or benefits to any present or former employee of Berry or any Subsidiary of Berry as a result of the transactions contemplated by this Agreement whether or not such payment would constitute a parachute payment within the meaning of Code Section 280G.

(k)    Subsidiaries . All of the shares of capital stock of each of the Subsidiaries held by Berry or by another Berry Subsidiary are fully paid and nonassessable and are owned by Berry or a Subsidiary of Berry free and clear of any claim, lien or encumbrance.

(l)    Agreements with Regulators . Neither Berry nor any Subsidiary of Berry is a party to any written agreement, consent decree or memorandum of understanding with, or a party to any commitment letter or similar undertaking to, or is subject to any cease-and-desist or other order or directive by, or is a recipient of any extraordinary supervisory letter from, or has adopted any policies, procedures or board resolutions at the request of, any Governmental Entity which restricts materially the conduct of its business, or in any manner relates to its capital adequacy, its credit or risk management policies or its management, nor has Berry been advised by any Governmental Entity that it is contemplating issuing or requesting (or is considering the appropriateness of issuing or requesting) any such agreement, decree, memorandum of understanding, extraordinary supervisory letter, commitment letter, order, directive or similar submission, or any such policy, procedure or board resolutions.

(m)    Absence of Certain Changes or Events . Except as disclosed in the Berry SEC Documents filed prior to the date of this Agreement or, in the case of actions taken after the date hereof, except as permitted by Section 4.1, since December 31, 2005, (i) Berry and its Subsidiaries have conducted their respective businesses in the ordinary course consistent with their past practices and (ii) there has not been any change, circumstance or event which has had, or would reasonably be expected to have, a material adverse effect on Berry.

(n)    Board Approval . The Board of Directors of Berry, by resolutions duly adopted at a meeting duly called and held (the “ Berry Board Approval ”), has (i) determined that the Merger and the other transactions contemplated by this Agreement are fair to and in the best interests of Berry and its stockholders, (ii) declared to be advisable the Merger Agreement and the transactions contemplated by this Agreement, including the Merger and (iii) recommended that the stockholders of Berry adopt this Agreement and approve the Merger and the other transactions contemplated by this Agreement. The Berry Board Approval constitutes approval of this Agreement and the Merger for purposes of Section 203 of the DGCL such that no additional stockholder approval (other than the Required Berry Vote (as defined in Section 3.1(o)) shall be required pursuant to such Article to consummate the Merger and the other transactions contemplated by this Agreement. To the knowledge of Berry, except for Section 203 of the DGCL (which has been rendered inapplicable), no state takeover statute is applicable to this Agreement, the Merger or the other transactions contemplated hereby.

(o)    Vote Required . The affirmative vote of the holders of a majority of the outstanding shares of Berry Common Stock to adopt this Agreement (the “ Required Berry Vote ”) is the only vote of the holders of any class or series of Berry capital stock necessary to approve and adopt this Agreement and the transactions contemplated hereby (including the Merger). On the date hereof, Berry will obtain valid written consents of a sufficient number of holders of Berry Common Stock in favor of the foregoing matters

(p)    Properties . Except as set forth in the Berry Disclosure Schedule, Berry or one of its Subsidiaries (i) has good and marketable title to all the properties and assets reflected in the latest audited balance sheet included in such Berry SEC Documents as being owned by Berry or one of its Subsidiaries or acquired after the date thereof which are material to Berry’s business on a consolidated basis (except properties sold or otherwise disposed of since the date thereof in the ordinary course of business), free and clear of all claims, liens, charges, security interests or encumbrances of any nature whatsoever, except (A) statutory liens securing payments not yet due, (B) liens on assets of Subsidiaries of Berry incurred in the ordinary course of their business and (C) such imperfections or irregularities of title, claims, liens, charges, security interests or encumbrances as do not materially affect the use of the properties or assets subject thereto or affected thereby or otherwise materially impair business operations at such properties, and (ii) is the lessee of all leasehold estates reflected in the latest audited financial statements included in such Berry SEC Documents or acquired after the date thereof which are material to its business on a consolidated basis (except for leases that have expired by their terms since the date thereof) and is in possession of the properties purported to be leased thereunder, and each such lease is valid without default thereunder by the lessee or, to Berry’s knowledge, the lessor, except in the case of clauses (i) and (ii) above as would not reasonably be expected to have a material adverse effect on Berry.

(q)    Intellectual Property . Berry and its Subsidiaries own or have a valid license to use all trademarks, service marks and trade names (including any registrations or applications for registration of any of the foregoing) (collectively, the “ Berry Intellectual Property ”) necessary to carry on their business substantially as currently conducted, except where such failures to own or validly license such Berry Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Berry. Neither Berry nor any such Subsidiary has received any notice of infringement of or conflict with, and to Berry’s knowledge, there are no infringements of or conflicts with, the rights of others with respect to the use of any Berry Intellectual Property that individually or in the aggregate, in either such case, would reasonably be expected to have a material adverse effect on Berry.

(r)    Brokers or Finders . No agent, broker, investment banker, financial advisor or other firm or person is or will be entitled to any broker’s or finder’s fee or any other similar commission or fee in connection with any of the transactions contemplated by this Agreement (including, without limitation, Apollo Management VI, L.P. ), except Murray, Devine & Co., Inc.

(s)    Opinion of Berry Financial Advisor . Berry has received the opinion of its financial advisor, Murray, Devine & Co., Inc., dated the date of this Agreement, to the effect that the Berry Common Stock Exchange Ratio is fair, from a financial point of view, to Berry and the holders of Berry Common Stock.