As filed with the Securities and Exchange Commission on June 9,
2022
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 Corporation (bry)
(Exact name of registrant as specified in its charter)
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Delaware
(State
or other jurisdiction of
incorporation or organization)
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81-5410470
(I.R.S.
Employer
Identification No.)
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16000 N. Dallas Parkway,
Suite 500
Dallas, Texas
(Address
of Principal Executive Office)
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75248
(Zip
Code)
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Berry Corporation (bry) 2022 Omnibus Incentive Plan
(Full title of the plan)
Danielle Hunter
Executive Vice President, General Counsel and Corporate
Secretary
16000 N. Dallas Parkway,
Suite 500
Dallas, Texas 75248
(Name and address of agent for service)
(661) 616-9300
(Telephone
number, including area code, of agent for service)
Copies to:
Matthew R. Pacey, P.C.
Kirkland & Ellis LLP
609 Main Street
Houston, Texas 77002
(713) 836-3600
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See
the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☐
Emerging growth company
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Non-accelerated filer
☐
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Accelerated filer ☒
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Smaller reporting company
☐
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the
Securities Act.
☐
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
On March 1, 2022, the Board of Directors of Berry Corporation (bry)
(the “Registrant”) approved the Berry Corporation (bry) 2022
Omnibus Incentive Plan (the “2022 Plan”), which was subsequently
approved by the Registrant’s stockholders on May 25, 2022. The 2022
Plan authorizes for issuance a total of 2,300,000 shares of common
stock, par value $0.001 per share, of the Registrant (the “Common
Stock”) (registered concurrently by the Registrant on this
Registration Statement on Form S-8 (this “Registration Statement”)
on the date hereof.
The Registrant will send or give all participants in the 2022 Plan
document(s) containing the information required by Part I of Form
S-8, as specified in Rule 428(b)(1) promulgated by the Securities
and Exchange Commission (the “Commission”) under the Securities Act
of 1933 (the “Securities Act”). Such documents are not required to
be, and are not, filed with the Commission, either as part of this
Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 under the Securities Act. These documents, and
the documents incorporated by reference in 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.
Item 2. Registrant Information and Employee
Plan Annual Information.
The written statement required by Item 2 of Part I is included in
documents that will be delivered to participants in the 2022 Plan
covered by this Registration Statement pursuant to Rule 428(b) of
the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation
of Documents by Reference.
Except to the extent that information is deemed furnished and not
filed pursuant to securities laws and regulations, the Registrant
hereby incorporates by reference into this Registration Statement
the following documents:
(a) the Registrant’s Annual Report on Form
10-K for the fiscal year ended December 31, 2021, filed with the
Commission on March 4, 2022;
(b) the Registrant's Quarterly Report on
Form 10-Q for the quarter ended March 31, 2022, filed with the
Commission on May 4, 2022;
(c) the Registrant's Definitive Proxy
Statement on Schedule 14A filed with the Commission on April 7,
2022;
(d) the Current Reports on Form 8-K filed
with the Commission on March 18, 2022, April 12, 2022, May 26,
2022, and June 1, 2022; and
(e) the description of the Common Stock
contained in the Registrant’s Form 8-A filed with the Commission on
July 24, 2018, as updated by Exhibit 4.4 to the Registrant’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2021,
filed with the Commission on March 4, 2022, and including any
amendment or report filed for the purpose of updating such
description.
Except to the extent that information is deemed furnished and not
filed pursuant to securities laws and regulations, all documents
filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the “Exchange
Act”), as amended, prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold
or that deregisters all securities then remaining unsold shall also
be deemed to be incorporated by reference herein and to be a part
hereof from the dates of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein 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. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of
Securities.
Not applicable.
Item 5. Interests of Named Experts and
Counsel.
Not applicable.
Item 6. Indemnification of Directors and
Officers.
The Registrant’s Second Amended and Restated Certificate of
Incorporation, as amended (the “Certificate of Incorporation”)
provides that no director shall be personally liable to the
Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any
breach of the director’s duty of loyalty to the Registrant or its
stockholders, (ii) for any act or omission not in good faith or
which involves intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation
Law (the “DGCL”) or (iv) for any transaction from which the
director derived an improper personal benefit. The effect of this
provision is to eliminate the Registrant’s and its stockholders’
rights, through stockholders’ derivative suits on the Registrant’s
behalf, to recover monetary damages against a director for certain
breaches of fiduciary duty as a director.
Any amendment, repeal or modification of these provisions will be
prospective only and would not affect any limitation on liability
of a director for acts or omissions that occurred prior to any such
amendment, repeal or modification.
Under Section 145 of the DGCL, a Delaware corporation has the
power, under specified circumstances, to indemnify its directors,
officers, employees and agents in connection with actions, suits or
proceedings, whether civil, criminal or administrative, brought
against them by a third party or in the right of the corporation,
by reason that they were or are such directors, officers, employees
or agents, against expenses and liabilities incurred in any such
action, suit or proceeding so long as they acted in good faith and
in a manner that they reasonably believed to be in, or not opposed
to, the best interests of such corporation, and with respect to any
criminal action, that they had no reasonable cause to believe their
conduct was unlawful. With respect to suits by or in the right of
such corporation, however, indemnification is generally limited to
attorneys’ fees and other expenses and is not available if such
person is adjudged to be liable to such corporation unless the
court determines that indemnification is appropriate. A Delaware
corporation also has the power to purchase and maintain insurance
for such persons. The statute provides that it is not exclusive of
other indemnification that may be granted by a corporation’s
certificate of incorporation, bylaws, disinterested director vote,
stockholder vote, agreement or otherwise.
Section 102(b)(7) of the DGCL provides that a certificate of
incorporation may contain a provision eliminating or limiting the
personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director provided that such provisions may 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
(relating to liability for unauthorized acquisitions or redemptions
of, or dividends on, capital stock) of the DGCL, or (iv) for any
transaction from which the director derived an improper personal
benefit. Article 9 of the Registrant’s Certificate of Incorporation
limits its directors’ personal liability to the fullest extent
permitted by the DGCL. Article 10 of the Certificate of
Incorporation provides that the Registrant will indemnify any
director or officer who was or is a party or is threatened to be
made a party to or is involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “proceeding”), by reason of the
fact that he or she is or was a director or officer of the
Registrant or is or was serving at the request of the Registrant as
a director, officer, manager, employee or agent of another
corporation or of a limited liability company, partnership, joint
venture, trust or other enterprise, except that the Registrant will
indemnify any such person seeking indemnification in connection
with a proceeding initiated by that person, only if that proceeding
was authorized by the board of directors. The right to
indemnification includes the right to be paid the expenses incurred
in defending any such proceeding in advance of its final
disposition.
The Registrant has also entered into indemnification agreements
with each of its directors and officers which provide contractual
rights to indemnity and expense advancement and include related
provisions meant to facilitate the indemnitees’ receipt of such
benefits. Under these indemnification agreements, the Registrant
must maintain directors and officers insurance. The terms of the
indemnification agreements provide that the Registrant will
indemnify the officers and directors against all losses that occur
as a result of the indemnitee’s corporate status, including,
without limitation, all liability arising out of the sole,
contributory, comparative or other negligence, or active or passive
wrongdoing of the indemnitee. Except as otherwise provided in the
indemnification agreements, the only limitation that exists upon
the Registrant’s indemnification obligations pursuant to the
agreements is that
the Registrant is not obligated to make any payment to an
indemnitee that is finally adjudged to be prohibited by applicable
law. Under the indemnification agreements, the Registrant also
agrees to pay all expenses for which it may be jointly liable with
an indemnitee and to waive any potential right of contribution the
Registrant might otherwise have. Further, the Registrant agrees to
advance expenses to indemnitees in connection with proceedings
brought as a result of the indemnitee’s corporate
status.
The above discussion of the Certificate of Incorporation,
indemnification agreements with the Registrant’s officers and
directors, and Sections 102(b)(7) and 145 of the DGCL is not
intended to be exhaustive and is qualified in its entirety by such
Certificate of Incorporation, indemnification agreements, and
statutes.
The Registrant currently maintains an insurance policy which,
within the limits and subject to the terms and conditions thereof,
covers certain expenses and liabilities that may be incurred by
directors and officers in connection with proceedings that may be
brought against them as a result of an act or omission committed or
suffered while acting as a director or officer.
Item 7. Exemption from Registration
Claimed.
Not applicable.
Item 8.
Exhibits.
The exhibits to this Registration Statement are listed in the
Exhibit Index to this Registration Statement, which immediately
precedes such exhibits and is incorporated herein by
reference.
Item 9.
Undertakings.
The undersigned Registrant hereby undertakes:
(a) 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% 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)(i) and (a)(ii) do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic 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 this Registration Statement.
(b) 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;
and
(c) 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.
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.
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 of 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.
EXHIBIT INDEX
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Exhibit |
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Number |
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Description |
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4.1 |
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4.2 |
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4.3 |
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4.4 |
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4.5 |
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4.6 |
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4.7 |
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4.8* |
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5.1* |
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23.1* |
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23.2* |
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23.3* |
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24.1* |
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107* |
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*Filed herewith.
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
Dallas, State of Texas, on June 9, 2022.
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BERRY CORPORATION (bry)
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By: |
/s/ A. T. “Trem” Smith |
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Name: |
A. T. “Trem” Smith |
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Title |
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below authorizes and appoints A.T. Smith, Cary
Baetz and Danielle Hunter and each of them, either of whom may act
without the joinder of the other, as such person’s true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for such person and in such person’s name, place
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully and to all intents and
purposes as such person might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact or agents,
or their substitute or substitutes, each acting alone, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement and the above Power of Attorney have been
signed below by the following persons in the capacities indicated
on June 9, 2022.
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Name |
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Position |
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/s/ A. T. “Trem” Smith
A. T. “Trem” Smith
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ Cary Baetz
Cary Baetz
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Executive Vice President, Chief Financial Officer and
Director
(Principal Financial Officer)
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/s/ Michael Helm
Michael Helm
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Chief Accounting Officer
(Principal Accounting Officer)
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/s/ Renée Hornbaker
Renée Hornbaker
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Director |
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/s/ Anne Mariucci
Anne Mariucci
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Director
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/s/ Donald Paul
Donald Paul
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Director
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/s/ Rajath Shourie
Rajath Shourie
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Director
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