As filed with the Securities and Exchange Commission on September
1, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Berry Corporation (bry) |
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(Exact Name of Registrant as Specified in its Charter) |
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Delaware |
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81-5410470 |
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(State or other Jurisdiction of Incorporation or
Organization) |
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(I.R.S. Employer
Identification Number) |
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16000 N. Dallas Parkway, Suite 500, Dallas, Texas
75248
(661) 616-3900
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(Address, including Zip Code, and Telephone Number, Including Area
Code, of Registrant’s Principal Executive Offices) |
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A. T. (Trem) Smith
President, Chief Executive Officer and Board Chair
16000 N. Dallas Parkway, Suite 500, Dallas, Texas
75248
(661) 616-3900
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(Name, Address, including Zip Code, and Telephone Number, including
Area Code, of Agent for Service) |
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Copies to: |
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Sarah K. Morgan
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2500
Houston, Texas 77002-6760
(713) 758-2222
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Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this registration
statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box:
☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in
connection with dividend or interest reinvestment plans, check the
following box:
☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering.
☐
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box.
☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box.
☐
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 ☐ |
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Accelerated filer ☒ |
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Non-accelerated filer ☐ |
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Smaller reporting company ☐ |
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Emerging Growth 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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The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the Registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be
changed. The securities described herein may not be sold until the
registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
these securities, and it is not soliciting an offer to buy these
securities, in any state or jurisdiction where the offer or sale is
not permitted.
Subject to Completion, dated September 1, 2022
Berry Corporation (bry)
$500,000,000
Common Stock
Preferred Stock
Debt Securities
At the time of filing we have no current plans to do so, however,
from time to time in one or more offerings, we may offer and sell
(i) common stock, (ii) preferred stock and (iii) debt securities
issued by Berry Corporation (bry) (“Berry Corp.”) . We refer to the
common stock, the preferred stock and the debt securities
collectively as the “securities.” The aggregate initial offering
price of all securities sold by us under this prospectus will not
exceed $500,000,000.
We may offer and sell these securities on a delayed or continuous
basis to or through one or more underwriters, dealers or agents, or
directly to investors, in amounts, at prices and on terms to be
determined by market conditions and other factors at the time of
the offering. This prospectus describes only the general terms of
these securities and the general manner in which we may offer these
securities. The specific terms of any securities we offer will, if
not included in this prospectus or information incorporated by
reference herein, be included in a supplement to this prospectus.
The prospectus supplement may describe the specific manner in which
we will offer these securities and also may add, update or change
information contained in this prospectus.
We may amend or supplement this prospectus from time to time by
filing amendments or supplements as required. You should read this
entire prospectus, including the documents incorporated by
reference, and any amendments or supplements carefully before you
make your investment decision.
Our common stock is listed on the Nasdaq Global Select Market (the
“NASDAQ”) under the symbol “BRY.” We will provide information in
the related prospectus supplement for the trading market, if any,
for any other securities that may be offered.
Investing in our securities involves risks. Please see “Risk
Factors” beginning on page
2
of this prospectus
Neither the Securities and Exchange Commission (“SEC”) nor any
state securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is
, 2022
TABLE OF CONTENTS
You should rely only on the information contained in this
prospectus, any prospectus supplement and the documents we have
incorporated by reference in this prospectus or any prospectus
supplement. We have not authorized anyone to provide you with
information different from that contained in this prospectus, any
prospectus supplement or any free writing prospectus. We take no
responsibility for, and can provide no assurance as to the
reliability of, any other information that others may give you. We
are offering to sell these securities only in jurisdictions where
offers and sales are permitted. The information in this prospectus
or any prospectus supplement is accurate only as of the date of
this prospectus or such prospectus supplement, regardless of the
time of delivery of this prospectus, any prospectus supplement or
any sale of the securities. We will disclose any material changes
in our affairs in an amendment to this prospectus, a prospectus
supplement or a future filing with the SEC incorporated by
reference in this prospectus or any prospectus
supplement.
ABOUT THIS PROSPECTUS
Additional information, including our financial statements and the
notes thereto, is incorporated in this prospectus by reference to
our reports filed with the SEC. Please read “Where You Can Find
More Information” below. You are urged to read this prospectus
carefully, including “Risk Factors,” “Cautionary Note Regarding
Forward-Looking Statements,” and the documents incorporated by
reference in their entirety before investing in our
securities.
When we use the terms “we,” “us,” “our,” the “Company,” or similar
words in this prospectus, unless the context otherwise requires, we
are referring to Berry Corp. and its subsidiary, Berry Petroleum
Company, LLC (“Berry LLC”), and as of October 1, 2021 this also
includes C&J Well Services, LLC (“CJWS”) and CJ Berry Well
Services Management, LLC (“C&J Management”).
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on Form S-3
(including the exhibits, schedules and amendments thereto) under
the Securities Act, with respect to the securities that may be
offered hereby. This prospectus does not contain all of the
information set forth in the registration statement and the
exhibits and schedules thereto. For further information with
respect to the securities offered hereby, we refer you to the
registration statement and the exhibits and schedules filed
therewith. Statements contained in this prospectus as to the
contents of any contract, agreement or any other document are
summaries of the material terms of such contract, agreement or
other document and are not necessarily complete. With respect to
each of these contracts, agreements or other documents filed as an
exhibit to the registration statement, reference is made to the
exhibits for a more complete description of the matter
involved.
We are required to file annual and quarterly reports and other
information with the SEC. The SEC maintains a website that contains
reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC. The
address of the SEC’s website is www.sec.gov.
We maintain an Internet site at
www.bry.com.
We do not incorporate our Internet site, or the information
contained on that site or connected to that site, into this
prospectus or this registration statement.
We make available free of charge on our website, all materials that
we have filed electronically with the SEC, including our Annual
Reports on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K, Section 16 reports, proxy statements for our
annual and special stockholder meetings and amendments to these
reports as soon as reasonably practicable after such materials are
electronically filed with, or furnished to, the SEC. Our filings
will also be available to the public from commercial document
retrieval services.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by reference” the information we
file with the SEC. This means we can disclose important information
to you without actually including the specific information in this
prospectus by referring to those documents. The information
incorporated by reference is an important part of this
prospectus.
If information in incorporated documents conflicts with information
in this prospectus, you should rely on the most recent information.
If information in an incorporated document conflicts with
information in another incorporated document, you should rely on
the most recent incorporated document.
We incorporate by reference the documents listed below, any
documents we may file pursuant to the Securities Exchange Act of
1934 (the “Exchange Act”) after the date of the filing of the
registration statement of which this prospectus forms a part and
prior to the effectiveness of the registration statement and any
future filings made with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Exchange Act, excluding any information furnished and
not filed with the SEC, from the date of this prospectus until the
termination of each offering under this prospectus:
•our
Current Reports on Form 8-K filed on
March 18, 2022,
April 12, 2022,
May 26, 2022,
June 1, 2022,
June 9, 2022
and
August 3, 2022
(in each case, excluding any information furnished and not filed
pursuant to Item 2.02 or 7.01 or corresponding information
furnished under Item 9.01 or included as an exhibit);
and
•the
description of our common stock contained in our registration
statement on
Form 8-A, filed on July 24, 2018,
including any amendments or reports filed for the purpose of
updating such description.
You may request a copy of any document incorporated by reference in
this prospectus, at no cost, by writing or calling us at the
following address:
Berry Corporation (bry)
16000 N. Dallas Parkway, Suite 500
Dallas, Texas 75248
(661) 616-3900
Attention: Investor Relations
You should rely only on the information incorporated by reference
or provided in this prospectus. We have not authorized anyone else
to provide you with any information. You should not assume that the
information incorporated by reference or provided in this
prospectus is accurate as of any date other that the date on the
front of each document.
ABOUT BERRY CORPORATION (BRY)
Our Company
We are a western United States independent upstream energy company
with a focus on onshore, low geologic risk, long-lived conventional
oil and gas reserves in the San Joaquin basin of California and the
Uinta basin of Utah, with well servicing and abandonment
capabilities in California. Since October 1, 2021, we have operated
in two business segments: (i) development and production
(“D&P”) and (ii) well servicing and abandonment.
Our Corporate Structure
Berry Corp. is a holding company that was incorporated as a
Delaware corporation in February 2017 for the purpose of
facilitating an initial public offering (“IPO”) of common equity
and to become the sole managing member of Berry LLC. On October 1,
2021, we completed the acquisition of one of the largest upstream
well servicing and abandonment businesses in California, which
operates as CJWS and now constitutes our well servicing and
abandonment segment.
As the sole member of each of Berry LLC, CJWS and C&J
Management (together, the “Subsidiaries”), Berry Corp. operates and
controls all of the business and affairs of the Subsidiaries and,
through the Subsidiaries, conducts our business. Berry Corp.
consolidates the financial results of the Subsidiaries. Berry Corp.
has no independent assets or operations and its principal assets
are controlling equity interests in Berry LLC, C&J Management
and CJWS.
Corporate Information
Berry Corp.’s principal executive office is located at 16000 N.
Dallas Pkwy, Ste. 500, Dallas, Texas 75248 and our telephone number
at that address is (661) 616-3900. Our web address is
www.bry.com.
Information contained in or accessible through our website is not,
and should not be deemed to be, part of this
prospectus.
RISK FACTORS
An investment in our securities involves a significant degree of
risk. You should carefully consider the risk factors and all of the
other information included in this prospectus and the documents we
have incorporated by reference into this prospectus, including
those under the heading “Risk Factors” in our most recent Annual
Report on Form 10-K and any subsequently filed Quarterly Reports on
Form 10-Q and Current Reports on Form 8-K, before making an
investment decision. Any of these risks and uncertainties could
have a material adverse effect on our business, production, growth
plans, reserves quantities or value, operating or capital costs,
financial condition, results of operations and our ability to meet
our capital expenditure plans and other obligations and financial
commitments.
The risks included in this prospectus and the documents we have
incorporated by reference into this prospectus are not the only
risks we face. We may experience additional risks and uncertainties
not currently known to us, or as a result of developments occurring
in the future. Conditions that we currently deem to be immaterial
may also have material adverse effects similar to those noted
above.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
The information included or incorporated by reference in this
prospectus or in any accompanying prospectus supplement includes
forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange
Act of 1934. All statements other than statements of historical
facts included in this prospectus that address plans, activities,
events, objectives, goals, strategies, or developments that the
Company expects, believes or anticipates will or may occur in the
future, such as those regarding our financial position, liquidity,
cash flows, financial and operating results, capital program and
development and production plans, operations and business strategy,
potential acquisition and other strategic opportunities, reserves,
hedging activities, capital expenditures, return of capital, our
shareholder return model and the payment of future dividends,
future repurchases of stock or debt, capital investments, our ESG
strategy and the initiation of new projects or business in
connection therewith, recovery factors, and other guidance, are
forward-looking statements. These statements are based upon various
assumptions, many of which are based, in turn, upon further
assumptions. Although we believe that these assumptions were
reasonable when made, these assumptions are inherently subject to
significant uncertainties and contingencies which are difficult or
impossible to predict and are beyond our control. Therefore, such
forward-looking statements involve significant risks and
uncertainties that could materially affect our expected financial
position, financial and operating results, liquidity, cash flows,
and business prospects. Actual results may differ from anticipated
results, sometimes materially, and reported results should not be
considered an indication of future performance. You can typically
identify forward-looking statements by words such as aim,
anticipate, achievable, believe, budget, continue, could, effort,
estimate, expect, forecast, goal, guidance, intend, likely, may,
might, objective, outlook, plan, potential, predict, project, seek,
should, target, will or would and other similar words that reflect
the prospective nature of events or outcomes. For any such
forward-looking statement that includes a statement of the
assumptions or bases underlying such forward-looking statement, we
caution that while we believe such assumptions or bases to be
reasonable and make them in good faith, assumed facts or bases
almost always vary from actual results, sometimes materially.
Material risks that may affect us are discussed above in “Risk
Factors” in this prospectus, in any applicable prospectus
supplement and in the documents incorporated by reference,
including our most recent Annual Report on Form 10-K.
Factors (but not necessarily all the factors) that could cause
results to differ include, among others:
•the
regulatory environment, including availability or timing of, and
conditions imposed on, obtaining and/or maintaining permits and
approvals, including those necessary for drilling and/or
development projects;
•the
impact of current, pending and/or future laws and regulations, and
of legislative and regulatory changes and other government
activities, including those related to permitting, drilling,
completion, well stimulation, operation, maintenance or abandonment
of wells or facilities, managing energy, water, land, greenhouse
gases or other emissions, protection of health, safety and the
environment, or transportation, marketing and sale of our
products;
•global
economic trends, geopolitical risks and general economic and
industry conditions;
•overall
domestic and global political and economic conditions;
•the
actions of foreign producers, importantly including OPEC+ and
changes in OPEC+'s production levels;
•volatility
of oil, natural gas and NGL prices;
•the
California and global energy future, including the factors and
trends that are expected to shape it, such as concerns about
climate change and other air quality issues, the transition to a
low-emission economy and the expected role of different energy
sources;
•supply
of and demand for oil, natural gas and NGLs;
•disruptions
to, capacity constraints in, or other limitations on the pipeline
systems that deliver our oil and natural gas and other processing
and transportation considerations;
•inability
to generate sufficient cash flow from operations or to obtain
adequate financing to fund capital expenditures, meet our working
capital requirements or fund planned investments;
•price
fluctuations and availability of natural gas and electricity and
the cost of steam;
•our
ability to use derivative instruments to manage commodity price
risk;
•our
ability to meet our planned drilling schedule and to successfully
drill wells that produce oil and natural gas in commercially viable
quantities;
•concerns
about climate change and other air quality issues;
•uncertainties
associated with estimating proved reserves and related future cash
flows;
•our
ability to replace our reserves through exploration and development
activities;
•drilling
and production results, lower-than-expected production, reserves or
resources from development projects or higher-than-expected decline
rates;
•our
ability to obtain timely and available drilling and completion
equipment and crew availability and access to necessary resources
for drilling, completing and operating wells;
•changes
in tax laws;
•effects
of competition;
•uncertainties
and liabilities associated with acquired and divested
assets;
•our
ability to make acquisitions and successfully integrate any
acquired businesses;
•market
fluctuations in electricity prices and the cost of
steam;
•asset
impairments from commodity price declines;
•large
or multiple customer defaults on contractual obligations, including
defaults resulting from actual or potential
insolvencies;
•geographical
concentration of our operations;
•the
creditworthiness and performance of our counterparties with respect
to our hedges;
•impact
of derivatives legislation affecting our ability to
hedge;
•failure
of risk management and ineffectiveness of internal
controls;
•catastrophic
events, including wildfires, earthquakes and
pandemics;
•environmental
risks and liabilities under federal, state, tribal and local laws
and regulations (including remedial actions);
•potential
liability resulting from pending or future litigation;
•our
ability to recruit and/or retain key members of our senior
management and key technical employees;
•information
technology failures or cyberattacks; and.
•governmental
actions and political conditions, as well as the actions by other
third parties that are beyond our control.
Any forward-looking statement speaks only as of the date on which
such statement is made. Except as required by law, we
undertake no responsibility to correct or update any
forward-looking statement, whether as a result of new information,
future events or otherwise.
All forward-looking statements, expressed or implied, included in
this prospectus are expressly qualified in their entirety by this
cautionary statement. This cautionary statement should also be
considered in connection with any subsequent written or oral
forward-looking statements that we or persons acting on our behalf
may issue.
USE OF PROCEEDS
Except as otherwise provided in an applicable prospectus
supplement, we will use the net proceeds we receive from the sale
of the securities covered by this prospectus for general corporate
purposes, which may include, among other things, the repayment or
refinancing of all or a portion of our debt, funding acquisitions
of assets or businesses and organic growth.
The actual application of proceeds we receive from any particular
offering of securities using this prospectus will be described in
the applicable prospectus supplement relating to such
offering.
DESCRIPTION OF DEBT SECURITIES
The debt securities covered by this prospectus (the “debt
securities”) will be general unsecured obligations of Berry Corp.
Berry Corp. will issue debt securities under an indenture to be
entered into with a trustee we will name in the prospectus
supplement relating to such securities, which we refer to in this
prospectus as the indenture.
We have summarized selected provisions of the indenture and the
debt securities below. This summary is not complete. We have filed
the form of indenture with the SEC as an exhibit to the
registration statement, and you should read the indenture for
provisions that may be important to you.
In this summary, unless we state otherwise or the context clearly
indicates otherwise, all references to “we,” “us” or “our” or “the
issuer” refer to Berry Corp.
General
The indenture does not limit the amount of debt securities that may
be issued under the indenture, and does not limit the amount of
other unsecured debt or securities that may be issued. The issuer
may issue debt securities under the indenture from time to time in
one or more series, each in an amount authorized prior to
issuance.
The debt securities will either constitute the issuer’s senior
unsecured indebtedness and will rank equally in right of payment
with all of the issuer’s other unsecured and unsubordinated debt
and senior in right of payment to all of the issuer’s subordinated
indebtedness, or constitute the issuer’s subordinated unsecured
indebtedness and will rank junior to all of the issuer’s senior
indebtedness and may rank equally with or senior to other
subordinated indebtedness the issuer may issue from time to time.
The debt securities will be effectively subordinated to, and thus
have a junior position to, the issuer’s secured indebtedness with
respect to the assets securing that indebtedness.
The indenture does not contain any covenants or other provisions
designed to protect holders of the debt securities in the event the
issuer participates in a highly leveraged transaction or upon a
change of control. The indenture also does not contain provisions
that give holders of the debt securities the right to require it to
repurchase their securities in the event of a decline in the
issuer’s credit rating for any reason, including as a result of a
takeover, recapitalization or similar restructuring or
otherwise.
Terms
The prospectus supplement relating to any series of debt securities
being offered will include specific terms relating to the offering.
These terms will include some or all of the following:
•the
guarantor of the debt securities, if any;
•whether
the debt securities will be senior or subordinated debt
securities;
•the
price at which the issuer will issue the debt
securities;
•the
title of the debt securities;
•the
total principal amount of the debt securities;
•whether
the issuer will issue the debt securities in individual
certificates to each holder or in the form of temporary or
permanent global securities held by a depositary on behalf of
holders;
•the
date or dates on which the principal of and any premium on the debt
securities will be payable;
•any
interest rate, the date from which interest will accrue, interest
payment dates and record dates for interest payments;
•whether
and under what circumstances the issuer will pay any additional
amounts with respect to the debt securities;
•the
place or places where payments on the debt securities will be
payable;
•any
provisions for optional redemption or early repayment;
•any
sinking fund or other provisions that would obligate the issuer to
redeem, purchase or repay the debt securities;
•the
denominations in which the issuer will issue the debt securities if
other than $1,000 and integral multiples of $1,000;
•whether
payments on the debt securities will be payable in foreign currency
or currency unit or another form and whether payments will be
payable by reference to any index or formula;
•the
portion of the principal amount of debt securities that will be
payable if the maturity is accelerated, if other than the entire
principal amount;
•any
additional means of defeasance of the debt securities, any
additional conditions or limitations to defeasance of the debt
securities or any changes to those conditions or
limitations;
•any
changes or additions to the events of default or covenants
described in this prospectus;
•any
restrictions or other provisions relating to the transfer or
exchange of debt securities;
•any
terms for the conversion or exchange of the debt securities for
other securities; and
•any
other terms of the debt securities not inconsistent with the
applicable indenture.
The issuer may sell the debt securities at a discount, which may be
substantial, below their stated principal amount. These debt
securities may bear no interest or interest at a rate that at the
time of issuance is below market rates. If the issuer sells these
debt securities, the issuer will describe in the prospectus
supplement any material United States federal income tax
consequences and other special considerations.
If the issuer sells any of the debt securities for any foreign
currency or currency unit or if payments on the debt securities are
payable in any foreign currency or currency unit, the issuer will
describe in the prospectus supplement the restrictions, elections,
tax consequences, specific terms and other information relating to
those debt securities and the foreign currency or currency
unit.
Events of Default
Unless the issuer informs you otherwise in the applicable
prospectus supplement, the following are events of default with
respect to a series of debt securities:
•failure
to pay interest on any debt security of that series for 30 days
when due;
•failure
to pay principal of or any premium on any debt security of that
series when due;
•failure
to deposit any sinking fund payment for 30 days when
due;
•failure
to comply with any agreement in that series of debt securities or
the indenture (other than an agreement or covenant that has been
included in the indenture solely for the benefit of other series of
debt securities) for 60 days after written notice by the trustee or
by the holders of at least 25% in principal amount of the
outstanding debt securities issued under the indenture that are
affected by that failure;
•specified
events involving bankruptcy, insolvency or reorganization of the
issuer; and
•any
other event of default provided for that series of debt
securities.
A default under one series of debt securities will not necessarily
be a default under any other series. If a default or event of
default for any series of debt securities occurs, is continuing and
is known to the trustee, the trustee will notify the holders of
applicable debt securities within 60 days after it occurs. The
trustee may withhold notice to the holders of the debt securities
of any default or event of default, except in any payment on the
debt securities, if the trustee in good faith determines that
withholding notice is in the interests of the holders of those debt
securities.
If an event of default for any series of debt securities occurs and
is continuing, the trustee or the holders of at least 25% in
principal amount of the outstanding debt securities of the series
affected by the default (or, in some cases, 25% in principal amount
of all debt securities issued under the indenture that are
affected, voting as one class) may declare the principal of and all
accrued and unpaid interest on those debt securities to be due and
payable immediately. If an event of default relating to certain
events of bankruptcy, insolvency or reorganization of the issuer
occurs, the principal of and accrued and unpaid interest on all the
debt securities issued under the indenture will become immediately
due and payable without any action on the part of the trustee or
any holder. At any time after a declaration of acceleration has
been made, the holders of a majority in principal amount of the
outstanding
debt securities of the series affected by the default (or, in some
cases, of all debt securities issued under the indenture that are
affected, voting as one class) may in some cases rescind this
accelerated payment requirement and its consequences.
A holder of a debt security of any series issued under the
indenture may pursue any remedy under the indenture only
if:
•the
holder has previously given to the trustee written notice of a
continuing event of default with respect to such
series;
•the
holders of at least 25% in principal amount of the outstanding debt
securities of that series make a written request to the trustee to
pursue the remedy;
•the
holders offer to the trustee indemnity satisfactory to the trustee
against any loss, liability or expense;
•during
that 60-day period, the holders of a majority in principal amount
of the debt securities of that series do not give the trustee a
direction inconsistent with the request.
This provision does not, however, affect the right of a holder of a
debt security to sue for enforcement of any overdue
payment.
In most cases, the trustee will be under no obligation to exercise
any of its rights or powers under the indenture at the request or
direction of any of the holders unless those holders have offered
to the trustee indemnity satisfactory to it. Subject to this
provision for indemnification, the holders of a majority in
principal amount of the outstanding debt securities of a series (or
of all debt securities issued under the applicable indenture that
are affected, voting as one class) generally may direct the time,
method and place of:
•conducting
any proceeding for any remedy available to the trustee;
or
•exercising
any trust or power conferred on the trustee relating to or arising
as a result of an event of default.
If an event of default occurs and is continuing, the trustee will
be required to use the degree of care and skill of a prudent person
in the conduct of his own affairs.
The indentures require the issuer to furnish to the trustee
annually a statement as to the issuer’s performance of certain of
the issuer’s obligations under the indentures and as to any default
in performance.
Defeasance and Discharge
Defeasance.
When we use the term defeasance, we mean discharge from some or all
of the issuer’s obligations under the indenture. If the issuer
deposits with the trustee under the indenture any combination of
money or government securities sufficient to make payments on the
debt securities of a series issued under the indenture on the dates
those payments are due, then, at the issuer’s option, either of the
following will occur:
•the
issuer will be discharged from the issuer’s obligations with
respect to the debt securities of that series (“legal defeasance”);
or
•the
issuer will no longer have any obligation to comply with specified
restrictive covenants with respect to the debt securities of that
series, the covenant described under “-Consolidation, Merger and
Sales of Assets” and other specified covenants under the indenture,
and the related events of default will no longer apply (“covenant
defeasance”).
If a series of debt securities is defeased, the holders of the debt
securities of that series will not be entitled to the benefits of
the applicable indenture, except for obligations to register the
transfer or exchange of debt securities, replace stolen, lost or
mutilated debt securities or maintain paying agencies and hold
money for payment in trust. In the case of covenant defeasance, the
issuer’s obligation to pay principal, premium and interest on the
debt securities will also survive.
Unless the issuer informs you otherwise in the prospectus
supplement, the issuer will be required to deliver to the trustee
an opinion of counsel that the deposit and related defeasance would
not cause the holders of the debt securities to recognize income,
gain or loss for U.S. federal income tax purposes and that the
holders would be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if the deposit and related defeasance had not
occurred. If the issuer elects legal defeasance, that
opinion of counsel must be based upon a ruling from the United
States Internal Revenue Service or a change in law to that
effect.
Satisfaction and Discharge.
In addition, the indenture will cease to be of further effect with
respect to the debt securities of a series issued under the
indenture, subject to exceptions relating to compensation and
indemnity of the trustee under the indenture and repayment to the
issuer of excess money or government securities, when
either:
•all
outstanding debt securities of that series have been delivered to
the trustee for cancellation; or
•all
outstanding debt securities of that series not delivered to the
trustee for cancellation either:
◦have
become due and payable,
◦will
become due and payable at their stated maturity within one year,
or
◦are
to be called for redemption within one year; and
◦the
issuer has deposited with the trustee any combination of money or
government securities in trust sufficient to pay the entire
indebtedness on the debt securities of that series when due; and
the issuer has paid all other sums payable by the issuer with
respect to the debt securities of that series.
Book-Entry Debt Securities
The issuer may issue the debt securities of a series in the form of
one or more global debt securities that would be deposited with a
depositary or its nominee identified in the prospectus supplement.
The issuer may issue global debt securities in either temporary or
permanent form. The issuer will describe in the prospectus
supplement the terms of any depositary arrangement and the rights
and limitations of owners of beneficial interests in any global
debt security.
Governing Law
New York law will govern the indenture and the debt
securities.
The Trustee
The issuer will name the trustee under the indenture in the
prospectus supplement. The trustee will be qualified to act under
the Trust Indenture Act of 1939, as amended.
DESCRIPTION OF CAPITAL STOCK
Berry Corp.’s authorized capital stock consists of 750,000,000
shares of common stock, par value $0.001 per share, and 250,000,000
shares of preferred stock, par value $0.001 per share. As of July
31, 2022 there were 78,760,354 shares of common stock and no shares
of preferred stock outstanding.
The following description of the capital stock of Berry Corp. is
based upon the Second Amended and Restated Certificate of
Incorporation of Berry Corp. (the “Certificate of Incorporation”),
the Third Amended and Restated Bylaws of Berry Corp. (the “Bylaws”)
and applicable provisions of law. We have summarized certain
portions of the Certificate of Incorporation and the Bylaws below.
The summary is not complete and is subject to, and is qualified in
its entirety by express reference to, the provisions of applicable
law and to the Certificate of Incorporation and
Bylaws.
Common Stock
Dividends
Holders of the common stock are entitled to dividends in the
amounts and at the times declared by Berry Corp.’s board of
directors in its discretion out of any assets or funds of Berry
Corp. legally available for the payment of dividends.
Voting
Each holder of shares of the common stock is entitled to one vote
for each share of the common stock on all matters presented to the
stockholders of Berry Corp. (including the election of directors).
The holders of shares of common stock have no cumulative voting
rights. All elections of directors are determined by a plurality of
the votes cast, and except as otherwise required by law or by the
rules of any stock exchange upon which Berry Corp.’s securities are
listed or as otherwise provided in the Bylaws or Certificate of
Incorporation, all other matters are determined by a majority of
the votes cast affirmatively or negatively, on such matter. In
addition, the board of directors has adopted a policy whereby in an
uncontested election of directors, any nominee who receives a
greater number of “withhold” votes with respect to his or her
election than votes “for” his or her election must offer their
resignation. Action required or permitted to be taken at an annual
or special meeting of stockholders may be taken without a meeting
or vote if a written consent setting forth the action is signed by
at least the minimum number of votes necessary to authorize or take
such action at a meeting.
Liquidation
The holders of the common stock will share equally and ratably in
Berry Corp.’s assets on liquidation after payment or provision for
all liabilities and any preferential liquidation rights of any
preferred stock then outstanding.
Other Rights
The holders of the common stock do not have preemptive rights to
purchase shares of Berry Corp.’s stock. The common stock is not
convertible, redeemable, assessable or entitled to the benefits of
any sinking or repurchase fund. The rights, preferences and
privileges of holders of the common stock will be subject to those
of the holders of any shares of preferred stock that Berry Corp.
may issue in the future.
Under the terms of the Certificate of Incorporation, Berry Corp. is
prohibited from issuing any non-voting equity securities to the
extent required under Section 1123(a)(6) of the U.S. Bankruptcy
Code (“Bankruptcy Code”) and only for so long as Section 1123 of
the Bankruptcy Code is in effect and applicable to Berry
Corp.
Preferred Stock
The Certificate of Incorporation authorizes our board of directors,
subject to any limitations prescribed by law, without further
stockholder approval, to establish and to issue from time to time
one or more classes or series of preferred stock, par value $0.001
per share, covering up to an aggregate of 250,000,000 shares of
preferred stock. The board of directors may determine the number of
shares in each such series and fix the designation, powers,
preferences, rights, qualifications, limitations and restrictions
of such series. The number of authorized shares of preferred stock
may be increased or decreased by the affirmative vote of the
holders of a majority of the voting power of all then-outstanding
shares of capital stock of Berry Corp. entitled to vote thereon,
without a vote of the holders of the preferred stock, or of any
series thereof, unless a vote of any such holders is required
pursuant to the terms of any preferred stock
designation.
Limitation of Liability of Directors and Indemnification
Matters
The Certificate of Incorporation provides that no director shall be
personally liable to Berry Corp. 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
Berry Corp. 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 Berry Corp.’s and its stockholders’
rights, through stockholders’ derivative suits on Berry Corp.’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.
Berry Corp. has entered into indemnification agreements with each
of its directors and executive officers. These indemnification
agreements require Berry Corp. to indemnify these individuals to
the fullest extent permitted under Delaware law against liabilities
that may arise by reason of their service as a director or
executive officer of Berry Corp. In addition, Berry Corp. is also
required to advance expenses incurred by such individuals in
connection with any proceeding arising by reason of their service.
The Certificate of Incorporation also provides that we will
indemnify our directors and officers to the fullest extent
permitted under Delaware law.
Anti-Takeover Provisions of the Certificate of Incorporation, the
Bylaws and the DGCL
The Certificate of Incorporation, the Bylaws and the DGCL contain
provisions that may have some anti-takeover effects and may delay,
defer or prevent a takeover attempt or a removal of Berry Corp.’s
incumbent officers or directors that a stockholder might consider
in his, her or its best interest, including those attempts that
might result in a premium over the market price for shares held by
the stockholders.
Delays in or Prevention of a Change in Control
Provisions in Berry Corp.’s Bylaws could have an effect of
delaying, deferring or preventing a change in control of Berry
Corp.
Amendment of the Bylaws
The Certificate of Incorporation and the Bylaws grant to the board
of directors the power to adopt, amend, restate or repeal the
Bylaws, as permitted under the DGCL, provided that no bylaw adopted
by the stockholders may be amended, repealed or readopted by the
board of directors if such bylaw so provides. The stockholders may
adopt, amend, restate or repeal the Bylaws but only by a vote of
holders of a majority in voting power of the outstanding shares of
stock entitled to vote thereon, voting together as a single class
in addition to any approval required by law, the Bylaws or the
terms of any preferred stock.
Other Limitations on Stockholder Actions
•Advance
notice is required for stockholders to nominate directors or to
submit proposals for consideration at meetings of stockholders.
These procedures provide that notice of stockholder proposals must
be timely given in writing to our corporate secretary prior to the
meeting at which the action is to be taken. Generally, to be
timely, notice must be received at our principal executive offices
not less than 90 days nor more than 120 days prior to the first
anniversary date we first mailed our proxy materials for the annual
meeting for the preceding year. The Bylaws specify the requirements
as to form and content of all stockholders’ notices. These
requirements may preclude stockholders from bringing matters before
the stockholders at an annual or special meeting,
•Directors
may be removed from office, either for or without cause, by the
affirmative vote of the holders of a majority of the voting power
of the then-outstanding shares of capital stock entitled to vote
generally in the election of directors.
•Stockholders
may call a special meeting only upon request of at least 25% of the
voting power of the shares entitled to vote in the election of
directors.
Forum Selection
The Certificate of Incorporation generally provides that unless we
consent in writing to the selection of an alternative forum, the
Court of Chancery of the State of Delaware (the “Court of
Chancery”) will, to the fullest extent permitted by applicable law,
be the sole and exclusive forum for:
•any
derivative action or proceeding brought on our behalf;
•any
action asserting a claim of breach of a fiduciary duty owed by any
of our directors, officers or other employees to us or our
stockholders;
•any
action asserting a claim against us or our directors, officers or
employees arising pursuant to any provision of the DGCL, our
Certificate of Incorporation or Bylaws; or
•any
action asserting a claim against us or our directors, officers or
employees that is governed by the internal affairs
doctrine;
in each such case subject to such Court of Chancery having personal
jurisdiction over the indispensable parties named as defendants
therein.
The exclusive forum provision would not
apply to suits brought to enforce any liability or duty created by
the Securities Act of 1933, as amended (“Securities Act”) or the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) or
any other claim for which the federal courts have exclusive
jurisdiction. To the extent that any such claims may be based on
federal law claims, Section 27 of the Exchange Act creates
exclusive jurisdiction over all suits brought to enforce any duty
or liability created by the Exchange Act or the rules and
regulations thereunder. Furthermore, Section 22 of the Securities
Act creates concurrent jurisdiction for federal and state courts
over all suits brought to enforce any duty or liability created by
the Securities Act or the rules and regulations
thereunder.
Although we believe these provisions will benefit us by providing
increased consistency in the application of Delaware law for the
specified types of actions and proceedings, the provisions may have
the effect of discouraging lawsuits against our directors,
officers, employees and agents. The enforceability of similar
exclusive forum provisions in other companies’ certificates of
incorporation has been challenged in legal proceedings, and it is
possible that, in connection with one or more actions or
proceedings described above, a court could rule that this provision
in the Certificate of Incorporation is inapplicable or
unenforceable.
Corporate Opportunity
Under the Certificate of Incorporation, to the extent permitted by
law:
•our
stockholders are permitted to make investments in competing
businesses;
•if
any individual who is a director of Berry Corp. and is otherwise an
employee, officer or a director of a stockholder (each such person,
a “Dual Role Person”) becomes aware of a potential business
opportunity, transaction or other matter, they will have no duty to
communicate or offer that opportunity to us; and
•we
have renounced our interest in, or in being offered an opportunity
to participate in, such corporate opportunities presented to a Dual
Role Person.
Newly Created Directorships and Vacancies on the Board of
Directors
Under the Bylaws any vacancies on the board of directors for any
reason and any newly created directorships resulting from any
increase in the number of directors may be filled (i) by the board
of directors upon a vote of a majority of the remaining directors
then in office, even if they constitute less than a quorum of the
board of directors or by a sole remaining director or (ii) by the
stockholders at a special or annual meeting or by written consent
of holders of a majority of the voting power of the shares entitled
to vote in connection with the election of the directors, voting
together as a single class.
Registration Rights
The Amended and Restated Registration Rights Agreement, dated June
28, 2018, among Berry Corp. and the holder party thereto (the
“Registration Rights Agreement”) generally requires us to file a
shelf registration statement with the SEC as soon as practicable.
We filed such shelf registration statement, as amended, with the
SEC on December 11, 2018 (File No. 333-228740).
The Registration Rights Agreement also requires us to effect demand
registrations, which the specified holders may request to be
underwritten, and underwritten shelf takedowns from the initial
shelf registration if requested by holders of a specified
percentage of Registrable Securities (as defined in the
Registration Rights Agreement), subject to customary conditions and
restrictions. If Registrable Securities are to be distributed in an
underwritten public offering and our common stock is not then
listed on a national securities exchange or quoted on a recognized
trading market, we must use commercially reasonable efforts to
cause the Registrable Securities to be listed on a national
securities exchange as promptly as practicable.
If we propose to file a registration statement under the Securities
Act or conduct a shelf takedown with respect to a public offering
of any class of our equity securities, the specified holders have
“piggyback” registration rights to include their Registrable
Securities in the registration statement subject to customary
conditions and restrictions.
At any time when we are required to file public reports with the
SEC under the Securities Act or the Exchange Act, the Registration
Rights Agreement requires us to use commercially reasonable efforts
to timely comply with the reporting requirements. If we are not
subject to these reporting requirements, we must make available
information necessary for the specified holders of Registrable
Securities to resell their Registrable Securities in compliance
with Section 4(a)(7), Rule 144, Rule 144A and Regulation S, if
available, without registration under the Securities Act and within
the limitations of the applicable exemptions.
The Registration Rights Agreement will terminate when there are no
longer any Registrable Securities outstanding. As of August 31,
2022, there were up to 34,542,168 shares of our common stock
registered for resale pursuant to our obligations under the
Registration Rights Agreement.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American
Stock Transfer & Trust Company, LLC (“AST”). AST’s address is
6201 15th Avenue, Brooklyn, New York 11219, and AST’s phone number
is (718) 921-8200.
Listing
Our common stock is listed on the NASDAQ under the symbol
“BRY.”
PLAN OF DISTRIBUTION
We may sell securities pursuant to this prospectus and any
accompanying prospectus supplement in and outside the United States
(1) through underwriters or dealers, (2) directly to purchasers,
including our affiliates and stockholders, (3) through agents, (4)
in “at the market offerings” to or through a market maker or into
an existing trading market, or in a rights offering or a securities
exchange or otherwise or (5) through a combination of any of these
methods. The prospectus supplement, if required, will include the
following information:
•the
terms of the offering;
•the
names of any underwriters or agents;
•the
name or names of any managing underwriter or
underwriters;
•the
purchase price of the securities;
•the
estimated net proceeds to us from the sale of the
securities;
•any
delayed delivery arrangements;
•any
underwriting discounts, commissions and other items constituting
underwriters’ compensation;
•any
discounts or concessions allowed or reallowed or paid to dealers;
and
•any
commissions paid to agents.
Sale Through Underwriters or Dealers
If underwriters are used in the sale, the underwriters will acquire
the securities for their own account for resale to the public,
either on a firm commitment basis or a best efforts basis. The
underwriters may resell the securities from time to time in one or
more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time
of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing
underwriters or directly by one or more firms acting as
underwriters. Unless we inform you otherwise in the prospectus
supplement, the obligations of the underwriters to purchase the
securities will be subject to certain conditions. The underwriters
may change from time to time any offering price and any discounts
or concessions allowed or reallowed or paid to
dealers.
During and after an offering through underwriters, the underwriters
may purchase and sell the securities in the open market. These
transactions may include overallotment and stabilizing transactions
and purchases to cover syndicate short positions created in
connection with the offering. The underwriters may also impose a
penalty bid, which means that selling concessions allowed to
syndicate members or other broker-dealers for the offered
securities sold for their account may be reclaimed by the syndicate
if the offered securities are repurchased by the syndicate in
stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might
otherwise prevail in the open market. If commenced, the
underwriters may discontinue these activities at any
time.
If dealers are used, we will sell the securities to them as
principals. The dealers may then resell those securities to the
public at varying prices determined by the dealers at the time of
resale. We will include in the prospectus supplement the names of
the dealers and the terms of the transaction.
Direct Sales and Sales Through Agents
We may sell the securities directly. In this case, no underwriters
or agents would be involved. We may also sell the securities
through agents designated from time to time. In the prospectus
supplement, we will name any agent involved in the offer or sale of
the offered securities, and we will describe any commissions
payable to the agent. Unless we inform you otherwise in the
prospectus supplement, any agent will agree to use its reasonable
best efforts to solicit purchases for the period of its
appointment.
We may sell the securities directly to institutional investors or
others who may be deemed to be underwriters within the meaning of
the Securities Act with respect to any sale of securities. We will
describe the terms of any such sales in the prospectus
supplement.
Remarketing Arrangements
Offered securities may also be offered and sold, if so indicated in
the applicable prospectus supplement, in connection with a
remarketing upon their purchase, in accordance with a redemption or
repayment pursuant to their terms, or otherwise, by one or more
remarketing firms, acting as principals for their own accounts or
as agents for us. Any remarketing firm will be identified and the
terms of its agreements, if any, with us and its compensation will
be described in the applicable prospectus supplement. Remarketing
firms may be deemed to be underwriters, as that term is defined in
the Securities Act, in connection with the securities
remarketed.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize
agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities from us at the public
offering price under delayed delivery contracts. These contracts
would provide for payment and delivery on a specified date in the
future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement
will describe the commission payable for solicitation of those
contracts.
General Information
We may have agreements with the agents, dealers, underwriters and
remarketing firms to indemnify them against certain civil
liabilities, including liabilities under the Securities Act, or to
contribute with respect to payments that the agents, dealers,
underwriters or remarketing firms may be required to make. Agents,
dealers, underwriters and remarketing firms may be customers of,
engage in transactions with, or perform services for us in the
ordinary course of their businesses.
Unless otherwise specified in the applicable prospectus supplement
each series of securities will be a new issue and will have no
established trading market, other than our common stock, which is
listed on the NASDAQ. We may elect to list any series of securities
on an exchange, but we are not obligated to do so.
LEGAL MATTERS
The validity of our securities offered by this prospectus will be
passed upon for us by Vinson & Elkins L.L.P., Houston, Texas.
Any underwriters or agents will be advised about other issues
relating to any offering by their own counsel to be named in an
applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Berry Corporation (bry)
and its subsidiaries as of December 31, 2021 and 2020, and for each
of the years in the three-year period ended December 31, 2021, have
been incorporated by reference herein in reliance upon the report
of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in auditing and accounting.
Certain estimates of our oil and natural gas reserves and related
information included or incorporated by reference in this
prospectus have been derived from reports prepared by the
independent engineering firm, DeGolyer and MacNaughton. All such
information has been so included on the authority of such firms as
experts regarding the matters contained in their
reports.
Berry Corporation (bry)
$500,000,000
Common Stock
Preferred Stock
Debt Securities
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and
Distribution.
Set forth below is a table of the registration fee for the SEC and
estimates of all other expenses to be paid by the registrant in
connection with the issuance and distribution of the securities
described in the registration statement:
|
|
|
|
|
|
|
SEC registration fee
|
$ 46,350 |
|
Accounting fees and expenses
|
* |
|
Legal fees and expenses
|
* |
|
Printing and engraving fees and expenses
|
* |
|
Miscellaneous
|
* |
|
Total
|
$ * |
* These fees are calculated based on the
number of issuances and amount of securities offered and
accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and
Officers.
We are incorporated in Delaware. 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 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 we 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 Berry Corp. or is or was serving at the
request of Berry Corp. 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
we 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.
We have also entered into indemnification agreements with each of
our 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, we must maintain directors
and officers insurance. The terms of the indemnification agreements
provide that we 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 with respect to
certain specified matters, the only limitation that will exist upon
our indemnification obligations pursuant to the agreements is that
we are not obligated to make any payment to an indemnitee that is
finally adjudged to be prohibited by applicable law. Under the
indemnification agreements, we also agree to pay all expenses for
which we may be jointly liable with an indemnitee and to waive any
potential right
of contribution we might otherwise have. Further, we agree 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 our 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.
Berry Corp. 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 16. Exhibits
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|
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|
|
|
Exhibit
Number |
Description |
|
1.1** |
Form of Underwriting Agreement |
|
2.1 |
|
|
3.1 |
|
|
3.2 |
|
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3.3 |
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3.4 |
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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** |
Form of Debt Securities |
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4.6** |
Form of Preferred Stock Designation |
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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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25.1†
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Statement of Eligibility and Qualification of the Trustee under the
Senior Indenture under the Trust Indenture Act of 1939, as amended
on Form T-1 |
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107* |
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____________
* Filed herewith.
** To be filed, if necessary, as an exhibit
to a report pursuant to Section 13(a) or 15(d) of the Exchange Act
or in a post-effective amendment to this registration
statement.
† To be filed under subsection (a) of
Section 310 of the Trust Indenture Act of 1939, as
amended.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which
offers or sales are being made, a post-effective amendment to this
registration statement;
i. to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
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 SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 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 (i), (ii) and (iii) above do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the SEC by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
(2) that, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(3) to remove from registration by means of
a post-effective amendment any of the securities being registered
which remain unsold at the termination of the
offering;
(4) that, for the purpose of determining
liability under the Securities Act of 1933 to any
purchaser:
i. Each prospectus filed by the registrant
pursuant to Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement;
and
ii. Each prospectus required to be filed
pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a
registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which the prospectus
relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date;
(5) That, for the purpose of determining
liability of the registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
i. Any preliminary prospectus or prospectus
of the undersigned registrant relating to the offering required to
be filed pursuant to Rule 424;
ii. Any free writing prospectus relating to
the offering prepared by or on behalf of the undersigned registrant
or used or referred to by the undersigned registrant;
iii. The portion of any other free writing
prospectus relating to the offering containing material information
about the undersigned registrant or their respective securities
provided by or on behalf of the undersigned registrant;
and
iv. Any other communication that is an offer
in any offering made by the undersigned registrant to the
purchaser.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, 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 of 1933 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 SEC such indemnification is against public
policy as expressed in the Securities Act of 1933 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
their counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities
Act shall be deemed to be part of this registration statement as of
the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains
a form of prospectus 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.
The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to
act under subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 September 1, 2022.
Berry Corporation (bry)
By: /s/A.
T. “Trem” Smith
Name: A. T. “Trem” Smith
Title: President, Chief Executive Officer
and Board Chair
Each person whose signature appears below hereby constitutes and
appoints Arthur T. Smith, Cary D. Baetz and Danielle Hunter, and
each of them, any of whom may act without the joinder of the other,
as his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution for him or her in any
and all capacities, to sign any or all amendments or post-effective
amendments to this registration statement, or any registration
statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with exhibits hereto and other
documents in connection therewith or in connection with the
registration of the securities under the Securities Act of 1933, as
amended, with the Securities and Exchange Commission, granting unto
such attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary in
connection with such matters and hereby ratifying and confirming
all that such attorneys-in-fact and agents or his or her
substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities indicated on September 1, 2022.
Berry Corporation (bry)
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Signature |
Title |
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|
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/s/A.T. “Trem” Smith |
President, Chief Executive Officer, and Board Chair |
|
A.T. “Trem” Smith |
(Principal Executive Officer) |
|
|
|
/s/Cary Baetz |
Executive Vice President and Chief Financial Officer, |
|
Cary Baetz |
and Director (Principal Financial Officer) |
|
|
|
/s/Michael S. Helm |
Chief Accounting Officer |
|
Michael S. Helm |
(Principal Accounting Officer) |
|
|
|
/s/Renée Hornbaker |
Director |
|
Renée Hornbaker |
|
|
|
|
/s/Anne Mariucci |
Director |
|
Anne L. Mariucci |
|
|
|
|
/s/Donald Paul |
Director |
|
Donald Paul |
|
|
|
|
/s/Rajath Shourie |
Director |
|
Rajath Shourie |
|
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