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EX-32 - EX-32 - BEMIS CO INCa09-30834_1ex32.htm
EX-2.(A) - EX-2.(A) - BEMIS CO INCa09-30834_1ex2da.htm
EX-31.2 - EX-31.2 - BEMIS CO INCa09-30834_1ex31d2.htm
EX-10.(C) - EX-10.(C) - BEMIS CO INCa09-30834_1ex10dc.htm
EX-10.(B) - EX-10.(B) - BEMIS CO INCa09-30834_1ex10db.htm
EX-10.(A) - EX-10.(A) - BEMIS CO INCa09-30834_1ex10da.htm
EX-31.1 - EX-31.1 - BEMIS CO INCa09-30834_1ex31d1.htm
10-Q - 10-Q - BEMIS CO INCa09-30834_110q.htm

Exhibit 19

 

BEMIS COMPANY, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENT OF INCOME

(in thousands, except per share amounts)

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

 

 

2009

 

2008

 

2009

 

2008

 

 

 

 

 

 

 

 

 

 

 

Net sales

 

$

898,930

 

$

984,258

 

$

2,608,702

 

$

2,911,499

 

 

 

 

 

 

 

 

 

 

 

Costs and expenses:

 

 

 

 

 

 

 

 

 

Cost of products sold

 

718,814

 

818,333

 

2,086,175

 

2,410,068

 

Selling, general and administrative expenses

 

95,814

 

85,782

 

273,287

 

262,761

 

Research and development

 

5,837

 

6,222

 

18,412

 

18,987

 

Interest expense

 

13,395

 

10,242

 

25,279

 

30,376

 

Other costs (income), net

 

5,134

 

(8,028

)

8,468

 

(26,274

)

 

 

 

 

 

 

 

 

 

 

Income before income taxes

 

59,936

 

71,707

 

197,081

 

215,581

 

 

 

 

 

 

 

 

 

 

 

Provision for income taxes

 

21,500

 

25,500

 

71,600

 

77,800

 

 

 

 

 

 

 

 

 

 

 

Net income

 

38,436

 

46,207

 

125,481

 

137,781

 

 

 

 

 

 

 

 

 

 

 

Less: net income attributable to noncontrolling interests

 

2,596

 

1,944

 

4,410

 

4,772

 

 

 

 

 

 

 

 

 

 

 

Net income attributable to Bemis Company, Inc.

 

$

35,840

 

$

44,263

 

$

121,071

 

$

133,009

 

 

 

 

 

 

 

 

 

 

 

Basic earnings per share

 

$

0.33

 

$

0.43

 

$

1.15

 

$

1.29

 

 

 

 

 

 

 

 

 

 

 

Diluted earnings per share

 

$

0.33

 

$

0.43

 

$

1.15

 

$

1.29

 

 

 

 

 

 

 

 

 

 

 

Cash dividends paid per share

 

$

0.225

 

$

0.220

 

$

0.675

 

$

0.660

 

 

See accompanying notes to consolidated financial statements.

 

1



 

BEMIS COMPANY, INC. AND SUBSIDIARIES

CONSOLIDATED BALANCE SHEET

(dollars in thousands)

 

 

 

September 30,

 

December 31,

 

 

 

2009

 

2008

 

ASSETS

 

 

 

 

 

Cash and cash equivalents

 

$

1,104,012

 

$

43,454

 

Accounts receivable, net

 

470,287

 

426,888

 

Inventories, net

 

427,403

 

435,667

 

Prepaid expenses

 

71,997

 

76,649

 

Total current assets

 

2,073,699

 

982,658

 

 

 

 

 

 

 

Property and equipment, net

 

1,168,806

 

1,135,482

 

 

 

 

 

 

 

Goodwill

 

643,067

 

595,466

 

Other intangible assets, net

 

86,802

 

80,773

 

Deferred charges and other assets

 

38,207

 

27,935

 

Total other long-term assets

 

768,076

 

704,174

 

 

 

 

 

 

 

TOTAL ASSETS

 

$

4,010,581

 

$

2,822,314

 

 

 

 

 

 

 

LIABILITIES

 

 

 

 

 

Current portion of long-term debt

 

$

25,544

 

$

18,651

 

Short-term borrowings

 

1,470

 

7,954

 

Accounts payable

 

397,428

 

323,142

 

Accrued salaries and wages

 

97,558

 

63,227

 

Accrued income and other taxes

 

22,156

 

8,807

 

Total current liabilities

 

544,156

 

421,781

 

 

 

 

 

 

 

Long-term debt, less current portion

 

1,289,641

 

659,984

 

Deferred taxes

 

131,480

 

111,832

 

Other liabilities and deferred credits

 

231,910

 

246,174

 

TOTAL LIABILITIES

 

$

2,197,187

 

$

1,439,771

 

 

 

 

 

 

 

EQUITY

 

 

 

 

 

Bemis Company, Inc. stockholders’ equity:

 

 

 

 

 

Common stock issued (125,619,579 and 117,130,962 shares)

 

$

12,562

 

$

11,713

 

Capital in excess of par value

 

562,040

 

345,982

 

Retained earnings

 

1,648,737

 

1,599,178

 

Accumulated other comprehensive income (loss)

 

39,630

 

(112,001

)

Common stock held in treasury, 17,422,771 and 17,422,771 shares at cost

 

(498,341

)

(498,341

)

Total Bemis Company, Inc. stockholders’ equity

 

1,764,628

 

1,346,531

 

Noncontrolling interests

 

48,766

 

36,012

 

TOTAL EQUITY

 

1,813,394

 

1,382,543

 

 

 

 

 

 

 

TOTAL LIABILITIES AND EQUITY

 

$

4,010,581

 

$

2,822,314

 

 

See accompanying notes to consolidated financial statements.

 

2



 

BEMIS COMPANY, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENT OF CASH FLOWS

(in thousands)

 

 

 

Nine Months Ended

 

 

 

September 30

 

 

 

2009

 

2008

 

Cash flows from operating activities

 

 

 

 

 

Net income

 

$

125,481

 

$

137,781

 

Adjustments to reconcile net income to net cash provided by operating activities:

 

 

 

 

 

Depreciation and amortization

 

118,376

 

124,476

 

Excess tax benefit from share-based payment arrangements

 

(272

)

(430

)

Share-based compensation

 

13,898

 

13,444

 

Deferred income taxes

 

14,513

 

7,623

 

Income of unconsolidated affiliated company

 

(1,340

)

(1,301

)

(Gain) loss on sales of property and equipment

 

(3,284

)

743

 

Changes in working capital, net of effects of acquisitions

 

141,801

 

(83,643

)

Net change in deferred charges and credits

 

(13,288

)

7,847

 

 

 

 

 

 

 

Net cash provided by operating activities

 

395,885

 

206,540

 

 

 

 

 

 

 

Cash flows from investing activities

 

 

 

 

 

Additions to property and equipment

 

(62,521

)

(87,201

)

Business acquisitions and adjustments, net of cash acquired

 

(30,637

)

 

 

Proceeds from sales of property and equipment

 

10,621

 

1,664

 

 

 

 

 

 

 

Net cash used in investing activities

 

(82,537

)

(85,537

)

 

 

 

 

 

 

Cash flows from financing activities

 

 

 

 

 

Proceeds from issuance of long-term debt

 

810,748

 

31,628

 

Repayment of long-term debt

 

(21,158

)

(282,884

)

Net borrowing (repayment) of commercial paper

 

(159,795

)

283,632

 

Net repayment of short-term debt

 

(17,958

)

(40,836

)

Cash dividends paid to stockholders

 

(71,512

)

(68,029

)

Common stock issued

 

202,808

 

 

 

Common stock purchased for the treasury

 

 

 

(26,771

)

Excess tax benefit from share-based payment arrangements

 

272

 

430

 

Stock incentive programs and related withholdings

 

(2,730

)

(1,693

)

 

 

 

 

 

 

Net cash provided by (used in) financing activities

 

740,675

 

(104,523

)

Effect of exchange rates on cash and cash equivalents

 

6,535

 

(14,965

)

Net increase in cash and cash equivalents

 

1,060,558

 

1,515

 

Cash and cash equivalents balance at beginning of year

 

43,454

 

147,409

 

Cash and cash equivalents balance at end of period

 

$

1,104,012

 

$

148,924

 

 

Supplemental information of noncash investing and financing activities

 

The Company acquired the South American rigid packaging operations of Huhtamaki Oyj for $43 million.  In conjunction with the acquisition, cash paid and notes payable issued to finance the acquisition were $32.3 million and $8.8 million respectively.  The fair value of assets and liabilities acquired was $51.8 million and $10.7 million respectively.

 

See accompanying notes to consolidated financial statements.

 

3



 

BEMIS COMPANY, INC. AND SUBSIDIARIES

CONSOLIDATED STATEMENT OF EQUITY

(dollars in thousands, except per share amounts)

 

 

 

Bemis Company, Inc. Stockholders

 

 

 

 

 

 

 

 

 

 

 

 

 

Accumulated

 

 

 

 

 

 

 

 

 

 

 

Capital In

 

 

 

Other

 

Common

 

 

 

 

 

 

 

Common

 

Excess of

 

Retained

 

Comprehensive

 

Stock Held

 

Noncontrolling

 

 

 

 

 

Stock

 

Par Value

 

Earnings

 

Income (Loss)

 

In Treasury

 

Interests

 

Total

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at December 31, 2007

 

$

11,694

 

$

327,387

 

$

1,523,659

 

$

171,162

 

$

(471,570

)

$

38,926

 

$

1,601,258

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

 

 

 

 

133,009

 

 

 

 

 

4,772

 

137,781

 

Unrecognized gain reclassified to earnings, net of tax $(249)

 

 

 

 

 

 

 

(395

)

 

 

 

 

(395

)

Translation adjustment

 

 

 

 

 

 

 

(63,213

)

 

 

(3,160

)

(66,373

)

Pension liability adjustment, net of tax effect $(1,782)

 

 

 

 

 

 

 

3,015

 

 

 

 

 

3,015

 

Total comprehensive income

 

 

 

 

 

 

 

 

 

 

 

 

 

74,028

 

Cash dividends paid on common stock $0.66 per share

 

 

 

 

 

(68,029

)

 

 

 

 

 

 

(68,029

)

Stock incentive programs and related tax effects (154,491 shares)

 

16

 

(1,693

)

 

 

 

 

 

 

 

 

(1,677

)

Excess tax benefit from share-based compensation arrangements

 

 

 

414

 

 

 

 

 

 

 

 

 

414

 

Share-based compensation

 

 

 

14,947

 

 

 

 

 

 

 

 

 

14,947

 

Purchase of 1,000,000 shares of common stock

 

 

 

 

 

 

 

 

 

(26,771

)

 

 

(26,771

)

Balance at September 30, 2008

 

$

11,710

 

$

341,055

 

$

1,588,639

 

$

110,569

 

$

(498,341

)

$

40,538

 

$

1,594,170

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at December 31, 2008

 

$

11,713

 

$

345,982

 

$

1,599,178

 

$

(112,001

)

$

(498,341

)

$

36,012

 

$

1,382,543

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net income

 

 

 

 

 

121,071

 

 

 

 

 

4,410

 

125,481

 

Unrecognized gain reclassified to earnings, net of tax $(252)

 

 

 

 

 

 

 

(396

)

 

 

 

 

(396

)

Translation adjustment

 

 

 

 

 

 

 

146,220

 

 

 

8,344

 

154,564

 

Pension liability adjustment, net of tax effect $(3,363)

 

 

 

 

 

 

 

5,807

 

 

 

 

 

5,807

 

Total comprehensive income

 

 

 

 

 

 

 

 

 

 

 

 

 

285,456

 

Cash dividends paid on common stock $0.675 per share

 

 

 

 

 

(71,512

)

 

 

 

 

 

 

(71,512

)

Stock incentive programs and related tax effects (313,617 shares)

 

32

 

(2,730

)

 

 

 

 

 

 

 

 

(2,698

)

Excess tax benefit from share-based compensation arrangements

 

 

 

1,376

 

 

 

 

 

 

 

 

 

1,376

 

Share-based compensation

 

 

 

15,421

 

 

 

 

 

 

 

 

 

15,421

 

Common stock issued (8,175,000 shares)

 

817

 

201,991

 

 

 

 

 

 

 

 

 

202,808

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance at September 30, 2009

 

$

12,562

 

$

562,040

 

$

1,648,737

 

$

39,630

 

$

(498,341

)

$

48,766

 

$

1,813,394

 

 

See accompanying notes to consolidated financial statements.

 

4



 

BEMIS COMPANY, INC. AND SUBSIDIARIES

NOTES TO CONSOLIDATED FINANCIAL STATEMENTS

 

Note 1 — Basis of Presentation

 

The accompanying unaudited consolidated financial statements have been prepared by Bemis Company, Inc. (the Company) in accordance with accounting principles for interim financial information generally accepted in the United States and with the instructions to Form 10-Q and Article 10 of Regulation S-X.  Accordingly, they do not include all the information and footnotes necessary for a comprehensive presentation of financial position and results of operations.  It is management’s opinion, however, that all material adjustments (consisting of normal recurring accruals) have been made which are necessary for a fair financial statement presentation.  Certain prior year amounts have been restated to conform to current year presentation.  The results for the interim period are not necessarily indicative of the results to be expected for the year.  For further information, refer to the updated consolidated financial statements and footnotes included in the Company’s current report on Form 8-K dated July 20, 2009, filed with the Securities and Exchange Commission on July 20, 2009.

 

The Company has evaluated subsequent events through November 9, 2009, which is the date the financial statements were issued.

 

Note 2 — New Accounting Guidance

 

Accounting Guidance Adopted in the Nine Months Ended September 30, 2009

 

Accounting Standards Codification

 

In June 2009, the Financial Accounting Standards Board (FASB) issued authoritative guidance which defines the new hierarchy for U.S. generally accepted accounting principles (GAAP) and explains how the FASB will use its Accounting Standards Codification (ASC) as the sole source for all authoritative guidance.  This guidance was effective for the Company’s interim quarterly period beginning July 1, 2009 and did not have any impact on our consolidated financial position or results of operations.

 

Subsequent Events

 

In May 2009, the FASB issued authoritative guidance for subsequent events which establishes general standards of accounting and disclosure for events that occur after the balance sheet date but before the financial statements are issued.  This guidance was effective for interim or annual financial periods ending after June 15, 2009, and did not have a material impact on our consolidated financial position or results of operations.

 

Fair Value Measurements and Disclosures

 

In April 2009, the FASB issued additional authoritative guidance for estimating fair value when the market activity for an asset or liability has decreased significantly.  This guidance assists both issuers and users of financial statements in determining whether a market is active or inactive, and whether a transaction is distressed.  The guidance was effective for the Company for the quarter ended June 30, 2009 and did not have a material impact on our consolidated financial position or results of operations.

 

In April 2009, the FASB issued authoritative guidance to require disclosures about fair value of financial instruments for interim periods. This guidance was effective for the Company for the quarter ended June 30, 2009, and expanded the Company’s disclosures regarding the use of fair value in interim periods.

 

In September 2006, the FASB issued authoritative guidance for fair value measurements which defines fair value, establishes a framework for measuring fair value, and expands disclosures about fair value measurements.  This guidance will apply whenever assets or liabilities are required (or permitted) to be measured at fair value.  The guidance does not expand the use of fair value to any new circumstances.  In early 2008, the FASB issued additional guidance which delayed by one year the effective date of the September 2006 guidance for all non-financial assets and non-financial liabilities, except those that are recognized or disclosed at fair value in the financial statements on at least an annual basis.  The Company adopted the new guidance on January 1, 2008, and on January 1, 2009, as required, each with no effect on the measurement of the Company’s assets and liabilities or on its consolidated financial position and results of operations.

 

Business Combinations

 

In April 2009, the FASB issued additional authoritative guidance regarding accounting for assets acquired and liabilities assumed in a business combination that arises from contingencies.  This guidance amends and clarifies earlier guidance to address application issues on initial recognition and measurement, subsequent measurement and accounting, and disclosure of assets and liabilities arising from contingencies in a business combination.  The guidance was effective for the Company on January 1, 2009, and applies to business combinations with an acquisition date on or after the guidance became effective.

 

In December 2007, the FASB issued authoritative guidance to establish principles and requirements for how an acquirer in a business combination recognizes and measures in its financial statements, the identifiable assets acquired, the liabilities assumed, and any noncontrolling interest in the acquiree.  Guidance was also provided for recognizing and measuring the goodwill acquired in the business combination and determines what information to disclose to enable users of the financial statements to evaluate the nature and financial effects of business combinations.  This guidance was effective on a prospective basis for financial statements issued for fiscal years beginning after December 15, 2008.  During the second half of 2008, we incurred accounting, legal, and other professional fees associated with the Company’s due diligence effort related to the Huhtamaki Oyj acquisition and the pending Alcan Packaging Food Americas acquisition.  These costs were deferred in 2008 under the then existing accounting standards.  Upon the adoption of this guidance on January 1, 2009, these costs were

 

5



 

expensed.  We incurred additional costs during the nine month period ended September 30, 2009 which were expensed.  The total impact to our third quarter 2009 earnings as a result of this due diligence effort was a pretax charge of $3.1 million, or a reduction in earnings per share of $0.02.  The total impact to our earnings for the nine month period ended September 30, 2009, as a result of this due diligence effort was a pretax charge of $16.8 million, or a reduction in earnings per share of $0.10.

 

Earnings Per Share

 

In June 2008, the FASB issued authoritative guidance which clarified that unvested share-based payment awards that contain nonforfeitable rights to receive dividends or dividend equivalents (whether paid or unpaid) are participating securities, and thus, should be included in the two-class method of computing earnings per share.  As discussed in Note 12, “Earnings Per Share Computations,” we adopted this guidance on January 1, 2009.  The calculation of basic and diluted earnings per share for both of the years presented has been recast to reflect the guidance, effective January 1, 2009.  The impact of this modification was a $0.01 per share decrease in diluted earnings per share for the third quarter of 2008 and a $0.03 per share decrease in diluted earnings per share for the nine month period ended September 30, 2008.

 

Useful Lives of Intangible Assets

 

In April 2008, the FASB issued authoritative guidance which amends the factors that should be considered in developing renewal or extension assumptions used to determine the useful life of a recognized intangible asset.  The guidance was effective for the Company on January 1, 2009.  As this guidance applies only to assets we may acquire in the future, we are not able to predict the impact, if any, on our consolidated financial statements.

 

Derivatives and Hedging

 

In March 2008, the FASB issued authoritative guidance which requires enhanced disclosures about (a) how and why an entity uses derivative instruments, (b) how derivative instruments and related hedged items are accounted for, and (c) how derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows.  As discussed in Note 4, “Derivative Instruments,” we adopted the guidance on January 1, 2009.

 

Noncontrolling Interests

 

In December 2007, the FASB issued authoritative guidance to establish accounting and reporting standards for the noncontrolling interest in a subsidiary and for the deconsolidation of a subsidiary.  The guidance was adopted by the Company on January 1, 2009.  As required, the presentation of minority interest is now referred to as noncontrolling interest and repositioned in the consolidated financial statements.  In the consolidated statement of income, noncontrolling interest is now presented following a subtotal entitled “Net income”.  In the consolidated balance sheet, noncontrolling interest is now presented as a component of total equity with a corresponding presentation in the consolidated statement of equity.  Prior periods have been recast to conform to the current year presentation in conformity with the requirements.

 

Accounting Guidance to be Adopted in the Reporting Period Ending December 31, 2009

 

Fair Value Measurements and Disclosures

 

In August 2009, the FASB issued additional authoritative guidance for the measurement of liabilities at fair value.  The guidance will be effective for the Company’s reporting period ending December 31, 2009.  We do not expect the adoption of the guidance to have any impact on our consolidated financial statements.

 

Defined Benefit Retirement Plan Disclosures

 

In December 2008, the FASB issued authoritative guidance regarding an employer’s disclosures about plan assets of a defined benefit pension or other postretirement plan.  The guidance is effective for fiscal years ending after December 15, 2009, and will expand the disclosures related to our benefit plan assets.

 

Note 3 — Acquisitions

 

Acquisition of South American Rigid Packaging Operations of Huhtamaki Oyj

 

On June 3, 2009, the Company announced that it acquired the South American rigid packaging operations of Huhtamaki Oyj, a global manufacturer of consumer and specialty packaging.  This rigid packaging business, which includes three facilities in Brazil and one facility in Argentina, recorded annual net sales of approximately $86.0 million in 2008, primarily to dairy and food service markets.  The purchase price of $43.0 million was paid with a combination of $32.3 million cash on hand, $1.9 million of debt assumed, and a $8.8 million note payable to the seller.  As of September 30, 2009, $1.5 million remained outstanding on the note payable to seller which is due May 31, 2010.  The fair value of assets and liabilities acquired was $51.8 million and $10.7 million respectively.

 

Pending Acquisition of Alcan Packaging Food Americas

 

On July 5, 2009, we signed a definitive agreement to acquire the Food Americas operations of Alcan Packaging, a business unit of international mining group Rio Tinto plc (LON: RIO; ASX: RIO), for $1.2 billion.  Pursuant to the agreement, we will acquire 23 Food Americas flexible packaging facilities in the U.S., Canada, Mexico, Brazil, Argentina, and New Zealand.  These facilities produce flexible packaging for the food and beverage industries.  As a condition of signing, we secured bridge financing for $800.0 million of the total purchase price and had the option to pay to the seller up to $200.0 million of the purchase price in common stock of the Company.  We are currently in the process of fulfilling a request for additional information and documentary material received from the U.S. Department of Justice on September 16, 2009, in connection with its Hart-Scott-Rodino regulatory review.  We are also in the process of fulfilling requests for additional information from antitrust authorities in Mexico, Canada, and Brazil.  The transaction is expected to be approved by the end of 2009, and we will complete the acquisition as soon as possible.

 

6



 

On July 29, 2009, the Company amended its July 5, 2009, agreement above to reflect the receipt of proceeds from an $800.0 million bond and an 8,175,000 share equity offering (see Acquisition Financing below).  Accordingly, we no longer require bridge financing nor will we pay to the seller any common stock of the Company in connection with the acquisition.  The amendment eliminated our bridge financing requirement and our option to fund a portion of the purchase price by issuing Company common stock to the seller.

 

Acquisition Financing

 

On July 27, 2009, we issued $800.0 million of senior notes, consisting of $400.0 million aggregate principal amount of 5.65 percent senior notes due 2014 and $400.0 million aggregate principal amount of 6.80 percent senior notes due 2019.  We will pay interest on the notes semi-annually on February 1st and August 1st of each year, beginning on February 1, 2010.  We will be required to redeem the notes in the event the acquisition is not completed on or before March 31, 2010.  The net proceeds from the offerings were approximately $798.1 million.  As a result of the bond issuance, our bridge financing was no longer considered necessary and the related bridge financing agreement was terminated.

 

On July 28, 2009, we sold 8,055,000 shares of Bemis Common Stock, including 355,000 shares sold pursuant to the partial exercise of the underwriters’ overallotment option.  An additional 120,000 shares were purchased by the underwriters in August 2009.  We received net proceeds from the offering of approximately $202.8 million.

 

The net proceeds from the bond and equity offerings will be used to finance a portion of the $1.2 billion purchase price of the pending acquisition of Alcan Packaging Food Americas described above.  The remainder of the purchase price is expected to be financed with commercial paper near the time of the transaction closing.  In connection with the pending Alcan Packaging Food Americas acquisition, management expects to incur ongoing financing costs and professional fees, which will negatively impact earnings per share until the transaction closing.

 

Note 4 — Derivative Instruments

 

On January 1, 2009, we adopted the authoritative accounting guidance issued by the Financial Accounting Standards Board (FASB) which requires enhanced disclosures about (a) how and why an entity uses derivative instruments, (b) how derivative instruments and related hedged items are accounted for, and (c) how derivative instruments and related hedged items affect an entity’s financial position, financial performance, and cash flows.

 

The Company enters into derivative transactions to manage exposures arising in the normal course of business.  The Company recognizes all derivative instruments on the balance sheet at fair value.  Derivatives that are not hedges are adjusted to fair value through income.  If the derivative is a hedge, depending on the nature of the hedge, changes in the fair value of derivatives are either offset against the change in fair value of the hedged assets, liabilities, or firm commitments through earnings or recognized in stockholders’ equity through other comprehensive income until the hedged item is recognized.  Gains or losses, if any, related to the ineffective portion of any hedge are recognized through earnings in the current period.

 

The Company enters into currency swap contracts to manage changes in the fair value of U.S. dollar denominated debt held in Brazil, effectively converting a portion of that debt to the functional currency of its Brazilian operation.  Currency swap contracts generally have maturities that match the maturities of the underlying debt.  The Company has not designated these derivative instruments as hedging instruments.  At September 30, 2009, and December 31, 2008, the Company had outstanding currency swap contracts with notional amounts aggregating $18,435,000 and $24,587,000, respectively.  The fair value related to active swap contracts is recorded on the balance sheet as either a current or long-term asset or liability and as an element of other costs (income), net, which offsets the related transaction gains or losses.

 

The Company enters into forward exchange contracts to manage foreign currency exchange rate exposures associated with certain foreign currency denominated receivables and payables.  Forward exchange contracts generally have maturities of less than six months and relate primarily to major Western European currencies for our European operations, and the U.S. dollar for our Brazilian operations.  The Company has not designated these derivative instruments as hedging instruments.  At September 30, 2009, and December 31, 2008, the Company had outstanding forward exchange contracts with notional amounts aggregating $12,938,000 and $5,044,000, respectively.  The net settlement amount (fair value) related to active forward exchange contracts is recorded on the balance sheet as either a current or long-term asset or liability and as an element of other costs (income), net, which offsets the related transaction gains or losses.

 

The Company is exposed to credit loss in the event of non-performance by counterparties in currency swap and forward exchange contracts.  Collateral is generally not required of the counterparties or of the Company.  In the event a counterparty fails to meet the contractual terms of a currency swap or forward exchange contract, the Company’s risk is limited to the fair value of the instrument.  The Company actively monitors its exposure to credit risk through the use of credit approvals and credit limits, and by selecting major international banks and financial institutions as counterparties.  The Company has not had any historical instances of non-performance by any counterparties, nor does it anticipate any future instances of non-performance.

 

The fair values and balance sheet presentation of derivative instruments not designated as hedging instruments at September 30, 2009 and December 31, 2008 are presented in the tables below:

 

7



 

 

 

 

 

Fair Value

 

Fair Value

 

 

 

 

 

As of

 

As of

 

(in thousands)

 

Balance Sheet Location

 

September 30, 2009

 

December 31, 2008

 

Asset Derivatives

 

 

 

 

 

 

 

Currency swaps

 

Accounts receivable

 

$

6,973

 

$

1,303

 

 

 

Deferred charges and other assets

 

 

 

3,706

 

Forward exchange contracts

 

Accounts receivable

 

140

 

306

 

Total asset derivatives not designated as hedging instruments

 

 

 

$

7,113

 

$

5,315

 

 

 

 

 

 

 

 

 

Liability Derivatives

 

 

 

 

 

 

 

Currency swaps

 

Accounts payable

 

8,972

 

 

 

 

 

Other liabilities and deferred credits

 

 

 

66

 

Forward exchange contracts

 

Accounts payable

 

36

 

418

 

Total liability derivatives not designated as hedging instruments

 

 

 

$

9,008

 

$

484

 

 

The income statement impact of derivatives not designated as hedging instruments for the three and nine months ended September 30, 2009 is presented in the table below:

 

 

 

Location of Gain (Loss)

 

Amount of Gain (Loss) Recognized in Income on Derivatives

 

 

 

Recognized in Income

 

Three Months Ending

 

Nine Months Ending

 

(in thousands)

 

on Derivatives

 

September 30, 2009

 

September 30, 2009

 

Currency swap contracts

 

Other costs (income), net

 

$

(2,326

)

$

(7,211

)

Forward exchange contracts

 

Other costs (income), net

 

1,260

 

3,356

 

Total

 

 

 

$

(1,066

)

$

(3,855

)

 

The Company’s non-derivative financial instruments included cash and cash equivalents, accounts receivable, accounts payable, short-term borrowings, and long-term debt.  At September 30, 2009 and December 31, 2008, the carrying value of these financial instruments, excluding long-term debt, approximates fair value because of the short-term maturities of these instruments.  The fair value of the Company’s long-term debt, including current maturities but excluding capitalized leases, is estimated to be $1,362,369,000 and $700,945,000 at September 30, 2009 and December 31, 2008, respectively, using discounted cash flow analyses and based on the incremental borrowing rates currently available to the Company for similar debt with similar terms and maturity.

 

Note 5 — Financial Assets and Financial Liabilities Measured at Fair Value

 

The fair values of the Company’s financial assets and financial liabilities listed below reflect the amounts that would be received to sell the assets or paid to transfer the liabilities in an orderly transaction between market participants at the measurement date (exit price).  The fair values are based on inputs other than quoted prices that are observable for the asset or liability.  These inputs include foreign currency exchange rates and interest rates.  The financial assets and financial liabilities are primarily valued using standard calculations / models that use as their basis readily observable market parameters.  Industry standard data providers are the primary source for forward and spot rate information for both interest rates and currency rates, with resulting valuations periodically validated through third-party or counterparty quotes.

 

 

 

Significant Other Observable Inputs (Level 2)

 

(in thousands)

 

September 30, 2009

 

December 31, 2008

 

Currency swaps — net asset (liability) position

 

$

(1,999

)

$

4,944

 

Forward exchange contracts — net asset (liability) position

 

$

104

 

$

(112

)

 

Note 6— Inventories

 

The Company’s inventories are valued at the lower of cost, determined by the first-in, first-out (FIFO) method, or market.  Inventories are summarized as follows:

 

 

 

September 30,

 

December 31,

 

(in thousands)

 

2009

 

2008

 

Raw materials and supplies

 

$

158,167

 

$

161,451

 

Work in process and finished goods

 

291,802

 

293,132

 

Total inventories, gross

 

449,969

 

454,583

 

Less inventory reserves

 

(22,566

)

(18,916

)

Total inventories, net

 

$

427,403

 

$

435,667

 

 

Note 7 — Total Comprehensive Income

 

The components of total other comprehensive income are as follows:

 

 

 

Three Months Ended September 30,

 

Nine Months Ended September 30,

 

(in thousands)

 

2009

 

2008

 

2009

 

2008

 

Comprehensive income attributable to Bemis Company, Inc.

 

$

91,365

 

$

(103,333

)

$

272,702

 

$

72,416

 

Comprehensive income attributable to Noncontrolling interest

 

5,516

 

(4,917

)

12,754

 

1,612

 

Total comprehensive income

 

$

96,881

 

$

(108,250

)

$

285,456

 

$

74,028

 

 

8



 

Note 8 — Goodwill and Other Intangible Assets

 

Changes in the carrying amount of goodwill attributable to each reportable operating segment follow:

 

 

 

Flexible Packaging

 

Pressure Sensitive

 

 

 

(in thousands)

 

Segment

 

Materials Segment

 

Total

 

Reported balance at December 31, 2007

 

$

589,589

 

$

52,918

 

$

642,507

 

 

 

 

 

 

 

 

 

Currency translation and other adjustments

 

(46,611

)

(430

)

(47,041

)

Reported balance at December 31, 2008

 

542,978

 

52,488

 

595,466

 

 

 

 

 

 

 

 

 

Currency translation and other adjustments

 

47,596

 

5

 

47,601

 

Reported balance at September 30, 2009

 

$

590,574

 

$

52,493

 

$

643,067

 

 

The components of amortized intangible assets follow:

 

 

 

September 30, 2009

 

December 31, 2008

 

 

 

Gross Carrying

 

Accumulated

 

Gross Carrying

 

Accumulated

 

Intangible Assets (in thousands)

 

Amount

 

Amortization

 

Amount

 

Amortization

 

Contract based

 

$

15,447

 

$

(11,093

)

$

15,447

 

$

(10,268

)

Technology based

 

51,678

 

(23,715

)

51,422

 

(21,623

)

Marketing related

 

25,559

 

(10,946

)

20,435

 

(7,768

)

Customer based

 

71,915

 

(32,043

)

54,688

 

(21,560

)

Reported balance

 

$

164,599

 

$

(77,797

)

$

141,992

 

$

(61,219

)

 

Amortization expense for intangible assets during the first nine months of 2009 was $6.8 million.  Estimated amortization expense for the remainder of 2009 is $2.0 million; $8.8 million for 2010; $8.5 million for 2011; $7.6 million for 2012; and $6.2 million each year for 2013 and 2014.

 

Note 9 — Accounting for Stock-Based Compensation

 

Options were granted at prices equal to fair market value on the date of the grant and are exercisable, upon vesting, over varying periods up to ten years from the date of grant.  Options for directors vest immediately, while options for Company employees generally vest over three years (one-third per year).  The following table summarizes all stock option plan activity from December 31, 2008, to September 30, 2009:

 

 

 

Aggregate

 

 

 

Per Share

 

Weighted-Average

 

 

 

Intrinsic

 

Number of

 

Option Price

 

Exercise Price

 

 

 

Value

 

Shares

 

Range

 

Per Share

 

Outstanding and exercisable at December 31, 2008

 

$

5,467,000

 

1,389,338

 

$15.86 - $26.95

 

$

19.75

 

Exercised

 

 

 

(461,512

)

$17.44

 

$

17.44

 

Outstanding and exercisable at September 30, 2009

 

$

4,655,000

 

927,826

 

$15.86 - $26.95

 

$

20.89

 

 

The following table summarizes information about outstanding and exercisable stock options at September 30, 2009:

 

 

 

Options Outstanding and Exercisable

 

 

 

Number

 

Weighted-Average

 

 

 

Range of

 

Outstanding

 

Remaining

 

Weighted-Average

 

Exercise Prices

 

at 9/30/09

 

Contractual Life

 

Exercise Price

 

$15.86 - $18.81

 

503,356

 

0.8 years

 

$

17.67

 

$22.04 - $26.95

 

424,470

 

2.9 years

 

$

24.71

 

 

 

927,826

 

1.8 years

 

$

20.89

 

 

Stock options have not been granted since early 2003.  The fair value of each stock option grant was estimated on the date of grant using the Black-Scholes option-pricing model with the following weighted-average assumptions:  dividend yield 2.3%, expected volatility 29.2%, risk-free interest rate 6.75%, and expected life 10.0 years.

 

In 1994, 2001, and in 2006, the Company adopted Stock Incentive Plans for certain key employees and directors.  The 1994, 2001, and 2007 (adopted in 2006) Plans provide for the issuance of up to 4,000,000, 5,000,000, and 6,000,000 shares, respectively.  Each Plan expires 10 years after its inception, at which point no further stock options or restricted stock units may be granted.  Since 1994, 3,932,910, 3,677,162, and 1,719,313 grants of either stock options or restricted stock units have been made under the 1994, 2001, and 2007 Plans, respectively.  Distribution of the restricted stock units is made in the form of shares of the Company’s common stock on a one for one basis.  Distribution of the shares will normally be made not less than three years, nor more than six years, from the date of the restricted stock unit grant.  All restricted stock units granted under the plan are subject to restrictions such as continuous employment and performance metrics.  In addition, cash payments are made during the grant period on outstanding restricted stock units equal to the dividend on Bemis common stock.  The cost of the award is based on the fair market value of the stock on the date of grant.  The cost of the awards is charged to income over the requisite service period.

 

9



 

As of September 30, 2009, the unrecorded compensation cost for restricted stock units is $31,674,000 and will be recognized over the remaining vesting period for each grant which ranges between December 31, 2009 and December 31, 2013.  The remaining weighted-average life of all restricted stock units outstanding is 1.9 years.

 

The following table summarizes all restricted stock unit activity from December 31, 2008 to September 30, 2009:

 

 

 

 

 

Number of

 

 

 

Aggregate

 

Restricted

 

 

 

Intrinsic Value

 

Stock Units

 

Outstanding units at December 31, 2008

 

 

 

3,342,414

 

Restricted stock units granted

 

 

 

285,470

 

Restricted stock units paid

 

 

 

(280,858

)

Restricted stock units canceled

 

 

 

(40,500

)

Outstanding units at September 30, 2009

 

$

94,678,000

 

3,306,526

 

 

Note 10 — Components of Net Periodic Benefit Cost

 

Benefit costs for defined pension benefit plans are shown below.  Costs for other benefits include defined contribution pension plans and postretirement benefits other than pensions.  The funding policy and assumptions disclosed in the Company’s 2008 Annual Report on Form 10-K are expected to continue unchanged throughout 2009.

 

 

 

Three Months Ended September 30,

 

Nine Months Ended September 30,

 

 

 

Pension Benefits

 

Other Benefits

 

Pension Benefits

 

Other Benefits

 

(in thousands)

 

2009

 

2008

 

2009

 

2008

 

2009

 

2008

 

2009

 

2008

 

Service cost — benefits earned during the period

 

$

3,222

 

$

3,090

 

$

4,984

 

$

656

 

$

9,561

 

$

9,664

 

$

8,469

 

$

5,992

 

Interest cost on projected benefit obligation

 

8,530

 

8,352

 

153

 

172

 

25,469

 

25,493

 

458

 

516

 

Expected return on plan assets

 

(10,256

)

(10,909

)

 

 

 

 

(30,699

)

(33,131

)

 

 

 

 

Amortization of unrecognized transition obligation

 

69

 

54

 

 

 

 

 

194

 

192

 

 

 

 

 

Amortization of prior service cost

 

594

 

587

 

(114

)

(114

)

1,778

 

1,767

 

(342

)

(341

)

Recognized actuarial net (gain) or loss

 

2,649

 

1,181

 

(131

)

(125

)

7,946

 

3,547

 

(393

)

(376

)

Net periodic benefit (income) cost

 

$

4,808

 

$

2,355

 

$

4,892

 

$

589

 

$

14,249

 

$

7,532

 

$

8,192

 

$

5,791

 

 

Note 11 — Segments of Business

 

The Company’s business activities are organized around and aggregated into its two principal business segments, Flexible Packaging and Pressure Sensitive Materials.  Both internal and external reporting conforms to this organizational structure, with no significant differences in accounting policies applied.  The Company evaluates the performance of its segments and allocates resources to them based primarily on operating profit, which is defined as profit before general corporate expense, interest expense, income taxes, and noncontrolling interest.  A summary of the Company’s business activities reported by its two business segments follows:

 

 

 

Three Months Ended

 

Nine Months Ended

 

 

 

September 30,

 

September 30,

 

Business Segments (in millions)

 

2009

 

2008

 

2009

 

2008

 

Net Sales to Unaffiliated Customers:

 

 

 

 

 

 

 

 

 

Flexible Packaging

 

$

764.8

 

$

826.9

 

$

2,214.7

 

$

2,422.9

 

Pressure Sensitive Materials

 

137.0

 

159.9

 

400.4

 

494.7

 

 

 

 

 

 

 

 

 

 

 

Intersegment Sales:

 

 

 

 

 

 

 

 

 

Flexible Packaging

 

(0.7

)

(0.5

)

(1.9

)

(1.0

)

Pressure Sensitive Materials

 

(2.2

)

(2.0

)

(4.5

)

(5.1

)

Total Net Sales

 

$

898.9

 

$

984.3

 

$

2,608.7

 

$

2,911.5

 

 

 

 

 

 

 

 

 

 

 

Operating Profit (Loss) and Pretax Profit:

 

 

 

 

 

 

 

 

 

Flexible Packaging

 

$

106.0

 

$

82.4

 

$

299.7

 

$

249.7

 

Pressure Sensitive Materials

 

5.4

 

9.0

 

6.5

 

30.0

 

Total operating profit (1)

 

111.4

 

91.4

 

306.2

 

279.7

 

 

 

 

 

 

 

 

 

 

 

General corporate expenses

 

(38.1

)

(9.5

)

(83.8

)

(33.7

)

Interest expense

 

(13.4

)

(10.2

)

(25.3

)

(30.4

)

Income before income taxes

 

$

59.9

 

$

71.7

 

$

197.1

 

$

215.6

 

 

10



 

 

 

September 30,

 

December 31,

 

Business Segments (in millions)

 

2009

 

2008

 

Identifiable Assets:

 

 

 

 

 

Flexible Packaging

 

$

2,537.9

 

$

2,343.8

 

Pressure Sensitive Materials

 

322.2

 

339.0

 

Total identifiable assets (2)

 

2,860.1

 

2,682.8

 

Corporate assets (3)

 

1,150.5

 

139.5

 

Total

 

$

4,010.6

 

$

2,822.3

 

 


(1)       Operating profit (loss) is defined as profit (loss) before general corporate expense, interest expense, income taxes, and noncontrolling interest.

(2)       Identifiable assets by business segment include only those assets that are specifically identified with each segment’s operations.

(3)                      Corporate assets are principally cash and cash equivalents, prepaid expenses, prepaid income taxes, prepaid pension benefit costs, and corporate tangible and intangible property.

 

Note 12 — Earnings Per Share Computations

 

On January 1, 2009, the Company adopted the authoritative accounting guidance issued by the Financial Accounting Standards Board (FASB) which clarified that unvested share-based payment awards that contain nonforfeitable rights to receive dividends or dividend equivalents (whether paid or unpaid) are participating securities, and thus, should be included in the two-class method of computing earnings per share (EPS).  Participating securities under this statement include our unvested employee stock awards, which receive nonforfeitable cash payments equal to the dividend on Bemis common stock.  The calculation of earnings per share for common stock shown below excludes the income attributable to the unvested employee stock awards from the numerator and excludes the dilutive impact of those awards from the denominator.  All prior period EPS data presented have been adjusted retrospectively (including summaries of earnings and selected financial data) to conform with the provisions of this guidance.

 

 

 

Three Months Ended September 30,

 

Nine Months Ended September 30,

 

(in thousands, except per share amounts)

 

2009

 

2008

 

2009

 

2008

 

Numerator

 

 

 

 

 

 

 

 

 

Net income attributable to Bemis Company, Inc.

 

$

35,840

 

$

44,263

 

$

121,071

 

$

133,009

 

Income allocated to participating securities

 

(1,095

)

(1,429

)

(3,833

)

(4,323

)

Net income available to common shareholders (1)

 

$

34,745

 

$

42,834

 

$

117,238

 

$

128,686

 

 

 

 

 

 

 

 

 

 

 

Denominator

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding — basic

 

105,694

 

99,664

 

101,845

 

99,807

 

Dilutive shares

 

222

 

297

 

159

 

294

 

Weighted average common and common equivalent shares outstanding — diluted

 

105,916

 

99,961

 

102,004

 

100,101

 

 

 

 

 

 

 

 

 

 

 

Per common share income

 

 

 

 

 

 

 

 

 

Basic

 

$

0.33

 

$

0.43

 

$

1.15

 

$

1.29

 

Diluted

 

$

0.33

 

$

0.43

 

$

1.15

 

$

1.29

 

 


(1)

Basic weighted average common shares outstanding

 

105,694

 

99,664

 

101,845

 

99,807

 

 

Basic weighted average common shares outstanding and participating securities

 

109,024

 

102,990

 

105,175

 

103,160

 

 

Percentage allocated to common shareholders

 

96.9

%

96.8

%

96.8

%

96.7

%

 

Certain options outstanding at September 30, 2009 and 2008 (2,494 shares, at both dates) were not included in the computation of diluted earnings per share above because they would not have had a dilutive effect.

 

The impact of adopting the authoritative guidance on our previously reported third quarter and year-to-date 2008 earnings per share is presented below:

 

 

 

Three Months Ended September 30, 2008

 

Nine Months Ended September 30, 2008

 

 

 

As Reported

 

As Adjusted

 

As Reported

 

As Adjusted

 

Earnings per share:

 

 

 

 

 

 

 

 

 

Basic

 

$

0.44

 

$

0.43

 

$

1.33

 

$

1.29

 

Diluted

 

$

0.44

 

$

0.43

 

$

1.32

 

$

1.29

 

 

Note 13 — Legal Proceedings

 

The Company is involved in a number of lawsuits incidental to its business, including environmental related litigation.  Although it is difficult to predict the ultimate outcome of these cases, management believes, except as discussed below, that any ultimate liability would not have a material adverse effect upon the Company’s consolidated financial condition or results of operations.

 

11



 

The Company is a potentially responsible party (PRP) pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (commonly known as “Superfund”) and similar state laws in proceedings associated with seventeen sites around the United States.  These proceedings were instituted by the United States Environmental Protection Agency and certain state environmental agencies at various times beginning in 1983.  Superfund and similar state laws create liability for investigation and remediation in response to releases of hazardous substances in the environment. Under these statutes, joint and several liability may be imposed on waste generators, site owners and operators, and others regardless of fault.  Although these regulations could require the Company to remove or mitigate the effects on the environment at various sites, perform remediation work at such sites, or pay damages for loss of use and non-use values, we expect the Company’s liability in these proceedings to be limited to monetary damages. The Company expects its future liability relative to these sites to be insignificant, individually and in the aggregate.  The Company has reserved an amount that it believes to be adequate to cover its exposure.

 

Dixie Toga S.A., acquired by the Company on January 5, 2005, is involved in a tax dispute with the City of São Paulo, Brazil.  The City imposes a tax on the rendering of printing services.  The City has assessed this city services tax on the production and sale of printed labels and packaging products.  Dixie Toga, along with a number of other packaging companies, disagrees and contends that the city services tax is not applicable to its products and that the products are subject only to the state value added tax (VAT).  Under Brazilian law, state VAT and city services tax are mutually exclusive and the same transaction can be subject to only one of those taxes.  Based on a ruling from the State of São Paulo, advice from legal counsel, and long standing business practice, Dixie Toga appealed the city services tax and instead continued to collect and pay only the state VAT.

 

The City of São Paulo disagreed and assessed Dixie Toga the city services tax for the years 1991-1995.  The assessments for those years are estimated to be approximately $61.6 million at the date the Company acquired Dixie Toga, translated to U.S. dollars at the September 30, 2009 exchange rate.  Dixie Toga challenged the assessments and ultimately litigated the issue in two annulment actions filed on November 24, 1998 and August 16, 1999 in the Lower Tax Court in the city of São Paulo.  A decision by the Lower Tax Court in the city of São Paulo in 2002 cancelled all of the assessments for the years 1991-1995.  The City of São Paulo, the State of São Paulo, and Dixie Toga have each appealed parts of the lower court decision.  In the event of an adverse resolution, the estimated amount for these years could be substantially increased for additional interest, monetary adjustments and costs from the date of acquisition.

 

The City has also asserted the applicability of the city services tax for the subsequent years 1996-2001 and has issued assessments for those years for Dixie Toga and for Itap Bemis Ltda., a Dixie Toga subsidiary.  The assessments for those years were upheld at the administrative level and are being challenged by the companies.  The assessments at the date of acquisition for these years for tax and penalties (exclusive of interest and monetary adjustments) are estimated to be approximately $9.3 million for Itap Bemis and $29.9 million for Dixie Toga, translated to U.S. dollars at the September 30, 2009 exchange rate.  In the event of an adverse resolution, the estimated amounts for these years could be increased by $38.5 million for Itap Bemis and $111.0 million for Dixie Toga for interest, monetary adjustments and costs.

 

The 1996-2001 assessments for Dixie Toga are currently being challenged in the courts.  In pursuing its challenge through the courts, taxpayers are generally required, in accordance with court procedures, to pledge assets as security for its lawsuits.  Under certain circumstances, taxpayers may avoid the requirement to pledge assets.  Dixie Toga has secured a court injunction that avoids the current requirement to pledge assets as security for its lawsuit related to the 1996-2001 assessments.

 

The Company strongly disagrees with the City’s position and intends to vigorously challenge any assessments by the City of São Paulo.  The Company is unable at this time to predict the ultimate outcome of the controversy and as such has not recorded any liability related to this matter.  An adverse resolution could be material to the consolidated results of operations and/or cash flows of the period in which the matter is resolved.

 

On September 18, 2007, the Secretariat of Economic Law (SDE), a governmental agency in Brazil, initiated an investigation into possible anti-competitive practices in the Brazilian flexible packaging industry against a number of Brazilian companies including a Dixie Toga subsidiary.  The investigation relates to periods prior to the Company’s acquisition of control of Dixie Toga and its subsidiaries.  Given the preliminary nature of the proceedings the Company is unable at the present time to predict the outcome of this matter.

 

The Company and its subsidiary, Morgan Adhesives Company, have been named as defendants in thirteen civil lawsuits related to an investigation that was initiated and subsequently closed by the U.S. Department of Justice without any further action.  Six of these lawsuits purport to represent a nationwide class of labelstock purchasers, and each alleges a conspiracy to fix prices within the self-adhesive labelstock industry.  The first of these lawsuits was filed on May 27, 2003.  In these lawsuits, the plaintiffs seek actual damages for the period of the alleged conspiracy (January 1, 1996 through July 25, 2003) trebled, plus an award of attorneys’ fees and costs.  On November 5, 2003, the Judicial Panel on MultiDistrict Litigation issued a decision consolidating all of the federal class actions for pretrial purposes in the United States District Court for the Middle District of Pennsylvania, before the Honorable Chief Judge Vanaskie.  On November 20, 2007, the Court granted plaintiffs’ motion for class certification.  On June 24, 2008, the Court in the consolidated federal class actions issued a decision dismissing the Company from those actions.  On January 27, 2009, the defendants filed a motion to decertify the class based on new case law in the Third Circuit.  On May 26, 2009, the Company and Morgan Adhesives Company entered into a settlement with the plaintiff class, pursuant to which the Company agreed to pay $1.25 million in return for a full and complete release of all claims in the federal class actions.  The Company agreed to pay this settlement amount to avoid the expense of further litigation.  On June 10, 2009, Judge Vanaskie granted preliminary approval to the settlement.  On September 17, 2009, Judge Vanaskie granted final approval of the settlement, and dismissed the class action against Morgan Adhesives with prejudice.  The Company and Morgan Adhesives Company have also been named in three lawsuits filed in the California Superior Court in San Francisco. These three lawsuits, which have been consolidated, seek to represent a class of all California indirect purchasers of labelstock and each alleges a conspiracy to fix prices within the self-adhesive labelstock industry.  Finally, the Company has been named in one lawsuit in Vermont, seeking to represent a class of all Vermont indirect purchasers of labelstock, one lawsuit

 

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in Nebraska seeking to represent a class of all Nebraska indirect purchasers of labelstock, one lawsuit in Kansas seeking to represent a class of all Kansas indirect purchasers of labelstock, and one lawsuit in Tennessee, seeking to represent a class of purchasers of labelstock in various jurisdictions, all alleging a conspiracy to fix prices within the self-adhesive labelstock industry.  The Company and Morgan Adhesives Company intend to vigorously defend the state class actions.

 

Given the ongoing status of the class-action civil lawsuits, the Company is unable to predict the outcome of these matters although the effect could be material to the results of operations and/or cash flows of the period in which the matter is resolved.  The Company is currently not otherwise subject to any pending litigation other than routine litigation arising in the ordinary course of business, none of which is expected to have a material adverse effect on the business, results of operations, financial position, or liquidity of the Company.

 

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