Form S-4
Please provide us with copies of the materials that Goldman Sachs prepared and shared with the Bemis board of directors in connection with this transaction, including any board books, transcripts and summaries of oral presentations made to the board. Background of the Transaction, page 76
No reply letter found.
We note your disclosure that at the December 18, 2017, December 19, 2017, February 7, 2018 and February 8, 2018 board meetings Goldman presented a review of certain potential strategic alternatives (including potential transactions involving Party A, Party B and Party C) and Bemis on a stand-alone basis.Rest of the question
Please expand your disclosure to explain why you did not pursue further discussions with Party B after September 25, 2017.
No reply letter found.
We note your disclosures here and elsewhere that the parties 'intend" the merger to be treated as a tax-free reorganization under Section 368(a) of the Code and the merger and the scheme, taken together, to be treated as an exchange described under Section 351 of the Code.Rest of the question
Please revise your disclosure to express a firm conclusion regarding the federal income tax consequences of the transaction and indicate whether the merger will qualify as a tax-free reorganization.
No reply letter found.
Please tell us how you considered the Bemis shareholders' dissenters' rights in your preliminary purchase allocation, specifically addressing the potential impact to the estimated number of New Amcor Shares to be delivered as well as the potential cash payment of the fair value of Bemis Shares.
No reply letter found.
Please quantify and identify the material components underlying your $175 million estimated non-recurring costs associated with the Transaction.
No reply letter found.
Please present pro forma equivalent data for Bemis. Refer to Item 3 (e) of Form S-4 and the Instructions to Item 3(e) and (f). Also, in accordance with Item 3(g) of Form S-4, please present the market value of securities of the Bemis on an equivalent per share basis.
No reply letter found.
Please expand your comparison of results of continuing operations at the consolidated and segment level to quantify the impact of each underlying factor and explain the underlying drivers of those changes. Please refer to Item 303(a)(3) of Regulation S-K and Section 501.12 of the Financial Reporting Codification for guidance.
No reply letter found.
As reflected in your June 30, 2018 pro forma balance sheet on page 170, we note that as a result of change in control provisions for Amcor and Bemis, New Amcor's current portion of their long-term debt will be approximately $2.6 billion.Rest of the question
Please expand your liquidity discussion to address the potential negative effect(s) related to this additional current debt as well as you ability to repay and/or refinance the current portion of this pro forma debt subsequent to the Transaction.
No reply letter found.
Given the significance of your goodwill pre-acquisition and the significance of goodwill for the combined company, please expand your disclosures to provide the following additional information: • Disclose your testing date; • Define the reporting unit level at which you test goodwill for impairment; • Provide a discussion regarding your impairment testing policies.Rest of the question
Clarify whether your most recent goodwill impairment test was a qualitative or quantitative assessment and explain the factors you considered in making that determination; and • To the extent you performed quantitative assessments, disclose, if accurate, that the estimated fair values of the reporting units you tested substantially exceeded their carrying values.
No reply letter found.
As indicated on page F-30, we note that due to impairment indicators present for each of the years presented, Amcor performed an impairment test by comparing the carrying value of its investment in AMVIG to the fair value of that investment, which was determined based on AMVIG's quoted share price.Rest of the question
Please expand your disclosures to address the nature of the impairment indicators present and how you concluded that the impairment was other-than-temporary. Refer to ASC 323-10-35-31 and 35-32.
No reply letter found.
Please update your financial statements pursuant to Rule 3-12 of Regulation S-X.
No reply letter found.
In light of the disclosure on pages F-13 related to the impairment losses associated with certain PP&E and identifiable intangible assets with finite lives, please provide the disclosures required by ASC 820-10-50-2 for assets remeasured to fair value on a nonrecurring basis.
No reply letter found.
Please have tax counsel revise the opinion to remove assumption (6), as it is inappropriate to assume any legal conclusion underlying the opinion.
No reply letter found.
We note that your forum selection provision identifies the Royal Court of Jersey as the exclusive forum for certain litigation, including any “derivative action.” Please disclose this provision and disclose that there is uncertainty as to whether a court would enforce such provision.Rest of the question
Please consider revising your Comparison of the Rights of Holders of Bemis Shares and New Amcor Shares to disclose your exclusive forum provision.
No reply letter found.
We note counsel's opinion that the transaction should not be subject to Section 367(a)(1) of the Code. It is permissible for the tax opinion to use "should" rather than "will" but please have counsel revise the opinion to describe the degree of uncertainty in the opinion. Please see Section III.C.4 of Staff Legal Bulletin No. 19. 4. Other pro forma adjustments, page 181
No reply letter found.
As disclosed on pages 290 and 291, we note that as a result of the Transaction, there will be changes to the compensation of your CEO and non-executive directors. If material, please address the need to reflect such changes in your pro forma financial statements. Note 4 (e) Amcor equity share arrangements, page 183
No reply letter found.
We note that you deleted the statement "Amcor has not yet determined if any new equity share awards will be granted upon completion of the Transaction." If you have made the determination to grant new equity share awards upon completion of the Transaction, please discuss the nature of such grants and address the need to reflect the impact of those grants in your pro forma financial statements.
No reply letter found.
We note that you reported net cash used in operating activities of $301.3 million for the three months ended September 30, 2018. This is a material change from the $871.4 million net cash provided by your operating activities for the year ended June 30, 2018. The significant use of cash during the three months ended September 30, 2018 appears to be driven by material changes in your operating assets and liabilities.Rest of the question
Please expand your disclosures to provide a more robust analysis of the significant drivers underlying these material changes. Also, address this comment as it relates to the change in your net cash used in your operating activities for the three months ended September 30, 2018 as compared to the three months ended September 30, 2107. In this regard, we not a significant decrease in net cash used in operating activities from period to period. Refer to Sections 501.03, .04 and .13 of the Financial Reporting Codification. You may contact Tracey McKoy, Staff Accountant at (202) 551-3772 or Jeanne Baker, Staff Accountant at (202) 551-3691 if you have questions regarding comments on the financial statements and related matters. Please contact Sherry Haywood, Staff Attorney at (202) 5513345 or Asia Timmons-Pierce, Special Counsel at (202) 551-3754 with any other questions. Sincerely,
No reply letter found.
Please revise to clarify whether this provision will apply to claims arising under the federal securities laws.
Amcor acknowledges the Staff’s comment and advises the Staff that in response to the Staff’s comment Amcor has revised the disclosure on page 64 of the Registration Statement to clarify that the exclusive forum provision in New Amcor’s Articles of Association will not prevent derivative shareholder actions based on claims arising under United States federal securities laws from being brought in a United States court and additional detail related thereto. Read in the reply ↗
We note you present Amcor and Bemis' combined cash flow after capital expenditures and before dividends, when adjusted to include $180 million of pre-tax annual net cost synergies expected to be ultimately realized in connection with the transaction (but excluding estimated integration or other transaction costs).Rest of the question
Please tell us how the presentation of this measure complies with the disclosure requirements of Item 10(e) of Regulation S-K and Question 100.01 of the Division of Corporation Finance's Compliance and Disclosure Interpretations of Non-GAAP Financial Measures. Ensure you specifically address the appropriateness of including estimated cost synergies without the estimated integration costs or additional capital expenditures that would appear necessary to achieve such synergies.
Amcor acknowledges the Staff’s comment and advises the Staff that in response to the Staff’s comment Amcor has revised the disclosure on page 198 of the Registration Statement to remove the presentation of the expected future synergies measure and present instead Amcor and Bemis’ combined cash flow from operating activities for the twelve months ended June 30, 2018. The presented combined cash flow measure is exclusive of the $180 million of pre-tax annual net cost synergies, estimated integration and other transaction costs. Read in the reply ↗
We note that Part III of Bemis Company’s annual report on Form 10-K for the fiscal year ended December 31, 2018 incorporates by reference portions of its proxy statement which has not been filed yet. Please be advised that we cannot accelerate the effective date of your registration statement until Bemis Company has amended the Form 10-K to include Part III information or filed the definitive proxy statement.Rest of the question
Please refer to Compliance and Disclosure Interpretations, Securities Act Forms Question 123.01.
Amcor acknowledges the Staff’s comment and respectfully submits that the proxy statement/prospectus forming part of Amcor’s Registration Statement on Form S-4 will constitute a complete Securities Act Section 10(a) prospectus without incorporation of the relevant portions that would be incorporated by reference from either Bemis’ definitive proxy statement or an amendment to its Form 10-K.Read in the reply ↗Rest of the answer
We believe it would be consistent with the form requirements of Form S-4 and Staff guidance regarding primary offerings by well-known seasoned issuers (“WKSIs”), such as Bemis, for the Staff to accelerate the effectiveness of Amcor’s Registration Statement without it setting forth or incorporating by reference the Bemis’ Part III disclosures.
The Staff’s comment references Securities Act Forms Compliance and Disclosure Interpretation 123.01 (“C&DI 123.01”). C&DI 123.01 sets forth the requirement that after a registrant files its Form 10-K for its most recent fiscal year, a non-automatic shelf registration statement on Form S-3 must incorporate by reference executive compensation disclosure and the other disclosures set forth in Part III of Form 10-K (“Part III information”) for the most recent fiscal year before the Staff will accelerate the effectiveness of the non-automatic shelf registration statement. This requirement is a natural consequence of Item 12(a)(1) of Form S-3, which requires that a registrant’s latest annual report on Form 10-K be incorporated by referenced into each Form S-3 filed by such registrant.
In contrast, Form S-4 does not require that the target company’s latest annual report on Form 10-K be incorporated into Form S-4. Indeed, there is no requirement that any of the target company’s Exchange Act filings be incorporated by reference into the Form S-4 (or even that the target company be a public company) (it is also noteworthy in this regard that C&DI 123.01 refers to information with respect to the “registrant” since Bemis here, as the target company, is not the registrant). Instead, Form S-4 permits the registrant (at the registrant’s sole option) to incorporate by reference the Exchange Act filings of certain target companies as a method of providing the disclosures that would otherwise be required under Item 17 of Form S-4.
Notably, the information required by Item 17 of Form S-4 does not specifically require any of the disclosures that would be included in Bemis’s Part III information. If Amcor had elected to comply with Item 17 of Form S-4 instead of relying on incorporation by reference, none of these disclosures would be required (other than to the limited extent required by Item 18(a)(7) and then these disclosures are only required “[w]ith respect to each person who will serve as a director or an executive officer of the surviving or acquiring company”). Item 17 reflects the Commission’s recognition of the fact that historical executive compensation information about a company is less relevant where such company is the target of a business combination (in which the focus of investors is on the registrant-acquiror and the terms of the transaction) than it would be if such company were conducting a primary offering of its own securities.(1)
As a result, Amcor respectfully submits that the proxy statement/prospectus forming part of the Registration Statement will constitute a complete Securities Act Section 10(a) prospectus and will comply with the requirements of Form S-4 without incorporation of Bemis’s Part III information. Thus, to risk delaying the effectiveness of the
(1) Schedule 14A, which determines the disclosure requirements that would be applicable in an all-cash business combination, does not require inclusion of a target company’s historical executive compensation information, providing further evidence of the Commission’s recognition that such information lacks relevance to an investment decision about a business combination.
Registration Statement until Bemis’s Part III information is on file would be to add delay for the sake of disclosures that are not otherwise required by Form S-4 and that are not particularly relevant to the investment decision being made. We respectfully submit that delaying the effectiveness of the Registration Statement for the sake of such extraneous disclosures would not be in the bests interests of investors, particularly since it could result in delaying both the opportunity for shareholders to express their views on the merger at the Bemis Special Meeting and the opportunity for shareholders to receive the benefits of the transaction expected to be realized after closing.
Such an outcome would be anomalous in any case, but it is even more so given the fact that Bemis is a well-known seasoned issuer. C&DI 123.01 refers only to non-automatic shelf registration statements on Form S-3, which typically are filed only by non-WKSIs. Guidance with respect to automatic shelf registration statements filed by WKSIs is instead set forth in Securities Act Forms Compliance and Disclosure Interpretation 114.05 (“C&DI 114.05”). C&DI 114.05 provides that a WKSI may file and use an automatic shelf registration statement after filing its Form 10-K for its immediately concluded fiscal year even though the WKSI has not included or incorporated by reference Part III information for that fiscal year, so long as the WKSI determines that the prospectus set forth in the registration statement includes the information required by Securities Act Section 10(a) and Schedule A. Similarly, Securities Act Forms Compliance and Disclosure Interpretation 114.07 (“C&DI 114.07” and together with C&DI 114.05, the “WKSI C&DIs”) provides that a WKSI may file an automatic shelf registration statement during the pendency of a confidential treatment request so long as the registrant determines that the prospectus includes the information required by Securities Act Section 10(a) and the applicable rules thereunder. In contrast, issuers other than WKSIs must resolve all confidential treatment requests before the Staff will accelerate the effectiveness of a non-automatic shelf registration statement.
The key difference between C&DI 123.01 and the WKSI C&DIs is the status of the filer. The WKSI C&DIs reflect a determination by the Staff that a WKSI and its counsel are best positioned to determine whether a prospectus satisfies the requirements of Securities Act Section 10(a) and the applicable rules thereunder, while non-WKSIs must always provide Part III information for the most recent fiscal year after filing the Form 10-K for that fiscal year. This distinction reflects, in part, that WKSIs are typically better informed about disclosure requirements and that there is a greater amount of information available regarding such registrants. The same factors that underlie this distinction in the case of a WKSI registrant’s Form S-3 (which expressly requires incorporation of a registrant’s Form 10-K) apply even more so in the case of a WKSI target company’s information in another registrant’s Form S-4 (which does not require incorporation of the target company’s Form 10-K).
As discussed above, Amcor believes the Registration Statement will satisfy the requirements of Securities Act Section 10(a) and the applicable rules thereunder. For the foregoing reasons, we respectfully submit that the Staff should be in a position to accelerate the effectiveness of the Registration Statement without incorporation of Bemis’s Part III information.
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We hope that the foregoing has been responsive to the Staff’s comments. If you have any questions related to this letter, please contact the undersigned at (212) 446-4722 or Jonathan Davis at (212) 446-4835.
Please request PricewaterhouseCoopers LLP to provide their consent for the incorporation by reference of their report dated February 15, 2019 related to the financial statements, financial statement schedule and effectiveness of internal control over financial reporting, which appears in Bemis Company's Inc. Annual Report of Form 10-K for the year ended December 31, 2018.
Amcor acknowledges the Staff’s comment and advises the Staff that Amcor has received PricewaterhouseCoopers LLP’s consent for the incorporation by reference of their report dated February 15, 2019 related to the financial statements, financial statement schedule and effectiveness of internal control over financial reporting, which appears in Bemis Company, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2018 and has revised Exhibit 23.2 to reflect the same. Read in the reply ↗
We note your response to comment 3 of our prior letter. For each person who will serve as an executive officer or director of the combined company, please include the information required by Item 18(a)(7) of Form S-4.
Amcor acknowledges the Staff’s comment and advises the Staff that in response to the Staff’s comment Bemis Company, Inc. has filed Amendment No. 1 to the Annual Report on Form 10-K for the year ended December 31, 2018 on March 22, 2019 containing Part III of Form 10-K information, which addresses the information required by Item 18(a)(7) of Form S-4. Amcor has revised the disclosure on page 299 to reflect the incorporation by reference of Bemis Company, Inc.’s Amendment No. 1 to the Annual Report on Form 10-K for the year ended December 31, 2018 into the Amended Registration Statement. Read in the reply ↗
We note your response to comment one of our prior letter. Please update your disclosures on page 236.
Amcor acknowledges the Staff’s comment and advises the Staff that in response to the Staff’s comment Amcor has updated the disclosure on page 236.
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We hope that the foregoing has been responsive to the Staff’s comments. If you have any questions related to this letter, please contact the undersigned at (212) 446-4722 or Jonathan Davis at (212) 446-4835. Read in the reply ↗
