UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): September 13, 2016
AEP INDUSTRIES INC.
(Exact name of registrant as specified in its charter)
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Delaware
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001-35117
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22-1916107
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S. Employer
Identification Number)
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95 Chestnut Ridge Road
Montvale, New Jersey
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07645
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(Address of principal executive offices)
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(Zip code)
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Registrants telephone number, including area code: (201) 641-6600
(Former name or former address, if changed since last report) N/A
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01
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Entry into a Material Definitive Agreement
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On September 13, 2016, AEP Industries Inc.
(the Company) entered into the Consent and Amendment No. 3 to Second Amended and Restated Loan and Security Agreement with Wells Fargo Bank, National Association (Wells Fargo), as agent and lender, and the other financial
institution party thereto, as lender (Amendment No. 3). Under Amendment No. 3, the agent and lenders (i) consented to the redemption (the Redemption) of up to $75 million aggregate principal amount of the Companys 8
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⁄
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% Senior Notes due 2019 (the Notes), together with accrued and unpaid interest and any premium thereon, and (ii) agreed to certain amendments to the
Companys Second Amended and Restated Loan and Security Agreement, dated February 22, 2012 (as amended, the Credit Facility), to adjust certain permitted transaction baskets in connection with the Redemption. The maximum borrowing
amount under the Credit Facility remains the same at $150.0 million with a maximum for letters of credit of $20.0 million. The maturity date of the Credit Facility remains February 1, 2019.
The other terms and conditions of the Credit Facility, including the terms under which the amounts due thereunder may be accelerated or
increased, were not amended by Amendment No. 3 and remain in full force and effect.
The foregoing description is qualified in its
entirety by Amendment No. 3, a copy of which is attached hereto as Exhibit 4.1, and is incorporated herein by reference.
Item 2.03
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Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
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The information contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Notice of Redemption
On September 13, 2016, the Company delivered a notice of redemption in respect of the Notes to The Bank of New York Mellon Trust Company, N.A.,
a New York banking corporation, as trustee (the Trustee) in accordance with the terms of the Indenture, dated as of April 18, 2011 (the Indenture), by and between the Company and the Trustee, governing the Notes. The notice
of redemption was delivered by the Trustee to holders of the Notes on behalf of the Company and provides that the Company will redeem $75 million principal amount of the Notes (the Redemption Notes) on October 13, 2016 (the
Redemption Date), in accordance with the redemption provisions contained in the Notes and in the Indenture.
The redemption
price consists of 102.063% of the aggregate principal amount of the Redemption Notes, plus accrued and unpaid interest to, but not including, October 13, 2016 (the Redemption Price). The Company intends to pay the Redemption Price using
cash on hand.
Interest on the Redemption Notes will cease to accrue on and after the Redemption Date, and unless the Company defaults in
making the payment of the Redemption Price, the only remaining right of the holders of the Redemption Notes after the Redemption Date shall be the right to receive payment of such Redemption Price.
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Item 9.01.
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Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit
No.
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Description
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4.1
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Consent and Amendment No. 3 to Second Amended and Restated Loan and Security Agreement, dated as of September 13, 2016, by and among the Company, Wells Fargo Bank, National Association, as agent and lender, and the other financial
institution party thereto, as lender.
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Forward-Looking Statements
This Current Report on Form 8-K contains certain 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, as amended, including, but not limited to, statements about the expected completion of the Redemption and the use of cash to pay the Redemption Price. Forward-looking statements involve known and unknown
risks and uncertainties which may cause events in future periods to differ materially from forecasted events. Those risks include, but are not limited to, the timing and completion, in part or full, of the significant capacity increase by North
American resin producers in future years and its impact on future resin pricing; the ability to manage resin price volatility, including passing raw material price increases to customers in full or in a timely fashion; delayed purchases by certain
customers during periods when resin prices are expected to decrease in the near term; the availability of raw materials; competition in existing and future markets; disruptions in the global economic and financial market environment; resin price
reductions leading to the utilization of LIFO reserves and resulting in the payment of additional taxes in cash; limited contractual relationships with customers; the Boards discretion to pay future dividends; future cash flows, liquidity,
contractual and legal restrictions related thereto; that the mergers with Berry Plastics Group, Inc. (Berry) and certain of its subsidiaries may not be consummated in a timely manner or at all; the failure to complete the mergers could
negatively impact the stock price and the future business and financial results of the Company; that the definitive Merger Agreement may be terminated in circumstances that require the Company to pay Berry a termination fee of $20 million and/or
reimbursement of its expenses of up to $5 million; the diversion of managements attention from the Companys ongoing business operations to the closing of the mergers; the failure of the Company to obtain the requisite consents to the
mergers, including the receipt of approval of the Companys stockholders, the timing (including possible delays) and receipt of regulatory approvals from governmental entities (including any conditions, limitations or restrictions placed on
these approvals) and the risk that one or more governmental entities may deny approval; the effect of the announcement of the mergers on the Companys business relationships (including, without limitation, customers and suppliers), operating
results and business generally. Those and other risks are described in the Companys annual report on Form 10-K for the fiscal year ended October 31, 2015 and subsequent reports filed with the Securities and Exchange Commission (SEC), copies of
which are available from the SEC or may be obtained from the Company. Except as required by law, the Company assumes no obligation to update the forward-looking statements, which are made as of the date hereof, even if new information becomes
available in the future.
No Offer or Solicitation
This communication is not intended to and does not constitute an offer to sell or the solicitation of an offer to buy, sell or solicit any securities or any
proxy, vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No
offer of securities shall
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be deemed to be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended. In connection with the proposed transaction, Berry
expects to prepare and file with the SEC a registration statement on Form S-4 containing a proxy statement/prospectus and other documents with respect to Berrys proposed acquisition of the Company.
Investors are urged to read the proxy
statement/prospectus (including all amendments and supplements thereto) and other relevant documents filed with the SEC if and when they become available because they will contain important information about the proposed transaction
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Additional Information and Where to Find It
Investors
may obtain free copies of the registration statement, the proxy statement/prospectus and other relevant documents filed by Berry and the Company with the SEC (when they become available) through the website maintained by the SEC at
www.sec.gov. Copies of the documents filed by Berry with the SEC will also be available free of charge on Berrys website at www.berryplastics.com and copies of the documents filed by the Company with the SEC are available free of charge
on the Companys website at www.aepinc.com.
Participants in Solicitation Relating to the Merger
Berry, the Company and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the
Companys shareholders in respect of the proposed transaction. Information regarding Berrys directors and executive officers can be found in Berrys definitive proxy statement filed with the SEC on January 20, 2016 and its 2015
Annual Report filed with the SEC on November 23, 2015 as well as its other filings with the SEC. Information regarding the Companys directors and executive officers can be found in the Companys definitive proxy statement filed with
the SEC on February 25, 2016 and its 2015 Annual Report filed with the SEC on January 14, 2016, as well as its other filings with the SEC. Additional information regarding the interests of such potential participants will be included in the
proxy statement/prospectus and other relevant documents filed with the SEC in connection with the proposed transaction if and when they become available. These documents are available free of charge on the SECs website and from Berry and
the Company, as applicable, using the sources indicated above.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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AEP INDUSTRIES INC.
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Date: September 14, 2016
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By:
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/s/ LINDA N. GUERRERA
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Linda N. Guerrera
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Vice President and Controller
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EXHIBITS
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Exhibit
No.
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Description
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4.1
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Consent and Amendment No. 3 to Second Amended and Restated Loan and Security Agreement, dated as of September 13, 2016, by and among the Company, Wells Fargo Bank, National Association, as agent and lender, and the other financial
institution party thereto, as lender.
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