AEP INDUSTRIES INC.
(Exact Name of Registrant as Specified in 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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(IRS Employer
Identification No.)
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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
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 (see General Instruction A.2. below):
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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 8.01. Other Events.
As previously disclosed, on August 24, 2016, AEP Industries Inc., a Delaware corporation (AEP), entered into an Agreement and Plan of Merger
(the Merger Agreement) with Berry Plastics Group, Inc., a Delaware corporation (Berry), Berry Plastics Corporation, a Delaware corporation and a direct, wholly owned subsidiary of Berry (Holdings), Berry Plastics
Acquisition Corporation XVI, a Delaware corporation and a direct wholly owned subsidiary of Holdings (Merger Sub), and Berry Plastics Acquisition Corporation XV, LLC, a Delaware limited liability company and a direct wholly owned
subsidiary of Holdings (Merger Sub LLC), providing for (i) the merger of Merger Sub with and into AEP (the First-Step Merger), with AEP surviving the First-Step Merger, and, (ii) thereafter, the merger of AEP with
and into Merger Sub LLC (the Second-Step Merger and, together with the First-Step Merger, the Mergers), with Merger Sub LLC surviving as a wholly owned subsidiary of Holdings.
On November 2, 2016, the U.S. Federal Trade Commission notified Berry and AEP that early termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the HSR Act), was granted, effective immediately. Therefore, the closing condition to the Mergers in the Merger Agreement relating to the expiration or termination of the waiting period
applicable to the Mergers under the HSR Act has been satisfied.
The consummation of the Mergers remains subject to the adoption of the Merger Agreement
by AEPs stockholders and the satisfaction or waiver of the other closing conditions as set forth in the Merger Agreement.
Forward-Looking
Information
This document 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, as amended, with respect to our financial condition, results of operations and business and our expectations or beliefs concerning future events. All statements regarding Berrys,
AEPs or their respective subsidiaries expected future financial position, results of operations, cash flows, funds from operations, dividends and dividend plans, financing plans, business strategy, budgets, projected costs, operating
metrics, capital expenditures, competitive positions, acquisitions, investment opportunities, merger integration, growth opportunities, dispositions, expected lease income, plans and objectives of management for future operations and statements that
include words such as anticipate, if, believe, plan, estimate, expect, intend, may, could, should, would,
will, seeks, approximately, outlook, looking forward and other similar expressions or the negative form of the same are forward-looking statements. Forward-looking statements by their
nature address matters that are, to different degrees, uncertain, such as statements about the potential timing or consummation of the proposed transaction or the anticipated benefits thereof, including, without limitation, future financial and
operating results. Berry and AEP caution readers that these and other forward-looking statements are not guarantees of future results and are subject to risks, uncertainties and assumptions that could cause actual results to differ materially from
those expressed in any forward-looking statements. Important risk factors that may cause such a difference include, but are not limited to risks and uncertainties related to (i) the ability to obtain shareholder and regulatory approvals, or the
possibility that they may delay the transaction or that such regulatory approval may result in the imposition of conditions that could cause the parties to abandon the transaction, (ii) the risk that the conditions to closing of the Mergers may
not be satisfied; (iii) the ability of Berry to integrate the acquired business successfully and to achieve anticipated cost savings and other synergies, (iv) the possibility that other anticipated benefits of the proposed transaction will
not be realized, including without limitation, anticipated revenues, expenses, earnings and other financial results, and growth and expansion of the new combined companys operations, and the anticipated tax treatment, (v) potential
litigation relating to the proposed transaction that could be instituted against Berry, AEP or their respective directors, (vi) possible disruptions from the proposed transaction that could harm Berrys or AEPs business, including
current plans and operations, (vii) potential adverse reactions or changes to relationships with clients, employees, suppliers or other parties resulting from the announcement or completion of the Mergers, (viii) changes in prices and
availability of resin and other raw materials and our ability to pass on changes in raw material prices on a timely basis, (ix) continued availability of capital and financing and rating agency actions, (x) legislative, regulatory and
economic developments and (xi) catastrophic loss of one of our key manufacturing facilities, natural disasters, and other unplanned business interruptions; as well as managements response to any of the aforementioned factors. These risks,
as well as other risks associated with the proposed transaction, are more fully discussed in the preliminary proxy statement/prospectus that was included in the registration statement on Form S-4 (File No. 333-213803),
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dated September 26, 2016, that Berry filed with the Securities and Exchange Commission (SEC) in connection with the proposed transaction. The list of factors presented here is,
and the list of factors presented in the registration statement on Form S-4 should not be considered to be a complete statement of all potential risks and uncertainties. Unlisted factors may present significant additional obstacles or impediments to
the realization of forward looking statements. Consequences of material differences in results as compared with those anticipated in the forward-looking statements could include, among other things, business disruption, operational problems,
financial loss, legal liability to third parties and similar risks, any of which could have a material adverse effect on Berrys or AEPs consolidated financial condition, results of operations, credit rating or liquidity. Neither Berry
nor AEP assumes any obligation to provide revisions or updates to any forward looking statements, whether as a result of new information, future developments or otherwise, should circumstances change, except as otherwise required by securities and
other applicable laws.
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 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 has filed with the SEC a
registration statement on Form S-4 (File No. 333-213803), dated September 26, 2016, containing a preliminary proxy statement/prospectus and other documents with respect to Berrys proposed acquisition of AEP.
Investors and
security holders are urged to read the Form S-4, including the preliminary proxy statement/prospectus (including all amendments and supplements thereto) filed, and other relevant documents that will be filed, with the SEC (including the definitive
proxy statement/prospectus) 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, including the preliminary proxy statement/prospectus, and other relevant documents filed by Berry and AEP with the SEC through the website maintained by the SEC at www.sec.gov. Copies of the
documents filed by Berry with the SEC are available free of charge on Berrys website at www.berryplastics.com and copies of the documents filed by AEP with the SEC are available free of charge on AEPs website at www.aepinc.com.
Participants in Solicitation Relating to the Mergers
Berry, AEP and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from AEPs 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 AEPs directors and executive officers can be found in AEPs 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 are included in the preliminary proxy statement/prospectus and
other relevant documents filed with the SEC in connection with the proposed transaction. These documents are available free of charge on the SECs website and from Berry and AEP, as applicable, using the sources indicated above.
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SIGNATURE
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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Dated: November 3, 2016
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AEP INDUSTRIES INC.
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By:
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/s/ L
INDA
N.
G
UERRERA
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Name:
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Linda N. Guerrera
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Title:
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Vice President, Finance and Controller
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