BERRY PLASTICS GROUP, INC. (NYSE:BERY) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01
| Entry into a Material Definitive Agreement. |
As previously disclosed, on August 24, 2016, Berry Plastics
Group, Inc., a Delaware corporation (Berry), entered into an
Agreement and Plan of Merger (the Merger Agreement) by and among
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), Berry
Plastics Acquisition Corporation XV, LLC, a Delaware limited
liability company and a direct, wholly owned subsidiary of
Holdings (Merger Sub LLC) and AEP Industries Inc., a Delaware
corporation (AEP), 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 December 7, 2016, Berry, Holdings, Merger Sub, Merger Sub LLC
and AEP entered into Amendment No. 1 to the Merger Agreement
(Amendment No. 1), which, among other things, (i) removed the
requirement in the Merger Agreement that Berry make available and
mail the form of election to AEP stockholders not less than
thirty (30) business days prior to the anticipated election
deadline, and required instead that the forms of election be made
available and mailed at least twenty (20) business days prior to
the anticipated election deadline; (ii) provided for the
unbundling of the single proposal to approve the Merger Agreement
into (A) a proposal to adopt the Merger Agreement to which AEP
stockholders would be entitled to receive in connection with the
Mergers, at the stockholders election, $110.00 in cash (the Cash
Consideration) or 2.5011 shares of Berry common stock (the Stock
Consideration and, together with the Cash Consideration, the
Merger Consideration) in exchange for each share of AEP common
stock, subject to the proration mechanics in the Merger Agreement
and (B) a proposal to adopt the Merger Agreement to which, in
certain limited circumstances as specified in the Merger
Agreement, Berry may elect, in its sole discretion, to pay
$110.00 in cash for each share of AEP common stock, subject to
certain conditions; (iii) revised certain mechanics in connection
with the calculation of the 2017 performance units and the 2017
MIP; (iv) revised the Merger Agreement to permit AEP to redeem,
repurchase, prepay, defease, cancel, incur or otherwise acquire,
or modify the terms of, any indebtedness or issue any debt
securities or assume, guarantee or endorse, or otherwise become
responsible for, the obligations of any person for borrowed
money, in the ordinary course of business consistent with past
practice in a principal amount not to exceed $65 million in the
aggregate; and (v) provided for the extension of the date after
which, if the Mergers have not been consummated, either Berry or
AEP may terminate the Merger Agreement from February 24, 2017 to
March 31, 2017 if the proxy statement has not been mailed to AEP
stockholders on or prior to January 20, 2017.
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.
The foregoing description of Amendment No. 1 does not purport to
be complete and is subject to, and qualified in its entirety by,
the full text of Amendment No. 1. Amendment No. 1 is attached
hereto as Exhibit 2.1 and is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
(d)Exhibits.
| Exhibit Number | Description | |
| 2.1 |
Amendment No. 1 to the Agreement and Plan of Merger, dated as of December 7, 2016, by and among Berry Plastics Group, Inc., Berry Plastics Corporation, Berry Plastics Acquisition Corporation XVI, Berry Plastics Acquisition Corporation XV, LLC and AEP Industries Inc. (incorporated by reference to Annex A of Amendment No. 2 to Berrys Registration Statement on Form S-4 (Reg. No. 333-213803) filed with the Securities and Exchange Commission on December 9, 2016). |
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 merger 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 merger,
(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 registration statement on Form S-4
(File No. 333-213803), as amended and supplemented, 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.
Additional Information and Where to Find It
In connection with the proposed transaction, Berry has filed a
registration statement on Form S-4 with the SEC that includes the
preliminary proxy statement of AEP and that also constitutes a
preliminary prospectus of Berry. After the registration statement
is declared effective, AEP plans to mail to its stockholders the
definitive proxy statement/prospectus. AEP and Berry may also
file other documents with the SEC regarding the proposed
transaction. This document is not a substitute for the proxy
statement/prospectus or registration statement or any other
document which AEP or Berry may file with the SEC. Investors are
urged to read the registration statement, the proxy
statement/prospectus and any other relevant documents when they
are available, as well as any amendments or supplements to these
documents, carefully and in their entirety because they contain
important information.
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, or by
contacting AEPs information agent at Georgeson, 1290 Avenue of
the Americas, 9th Floor, New York, New York 10104, (800) 561-3947
or Berry at Berry Plastics Group, Inc., 101 Oakley Street,
Evansville, Indiana 47710, Attn: Dustin Stilwell, Head of
Investor Relations, (812) 306-2964.
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.
Participants in Solicitation Relating to the
Merger
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 Amendment No. 2 to Berrys Registration
Statement on Form S-4 (Reg. No. 333-213803) filed with the SEC on
December 9, 2016, 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.
About BERRY PLASTICS GROUP, INC. (NYSE:BERY)
Berry Plastics Group, Inc. is a provider of value-added plastic consumer packaging, non-woven specialty materials and engineered materials. The Company offers products, such as closures, prescription vials, specialty films, adhesives, nonwovens, drink cups, containers and bottles. The Company operates through three segments: Health, Hygiene & Specialties, Consumer Packaging, and Engineered Materials. The Consumer Packaging segment primarily consists of containers, foodservice items, closures, overcaps, bottles, prescription vials, tubes, and printed films. The Health, Hygiene & Specialties segment primarily consists of non-woven specialty materials used in hygiene, infection prevention, personal care, industrial, construction, and filtration applications. The Engineered Materials segment primarily consists of pipeline corrosion protection solutions, tapes and adhesives, polyethylene-based film products, can liners, and specialty coated and laminated products. BERRY PLASTICS GROUP, INC. (NYSE:BERY) Recent Trading Information
BERRY PLASTICS GROUP, INC. (NYSE:BERY) closed its last trading session up +0.12 at 50.87 with 1,450,587 shares trading hands.