-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TjaXhWtW2WTC+P+eibLwouyCN98JuZfqUGWawj1Tqt7yWgTD8XM+WqAf6RA2CttS /ox2iLecMxCNzpoojMoYOw== 0000899140-05-000123.txt : 20050214 0000899140-05-000123.hdr.sgml : 20050214 20050214123934 ACCESSION NUMBER: 0000899140-05-000123 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20050214 DATE AS OF CHANGE: 20050214 GROUP MEMBERS: DANIEL S. LOEB GROUP MEMBERS: THIRD POINT OFFSHORE FUND, LTD. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: AEP INDUSTRIES INC CENTRAL INDEX KEY: 0000785787 STANDARD INDUSTRIAL CLASSIFICATION: UNSUPPORTED PLASTICS FILM & SHEET [3081] IRS NUMBER: 221916107 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-37385 FILM NUMBER: 05605979 BUSINESS ADDRESS: STREET 1: 125 PHILLIPS AVE CITY: SOUTH HACKENSACK STATE: NJ ZIP: 07606 BUSINESS PHONE: 2016416600 MAIL ADDRESS: STREET 1: 125 PHILLIPS AVE CITY: SOUTH HACKENSACK STATE: NJ ZIP: 07606 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Third Point LLC CENTRAL INDEX KEY: 0001040273 IRS NUMBER: 133922602 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 12 EAST 49TH ST STREET 2: 28TH FL CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2122247400 MAIL ADDRESS: STREET 1: 12 EAST 49TH ST STREET 2: 28TH FL CITY: NEW YORK STATE: NY ZIP: 10017 FORMER COMPANY: FORMER CONFORMED NAME: THIRD POINT MANAGEMENT CO LLC DATE OF NAME CHANGE: 19970602 SC 13D 1 t2773505.txt INITIAL FILING ON SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 AEP INDUSTRIES INC. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 001031103 - -------------------------------------------------------------------------------- (CUSIP Number) - -------------------------------------------------------------------------------- Daniel S. Loeb Third Point LLC 360 Madison Avenue, 24th Floor New York, NY 10017 (212) 224-7400 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Michael A. Schwartz, Esq. Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019 (212) 728-8000 February 4, 2005 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] SCHEDULE 13D - ----------------------------------------- ------------------------------ CUSIP No. 001031103 Page 1 of 15 Pages - ----------------------------------------- ------------------------------ - ----------- -------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Daniel S. Loeb - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- ------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF SHARES --------- ------------------------------------------------ BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH PERSON WITH 1,339,138 --------- ------------------------------------------------ 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 2,000,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,000,000 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.7% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) IN - ----------- -------------------------------------------------------------------- SCHEDULE 13D - ----------------------------------------- ------------------------------ CUSIP No. 001031103 Page 2 of 15 Pages - ----------------------------------------- ------------------------------ - ----------- -------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Third Point LLC (f/k/a Third Point Management Company L.L.C.) - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ---------- -------------------------------------------------------------------- 3 SEC USE ONLY - ---------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF SHARES --------- ------------------------------------------------ BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH PERSON WITH 1,339,138 --------- ------------------------------------------------ 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 2,000,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,000,000 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 23.7% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO - ----------- -------------------------------------------------------------------- SCHEDULE 13D - ----------------------------------------- ------------------------------ CUSIP No. 001031103 Page 3 of 15 Pages - ----------------------------------------- ------------------------------ - ----------- -------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Third Point Offshore Fund, Ltd. - ----------- -------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - ----------- -------------------------------------------------------------------- 3 SEC USE ONLY - ----------- -------------------------------------------------------------------- 4 SOURCE OF FUNDS* WC - ----------- -------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ----------- -------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Cayman Islands - --------------------- --------- ------------------------------------------------ 7 SOLE VOTING POWER 0 NUMBER OF SHARES --------- ------------------------------------------------ BENEFICIALLY OWNED 8 SHARED VOTING POWER BY EACH PERSON WITH 1,319,000 --------- ------------------------------------------------ 9 SOLE DISPOSITIVE POWER 0 --------- ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 1,319,000 - ----------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,319,000 - ----------- -------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) [ ] - ----------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.6% - ----------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) OO - ----------- -------------------------------------------------------------------- This Schedule 13D is being filed on behalf of Third Point LLC, a Delaware limited liability company formerly known as Third Point Management Company L.L.C. (the "Management Company"), Third Point Offshore Fund, Ltd., a Cayman Islands limited liability exempted company ("TPOF"), and Daniel S. Loeb, an individual (together with the Management Company and TPOF, the "Reporting Persons"). The holdings of the Reporting Persons reported in this Schedule 13D include the holdings of Third Point Partners Qualified L.P. ("TPPQ"), Third Point Partners L.P. ("TPP"), Points West International Investments Ltd. ("PWII"), Banzai Partners L.P. ("BP") and Banzai Offshore Fund, Ltd. ("BOF" and, together with TPOF, TPPQ, TPP, PWII and BP, the "Funds"). Unless the context otherwise requires, references herein to the "Common Stock" are to shares of common stock, par value $0.01 per share, of AEP Industries Inc., a Delaware corporation (the "Company"). The Funds directly own the Common Stock to which this Schedule 13D relates. The Reporting Persons are making this single, joint filing because they may be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting Persons have entered into an agreement (the "Joint Filing Agreement") with respect to the joint filing of this statement and any amendments hereto, a copy of which Joint Filing Agreement is filed as Exhibit 1 to this Schedule 13D. Each Reporting Person disclaims beneficial ownership of all shares of Common Stock, other than those reported herein as being owned by it. -4- Item 1. Security and Issuer. This statement on Schedule 13D relates to the Common Stock, and is being filed pursuant to Rule 13d-1 under the Exchange Act. The address of the principal executive offices of the Company is 125 Phillips Avenue, South Hackensack, New Jersey 07606. Item 2. Identity and Background. (a) This statement is filed by the Reporting Persons. The Reporting Persons may be deemed to be a group within the meaning of Rule 13d-5. The Management Company is the investment manager or adviser to the Funds. Mr. Loeb is the Managing Member of the Management Company. (b) The address of the principal business and principal office of each of the Reporting Persons is c/o Third Point LLC, 360 Madison Avenue, 24th Floor, New York, New York 10017. (c) The principal business of each Fund is to invest and trade securities. The principal business of the Management Company is to serve as investment manager or adviser to a variety of hedge funds and managed accounts, including the Funds. The principal business of Mr. Loeb is to act as the Managing Member of the Management Company. (d) None of the Reporting Persons, nor, to the best of their knowledge, any of their respective directors, executive officers, control persons, general partners or members has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). (e) None of the Reporting Persons, nor, to the best of their knowledge, any of their respective directors, executive officers, control persons, general partners or -5- members has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Each of the Management Company, TPPQ, TPP and BP is organized under the laws of Delaware. Each of TPOF and BOF is organized under the laws of the Cayman Islands. PWII is organized under the laws of the British Virgin Islands. Mr. Loeb is a citizen of the United States of America. Item 3. Source and Amount of Funds or Other Consideration. The total amount of funds used by each Fund to purchase the securities of the Company as described herein was furnished from the investment capital of such Fund. The total amount of funds used by the Funds to purchase the securities of the Company as described herein was $32,600,000. Item 4. Purpose of Transaction. Pursuant to a Purchase and Sale Agreement, dated as of February 4, 2005 (the "Purchase Agreement"), between the Funds and Borden Holdings, LLC ("Borden"), Borden sold transferred and assigned to the Funds, and the Funds purchased from Borden, 2,000,000 shares (the "Purchased Shares") of Common Stock. The aggregate purchase price for the Common Stock purchased by the Funds under the Purchase Agreement was $32,600,000. Borden retained 150 shares (the "Retained Shares") of Common Stock. Pursuant to the Purchase Agreement, without the prior written consent of the Funds holding a -6- majority of the Purchased Shares, Borden may not sell, transfer or otherwise dispose of any rights in, to or under the Retained Shares, which the Reporting Persons intend to acquire via the Funds or otherwise. The foregoing summary of the Purchase Agreement is qualified in its entirety by reference to the Purchase Agreement, a copy of which is filed as Exhibit 2 to this Schedule 13D and incorporated herein by reference. Pursuant to an Agreement, dated as of February 4, 2005 (the "Agreement"), by and among the Company, the purchasers identified therein (including the Funds, the "Purchasers") and J. Brendan Barba, subject to certain conditions, so long as the Funds (together with their respective Affiliates (as defined in the Agreement), successors and assigns) collectively Own (as defined in the Agreement): (i) 15% or more of the outstanding shares of Common Stock, they will have the right to designate up to two directors to serve on the Company's Board of Directors; and (ii) less than 15%, but 7.5% or more, of the outstanding shares of Common Stock, they will have the right to designate one director to serve on the Company's Board of Directors. Based on the number of shares of Common Stock presently Owned by the Funds, they have the right to designate two directors to serve on the Company's Board of Directors. However, the Funds have not yet exercised this right. In the event that the Funds do exercise this right to designate up to two directors of the Company, under the Agreement, subject to certain conditions, each of the Company and Mr. Barba must take all necessary and desirable actions within their respective control (including, without limitation, calling and holding special meetings of the Company's Board of Directors and voting all shares of Common Stock Owned thereby at a meeting, or by written consent, of the Company's stockholders) to appoint and elect each such designee. -7- The shares of Common Stock presently held by the Purchasers are not registered under the Securities Act of 1933, as amended (the "Securities Act"). Accordingly, pursuant to the Agreement, the Company granted to the Purchasers certain rights to, subject to certain conditions, cause the Company to register, or allow the Purchasers to include in registrations by the Company, under the Securities Act the Purchasers' shares of Common Stock. Under the Agreement, subject to certain conditions, without the prior written consent of the Purchasers holding a majority of the shares of Common Stock held by all of the Purchasers, Mr. Barba may not sell, transfer or otherwise dispose of any rights in, to or under certain shares of Common Stock that he beneficially owns. Presently, this transfer restriction applies to 1,339,289 shares of Common Stock beneficially owned by Mr. Barba, but may be adjusted upward or downward from time to time as provided in the Agreement. The foregoing summary of the Agreement is qualified in its entirety by reference to the Agreement, a copy of which is filed as Exhibit 3 to this Schedule 13D and incorporated herein by reference. Pursuant to the Agreement, TPPQ, TPP, PWII, BP and BOF executed and delivered to Mr. Barba an Irrevocable Proxy, dated February 4, 2005 (the "Proxy"), under which they granted to Mr. Barba an irrevocable proxy to vote 660,862 of their shares of Common Stock. The number of shares of Common Stock under the Proxy is subject to upward or downward adjustments from time to time as provided in the Proxy. The foregoing summary of the Proxy is qualified in its entirety by reference to the Proxy, a copy of which is filed as Exhibit 4 to this Schedule 13D and incorporated herein by reference. -8- The acquisition by the Funds of beneficial ownership of the securities as described herein was effected because of the Reporting Persons' belief that the Company represents an attractive investment based on the Company's business prospects and strategy. The Reporting Persons are engaged in the investment business. In pursuing this business, the Reporting Persons analyze the operations, capital structure and markets of companies, including the Company, on a continuous basis through analysis of documentation and discussions with knowledgeable industry and market observers and with representatives of such companies (often at the invitation of management). Depending on prevailing market, economic and other conditions, one or more of the Reporting Persons may from time to time, among other things, (i) hold discussions with third parties or with management of such companies (including the Company) in which the Reporting Persons may suggest or take a position with respect to potential changes in the operations, management or capital structure of such companies as a means of enhancing shareholder value, or (ii) acquire additional securities of the Company or otherwise invest in the Company or one or more of its subsidiaries. The Reporting Persons intend to review their investment in the Company on a continuing basis and, depending upon the price and availability of the Company's securities, subsequent developments concerning the Company, the Company's business and prospects, other investment and business opportunities available to the Reporting Persons, general stock market and economic conditions, tax considerations and other factors considered relevant, may decide at any time (via the Funds or otherwise) to increase or decrease the size of their investment in the Company or to sell any or all of the securities of the Company that they hold. -9- Except as set forth above in this Item 4 and in a letter, dated February 14, 2005, from Mr. Loeb to Mr. Barba (as the President, Chairman and CEO of the Company), a copy of which letter is filed as Exhibit 5 to this Schedule 13D and incorporated herein by reference, none of the Reporting Persons has any plans or proposals which relates to or would result in: (i) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company; (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (iii) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (iv) any change in the present Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the Board of Directors; (v) any material change in the present capitalization or dividend policy of the Company; (vi) any other material change in the Company's business or corporate structure; (vii) changes in the Company's Charter, By-laws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (viii) causing a class of securities of the Company to be de-listed from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (ix) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (x) any action similar to any of those enumerated above. Item 5. Interest in Securities of the Issuer. (a) Due to their respective relationships with the Funds and each other, as of February 4, 2004, each of the Management Company and Mr. Loeb may be deemed to -10- beneficially own, in the aggregate, 2,000,000 shares of Common Stock by virtue of the Funds' ownership of the Purchased Shares as of such date. Accordingly, each of the Management Company and Mr. Loeb may be deemed to beneficially own shares of Common Stock (consisting of such 2,000,000 shares) representing approximately 23.7% of the outstanding class of Common Stock, based on a total of 8,436,775 shares of Common Stock outstanding (as represented by the Company in its Annual Report on Form 10-K for the fiscal year ended October 31, 2004, filed with the Securities Exchange Commission on January 31, 2005 (the "Form 10-K"). In addition, as of February 4, 2005, TPOF has directly beneficially owned, in the aggregate, 1,319,000 shares of Common Stock, representing approximately 15.6% of the outstanding class of Common Stock, based on a total of 8,436,775 shares of Common Stock outstanding (as represented by the Company in the Form 10-K). (b) As of February 4, 2005, by virtue of the Proxy, the Management Company and Mr. Loeb share voting power over 1,339,138 of the shares of Common Stock held by the Funds as of such date. As of February 4, 2005, the Management Company and Mr. Loeb share dispositive power over the 2,000,000 shares of Common Stock held by the Funds as of such date. In addition, as of such date, the Management Company, Mr. Loeb and TPOF share voting and dispositive power over the 1,319,000 shares of Common Stock held by TPOF. (c) Except for the transactions described in Items 3 and 4 above and this Item 5, during the last sixty days there were no transactions with respect to the Common Stock effected by the Reporting Persons. -11- (d) Except as set forth in this Item 5, no person other than each respective record owner of securities referred to herein is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities discussed herein. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. Pursuant to Rule 13d-1(k) promulgated under the Exchange Act, the Reporting Persons have entered into the Joint Filing Agreement with respect to the joint filing of this statement and any amendments hereto. The foregoing summary of the Joint Filing Agreement is qualified in its entirety by reference to the Joint Filing Agreement, a copy of which is filed as Exhibit 1 to this Schedule 13D and incorporated herein by reference. Pursuant to the Purchase Agreement, Borden sold transferred and assigned to the Funds, and the Funds purchased, the Purchased Shares. The Purchase Agreement provides that, without the prior written consent of the Funds holding a majority of the Purchased Shares, Borden may not sell, transfer or otherwise dispose of any rights in, to or under the Retained Shares. The foregoing summary of the Purchase Agreement is qualified in its entirety by reference to the Purchase Agreement, a copy of which is filed as Exhibit 2 to this Schedule 13D and incorporated herein by reference. Pursuant to the Agreement, subject to certain conditions, so long as the Funds (together with their respective Affiliates, successors and assigns) collectively Own: (i) 15% or more of the outstanding shares of Common Stock, they will have the right to designate up to two directors to serve on the Company's Board of Directors; and (ii) less than 15%, but 7.5% or more, of the outstanding shares of Common Stock, they will have -12- the right to designate one director to serve on the Company's Board of Directors. Because the shares of Common Stock presently held by the Purchasers are not registered under the Securities Act, under the Agreement, the Company granted to the Purchasers certain rights to, subject to certain conditions, cause the Company to register, or allow the Purchasers to include in registrations by the Company, under the Securities Act the Purchasers' shares of Common Stock. In addition, pursuant to the Agreement, subject to certain conditions, without the prior written consent of the Purchasers holding a majority of the shares of Common Stock held by all of the Purchasers, Mr. Barba may not sell, transfer or otherwise dispose of any rights in, to or under certain shares of Common Stock that he beneficially owns (presently 1,339,289 shares of Common Stock, subject to upward or downward adjustments from time to time). The foregoing summary of the Agreement is qualified in its entirety by reference to the Agreement, a copy of which is filed as Exhibit 3 to this Schedule 13D and incorporated herein by reference. Pursuant to the Agreement, TPPQ, TPP, PWII, BP and BOF executed and delivered to Mr. Barba the Proxy, which grants to Mr. Barba an irrevocable proxy to vote 660,862 of their shares of Common Stock. The number of shares of Common Stock under the Proxy is subject to upward or downward adjustments from time to time as provided in the Proxy. The foregoing summary of the Proxy is qualified in its entirety by reference to the Proxy, a copy of which is filed as Exhibit 4 to this Schedule 13D and incorporated herein by reference. Item 7. Material to be Filed as Exhibits. 1. Joint Filing Agreement 2. Purchase Agreement -13- 3. Agreement (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K of AEP Industries Inc. filed with the Securities Exchange Commission on February 10, 2005) 4. Proxy 5. Letter, dated February 14, 2005, from Mr. Loeb to Mr. Barba (as the President, Chairman and CEO of the Company). -14- SIGNATURES After reasonable inquiry and to the best of the undersigned's knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: February 14, 2005 /s/ Daniel S. Loeb ----------------------------------------- Name: Daniel S. Loeb Dated: February 14, 2005 THIRD POINT LLC By: /s/ Daniel S. Loeb -------------------------------------- Name: Daniel S. Loeb Title: Managing Member Dated: February 14, 2005 THIRD POINT OFFSHORE FUND, LTD. By: /s/ Daniel S. Loeb -------------------------------------- Name: Daniel S. Loeb Title: Director EX-99.1 3 t2774035.txt JOINT FILING AGREEMENT JOINT FILING AGREEMENT PURSUANT TO RULE 13d-1(k)(1) The undersigned hereby acknowledge and agree that the foregoing Statement of Beneficial Ownership on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to such statement on Schedule 13D shall be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that it knows or has reason to believe that such information is inaccurate. This Joint Filing Agreement may be executed in any number of counterparts and all of such counterparts taken together shall constitute one and the same instrument. Dated: February 14, 2005 /s/ Daniel S. Loeb ---------------------------------- Name: Daniel S. Loeb Dated: February 14, 2005 THIRD POINT LLC By: /s/ Daniel S. Loeb ------------------------------ Name: Daniel S. Loeb Title: Managing Member Dated: February 14, 2005 THIRD POINT OFFSHORE FUND, LTD. By: /s/ Daniel S. Loeb ------------------------------ Name: Daniel S. Loeb Title: Director EX-99.2 4 t2774028.txt PURCHASE AND SALE AGREEMENT PURCHASE AND SALE AGREEMENT, dated as of February 4, 2005 (this "Agreement"), between the parties set forth on Annex A hereto (each, a "Buyer" and collectively, the "Buyers") and Borden Holdings, LLC, a Delaware limited liability company ("Seller"). RECITALS WHEREAS, Seller is the sole beneficial owner of 2,174,418 shares of common stock, par value $0.01 per share (the "Shares"), of AEP Industries Inc., a Delaware corporation (the "Company"); WHEREAS, Seller desires to sell to the Buyers, and the Buyers desire to purchase from Seller, free and clear of any and all Encumbrances (as defined below), 2,174,268 of the Shares (the Purchased Shares"); and NOW, THEREFORE, in consideration of the premises and of the mutual covenants, agreements and warranties herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Purchase and Sale. Subject to the terms and conditions herein set forth, each Buyer agrees to purchase the Purchased Shares set forth opposite its name on Schedule I, and Seller agrees to sell such Purchased Shares to each Buyer, at a per share price of $16.30, for the purchase price set forth opposite each such Buyer's name on Schedule I, for an aggregate purchase price of $35,440,568.40 (the "Purchase Price") on the Closing Date (as defined below). 2. Representations and Warranties of the Buyers. Each Buyer hereby represents and warrants, jointly and severally with respect to each other Buyer (other than Bradley Louis Radoff, who makes such representations and warranties only with respect to himself and with respect to whom no other Buyer makes any representation or warranty), to Seller as follows: (a) Due Organization. If such Buyer is an entity, such Buyer is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization. (b) Authorization; Non-Contravention. Such Buyer has the requisite legal power and authority to enter into this Agreement and to perform the transactions and agreements contemplated hereby and to carry out its obligations hereunder. This Agreement has been duly authorized, executed and delivered by such Buyer and, upon the due execution hereof by Seller, constitutes a valid and binding agreement enforceable against such Buyer in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (iii) public policy considerations. Neither the execution and delivery of this Agreement, the consummation of the transactions and agreements contemplated hereby, nor compliance with the terms, conditions or provisions hereof, will (i) result in a violation of any of the terms, conditions or provisions of such Buyer's organizational documents (if applicable), (ii) result in a violation of any law, rule or regulation applicable to such Buyer, or (iii) constitute a default or create a right of termination or acceleration under any material agreement or instrument to which such Buyer is a party, except in the case of clause (ii) or (iii) for such violations, defaults or rights of termination or acceleration that would not result in a material adverse effect upon such Buyer's ability to perform its obligations or consummate the transactions hereunder. (c) No Public Sale or Distribution. Such Buyer is acquiring the Purchased Shares in the ordinary course of business for its own account and not with a view towards, or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered or exempted from registration under the Securities Act of 1933, as amended (the "Securities Act"), and such Buyer does not have a present intention to effect any distribution of the Purchased Shares to or through any person or entity; provided, however, that by making the representations herein, such Buyer does not agree to hold any of the Purchased Shares for any minimum or other specific term and reserves the right to dispose of the Purchased Shares at any time in accordance with or pursuant to a registration statement or an exemption from the registration requirements under the Securities Act. Notwithstanding the above, Bradley Louis Radoff makes no representation regarding the acquisition of any Purchased Shares by him hereunder being in the ordinary course of his business. (d) Transfer or Resale. Such Buyer is aware that the sale of the Purchased Shares to it by Seller is being made in reliance upon an exemption from the registration requirements of the Securities Act. Such Buyer understands that the Purchased Shares have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold or transferred unless subsequently registered thereunder or an exemption from such registration is available. (e) Risk. Such Buyer understands that its investment in the Purchased Shares involves a high degree of risk and it is able to bear the economic risk of an investment in the Purchased Shares, including the complete loss of such Buyer's investment in the Purchased Shares, for any indefinite period of time. (f) Accredited Investor. Such Buyer represents that it is an "accredited investor" as that term is defined in Rule 501(a) of Regulation D of the Securities Act. -2- (g) Buyer Status. Such Buyer (i) is a sophisticated person with respect to the sale of the Purchased Shares; (ii) has adequate information concerning the business and financial condition of the Company to make an informed decision regarding the purchase of the Purchased Shares; and (iii) has independently and without reliance upon Seller, and based on such information as such Buyer has deemed appropriate, made its own analysis and decision to enter into this Agreement, except that such Buyer has relied upon Seller's representations, warranties and covenants in this Agreement. Such Buyer acknowledges that Seller has not given such Buyer any investment advice, credit information or opinion on whether the purchase of the Purchased Shares is prudent. Such Buyer has had access to such financial and other information concerning Seller and the Company as it deemed necessary and appropriate in order to make an informed investment decision with respect to the purchase of the Purchased Shares contemplated by this Agreement, including the opportunity to ask questions of and request information from certain of Seller's advisors. (h) Knowledge. Such Buyer understands that Seller may possess and have access to material non-public information which has not been communicated to such Buyer. Such Buyer hereby waives any and all claims it may have or may hereafter acquire against Seller relating to any failure to disclose such material non-public information to such Buyer. (i) No Brokers. Such Buyer has taken no action that would give rise to any claim by any person for brokerage commissions, finder's fees or similar payments relating to this Agreement or the transactions contemplated thereby. (j) Reliance. Such Buyer understands that Seller is relying upon the representations and warranties contained in this Section 2 in connection with the sale of the Purchased Shares to such Buyer and the transactions contemplated hereby. (k) No Other Representations. Other than such Buyer's representations and warranties contained in this Section 2, neither it nor any other person makes any express or implied representation or warranty on behalf of or with respect to such Buyer, and such Buyer and each of its representatives hereby disclaim any such representation or warranty, whether by such Buyer, the Company or any of their respective representatives or any other person, with respect to the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or the Company or such Buyer, notwithstanding the delivery or disclosure to Seller or any of its representatives or any other person of any documentation or other information by such Buyer, the Company or any of their respective representatives or any other person with respect to any one or more of the foregoing. 3. Representations and Warranties of Seller. Seller hereby represents and warrants to the Buyers as follows: (a) Due Organization. Seller is duly organized, validly existing and in good standing under the laws of the State of Delaware. -3- (b) Authorization; Non-Contravention. Seller has the requisite legal power and authority to enter into this Agreement and the transactions and to perform the transactions and agreements contemplated hereby and to carry out its obligations hereunder. This Agreement has been duly authorized, executed and delivered by Seller and, upon the due execution hereof by each Buyer, constitutes a valid and binding agreement enforceable against the Seller in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally, (ii) general principles of equity and the discretion of the court before which any proceeding therefor may be brought (regardless of whether such enforcement is considered in a proceeding in equity or at law) and (iii) public policy considerations. Neither the execution and delivery of this Agreement, the consummation of the transactions and agreements contemplated hereby, nor compliance with the terms, conditions or provisions hereof, will (i) result in a violation of any of the terms, conditions or provisions of Seller's organizational documents, (ii) result in a violation of any law, rule or regulation applicable to Seller, or (iii) constitute a default or create a right of termination or acceleration under any material agreement or instrument to which Seller is a party, except in the case of clause (ii) or (iii) for such violations, defaults or rights of termination or acceleration that would not result in a material adverse effect upon Seller's ability to perform its obligations or consummate the transactions hereunder. (c) Title. Seller is the sole record and beneficial owner of the Purchased Shares. Seller has good and valid title to the Purchased Shares, free and clear of any lien, encumbrance, claim, security interests, pledge, charge, voting or other restriction, right of first refusal or first offer, option, or other similar arrangement or interest, except for those imposed by applicable securities laws and as provided in the Governance Agreement (as defined below) (collectively, "Encumbrances"). (d) Governance Agreement. Attached hereto as Exhibit A is a true, correct and complete copy of the Governance Agreement, dated as of June 20, 1996, between Seller and the Company, as amended on October 11, 1996 and in effect on the date hereof (the "Governance Agreement"). The Governance Agreement has not been further amended, restated, supplemented or otherwise modified in any material respect. To the Seller's Knowledge, other than the Governance Agreement, the Company's certificate of incorporation and by-laws, and any applicable Laws, there are no written agreements, instruments or arrangements to which Seller is a party or to which it is otherwise bound affecting or relating to the Purchased Shares or the rights appurtenant thereto. For purposes of this Section 3(d), (i) "Seller's Knowledge" means the actual knowledge of the Seller's current Chief Financial Officer and General Counsel and the Seller's designees on the Board of Directors of the Company; and (ii) "Law" means any foreign, federal, state or local law, statute, treaty, rule, directive, regulation, ordinance and similar provisions having the force or effect of law or any judgments, writs, decrees, compliance agreements, injunctions or judicial or administrative orders and determinations of any governmental authority or instrumentality, whether federal, state, local or foreign and whether legislative, executive, judicial or otherwise. -4- (e) No Other Representations. Other than Seller's representations and warranties contained in this Section 3, neither Seller nor any other person makes any express or implied representation or warranty on behalf of or with respect to Seller, and Seller and each of its representatives hereby disclaim any such representation or warranty, whether by Seller, the Company or any of their respective representatives or any other person, with respect to the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby or the Company or Seller, notwithstanding the delivery or disclosure to the Buyers or any of their representatives or any other person of any documentation or other information by Seller, the Company or any of their respective representatives or any other person with respect to any one or more of the foregoing. 4. Closing. The purchase and sale of the Purchased Shares (the "Closing") shall occur on the date hereof (the "Closing Date"). The Closing shall take place at the offices of O'Melveny & Myers LLP, located at Times Square Tower, 7 Times Square, New York, New York 10036, at which time the parties shall deliver the documents and instruments described below: (a) Deliveries by the Buyers. At the Closing, the Buyers shall deliver or cause to be delivered to Seller an amount equal to the Purchase Price by wire transfer of immediately available funds to the account specified by Seller on Schedule II hereto. (b) Deliveries by Seller. At the Closing, Seller shall deliver or cause to be delivered to the Buyers the Purchased Shares, free and clear of any and all Encumbrances, accompanied by a power duly executed in blank and sufficient to convey to the Buyers good and valid title in and to the Purchased Shares. 5. Covenants. (a) Disclosure Cooperation. Each party hereto shall consult in advance (but require no consent) with the others as to the content of any communication to any governmental authority or public disclosure relating to the transactions contemplated hereby. (b) Retained Shares. From and after the date hereof, Seller shall not, without the prior written consent of the Buyers holding a majority of the Purchased Shares, transfer, sell or otherwise dispose of any rights in, under or to the 150 Shares not sold to the Buyers pursuant to this Agreement. (c) Rights Under Governance Agreement. With respect to the Governance Agreement, Seller shall (i) at the time of or prior to the Closing, deliver the notices to the Company specified in Sections 6.2 and 6.13 of the Governance Agreement with respect to the transactions contemplated hereby and (ii) cause its counsel to deliver the opinion specified in Section 6.2 of the Governance Agreement, which opinion shall be reasonably acceptable to the Buyers. From and after the Closing, each Buyer hereby agrees to be bound by the terms of the Governance Agreement as a Holder (as defined in the -5- Governance Agreement) with respect to the Purchased Shares held thereby, and to deliver to the Company the written agreement specified in clause (ii) of the second proviso of Section 6.13 of the Governance Agreement, attached hereto as Exhibit B. (d) Amendment or Waiver of Governance Agreement. Seller shall not amend or waive (or otherwise agree in any respect to do any of the same with respect to) any provision of the Governance Agreement without the prior written consent of the Buyers holding a majority of the Purchased Shares, which consent shall not be unreasonably withheld. (e) Further Assurances. From and after the date hereof, each party hereto shall execute all certificates, instruments, documents or agreements and shall take any other action (including, without limitation, reasonably aiding and assisting in any efforts to enforce rights under the Governance Agreement) which it is reasonably requested to execute or take by any other party hereto to further effectuate the respective rights and obligations of the parties hereto, and to consummate and make effective the transactions, under and as contemplated by this Agreement. All reasonable and documented costs and expenses incurred by either party pursuant to this subsection shall be borne by the party so requesting such action, aid or assistance. 6. Miscellaneous. (a) Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. (b) Notices. All notices or other communications which are required or otherwise delivered hereunder shall be deemed to be sufficient and duly given if contained in a written instrument and personally delivered or sent by telecopier; sent by nationally-recognized overnight courier guaranteeing next business day delivery; or sent by first class registered or certified mail, postage prepaid, return receipt requested, addressed as follows: (i) if to a Buyer, to it at the address set forth under its name on Annex A hereto: with a copy to: Willkie Farr & Gallagher, LLP 787 Seventh Avenue New York, New York 10019 Attention: Michael A. Schwartz, Esq. Telephone: (212) 728-8000 Facsimile: (212) 728-8111 (ii) if Seller, to it at: c/o Apollo Management, L.P. 9 West 57th Street New York, New York 10019 Attention: Robert Seminara Telephone: (212) 515-3200 Facsimile: (212) 515-3232 -6- with a copy to: O'Melveny & Myers LLP Times Square Tower 7 Times Square New York, New York 10036 Attention: John Scott, Esq. Telephone: (212) 408-2458 Facsimile: (212) 408-2420 or to such other address as the party to whom notice is to be given may have furnished to each other party in writing in accordance herewith. Any such notice or communication shall be deemed to have been received (i) when delivered, if personally delivered or sent by telecopier; (ii) on the first business day after dispatch, if sent by nationally recognized, overnight courier guaranteeing next business day delivery; and (iii) on the fifth business day following the date on which the piece of mail containing such communication is posted, if sent by mail. (c) Entire Agreement; No Third Party Beneficiaries. This Agreement (including any exhibits, schedules and amendments hereto) (a) constitutes the entire Agreement and understandings of the parties hereto and supersedes all prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof and (b) is not intended to confer upon any other person other than the parties hereto any rights or remedies hereunder. (d) Expenses. Regardless of whether the transactions contemplated hereby are consummated, each party hereto shall pay its own expenses incident to preparing for, entering into and carrying out this Agreement and the consummation of the transactions contemplated hereby. (e) Amendments; Waiver and Release. The terms and provisions of this Agreement may not be modified or amended, nor may any of the provisions hereof be waived, temporarily or permanently, except pursuant to a written instrument executed by each party hereto. No failure by any party hereto to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement, or to exercise any right or remedy consequent upon a breach hereof, shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition hereof. (f) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. -7- (g) Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware (without regard to the conflicts of laws principles thereof). (h) Jurisdiction. The parties agree that any suit, action or proceeding arising out of, or with respect to, this Agreement or any judgment entered by any court in respect thereof shall be brought in the courts of the State of Delaware or in the U.S. District Courts, in either case, located in Wilmington, Delaware and the Buyers and Seller hereby irrevocably accept the exclusive personal jurisdiction of those courts for the purpose of any suit, action or proceeding. In addition, the Buyers and Seller each hereby irrevocably waive, to the fullest extent permitted by law, any objection which it may now or hereafter have, to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any judgment entered by any court in respect thereof brought in the State of Delaware or the U.S. District Courts located in Wilmington in the State of Delaware, and hereby further irrevocably waives any claim that any suit, action or proceedings brought in any such court has been brought in an inconvenient forum. (i) Severability. If it is determined by a court of competent jurisdiction that any provision of this Agreement is invalid or unenforceable under applicable law, such provision shall be ineffective only to the extent of such invalidity or unenforceability, without invalidating the remainder of the Agreement. * * * * * -8- IN WITNESS WHEREOF, the parties hereto have caused this Purchase and Sale Agreement to be executed and delivered as of the day and year first executed. THIRD POINT PARTNERS QUALIFIED L.P. By: Third Point Advisors LLC, its general partner By: /s/ Lloyd Blumberg ------------------------------------ Name: Lloyd Blumberg Title: Chief Financial Officer THIRD POINT PARTNERS L.P. By: Third Point Advisors LLC, its general partner By: /s/ Lloyd Blumberg ------------------------------------ Name: Lloyd Blumberg Title: Chief Financial Officer BANZAI PARTNERS L.P. By: Third Point Advisors LLC, its general partner By: /s/ Lloyd Blumberg --------------------------------- Name: Lloyd Blumberg Ttitle: Chief Financial Officer THIRD POINT OFFSHORE FUND, LTD. By: /s/ Lloyd Blumberg --------------------- Name: Lloyd Blumberg Title: Chief Financial Officer POINTS WEST INTERNATIONAL INVESTMENTS LTD. By: /s/ Lloyd Blumberg ------------------------------------ Name: Lloyd Blumberg Title: Chief Financial Officer BANZAI OFFSHORE FUND, LTD. By: /s/ Lloyd Blumberg ------------------------------------ Name: Lloyd Blumberg Title: Chief Financial Officer /s/ Bradley Louis RadofF ------------------------------------ Name: Bradley Louis Radoff SELLER: BORDEN HOLDINGS, LLC By: /s/ Alyssa A. Anton ------------------------------------ Name: Alyssa A. Anton Title: Vice President EX-99.4 5 t2774032.txt IRREVOCABLE PROXY EXECUTION VERSION IRREVOCABLE PROXY Dated as of February 4, 2005 Reference is hereby made to that certain (i) Purchase and Sale Agreement, dated as of the date hereof, between the purchasers identified therein (the "Purchasers"), including the undersigned Purchasers (such undersigned Purchasers, the "Third Point Purchasers"), and Borden Holdings, LLC, a Delaware limited liability company ("Borden"), pursuant to which Borden sold, transferred and assigned to the Third Point Purchasers, and the Third Point Purchasers purchased from Borden, 681,000 shares of common stock, par value $0.01 per share (the "Common Stock"), of AEP Industries Inc., a Delaware corporation (the "Company"), and (ii) Agreement, dated as of the date hereof (as amended from time to time, the "Agreement"), by and among the Company, the Purchasers and J. Brendan Barba, pursuant to which, among other things, the Company, the Purchasers and Mr. Barba agreed to certain matters relating to the Company and the Company granted to the Purchasers certain registration and other rights. Mr. Barba is a Permitted Holder (as defined in that certain Indenture, dated as of November 19, 1997 (as amended from time to time, the "Indenture"), between the Company and The Bank of New York, as trustee). For purposes of the Indenture, Mr. Barba, as a Permitted Holder, is the beneficial owner (within the meaning of the Indenture) of 1,339,289 shares of Common Stock (such shares, together with any other shares of Common Stock with respect to which Mr. Barba acquires such beneficial ownership, the "Barba Shares"). As of the date hereof, each Third Point Purchaser is the beneficial and record owner of that number of shares (the "Proxy Shares") of Common Stock set forth opposite its name on Schedule I attached to this Irrevocable Proxy in the column titled "Proxy Shares", and is the beneficial and record owner of that total number of shares (the "Total Shares") of Common Stock set forth opposite its name on such Schedule I in the column titled "Total Shares". As of the date hereof, the sum of the Barba Shares plus the Proxy Shares is greater than the difference of the Total Shares minus the Proxy Shares. Pursuant to the Agreement, each Third Point Purchaser, in its capacity as the beneficial and record owner of such Proxy Shares, has agreed to grant to Mr. Barba an irrevocable proxy to vote the Proxy Shares upon the terms and subject to the conditions set forth herein. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Third Point Purchaser, intending to be legally bound, hereby irrevocably appoints and constitutes Mr. Barba as the sole and exclusive proxy of its Proxy Shares, with full power and authority to vote such Proxy Shares, or to consent or withhold consent with respect to the Proxy Shares, on any matter presented to the stockholders of the Company to the same extent and with the same effect as if such shares of Common Stock were registered in the name of Mr. Barba in the books and records of the Company and under any applicable laws and regulations governing the rights of stockholders of a Delaware corporation. The proxy granted hereby shall be irrevocable and is coupled with an interest sufficient in law to support an irrevocable proxy (including, without limitation, such irrevocable proxy granted hereunder) and shall not be terminated by any act of the Purchasers, by lack of appropriate power or authority or by the occurrence of any other event or events except as provided herein. The irrevocable proxy granted hereunder shall terminate and be of no further force or effect upon the earliest to occur of: (i) November 15, 2007; (ii) the date on which the Company obtains each applicable Noteholder Waiver (as defined in the Agreement); and (iii) the consummation by the Company of a Repayment (as defined in the Agreement). provided, however, that, notwithstanding the foregoing, the irrevocable proxy granted hereunder shall terminate and be of no further force or effect with respect to any particular Proxy Share upon the sale, transfer or assignment of such Proxy Share to any Person (as defined in the Agreement) who is not a controlled Affiliate (as defined in the Agreement) of any Third Point Purchaser. In the event that, after the date of this Irrevocable Proxy, any Third Point Purchaser acquires record or beneficial ownership of additional shares of Common Stock or sells or disposes of shares of Common Stock such that it is no longer the record or beneficial owner thereof, then the Third Point Purchasers will immediately adjust, if necessary, the number and amount of Proxy Shares subject to this Irrevocable Proxy so that thereupon and thereafter, the sum of the Barba Shares plus the Proxy Shares remains greater than the difference of the Total Shares minus the Proxy Shares. Each Third Point Purchaser and Mr. Barba will take all actions reasonably requested by any Third Point Purchaser or Mr. Barba (as the case may be) to effect the foregoing adjustment. In the event of the death or incapacity of Mr. Barba, then Mr. Barba will be substituted and replaced by either the administrator or representative of his estate or any of his lineal descendants or other Persons who are designated by the Company's Board of Directors and whose designation in substitution and replacement of Mr. Barba will not result in a Change of Control (as defined in the Indenture). The Third Point Purchasers agree and acknowledge that, subject to the Agreement, Mr. Barba, under this Irrevocable Proxy, has not agreed and will not be restricted in any manner from voting the Proxy Shares and utilizing his authority hereunder, including in a manner that may be opposed by the Third Point Purchasers or different than the votes and views of the Third Point Purchasers. Each Third Point Purchaser represents and warrants to Mr. Barba that it is the beneficial and record owner of the Proxy Shares and the Total Shares set forth opposite its name on Schedule I attached hereto, it has full power and authority to execute and deliver this Irrevocable Proxy and it has not granted any proxies or other rights to any Person relating to its Proxy Shares that are inconsistent with the provisions of this Irrevocable Proxy. THIS IRREVOCABLE PROXY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF -2- LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE, OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS IRREVOCABLE PROXY, EVEN IF UNDER SUCH JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY. ANY SUIT, ACTION OR PROCEEDING BROUGHT BY ANY PARTY HERETO SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS IRREVOCABLE PROXY OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN ANY FEDERAL OR STATE COURT LOCATED IN NEW CASTLE COUNTY, DELAWARE. EACH PARTY HERETO HEREBY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT LOCATED IN NEW CASTLE COUNTY, DELAWARE HAVING SUBJECT MATTER JURISDICTION IN ANY SUIT, ACTION OR PROCEEDING BROUGHT BY ANY OTHER PARTY HERETO SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF, OR IN CONNECTION WITH, THIS IRREVOCABLE PROXY OR THE TRANSACTIONS CONTEMPLATED HEREBY. THE PARTIES HERETO ALSO AGREE THAT EACH SUCH PARTY MAY BRING COUNTERCLAIMS IN ANY SUIT, ACTION OR PROCEEDING BROUGHT AGAINST IT SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS IRREVOCABLE PROXY OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORM. PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE SERVED ON ANY PARTY HERETO ANYWHERE IN THE WORLD, WHETHER WITHIN OR WITHOUT THE JURISDICTION OF ANY SUCH COURT. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS IRREVOCABLE PROXY OR THE TRANSACTIONS CONTEMPLATED HEREBY. [remainder of page intentionally left blank] -3- IN WITNESS WHEREOF, the undersigned have executed this Irrevocable Proxy as of the date first above written. THIRD POINT: THIRD POINT PARTNERS QUALIFIED L.P. By: Third Point Advisors LLC, its general partner By: /s/ Lloyd Blumberg ------------------------------------ Name: Lloyd Blumberg Title: Chief Financial Officer THIRD POINT PARTNERS L.P. By: Third Point Advisors LLC, its general partner By: /s/ Lloyd Blumberg ------------------------------------- Name: Lloyd Blumberg Title: Chief Financial Officer BANZAI Partners L.P. By: Third Point Advisors LLC, its general partner By: /s/ Lloyd Blumberg ------------------------------------- Name: Lloyd Blumberg Title: Chief Financial Officer POINTS WEST INTERNATIONAL INVESTMENTS LTD. By: /s/ Lloyd Blumberg ------------------------------------- Name: Lloyd Blumberg Title: Chief Financial Officer BANZAI OFFSHORE FUND, LTD. By: /s/ Lloyd Blumberg ------------------------------------- Name: Lloyd Blumberg Title: Chief Financial Officer ACKNOWLEDGED AND AGREED: /s/ J. Brendan Barba - ---------------------- Name: J. Brendan Barba SCHEDULE I to IRREVOCABLE PROXY Proxy Shares ------------ Purchaser Proxy Shares Total Shares - --------- ------------ ------------ Third Point Partners Qualified L.P. 62,400 62,400 Third Point Partners L.P. 308,862 329,000 Points West International Investments Ltd. 227,000 227,000 Banzai Partners L.P. 25,300 25,300 Banzai Offshore Fund, Ltd. 37,300 37,300 Total 660,862 681,000 EX-99.5 6 t021405.txt LETTER TO CEO OF AEP [Third Point Management Company L.L.C.] February 14, 2005 Mr. J. Brendan Barba President, Chairman and CEO AEP Industries Inc. 125 Phillips Avenue South Hackensack, NJ 07606 Dear Mr. Barba: Third Point LLC ("Third Point") advises certain funds that, in a privately negotiated transaction, recently acquired 2,000,000 shares of common stock of AEP Industries Inc. (the "Company") from Borden Holdings, LLC, a portfolio company of Apollo Management. As you may know, Third Point manages over $2.5 billion and has an outstanding long term track record in managing money and working constructively with management teams in creating value. We look forward to working with management to help formulate the Company's operating, strategic and financial objectives. Needless to say, we see significant value in the business and potentially interesting applications of the Company's cash from operations as well as from the impending sale of its Australian assets. In addition, given the fragmented nature of the industry, and potential sales and restructuring of certain competitors, we also look forward to exploring with you on possible merger scenarios whether as acquirer or as target. Very truly yours, /s/ Daniel S. Loeb Daniel S. Loeb -----END PRIVACY-ENHANCED MESSAGE-----