Item 2.01. Completion of Acquisition or Disposition of Assets.
In accordance with the terms of the Merger Agreement, on February 26, 2021,
Merger Sub merged with and into the Company (the "Merger"), with the Company
continuing as the surviving corporation in the Merger as a direct, wholly-owned
subsidiary of Parent and an indirect, wholly-owned subsidiary of Scotts
Miracle-Gro.
On February 25, 2021, the Company filed the Articles of Merger with the
Secretary of State of Nevada, pursuant to which the Merger became effective at
10:00 a.m., Pacific Time, on February 26, 2021 (the "Effective Time").
At the Effective Time, each share of common stock of the Company, par value
$0.001 per share (the "Common Stock") (other than Excluded Shares and Dissenting
Shares (each as defined in the Merger Agreement)), issued and outstanding
immediately prior to the Effective Time was automatically converted into the
right to receive $3.00 in cash, without interest thereon and subject to any
required withholding of taxes (the "Merger Consideration"), and was cancelled.
Furthermore, in accordance with the Merger Agreement, at the Effective Time, as
a result of the Merger, each share of common stock, par value $0.001 per share,
of Merger Sub, issued and outstanding immediately prior to the Effective Time
(all of which shares were held of record by Parent), was automatically converted
into one share of common stock, par value $0.001 per share, of the Company, as
the survivor of the Merger (the "Survivor Common Stock"), which share of
Survivor Common Stock, as a result of the Merger, (i) comprises all of the
issued and outstanding capital stock of the Company as the survivor of the
Merger, and (ii) is held of record by Parent.
The total amount of funds required to complete the Merger and the transactions
contemplated thereby and pay related fees and expenses was approximately
$20.3 million, consisting of approximately $20.1 million in cash Merger
Consideration and approximately $0.2 million in transaction related fees and
expenses. Parent funded this amount through available cash on hand.
The foregoing summary of the Merger and the Merger Agreement does not purport to
be complete and is subject to, and qualified in its entirety by, the full text
of the Merger Agreement, which was attached as Exhibit 2.1 to the Prior 8-K
and incorporated by reference herein.
The information set forth under "Introductory Note" of this Current Report on
Form 8-K is incorporated by reference into this Item 2.01.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
In connection with the consummation of the Merger, the Common Stock is no longer
quoted on The OTCQB Marketplace operated by OTC Markets Group Inc., effective as
of market close on February 26, 2021. The Company intends to file with the SEC a
certification on Form 15 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), requesting the termination of the registration of the
Common Stock under Section 12(g) of the Exchange Act and the suspension of the
Company's reporting obligations under Section 13(a) and Section 15(d) of the
Exchange Act.
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The information set forth under "Introductory Note" and Item 2.01 of this
Current Report on Form 8-K is incorporated by reference into this Item 3.01.
Item 3.03. Material Modification to Rights of Security Holders.
As set forth under Item 2.01 of this Current Report on Form 8-K, as of the
Effective Time, all issued and outstanding shares of the Common Stock, other
than Excluded Shares and Dissenting Shares, ceased to be outstanding and were
automatically converted into the right to receive the Merger Consideration. At
the Effective Time, all holders of Common Stock ceased to have any rights with
respect thereto other than the right to receive the Merger Consideration
pursuant to the Merger Agreement.
The information set forth under "Introductory Note," Item 2.01 and Item 3.01 of
this Current Report on Form 8-K is incorporated by reference into this Item
3.03.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Upon consummation of the Merger, (i) at the Effective Time, H. MacGregor Clarke,
Chris J. Hagedorn, David B. Kent, Cory T. Miller and Patricia M. Ziegler ceased
service as directors of the Company and (ii) as of 5:00 p.m. Mountain Time on
February 26, 2021, J. Michael Wolfe, Grey H. Gibbs and John K. Thompson ceased
to be officers of the Company. Simultaneously, Ivan C. Smith, the sole director
of Merger Sub immediately prior to the Effective Time, became the director of
the Company as the survivor of the Merger, to hold office until his successor
has been duly elected or appointed and qualified or until his death, resignation
or removal, and Michael C. Lukemire and Kelly S. Berry, the President and Vice
President and Treasurer, respectively, of Merger Sub immediately prior to the
Effective Time, became the President and Vice President and Treasurer of the
Company as the survivor of the Merger, each to hold office until his or her
successor has been duly elected or appointed and qualified or until his or her
earlier death, resignation or removal, in each case, in accordance with the
Amended and Restated Articles of Incorporation and the Amended and Restated
Bylaws (each as defined herein) and applicable law.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Pursuant to the Merger Agreement, at the Effective Time and as a result of the
Merger, the articles of incorporation of the Company, as in effect immediately
prior to the Effective Time were amended and restated to read in their entirety
and such amended and restated articles of incorporation (the "Amended and
Restated Articles of Incorporation") were filed as Exhibit A to the Articles of
Merger with the Nevada Secretary of State and became the Amended and Restated
Articles of Incorporation of the Company as the survivor of the Merger. Also
pursuant to the Merger Agreement and resolutions adopted immediately after the
Effective Time by the new directors of the Company as the surviving corporation,
the amended and restated bylaws of the Company as in effect immediately prior to
the Effective Time were amended and restated to read in their entirety as the
bylaws of Merger Sub immediately prior to the Effective Time (except all
references therein to the name of Merger Sub were replaced with the name of the
Company) (the "Amended and Restated Bylaws"). A copy of the Amended and Restated
Articles of Incorporation and a copy of the Amended and Restated Bylaws are
attached as Exhibit 3.1 and Exhibit 3.2 to this Current Report on Form 8-K,
respectively, and incorporated by reference herein.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description of Exhibit
2.1* Agreement and Plan of Merger, dated as of November 11, 2020,
by and among AeroGrow International, Inc., SMG Growing Media,
Inc., AGI Acquisition Sub, Inc., and, solely for the purposes
stated in Section 6.4, The Scotts Miracle-Gro Company (filed as
Exhibit 2.1 to AeroGrow International, Inc.'s Current Report on
Form 8-K, filed on November 12, 2020, and incorporated by
reference herein).
3.1 Amended and Restated Articles of Incorporation of AeroGrow
International, Inc.
3.2 Amended and Restated Bylaws of AeroGrow International, Inc.
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company hereby undertakes to supplementally furnish copies of any omitted
schedules to the Securities and Exchange Commission upon request.
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