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| EX-3.1 - AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF ADVANCED ENVIRONMENTAL RECY - ADVANCED ENVIRONMENTAL RECYCLING TECHNOLOGIES INC | aert_ex31.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to section 13 or 15(d) of the Securities Exchange Act of
1934
Date of
Report (Date of earliest event reported): May 1, 2017
Advanced Environmental Recycling Technologies, Inc.
(Exact name of registrant as
specified in its charter)
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Delaware
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1-10367
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71-0675758
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(State or other jurisdiction of incorporation or
organization)
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(Commission File Number)
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(I.R.S. Employer Identification No.)
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914 N Jefferson Street
Springdale, Arkansas
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72764
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(Address of Principal Executive Offices)
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(Zip Code)
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Registrant’s telephone number, including area code
(479) 756-7400
Not Applicable
(Former name and former address, if changed since last
report.)
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:
☐
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of
1934 (§240.12b-2 of this chapter).
Emerging growth
company ☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act.
☐
Introductory Note
On May
1, 2017, Advanced Environmental Recycling Technologies, Inc., a
Delaware corporation (the “Company”), completed its
merger (the “Merger”) with Oldcastle Ascent Merger Sub,
Inc. (“Merger Sub”), a Delaware corporation and
wholly-owned subsidiary of Oldcastle Architectural, Inc., a
Delaware corporation (“Parent”), pursuant to the
Agreement and Plan of Merger, among Parent, Merger Sub and the
Company, dated March 16, 2017 (the “Merger Agreement”).
Pursuant to the Merger Agreement, Merger Sub merged with and into
the Company. The Company was the surviving corporation in the
Merger (the “Surviving Corporation”) and, as a result
of the Merger, became a wholly-owned subsidiary of
Parent.
The
foregoing description of the Merger Agreement does not purport to
be complete and is qualified in its entirety by reference to the
full text of the Merger Agreement, which was filed as Exhibit 2.3
to the Annual Report on Form 10-K by the Company with the U.S.
Securities and Exchange Commission (the “SEC”) on March
17, 2017, and is incorporated herein by reference.
Item 2.01 – Completion of Acquisition or Disposition of
Assets.
The
information set forth in the Introductory Note to this Current
Report on Form 8-K is incorporated into this Item 2.01 by
reference. On May 1, 2017, pursuant to the terms of the Merger
Agreement, Merger Sub merged with and into the Company. The Company
is the Surviving Corporation and is a wholly-owned subsidiary of
Parent. Pursuant to the terms of the Merger Agreement, (i) each
share of Class A common stock, par value $0.01 per share (the
“Company Common Stock”), issued and outstanding
immediately prior to the effective time of the Merger (other than
shares of Company Common Stock owned by stockholders who have
properly exercised and perfected appraisal rights under Delaware
law and have not effectively withdrawn or lost their appraisal
rights (the “Dissenting Stockholders”)) was converted
automatically into and entitled the holder thereof to receive
$0.135936 in cash, without interest and subject to applicable
withholding taxes, and (ii) each share of Series E Convertible
Preferred Stock, par value $0.01 per share (the “Company
Preferred Stock”), issued and outstanding immediately prior
to the effective time of the Merger was converted automatically
into and entitled the holder thereof to receive $2,603.483278 in
cash, without interest and subject to applicable withholding
taxes.
Item 3.03 – Material Modification to Rights of Security
Holders.
At the
effective time of the Merger, (i) each share of Company Common
Stock issued and outstanding immediately prior to the effective
time of the Merger, other than the shares of Company Common Stock
held by Dissenting Stockholders, was canceled and automatically
converted into the right to receive an amount in cash equal to
$0.135936 in cash, without interest and subject to applicable
withholding taxes, (ii) each share of Company Preferred Stock
issued and outstanding immediately prior to the effective time of
the Merger was canceled and automatically converted into the right
to receive an amount in cash equal to $2,603.483278, without
interest and subject to applicable withholding taxes, and (iii)
each share of the Company Common Stock held by a Dissenting
Stockholder was canceled and no longer entitled the Dissenting
Stockholder to any rights to receive the applicable per share
Merger consideration.
Item 5.01 – Changes in Control of Registrant.
At the
effective time of the Merger, a change in control of the Company
occurred and all shares of the Company Common Stock are now held by
Parent. The information set forth in the Introductory Note and Item
2.01 of this Current Report on Form 8-K is incorporated into this
Item 5.01 by reference. The aggregate Merger consideration will be
paid by Parent from its cash on hand.
Item 5.02 – Departure of Directors or Principal Officers;
Election of Directors; Appointment of Officers.
On May
1, 2017, in connection with the consummation of the Merger and as
contemplated by the Merger Agreement (and not because of any
disagreement with the Company on any matter relating to the
Company’s operations, policies or practices), effective as of
the effective time of the Merger, (i) Timothy Morrison resigned as
Chief Executive Officer of the Company, and (ii) each of the
following members of the board of directors of the Company resigned
as directors and, if applicable, any other positions such director
held with the Company: Vernon J. Richardson, Michael R. Phillips,
Todd J. Ofenloch and Bobby J. Sheth. The remaining members of the
board of directors of the Company are Timothy Morrison and Randall
Gottlieb.
Item 5.03 – Amendments to Articles of Incorporation or
Bylaws; Change in Fiscal Year.
At the
effective time of the Merger, the certificate of incorporation of
the Company immediately prior to the effective time of the Merger
was amended and restated and, as so amended and restated, became
the certificate of incorporation (the “Certificate of
Incorporation”) of the Surviving Corporation in accordance
with the terms of the Merger Agreement. A copy of the Certificate
of Incorporation of the Surviving Corporation is attached as
Exhibit 3.1 hereto.
Item 8.01 – Other Events.
The
information set forth in the Introductory Note to this Current
Report on Form 8-K is incorporated into this Item 8.01 by
reference.
The
Company has notified the Financial Industry Regulatory Authority
(“FINRA”) that, at the effective time of the Merger,
each outstanding share of the Company Common Stock (other than
shares held by Dissenting Stockholders) was converted into the
right to receive the applicable per share Merger consideration and
has requested that FINRA remove the Company Common Stock from
quotation on the OTCQB. In addition, the Company intends to file a
Form 15 with the SEC to deregister the Company Common Stock under
Section 12(g) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and to suspend its reporting
obligations under Sections 13 and 15(d) of the Exchange
Act.
Item 9.01 – Financial Statements and Exhibits.
(d)
Exhibits
The
following exhibit is filed herewith:
Exhibit
No.
Description
Amended and
Restated Certificate of Incorporation of Advanced Environmental
Recycling Technologies, Inc.
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, thereunto duly authorized.
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ADVANCED ENVIRONMENTAL RECYCLING TECHNOLOGIES, INC.
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Date:
May 1, 2017
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By:
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/s/
J.R. Brian Hanna
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J.R.
Brian Hanna
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Chief Financial Officer
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EXHIBIT INDEX
Exhibit No.
Description
Amended and
Restated Certificate of Incorporation of Advanced Environmental
Recycling Technologies, Inc.