AGFS AgroFresh Solutions Inc

 

As filed with the Securities and Exchange Commission on September 24, 2015

 

Registration Statement No. 333-            

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C.  20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

AgroFresh Solutions, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

AgroFresh Solutions, Inc. 2015 Incentive Compensation Plan

(Full title of the plan)

 

Thomas D. Macphee

100 S. Independence Mall West

Philadelphia, PA 19106

(Name and address of agent for service)

 

(215) 592-3687

(Telephone number, including area code, of agent for service)

 

Copies to:

 

Alan Annex, Esq.

Jason T. Simon, Esq.

Greenberg Traurig, LLP

MetLife Building

200 Park Avenue

New York, NY 10166

212-801-9200

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered		Amount to be registered(1)		Proposed maximum offering price per share			Proposed maximum aggregate offering price			Amount of registration fee
Common Stock, $0.0001 par value (1)		2,750,000	(2)	$	10.04	(3)	$	27,610,000	(3)	$	3,209

(1)         Pursuant to Rule 416 of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock, par value $0.0001 per share (“Common Stock”), of the Registrant, which become issuable under the AgroFresh Solutions, Inc. 2015 Incentive Compensation Plan (the “2015 Equity Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration by the Registrant and which results in an increase in the number of its outstanding shares of Common Stock.

 

(2)         Represents shares issuable upon the exercise of incentive stock options, non-qualified stock options, stock grants and other stock-based awards granted or to be granted under the 2015 Equity Plan.

 

(3)         Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act and based upon the average of the high and low price of a share of the Registrant’s Common Stock as reported by the Nasdaq Global Market on September 18, 2015.

 

 

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The documents containing the information specified in Part I of this Registration Statement will be sent or given to participants in the 2015 Equity Plan, as specified by Rule 428(b)(1) promulgated under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirement of Section 10(a) of the Securities Act.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The Commission allows AgroFresh Solutions, Inc. (the “Company”) to “incorporate by reference” the information the Company files with it, which means that the Company can disclose important information to you by referring you to those documents.  The Company has previously filed the following documents with the Commission and is incorporating them by reference into this Registration Statement:

 

·                  The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed with the Commission on February 27, 2015;

 

·                  The Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2015, filed with the Commission on May 15, 2015;

 

·                  The Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2015, filed with the Commission on August 14, 2015;

 

·                  The Registrant’s Schedule 14A Definitive Proxy Statement for its 2015 Special Meeting held on July 31, 2015, filed with the Commission on July 17, 2015;

 

·                  The Current Reports on Form 8-K or Form 8-K/A filed with the Commission on, April 30, 2015, May 4, 2015, May 22, 2015, June 3, 2015, June 11, 2015, June 17, 2015, July 20, 2015, July 30, 2015, August 6, 2015, August 17, 2015, August 19, 2015, August 31, 2015 and September 10, 2015.

 

·                  The description of the Company’s common stock contained in the Registration Statement on Form 8-A dated February 12, 2014, filed pursuant to Section 12 of the Securities Exchange Act of 1934.

 

All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities covered hereby then remaining unsold, are incorporated by reference in this Registration Statement and are a part hereof from the date of filing of such documents. The information contained in any such documents will automatically update and supersede any information previously incorporated by reference into this Registration Statement. Any such information so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Registration Statement.

 

Item 4. Description of Securities.

 

Not applicable.

 

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Item 5. Interests of Named Experts and Counsel.

 

Not applicable.

 

Item 6.         Indemnification of Directors and Officers.

 

Section 145 of the Delaware General Corporation Law (“DGCL”) provides, in effect, that any person made a party to any action by reason of the fact that he is or was a director, officer, employee or agent of the Company may, and in certain cases must, be indemnified by the Company against, in the case of a non-derivative action, judgments, fines, amounts paid in settlement, and reasonable expenses (including attorneys fees) incurred by him as a result of such action, and in the case of a derivative action, against expenses (including attorneys fees), if in either type of action he acted in good faith and in a manner he reasonably believed to be in or not opposed to the Company’s best interests. This indemnification does not apply, (i) in a derivative action, to matters as to which it is adjudged that the director, officer, employee or agent is liable to the Company, unless upon court order it is determined that, despite such adjudication of liability, but in view of all the circumstances of the case, he is fairly and reasonably entitled to indemnity for expenses, and, (ii) in a non-derivative action, to any criminal proceeding in which such person had no reasonable cause to believe his conduct was unlawful.

 

The Company’s second amended and restated certificate of incorporation provides that no director of the Company shall be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director except to the extent that such exemption from liability or limitation thereof is not permitted under the DGCL as currently in effect or as the same may hereafter be amended. This provision in the second amended and restated certificate of incorporation does not eliminate the directors’ fiduciary duties, and in appropriate circumstances, equitable remedies such as injunctive or other forms of nonmonetary relief will remain available under Delaware law. In addition, each director will be subject to liability for breach of the director’s duty of loyalty to the Company, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. The provision also does not affect a director’s responsibilities under any other law, such as the federal securities laws or state or federal environmental laws.

 

The Company’s by-laws provide that the Company shall indemnify and advance expenses to its officers and directors to the fullest extent permitted by applicable law.

 

The Company has entered into indemnification agreements with its directors and officers which may, in certain cases, be broader than the specific indemnification provisions contained in its second amended and restated certificate of incorporation and bylaws. The Company maintains directors’ and officers’ liability insurance for its directors and officers.

 

Item 7. Exemption From Registration Claimed.

 

Not applicable.

 

Item 8.         Exhibits.

 

Exhibit No.		Description of Document
4.1		Second Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on July 31, 2015 (1)
4.2		Amended and Restated Bylaws of the Company (2)
4.3		AgroFresh Solutions, Inc. 2015 Incentive Compensation Plan (3)
5.1		Legal Opinion of Greenberg Traurig, LLP
23.1		Consent of Greenberg Traurig, LLP (included in Exhibit 5.1)
23.2		Consent of EisnerAmper LLP
23.3		Consent of Rothstein Kass

 

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23.4		Consent of Deloitte & Touche LLP
24.1		Power of Attorney (included on signature page of this Registration Statement)

 

(1)         Incorporated by reference to an exhibit to the Current Report on Form 8-K filed by the Company on August 6, 2015.

 

(2)         Incorporated by reference to Annex A to the Company’s definitive proxy statement filed by the Company on July 16, 2015.

 

(3)         Incorporated by reference to Annex C to the Company’s definitive proxy statement filed by the Company on July 16, 2015.

 

Item 9.         Undertakings.

 

(a)                                 The undersigned Registrant hereby undertakes:

 

(1)         To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)             To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(ii)          To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low and high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and

 

(iii)       To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this registration statement;

 

provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if this Registration Statement and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

 

(2)         That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3)         To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

(b)         The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(c)          Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is,

 

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therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania, on this 24th day of September, 2015.

 

	AGROFRESH SOLUTIONS, INC.
	By:	/s/ Thomas D. Macphee
	Name:  Thomas D. Macphee
	Title: Chief Executive Officer

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints Thomas D. Macphee and Thomas Ermi, and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities, to sign this Registration Statement and any and all amendments and documents related thereto, and to file the same and any and all exhibits, financial statements and schedules related thereto, and other documents in connection therewith, with the Commission, granting unto each said attorney-in-fact and agent, and substitute or substitutes, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all things that said attorneys-in-fact and agents, or any of them or his or their substitute or substitutes, may lawfully do and seek to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

 

 

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Exhibit 5.1

 

 

September 24, 2015

 

AgroFresh Solutions, Inc.

100 S. Independence Mall West

Philadelphia, PA 19106

 

Re:                             Registration Statement on Form S-8

AgroFresh Solutions, Inc.

 

Ladies and Gentlemen:

 

We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), relating to an aggregate of 2,750,000 shares (the “Shares”) of the common stock, par value $0.0001 per share, of AgroFresh Solutions, Inc. (the “Company”), issuable under the AgroFresh Solutions, Inc. 2015 Incentive Compensation Plan (the “Plan”).

 

In connection with the preparation of the Registration Statement and this opinion letter, we have examined, considered and relied upon the following documents (collectively, the “Documents”):

 

(i)                                     the Company’s second amended and restated certificate of incorporation;

 

(ii)                                  the Company’s amended and restated bylaws, as amended;

 

(iii)                               resolutions of the board of directors of the Company;

 

(iv)                              the Registration Statement and schedules and exhibits thereto;

 

(v)                                 a copy of the Plan; and

 

(vi)                              such other documents and matters of law as we have considered necessary or appropriate for the expression of the opinion contained herein.

 

In rendering the opinion set forth below, we have assumed without investigation the genuineness of all signatures and the authenticity of all Documents submitted to us as originals, the conformity to authentic original documents of all Documents submitted to us as copies, and the veracity of the Documents.  For the purposes of the opinion set forth below, we have also assumed that in connection with the issuance of the Shares, the Company will receive consideration in an amount not less than the aggregate par value of the Shares covered by each such issuance. As to questions of fact material to the opinion hereinafter expressed, we have relied upon the representations and warranties of the Company made in the Documents.

 

 

Based upon the foregoing examination, and subject to the qualifications set forth below, we are of the opinion that the Shares have been duly authorized and, when issued, delivered and paid for in accordance with the provisions of the Plan, will be validly issued, fully paid and non-assessable.

 

The opinion expressed above is limited to the General Corporation Law of the State of Delaware, all rules and regulations underlying such statutory provisions of law, and all applicable judicial and regulatory determinations concerning such laws as reported in publicly available compilations of such judicial and regulatory determinations, as well as the federal laws of the United States of America.  Our opinion is rendered only with respect to laws, and the rules, regulations and determinations thereunder, which are currently in effect.

 

We hereby consent to the filing of this opinion letter as an exhibit to the Registration Statement and to the reference to us in the Registration Statement.  In giving this consent, we do not thereby admit that we are included within the category of persons whose consent is required by Section 7 of the Act and the rules and regulations promulgated thereunder.

 

 

	Very truly yours,
	/s/ Greenberg Traurig, LLP
	GREENBERG TRAURIG, LLP

 

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Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in the Registration Statement of AgroFresh Solutions Inc. (formerly known as Boulevard Acquisition Corp.) on Form S-8 to be filed on or about September 24, 2015 of our report dated February 26, 2015, on our audit of the financial statements as of December 31, 2014 and for of the year then ended, which report was included in the Annual Report on Form 10-K filed on February 27, 2015.

 

 

/s/ EisnerAmper LLP

 

New York, New York

September 24, 2015

 

Exhibit 23.3

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the use of our report dated March 31, 2014, in this registration statement on Form S-8 of AgroFresh Solutions, Inc., relating to the balance sheet of Boulevard Acquisition Corp. as of December 31, 2013, and the related statements of operations, stockholder’s equity and cash flows for the period from October 24, 2013 (inception) to December 31, 2013, incorporated by reference in the registration statement.

 

 

/s/ Rothstein Kass

 

 

New York, New York

September 24, 2015

 

Exhibit 23.4

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 14, 2015 relating to the combined financial statements of the AgroFresh Business as of December 31, 2014 and 2013 and for each of the three years in the period ended December 31, 2014 (which report expresses an unqualified opinion and includes an explanatory paragraph relating to allocations of certain expenses), incorporated by reference in the Prospectus, which is part of this Registration Statement.

 

/s/ DELOITTE & TOUCHE LLP

 

Midland, Michigan

 

September 22, 2015