As filed with the Securities and Exchange
Commission on February 26, 2021
Registration No. 333-241707
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT No. 1,
ON FORM S-8, TO FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CLEVER LEAVES HOLDINGS INC.
(Exact name of registrant as specified
in its charter)
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British Columbia, Canada
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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489 Fifth Avenue, 27th Floor
New York, New York
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10017
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(Address of principal executive offices)
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(Zip Code)
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CLEVER LEAVES INTERNATIONAL INC. (F/K/A
NORTHERN SWAN HOLDINGS, INC.) 2018 OMNIBUS INCENTIVE COMPENSATION PLAN, AS AMENDED
(Full title of the plan)
Kyle Detwiler
489 Fifth Avenue, 27th Floor
New York, New York 10017
(646) 880-4382
(Name, address and telephone number,
including area code, of agent for service)
Copies to:
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David M. Kastin, Esq.
Clever Leaves Holdings Inc.
489 Fifth Avenue, 27th Floor
New York, New York 10017
(646) 880-4382
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Pamela L. Marcogliese, Esq.
Sebastian L. Fain, Esq.
Freshfields Bruckhaus Deringer US LLP
601 Lexington Avenue
New York, New York 10022
(212) 277-4000
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Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☒
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Emerging growth company
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☒
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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 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
per Share(2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common shares, without par value, issuable under outstanding stock options granted pursuant to the Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan, as amended
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783,640
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N/A
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N/A
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N/A
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Total
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783,640
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N/A
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N/A
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N/A
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(1)
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This Post-Effective Amendment No. 1 on Form S-8 (this “Post-Effective Amendment”) covers common shares, without par value (the “Shares”), of Clever Leaves Holdings Inc. (the “Registrant”), originally registered on its Registration Statement on Form S-4 (No. 333-241707) (as amended, the “Original Registration Statement”), to which this filing is a post-effective amendment. Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Post-Effective Amendment shall also cover any additional Shares which become issuable under the Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan, as amended (the “Plan”), being registered pursuant to this Post-Effective Amendment by reason of any share dividend, share split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding Shares.
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(2)
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The registration fee in respect of the Shares was paid previously at the time of filing the Original Registration Statement.
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EXPLANATORY NOTE
On December 18, 2020 (the “Closing”),
Clever Leaves International Inc., a corporation organized under the laws of British Columbia, Canada (“Clever Leaves”),
and Schultze Special Purpose Acquisition Corp., a Delaware corporation (“SAMA”), consummated the business combination
(the “Business Combination”) contemplated by the Amended and Restated Business Combination Agreement, dated as of November
9, 2020 (the “Business Combination Agreement”), by and among SAMA, Clever Leaves, the Registrant and Novel Merger Sub
Inc., a Delaware corporation.
Pursuant to the terms of the Business Combination
Agreement, at the Closing, each outstanding Clever Leaves option, whether vested or unvested, that was outstanding immediately
prior to the Closing was, as of the Closing, converted (as converted, a “Converted Option Award”), in accordance with
the calculation methodology set forth in the Business Combination Agreement, into an option award (x) exercisable for the
aggregate number of Shares of the Registrant equal to the product (rounded down to the nearest whole number) of (i) the number
of Clever Leaves common shares exercisable under the Clever Leaves option immediately prior to the Closing and (ii) 0.3288
(the “Exchange Ratio”) and (y) with a per share exercise price equal to the quotient (rounded up to the nearest
cent) obtained by dividing (i) the per share exercise price under the Clever Leaves option immediately prior to the Closing
by (ii) the Exchange Ratio. Each Converted Option Award is otherwise subject to the same terms and conditions (including any
vesting requirements) set forth under the applicable award agreement in effect immediately prior to the Closing.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
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Item 1.
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Plan Information*
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Item 2.
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Registrant Information and Employee Plan Annual Information*
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* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from this Post-Effective Amendment in accordance with Rule 428 under the Securities Act and
the “Note” to Part I of Form S-8. The documents containing the information specified in this Part I of Form S-8 will
be sent or given to the participants (“participants”) in the Plan covered by this Post-Effective Amendment, as specified
by the U.S. Securities and Exchange Commission (the “Commission”), pursuant to Rule 428(b)(1) under the Securities
Act. Such documents are not required to be and are not filed with the Commission either as part of this Post-Effective Amendment
or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference
in this Post-Effective Amendment pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
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Item 3.
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Incorporation of Documents by Reference
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The following documents filed by the Registrant
with the Commission are incorporated as of their respective dates in this Post-Effective Amendment by reference:
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●
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the
Registrant’s prospectus filed with the Commission on February 1, 2021, including
all amendments and exhibits thereto, pursuant to Rule 424(b) under the Securities
Act, relating to the Registration Statement on Form S-1 (File No. 333-252241);
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●
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the
Registrant’s Current Reports on Form 8-K, filed with the Commission on December
22, 2020, December 23, 2020, December 28, 2020, January 15, 2021 and February 22, 2021;
and
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●
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the
description of the Registrant’s Shares contained in the Registrant’s Registration
Statement on Form 8-A filed with the Commission on December 18, 2020 (File No. 001-39820),
including any amendment or report filed for the purpose of updating such description.
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All other documents subsequently filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) (except for any portions of the Registrant’s Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item
7.01 thereof and any corresponding exhibits thereto not filed with the Commission, and other documents or information deemed furnished
but not filed under the rules of the Commission), prior to the filing of a post-effective amendment to this Post-Effective Amendment
that indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Post-Effective Amendment and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of this Post-Effective Amendment to the extent that
a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Post-Effective Amendment.
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Item 4.
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Description of Securities
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Not required.
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Item 5.
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Interests of Named Experts and Counsel
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None.
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Item 6.
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Indemnification of Directors and Officers
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Under the Business Corporations Act (British
Columbia) (“BCA”), a company may indemnify a director or officer, a former director or officer, or a person who acts
or acted at the company’s request as a director or officer, or an individual acting in a similar capacity, of another entity,
which we refer to as an eligible party, against all costs, charges and expenses, including an amount paid to settle an action or
satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal, administrative, investigative or other
proceeding in which he or she is involved because of that association with the company or other entity, if: (1) the individual
acted honestly and in good faith with a view to the best interests of such company or the other entity, as the case may be; and
(2) in the case of a proceeding other than a civil proceeding, the individual had reasonable grounds for believing that the individual’s
conduct was lawful. A company cannot indemnify an eligible party if it is prohibited from doing so under its articles, even if
it had agreed to do so by an indemnification agreement (provided that the articles prohibited indemnification when the indemnification
agreement was made). A company may advance the expenses of an eligible party as they are incurred in an eligible proceeding only
if the eligible party has provided an undertaking that, if it is ultimately determined that the payment of expenses was prohibited,
the eligible party will repay any amounts advanced. On application from an eligible party, a court may make any order the court
considers appropriate in respect of an eligible proceeding, including the indemnification of penalties imposed or expenses incurred
in any such proceedings and the enforcement of an indemnification agreement.
The Registrant’s amended and restated
articles (the “Articles”) require the Registrant to indemnify an eligible party and his or her heirs and legal personal
representatives against all eligible penalties to which such person is or may be liable, and the Registrant must after final disposition
of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each
eligible party is deemed to have contracted with the Registrant on the terms of the indemnity contained in the Articles. Subject
to the BCA, the Registrant may also indemnify any other person. In addition, the Articles specify that failure of an eligible party
to comply with the provisions of the BCA or the Articles, or if applicable, any former legislation or articles, will not invalidate
any indemnity to which he or she is entitled. The Articles also allow for the Registrant to purchase and maintain insurance for
the benefit of specified eligible parties.
The Registrant entered into indemnity agreements
with the Registrant’s directors and certain officers (the “Nominees”). Subject to certain limited exceptions,
the indemnity agreements provide indemnification for all liabilities or obligations imposed upon or incurred by each Nominee and
his or her heirs, executors, administrators and personal representatives (each, an “indemnitee” and, collectively,
the “indemnitees”) at law, in equity or under any statute or regulation and all expenses in relation to any claim,
action, proceeding, investigation, or order whether civil, criminal or administrative and whether made or commenced by any person
by reason of: (i) the Nominee being or having been a director, alternate director, officer or a person in an equivalent position
of the Registrant or any associated corporation (as defined in the BCA), or (ii) any act or omission, whether or not negligent,
of the Nominee acting as a director, alternate director, officer or a person in an equivalent position of the Registrant or any
associated corporation, including without limitation, legal fees and disbursements and all costs of investigation and defense incurred
by the indemnitees as permitted by applicable law and pursuant to the indemnity agreement.
The Registrant may purchase insurance policies
relating to certain liabilities that our directors and officers may incur in such capacity.
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Item 7.
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Exemption from Registration Claimed
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Not applicable.
The exhibits listed on the exhibit index
at the end of this Post-Effective Amendment are included in this Post-Effective Amendment.
(a) The undersigned Registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are
being made, a post-effective amendment to this Post-Effective Amendment:
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(i)
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to include any prospectus required by Section 10(a)(3)
of the Securities Act;
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(ii)
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to reflect in the prospectus any facts or events arising after the effective date of this Post-Effective Amendment (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 Post-Effective Amendment; and
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(iii)
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to include any material information with respect to the plan of distribution not previously disclosed in this Post-Effective Amendment or any material change to such information in this Post-Effective Amendment.
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provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the Post-Effective Amendment.
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(2)
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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; and
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(3)
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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.
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(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 (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
(c) The undersigned Registrant hereby undertakes
that, insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant, the Registrant has been advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, 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.
EXHIBITS
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Exhibit No.
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Description
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3.1
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Amended and Restated Articles of Clever Leaves Holdings Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K (File No. 001-39820) filed with the Commission by the Registrant on December 23, 2020).
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4.1
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Specimen Common Share Certificate of Clever Leaves Holdings Inc. (incorporated by reference to Exhibit 4.4 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on November 9, 2020).
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4.2
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Specimen Warrant Certificate of Clever Leaves Holdings Inc. (incorporated by reference to Exhibit 4.5 to Amendment No. 2 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on November 9, 2020).
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4.3
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Warrant Agreement, dated December 10, 2018, between Schultze Special Purpose Acquisition Corp. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K (File No. 001-38760) filed with the Commission by Schultze Special Purpose Acquisition Corp. on December 14, 2018).
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4.4
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Assignment, Assumption and Amendment Agreement, dated as of December 18, 2020, among Clever Leaves Holdings Inc., Schultze Special Purpose Acquisition Corp. and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.4 of the Current Report on Form 8-K (File No. 001-39820) filed with the Commission by the Registrant on December 28, 2020).
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5.1*
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Opinion of Dentons Canada LLP, counsel to the Registrant, regarding the legality of the securities being offered hereby (including consent).
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10.1
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Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.31 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on September 11, 2020).
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10.2
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Amendment No. 1 to Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.32 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on September 11, 2020).
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10.3
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Amendment No. 2 to Clever Leaves International Inc. (f/k/a Northern Swan Holdings, Inc.) 2018 Omnibus Incentive Compensation Plan (incorporated by reference to Exhibit 10.33 to Amendment No. 1 to the Registration Statement on Form S-4 (File No. 333-241707) filed with the Commission by the Registrant on September 11, 2020).
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23.1*
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Consent of BDO Canada LLP.
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23.2*
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Consent of Marcum LLP.
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23.3*
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Consent of Dentons Canada LLP (included in Exhibit 5.1).
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24.1*
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Power of Attorney (included as part of the signature pages to this Post-Effective Amendment).
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* Filed herewith
SIGNATURES
The Registrant. Pursuant to the requirements
of the Securities Act, 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 Post-Effective Amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in New York, New York on the 26th day of February, 2021.
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CLEVER LEAVES HOLDINGS INC.
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By:
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/s/ Kyle Detwiler
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Name:
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Kyle Detwiler
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below hereby constitutes and appoints each of Kyle Detwiler, Henry
R. Hague, III and David M. Kastin as such person’s true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for such person and in such person’s name, place and stead, in any and all capacities, to
sign any and all amendments to the Post-Effective Amendment, including post-effective amendments, and registration statements filed
pursuant to Rule 462 under the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, and does hereby grant unto each said attorney-in-fact and agent 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 such person might or could do in person, hereby ratifying and confirming all that each said attorney-in-fact and
agent, or any substitute therefor, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act, this Post-Effective Amendment has been signed by the following persons in the capacities indicated on the 26th
day of February, 2021:
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Signature
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Title
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Date
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/s/ Kyle Detwiler
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Chief Executive Officer and Chairman of the Board
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February 26, 2021
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Kyle Detwiler
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(Principal Executive Officer)
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/s Henry R. Hague, III
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Chief Financial Officer
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February 26, 2021
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Henry R. Hague, III
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(Principal Financial and Accounting Officer)
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/s/ Etienne Deffarges
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Director
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February 26, 2021
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Etienne Deffarges
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/s/ Elisabeth DeMarse
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Director
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February 26, 2021
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Elisabeth DeMarse
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/s/ Andres Fajardo
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Director and President
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February 26, 2021
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Andres Fajardo
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/s/ Gary M. Julien
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Director
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February 26, 2021
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Gary M. Julien
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6
Exhibit 5.1
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Dentons Canada LLP
20th Floor, 250 Howe Street
Vancouver, BC, Canada V6C 3R8
dentons.com
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February 26, 2021
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File No.: 571370-2
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Clever Leaves Holdings Inc.
489 Fifth Avenue,
27th Floor, New York,
New York 10017
United States
Dear Sirs/Mesdames:
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Re:
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Clever Leaves Holdings Inc. – Registration Statement on Form S-8
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We have acted as Canadian
counsel to Clever Leaves Holdings Inc., a corporation organized under the laws of the Province of British Columbia, Canada (the
“Corporation”), in connection with the filing of a Registration Statement on Form S-8 (the “Registration
Statement”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933 (the “Act”). The Registration Statement relates to the issuance of up to an aggregate of 783,640 common
shares without par value in the capital of the Corporation (the “Option Shares”) issuable on exercise of certain
options of the Corporation (the “Options”).
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A.
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Documents Reviewed and Reliance
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As Canadian counsel
to the Corporation, we have participated in the preparation of and examined original executed or electronically delivered copies,
which have been certified or otherwise identified to our satisfaction, of:
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1.
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the Registration Statement;
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2.
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Clever Leaves’ 2018 Omnibus Incentive Compensation Plan (the “Equity Plan”); and
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3.
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resolutions of the director of the Corporation authorizing and approving the issuance of the Option
Shares (the “Authorizing Resolutions”);
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collectively, the “Transaction
Documents”.
We have also made such
investigations and examined originals or copies, certified or otherwise identified to our satisfaction, of such certificates of
public officials and of such other certificates, documents and records as we considered necessary or relevant for purposes of the
opinions expressed below, including:
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1.
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a certificate of good standing dated February 26, 2021 issued pursuant to the Business
Corporations Act (British Columbia) relating to the Corporation; and
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2.
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a certificate signed by the Chief Executive Officer of the Corporation addressed to our firm, certifying
certain additional corporate information of a factual nature and attaching the Authorizing Resolutions (the “Officer’s
Certificate”).
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Page 2
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dentons.com
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We are qualified to
practice law in the Province of British Columbia and our opinion herein is restricted to the laws of the Province of British Columbia
and the federal laws of Canada applicable therein.
For the purposes of
the opinions expressed herein, we have assumed, without independent investigation, the following:
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1.
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with respect to all documents examined by us, the genuineness of all signatures, the authenticity,
completeness and accuracy of all documents submitted to us as originals, the conformity to originals of all documents submitted
to us as certified, conformed, telecopied, PDF or photocopied copies of originals and the legal capacity of individuals signing
any documents;
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2.
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the completeness, accuracy and currency of the indices and filing systems maintained at the public
offices where we have searched or made relevant inquiries and of other documents and certificates supplied by public officials;
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3.
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the Officer’s Certificate continues to be accurate on the date hereof;
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4.
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all necessary consents, authorizations, approvals, permits or certificates (governmental or otherwise)
which are required as a condition to the execution and delivery of each of the Transaction Documents by the parties thereto and
to the consummation by such parties of the transactions contemplated thereby have been obtained; and
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5.
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the minute books and corporate records of the Corporation made available to us are the original
minute books and records of the Corporation and contain all of the articles and constating documents of the Corporation and any
amendments thereto and all of the respective minutes, or copies thereof, of all proceedings of the shareholders and directors.
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For the purposes of
expressing the opinions set forth herein, in connection with certain factual matters pertaining to this opinion, we have relied
exclusively and without independent investigation upon the Officer’s Certificate.
Based upon and relying
on the foregoing and the qualifications hereinafter expressed, we are of the opinion that the Option Shares have been authorized
for issuance and when issued in compliance with the provisions of the Equity Plan, including the receipt by the Corporation of
any exercise price of the Options, the Option Shares will be validly issued, fully paid and non-assessable common shares in the
capital of the Corporation.
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Page 3
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dentons.com
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Whenever our opinion
refers to securities of the Corporation, whether issued or to be issued, as being “fully-paid and non-assessable”, such
phrase means that the holders of such securities will not, after the issuance to them of such securities, be liable to pay further
amounts to the Corporation in respect of the issue price payable for such securities, and no opinion is expressed as to the adequacy
of any consideration received by the Corporation therefor.
For greater certainty,
a specific assumption, limitation or qualification in this opinion is not to be interpreted to restrict the generality of any other
assumption, limitation or qualification expressed in general terms in this opinion that includes the subject matter of the specific
assumption, limitation or qualification.
We hereby consent to
the reference to us under the heading “Legal Matters” in the Registration Statement and to the filing of this opinion
as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category
of persons whose consent is required under Section 7 or Section 11 of the Securities Act or the rules and regulations
of the Commission promulgated thereunder.
The opinions are given
as at the date hereof and we disclaim any obligation or undertaking to advise any person of any change in law or fact that may
come to our attention after the date hereof. Our opinions do not take into account any proposed rules, policies or legislative
changes that may come into force following the date hereof.
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Very truly yours,
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/s/ Dentons Canada LLP
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