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): June 1, 2017
AgroFresh Solutions, Inc.
(Exact Name of Registrant as Specified in Charter)
|
|
|
|
|
|
|
|
|
Delaware
(State or other jurisdiction
of incorporation)
|
|
001-36316
(Commission File Number)
|
|
46-4007249
(I.R.S. Employer
Identification Number)
|
|
|
|
|
|
|
|
One Washington Square 510-530 Walnut Street, Suite 1350
Philadelphia, PA
(Address of principal executive offices)
|
|
19106
(Zip code)
|
(267) 317-9139
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
o
Written communications pursuant to Rule 425 under the Securities Act
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
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) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2).
Emerging growth company
x
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.
o
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
As described in Item 5.07 below, on June 1, 2017 at the annual meeting of stockholders (the Annual Meeting) of AgroFresh Solutions, Inc. (the Company), the stockholders of the Company approved the First Amendment to the Company’s 2015 Incentive Compensation Plan (the Plan) to, among other things, increase the number of shares of the Company’s common stock reserved for issuance under the Plan from 2,750,000 to 5,150,000. As a result, the First Amendment became effective on June 1, 2017.
A copy of the First Amendment to the Plan is attached hereto as Exhibit 10.1 and is incorporated into this Item 5.02 by reference. The foregoing summary is qualified in its entirety by the complete terms and conditions of the First Amendment to the Plan. A description of the material terms of the Plan, as amended by the First Amendment, was included in the Company’s definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission on April 25, 2017 (the Proxy Statement).
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At the Annual Meeting, the stockholders of the Company approved a proposal to amend the Company’s Second Amended and Restated Certificate of Incorporation (the Certificate of Incorporation) to eliminate the classified board of directors of the Company (the Board) and to provide instead for the annual election of directors (the Declassification Amendment), effective at the Annual Meeting. The Board previously approved the Declassification Amendment and recommended that it be submitted to the Company’s stockholders for approval.
In order to immediately declassify the Board at the Annual Meeting following approval of the Declassification Amendment, each director whose term did not expire at the Annual Meeting tendered his or her contingent resignation, which became effective only upon stockholder approval of the Declassification Amendment. As described in Item 5.07 below, each such director was thereafter elected to the Board to serve for a one-year term until the 2018 annual meeting of stockholders.
A copy of the Certificate of Amendment to the Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on June 1, 2017, is attached hereto as Exhibit 3.1 and is incorporated into this Item 5.03 by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
At the Annual Meeting, the Company’s stockholders (1) approved an amendment to the Certificate of Incorporation to declassify the Board, (2) elected the Company’s seven nominees for director for a one-year term, (3) approved and adopted the First Amendment to the Plan, (4) ratified the appointment of Deloitte & Touche LLP as the independent registered public accounting firm of the Company for the fiscal year ending December 31, 2017 and (5) authorized the Company’s board of directors to adjourn and postpone the Annual Meeting to a later date or dates, if necessary. As Proposal 1 (to amend the Certificate of Incorporation to declassify the Board) was approved, Proposal 2 (to elect seven directors) was submitted to the stockholders and voted upon and Proposal 3 (to elect one Class II director) was not submitted to the stockholders. The final voting results for each proposal submitted to a vote are set forth below:
|
|
|
|
|
|
|
|
|
|
|
PROPOSAL 1:
|
|
Approval of an amendment to the Certificate of Incorporation to declassify the Board.
|
|
|
|
|
|
|
|
|
|
Votes For
|
|
Votes Against
|
|
Abstentions
|
|
Broker Non-Votes
|
|
39,889,998
|
|
123,682
|
|
21,718
|
|
4,061,057
|
|
|
|
|
|
|
|
|
|
|
|
PROPOSAL 2:
|
|
Election of Directors.
|
|
|
|
|
|
|
|
|
|
Name
|
|
Votes For
|
|
Votes Withheld
|
|
Broker Non-Votes
|
|
Robert Campbell
|
|
37,147,451
|
|
2,887,947
|
|
4,061,057
|
|
Nance Dicciani
|
|
37,264,031
|
|
2,771,367
|
|
4,061,057
|
|
Jordi Ferre
|
|
39,220,063
|
|
815,335
|
|
4,061,057
|
|
Gregory Freiwald
|
|
30,330,564
|
|
9,704,834
|
|
4,061,057
|
|
Marc Lasry
|
|
38,313,241
|
|
1,722,157
|
|
4,061,057
|
|
George Lobisser
|
|
36,807,693
|
|
3,227,705
|
|
4,061,057
|
|
Macauley Whiting, Jr.
|
|
38,013,480
|
|
2,021,918
|
|
4,061,057
|
|
|
|
|
|
|
|
|
|
|
|
PROPOSAL 3:
|
|
Approval and adoption of the First Amendment to the Plan.
|
|
|
|
|
|
|
|
|
|
Votes For
|
|
Votes Against
|
|
Abstentions
|
|
Broker Non-Votes
|
|
39,846,522
|
|
159,462
|
|
29,414
|
|
4,061,057
|
|
|
|
|
|
|
|
|
|
PROPOSAL 5:
|
|
Approval of the ratification of Deloitte & Touche LLP as the independent registered public accounting firm of the Company for the fiscal year ending December 31, 2017.
|
|
|
|
|
|
|
|
Votes For
|
|
Votes Against
|
|
Abstentions
|
|
43,815,939
|
|
75,740
|
|
204,776
|
|
|
|
|
|
|
|
|
|
PROPOSAL 6:
|
|
Approval to authorize the Board of Directors to adjourn and postpone the Annual Meeting to a later date or dates.
|
|
|
|
|
|
|
|
Votes For
|
|
Votes Against
|
|
Abstentions
|
|
29,126,782
|
|
14,890,926
|
|
78,747
|
Item 9.01 Exhibits
(d) Exhibits.
|
|
|
|
|
|
|
Exhibit
Number
|
|
Exhibit
|
|
|
|
|
|
3.1
|
|
Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation.
|
|
10.1
|
|
First Amendment to 2015 Incentive Compensation Plan.
|
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, hereunto duly authorized.
Dated: June 6, 2017
|
|
|
|
|
|
|
AGROFRESH SOLUTIONS, INC.
By:
/s/ Thomas Ermi
Name: Thomas Ermi
Title: Vice President and General Counsel
|
|
|
|
CERTIFICATE OF AMENDMENT
OF THE
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
AGROFRESH SOLUTIONS, INC.
AgroFresh Solutions, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware, hereby certifies as follows:
1.
The name of the corporation (hereinafter called the “Corporation”) is AgroFresh Solutions, Inc.
2.
The Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on October 24, 2013 (the “Certificate”).
3.
The Certificate was amended and restated by the filing of the Amended and Restated Certificate of Incorporation with the Secretary of State of the State of Delaware on February 12, 2014, and further amended by the filing of a Second Amended and Restated Certificate of Incorporation on July 31, 2015 (as amended, the “Restated Certificate”).
4.
The Restated Certificate is hereby amended by deleting Article SIXTH in its entirety and substituting in lieu thereof the following:
SIXTH
:
A.
Subject to the rights of the holders of any outstanding series of Preferred Stock to elect additional directors under specified circumstances, the number of directors of the Corporation, shall be fixed from time to time in the manner provided in the bylaws.
B.
The directors of the Corporation, shall hold office until the next annual meeting of the stockholders following their election and until their successors shall have been duly elected and qualified, or until their earlier death, resignation or removal. Nothing in this Certificate of Incorporation shall preclude a director from serving consecutive terms. Notwithstanding any other provision of this Article SIXTH, and except as otherwise required by law, whenever the holders of one or more outstanding series of Preferred Stock have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Second Amended Certificate (including any Preferred Stock Designation relating to such series of Preferred Stock).
C.
A majority of the Whole Board shall constitute a quorum for all purposes at any meeting of the Board, and, except as otherwise expressly required by law or by this Second Amended Certificate, all matters shall be determined by the affirmative vote of a majority of the directors present at any meeting at which a quorum is present.
D.
Subject to the rights of the holders of any outstanding series of Preferred Stock, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board resulting from death, resignation, disqualification, removal from office or other cause shall, unless otherwise required by law or by resolution of the Board, be filled only by a majority vote of the directors then in office, though less than a quorum (and not by stockholders), and directors so chosen shall serve for a term expiring at the annual meeting of stockholders, with each director to hold office until his or her successor shall have been duly elected and qualified. No decrease in the authorized number of directors shall shorten the term of any incumbent director.
E.
Subject to the rights of the holders of any outstanding series of Preferred Stock, any director, or the entire Board, may be removed from office at any time, but only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (662/3%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation then entitled to vote at an election of directors, voting together as a single class.
5.
The amendment of the Restated Certificate herein certified has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment of the Second Amended and Restated Certificate of Incorporation to be executed and acknowledged by the undersigned on this 1st day of June, 2017.
|
|
|
|
|
|
AGROFRESH SOLUTIONS, INC.
|
|
|
|
|
By:
|
/s/ Thomas Ermi
|
|
Name:
|
Thomas Ermi
|
|
Title:
|
Vice President and General Counsel
|
FIRST AMENDMENT
TO THE
AGROFRESH SOLUTIONS, INC.
2015 INCENTIVE COMPENSATION PLAN
THIS FIRST AMENDMENT, made effective as of March 31, 2017, by AGROFRESH
SOLUTIONS, INC., a Delaware corporation (the “
Company
”) to the AGROFRESH
SOLUTIONS, INC. 2015 INCENTIVE COMPENSATION PLAN (the “
Plan
”).
W
I
T
N
E
S
S
E
T
H
:
WHEREAS
, the Company did establish the Plan for the sole and exclusive benefit of its eligible participants and their respective beneficiaries so that the Company could attract, motivate, retain and reward them, and
WHEREAS
, pursuant to Section 10(e) of the Plan, the Company reserved the right to amend said Plan;
NOW, THEREFORE,
effective as of March 31, 2017, the Plan shall be amended as follows:
1.
The first sentence of Section 4(a) of the Plan is hereby amended, in its entirety, to read as follows:
“Subject to adjustment as provided in Section 10(c) hereof, the total number of Shares reserved and available for delivery under the Plan shall be 5,150,000.”
2.
Section 4(c)(iv) is hereby deleted, in its entirety, and replaced with the following:
“(iv) Notwithstanding anything in this Section 4(c) to the contrary but subject to adjustment as provided in Section 10(c) hereof, the maximum aggregate number of Shares that may be delivered under the Plan as a result of the exercise of the Incentive Stock Options shall be 5,150,000 Shares.”
3.
The third sentence of Section 6(b)(i) of the Plan is hereby amended, in its entirety, to read as follows:
“Other than pursuant to Section 10(c)(i) and (ii) of this Plan, the Committee shall not be permitted to (A) lower the exercise price per Share of an Option after it is granted, (B) cancel, substitute or exchange an Option when the exercise price per Share exceeds the Fair Market Value of the underlying Shares in exchange for cash or another Award, (C) cancel an outstanding Option in exchange for an Option with an exercise price that is less than the exercise price of the original Options or (D) take any other action with respect to an Option that may be treated as a repricing pursuant to the applicable rules of the Listing Market, without approval of the Company’s shareholders.”
4.
The third sentence of Section 6(c)(i) of the Plan is hereby amended, in its entirety, to read as follows:
“Other than pursuant to Section 10(c)(i) and (ii) of this Plan, the Committee shall not be permitted to (A) lower the grant price per Share of a Stock Appreciation Right after it is granted, (B) cancel a Stock Appreciation Right when the grant price per Share exceeds the Fair Market Value of the underlying Shares in exchange for cash or another Award, (C) cancel an outstanding Stock Appreciation Right in exchange for a Stock Appreciation Right with a grant price that is less than the grant price of the original Stock Appreciation Right, or (D) take any other action with respect to a Stock Appreciation Right that may be treated as a repricing pursuant to the applicable rules of the Listing Market, without shareholder approval.”
5.
The first sentence of Section 7(a) of the Plan is hereby amended, in its entirety, to read as follows:
“Awards granted under the Plan may, in the discretion of the Committee, be granted either alone or in addition to, in tandem with, or in substitution or exchange for (subject to Section 6(b)(i) and Section 6(c)(i)), any other Award or any award granted under another plan of the Company, any Related Entity, or any business entity to be acquired by the Company or a Related Entity, or any other right of a Participant to receive payment from the Company or any Related Entity.”
6.
In all other respects, the Plan shall remain unchanged by this First Amendment