Item 8.01. Other Events.
As previously disclosed, onNovember 21, 2022 ,AgroFresh Solutions, Inc. (the "Company") entered into an Agreement and Plan of Merger (the "Merger Agreement"), withProject Cloud Holdings, LLC ("Parent") andProject Cloud Merger Sub, Inc. ("Merger Sub"), pursuant to which Merger Sub will merge with and into the Company (the "Merger"), with the Company surviving the Merger. Parent and Merger Sub are affiliates of investment funds managed byPaine Schwartz Partners, LLC ("Paine Schwartz"). OnMarch 10, 2023 , in connection with the Merger, the Company filed with theSecurities and Exchange Commission (the "SEC") a definitive proxy statement (the "Proxy Statement"), which the Company first mailed to its stockholders on or aboutMarch 10, 2023 . The Company has received eight demand letters (collectively, the "Demand Letters") from purported stockholders of the Company generally alleging that the preliminary proxy statements filed with theSEC onDecember 21, 2022 , andFebruary 13, 2023 , and/or the Proxy Statement contain alleged material misstatements and omissions in violation of Section 14(a) and Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 14a-9 of the Exchange Act. OnMarch 21, 2023 , one purported stockholder of the Company commenced an action, captioned Halberstam v.AgroFresh Solutions, Inc. , et al., Case No. 1:23-cv-02389 (S.D.N.Y.), in theUnited States District Court for the Southern District of New York (the "Complaint"). The Complaint names the Company and the members of the Company's board of directors as defendants. The Complaint asserts claims under Section 14(a) and Section 20(a) of the Exchange Act and Rule 14a-9 of the Exchange Act challenging the adequacy of the disclosures in the Proxy Statement. The Complaint seeks, among other relief, an injunction preventing the parties from consummating the proposed transaction, damages in the event the transaction is consummated, and an award of attorneys' fees. If additional similar demand letters are received or if additional complaints are filed, absent new or different allegations that are material, the Company will not necessarily announce such additional filings. The Company believes that the claims in the Demand Letters and the Complaint are without merit and that no further disclosure is required or necessary under applicable laws. However, to avoid the risk of the Demand Letters or the Complaint delaying or adversely affecting the Merger and to minimize the costs, risks and uncertainties inherent in litigation, and without admitting any liability or wrongdoing, the Company has determined to voluntarily supplement the Proxy Statement as described in this Current Report on Form 8-K. Nothing in this Current Report on Form 8-K shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. The Company specifically denies all allegations in the Demand Letters and the Complaint that any additional disclosure was or is required.
Supplemental Disclosures to Proxy Statement
This supplemental information to the Proxy Statement should be read in conjunction with the Proxy Statement, which should be read in its entirety. All page references in the information below are to pages in the Proxy Statement, and all terms used but not defined below shall have the meanings set forth in the Proxy Statement. To the extent the following information differs from or conflicts with the information contained in the Proxy Statement, the information set forth below shall be deemed to supersede the respective information in the Proxy Statement. The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the fourth full paragraph on page 21 of the Proxy Statement, the following (with new text in bold and underlined): Also onApril 8, 2022 ,Nance K. Dicciani ,Robert Campbell andDenise L. Devine , three of the Company's independent directors, met with representatives ofMorris, Nichols, Arsht & Tunnell LLP ("Morris Nichols") to interviewMorris Nichols as potential independent legal counsel to the Special Committee, should it be formed. Each of these directors had been determined by the Board to be independent directors based on both their responses to independence-related questions on their annual director questionnaires and their lack of any current or prior relationship with PSP. At this meeting,Morris Nichols summarized certain prior or current engagements betweenMorris Nichols , on the one hand, and certain potentially relevant parties, on the other. Following such meeting, the directors present determined, based onMorris Nichols' experience in advising special committees and the directors' determination thatMorris Nichols would be independent for purposes of such engagement, that, should the Special Committee be formed, the Special Committee would retainMorris Nichols as independent legal counsel. The decision to conditionally retainMorris Nichols was unanimous among the three directors present at this meeting.Between April 8 and April 11 ,Morris Nichols reviewed a draft of the resolutions that, if adopted by the Board, would establish the Special Committee and set forth its authority. -------------------------------------------------------------------------------- The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the fifth paragraph starting on page 21 and carrying over to page 22 of the Proxy Statement, the following (with new text in bold and underlined): OnApril 11, 2022 , the Board held a meeting to consider forming the Special Committee, with representatives ofMorrison Foerster participating.Morrison Foerster discussed with the Board certain legal considerations in connection with a potential Series B Recapitalization, including the Board's fiduciary duties and the authorization that would be granted to the Special Committee in respect thereof. Following the presentation, the Board then discussed the proposed resolutions for establishing the Special Committee and agreed that the Special Committee's mandate would be to address a potential Series B Recapitalization, and that the full Board would oversee decisions relating to a refinancing of the Term Loan (the "Refinancing Process"). Following this discussion, the Board established the Special Committee and designatedDr. Dicciani ,Mr. Campbell andMs. Devine as members of the Special Committee, withDr. Dicciani as the chair of the committee. The Board determined that the members of the Special Committee were independent and disinterested with respect to a potential Series B Recapitalization. The Special Committee was delegated the full power and authority of the Board to, among other things: (i) direct the process related to the evaluation of a potential Series B Recapitalization; (ii) negotiate the terms of a potential Series B Recapitalization; (iii) reject or determine not to pursue any potential Series B Recapitalization; (iv) determine whether any potential Series B Recapitalization is advisable, fair to and in the best interests of the Company and its stockholders; and (v) recommend to the Board what action, if any, should be taken with respect to such potential Series B Recapitalization. The Special Committee was further delegated authority to select and engage legal counsel and financial and other advisors. The Board also resolved not to approve any potential Series B Recapitalization without the Special Committee's prior favorable recommendation. Finally, the Board authorized customary compensation for each member of the Special Committee consisting of$10,000 per month for the chair of the Special Committee and$5,000 per month for each other member of the Special Committee. The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the first full paragraph on page 22 of the Proxy Statement, the following (with new text in bold and underlined): OnApril 25, 2022 , the Special Committee held a meeting attended by representatives ofMorris Nichols . Representatives ofMorris Nichols led a discussion of, among other things, the fiduciary duties of directors underDelaware law and efforts to date in vetting potential financial advisors for the Special Committee. During this discussion,Morris Nichols informed the members of the Special Committee that, during such vetting, representatives of Financial Advisor A had not reported any potential conflicts relevant to service as the Special Committee's financial advisor. Members of Management then joined the meeting, and discussed, at the request of the Special Committee members, potential financial advisors for the Special Committee, including Financial Advisor A and another financial advisor ("Financial Advisor B"), and stated their belief that a public equity approach for a potential Series B Recapitalization, which had been recommended by Financial Advisor A, was best aligned with the Company's business plan and would maximize opportunities to unlock value for Company stockholders. A representative of Financial Advisor A then joined the meeting and discussed with the Special Committee Financial Advisor A's: (i) experience and capabilities; (ii) initial views regarding a potential Series B Recapitalization; and (iii) proposed next steps. After Financial Advisor A and members of Management left the meeting, the Special Committee expressed its initial view that the public equity options for a potential Series B Recapitalization were more likely to be aligned with the best interests of the Unaffiliated Stockholders and determined, based on that view, and on Financial Advisor A's presentation at this meeting and its independence with respect to a potential Series B Recapitalization, to engage Financial Advisor A in connection with a potential Series B Recapitalization. -------------------------------------------------------------------------------- The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the sixth full paragraph beginning on page 24 of the Proxy Statement, the following (with new text in bold and underlined): OnJune 17, 2022 , the Board held a meeting, attended by members of Management and representatives ofMorris Nichols andMorrison Foerster .Dr. Dicciani updated the Board on conversations between the Special Committee and PSP regarding a potential Series B Recapitalization. Representatives ofMorris Nichols andMorrison Foerster reviewed with the Board the fiduciary duties of directors underDelaware law and certain considerations under the Investment Agreement and federal securities laws. One of PSP's designees to the Board,Alexander Corbacho , then conveyed PSP's views on the Series B Recapitalization Proposal and PSP's interest in assessing the Board's receptivity to exploring a potential Go Private Transaction. No terms of a potential Go Private Transaction were discussed, and no indication concerning valuation or price was made. After all participants other than the Board (excluding the Recused Directors) and representatives ofMorris Nichols andMorrison Foerster left the meeting, the remaining directors preliminarily determined to expand the mandate of the Special Committee to consider whether to explore a potential Go Private Transaction and alternatives thereto. Mr.Clinton Lewis , Chief Executive Officer of the Company, and representatives ofMorrison Foerster , then left the meeting, following which the remaining directors confirmed their preliminary determination and directedMorris Nichols to work withMorrison Foerster to prepare resolutions reflecting the expanded mandate. The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the second full paragraph beginning on page 26 of the Proxy Statement, the following (with new text in bold and underlined): OnJuly 30, 2022 , the Special Committee held a meeting, attended by representatives ofMorris Nichols . At this meeting, the Special Committee determined to engage Perella Weinberg as financial advisor to the Special Committee in connection with a potential Go Private Transaction, and directedMorris Nichols , in consultation withDr. Dicciani , to negotiate the terms of such engagement. An engagement letter formally documenting Perella Weinberg's engagement as ofAugust 8 was executed onSeptember 28 . For avoidance of doubt, Financial Advisor A, which had previously advised the Special Committee in connection with a potential Series B Recapitalization, did not advise the Special Committee in connection with a potential Go Private Transaction. The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the first full paragraph on page 29 of the Proxy Statement, the following (with new text in bold and underlined): Also onSeptember 16, 2022 , the Board held a meeting, attended by members of Management and representatives ofMorris Nichols ,Morrison Foerster , and Kirkland & Ellis. Management provided an update on the Refinancing Process. One of PSP's designees to the Board,Alexander Corbacho , stated PSP's belief that the Company needed to find solutions for its capital structure and reminded the Board that PSP believed its proposal of a potential Go Private Transaction at$2.55 to$2.65 per share of Company common stock represented a holistic solution and believed timing in considering such solution was important. After the Recused Directors and Kirkland & Ellis left the meeting, the remaining participants discussed the current status of the Special Committee's review process, and the interaction of that process and the Refinancing Process. Following discussion, there was consensus that Management would continue its preparatory work in connection with the Refinancing Process, but would delay launching a refinancing until Financial Advisor B and Perella Weinberg had further discussions regarding the interaction of the two processes. The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the third full paragraph on page 29 of the Proxy Statement, the following (with new text in bold and underlined): Later that day,Morris Nichols spoke with Kirkland & Ellis, during which Kirkland & Ellis stated that PSP would likely be sending a letter shortly regarding its views on potential next steps. Following that call, PSP sent a letter to the Special Committee (the "September 16 Letter") stating that PSP had reviewed the September Projections and, following further review in light of such September Projections, was prepared to put forth a refined proposal for a potential Go Private Transaction of$2.60 per share of Company common stock subject to confirmatory due diligence and discussions with financing sources. TheSeptember 16 Letter stated that$2.60 represented a significant premium of 67% to the closing price of the shares of Company common stock as ofSeptember 15, 2022 , and a 51% premium to the 90-day volume-weighted average price per share of$1.72 as ofSeptember 30, 2022 . PSP requested: (i) access to Management and (ii) permission to wall cross and execute non-disclosure agreements with a small group of financing providers in parallel to undertake due diligence and help PSP confirm value. TheSeptember 16 Letter did not request to discuss or otherwise mention management retention. -------------------------------------------------------------------------------- The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the fifth full paragraph on page 29 of the Proxy Statement, the following (with new text in bold and underlined):
On
The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the second full paragraph on page 31 of the Proxy Statement, the following (with new text in bold and underlined): OnOctober 10, 2022 , PSP sent a letter to the Special Committee (the "October 10 Letter"), stating that PSP was prepared to put forth a refined proposal for a potential Go Private Transaction of$2.85 per share of Company common stock subject to completion of outstanding confirmatory due diligence and ongoing discussions with financing sources. TheOctober 10 Letter stated that$2.85 represents a 10% increase from the proposal in theSeptember 16 Letter, and a 79% premium to the closing price of the shares of Company common stock as ofOctober 10, 2022 . PSP requested in theOctober 10 Letter: (i) continued access to Management; (ii) a limited waiver under the Standstill Provisions to allow PSP to publicly disclose the offer contained in theOctober 10 Letter; and (iii) permission to expand the group of financing providers under the PSP NDA. TheOctober 10 Letter did not request to discuss or otherwise mention management retention. The disclosure under the subsection captioned "Special Factors-Background of the Merger" is hereby amended and supplemented by adding to the second full paragraph on page 32 of the Proxy Statement, the following (with new text in bold and underlined): OnOctober 20, 2022 , Perella Weinberg spoke with Party A, who stated that Party A had been developing a potential transaction structure at an indicative valuation of$2.35 per share of Company common stock that contemplated PSP rolling its Series B Preferred Stock into the surviving entity (the "Party A Structure"). This was the first communication between the Special Committee or its advisors, on the one hand, and Party A, on the other, since the Special Committee was formed. -------------------------------------------------------------------------------- The disclosure under the subsection captioned "Opinion of the Special Committee's Financial Advisor" is hereby amended and supplemented by adding to the first full paragraph on page 54 of the Proxy Statement, the following (with new text in bold and underlined): For each of the Company and the Selected Publicly-Traded Companies, Perella Weinberg reviewed the ratio of such company's enterprise value ("EV") to its estimated 2023 earnings before interest, taxes, depreciation, and amortization ("EBITDA") as ofDecember 31, 2023 . For each of the selected companies, Perella Weinberg calculated and compared financial information and financial market multiples and ratios based on company filings for historical information and consensus third party research analyst estimates for forecasted information. The sources for such information were selected company filings, historical financials and management forecasts provided by the Company (onNovember 1, 2022 as approved for Perella Weinberg's use by the Special Committee), and FactSet and Capital IQ (as ofNovember 18, 2022 ). The results of the analyses are summarized in the following table: The disclosure under the subsection captioned "Opinion of the Special Committee's Financial Advisor" is hereby amended and supplemented by adding to the second full paragraph on page 54 of the Proxy Statement, the following (with new text in bold and underlined): Based on the analysis of the relevant metrics described above and on professional judgments made by Perella Weinberg, Perella Weinberg selected and applied a range of multiples of 9.0x to 10.0x to 2023E EBITDA of the Company using the Final Projections as well as the unaffected current median of "AgChem / AgTech" and the unaffected Company 2023E trading multiple. From this analysis, Perella Weinberg derived a range of implied enterprise values for the Company. To calculate the implied equity value from the implied enterprise value, Perella Weinberg added cash and cash equivalents of approximately$35.6 million , subtracted debt of approximately$261.3 million , subtracted convertible preferred equity at its 2.0x multiple on invested capital ("MOIC") liquidation preference of approximately$253.7 million (assuming redemption onJanuary 31, 2023 to correspond with an estimated transaction close date) and subtracted non-controlling interests of approximately$6.9 million , in each case as provided by the latest relevant filings of the Company. Perella Weinberg calculated implied equity values per share by dividing the implied equity values by the applicable fully diluted shares -58.5 million (based upon the number of issued and outstanding shares and other equity interests in each case provided by the management of the Company, as applicable, and using the treasury stock method for calculation of option dilution). The range of implied values for Company common stock derived from these calculations is$1.47 to$2.56 per share. The disclosure under the subsection captioned "Opinion of the Special Committee's Financial Advisor" is hereby amended and supplemented by adding to the third full paragraph on page 55 of the Proxy Statement, the following (with new text in bold and underlined): Using publicly available information sourced from Moody's and the relevant companies'SEC filings and press releases, Perella Weinberg reviewed the financial terms of selected precedent transactions (the "Selected Precedent Transactions") involving companies that operated in, or were exposed to, the agricultural chemicals and agricultural technology, food safety and security and high value specialties industries announced betweenSeptember 2014 andDecember 2021 . Perella Weinberg selected these transactions in the exercise of its professional judgment and experience because Perella Weinberg deemed them to be similar in size, scope, business model of the target and impact on the industry to the Company or otherwise relevant to the Merger. The disclosure under the subsection captioned "Opinion of the Special Committee's Financial Advisor" is hereby amended and supplemented by adding to the sixth full paragraph on page 55 of the Proxy Statement, the following (with new text in bold and underlined): Based on the multiples of enterprise value to LTM EBITDA described above, Perella Weinberg's analyses of the various Selected Precedent Transactions and on professional judgments made by Perella Weinberg with respect to, among other things, the financial performance and competitive positioning of the Company and the target companies in the Selected Precedent Transactions, Perella Weinberg applied a range of multiples of 9.0x to 11.0x (based on +/- 1.0x over the median EV / LTM EBITDA multiple) to the Company's LTM EBITDA as ofSeptember 30, 2022 based on publicly filed financial statements and information provided by Company management to derive a range of implied enterprise values. Perella Weinberg then applied the same enterprise value to equity value adjustments and fully diluted shares detailed in the Selected Publicly Traded Companies Analysis (58.5 million shares) to derive a range for Company common stock of approximately$1.19 to$3.31 per share.
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The disclosure under the subsection captioned "Opinion of the Special Committee's Financial Advisor" is hereby amended and supplemented by adding to the fifth full paragraph beginning on page 56 of the Proxy Statement, the following (with new text in bold and underlined):
The discount rates used by Perella Weinberg were derived from the Company's weighted average cost of capital determined by application of the capital asset pricing model based on Perella Weinberg's experience and professional judgment which took into account certain company-specific metrics, including the Company's target capital structure, the cost of long-term debt, marginal tax rate and five-year weekly Bloomberg beta (1.13 as of unaffected date ofOctober 26, 2022 ), as well as certain general financial metrics forthe United States financial markets, including market risk premium, 20-year treasury rate as ofOctober 26, 2022 , and size premium. Perella Weinberg also analyzed the weighted average cost of capital for the Company implied by an alternative approach that utilized the Company's current capital structure and incorporated the yield on convertible preferred equity as a minimum for the cost of common equity. The yield on convertible preferred equity was estimated to range from 16.0% (coupon rate on PSP's convertible preferred equity investment) on the low end to 27.0% (approximate internal rate of return ("IRR") of PSP's convertible preferred equity investment assuming 2.0x MOIC liquidation preference and redemption onJuly 27, 2023 ) on the high end. For the purposes of calculating the approximate IRR of PSP's convertible preferred equity investment,July 27, 2023 was utilized as the redemption date because it marks the third anniversary of the original investment, at which point the treatment of the convertible preferred equity changes per "Change of Control" and "Elective Redemption" conditions. A spread of 1.0% to 3.0% between the yield on convertible preferred equity and the cost of common equity was incorporated to account for the appropriate risk-return relationship between convertible preferred equity and common equity, considering that the convertible preferred equity is more senior in the capital structure and thus has a lower level of risk. The weighted average cost of capital implied by these analyses determined the approximate range of discount rates utilized for the core products of the Company (13.00% to 15.50%). A 2.0% spread was added to this range to determine the discount rates utilized for the new products of the Company (15.00% to 17.50%) to reflect the greater execution risk associated with the new products of the Company. The disclosure under the subsection captioned "Opinion of the Special Committee's Financial Advisor" is hereby amended and supplemented by adding to the first full paragraph on page 57 of the Proxy Statement, the following (with new text in bold and underlined): From the range of implied enterprise values, using the same enterprise value to equity value adjustments and fully diluted shares detailed in the above analysis of the Selected Publicly-Traded Companies (58.5 million shares), Perella Weinberg derived a range of$0.65 to$2.71 per share for the core products of the Company,$0.40 to$1.66 per share for the new products of the Company and$1.05 to$4.37 per share for the combination of the core and new products of the Company. The disclosure under the subsection captioned "Opinion of the Special Committee's Financial Advisor" is hereby amended and supplemented by adding to the fifth full paragraph on page 57 of the Proxy Statement, the following (with new text in bold and underlined): For the information of the Special Committee and for reference purposes only, Perella Weinberg observed the most recent publicly available 12-month unaffected price targets for Company common stock published byWall Street research analysts. Perella Weinberg observed that four such analyst estimates were available for the Company (published byROTH Capital Partners onAugust 29, 2022 ,H.C. Wainwright & Co. onAugust 11, 2022 ,Lake Street Capital Markets onAugust 10, 2022 andBMO Capital Markets onAugust 9, 2022 ). The selected price targets reflect each research analyst's estimate of the future public market trading prices of shares of Company common stock. Perella Weinberg noted that the analysts' price targets for the Company, when discounted to the unaffected date ofOctober 26, 2022 using a cost of equity of 19.0% (approximate midpoint of cost of equity implied by the two previously detailed approaches to calculating weighted average cost of capital), ranged from$1.96 to$4.36 per share. The four price targets observed, when discounted to the unaffected date ofOctober 26, 2022 and using a cost of equity of 19.0%, were$1.96 ,$2.62 ,$3.89 , and$4.36 . -------------------------------------------------------------------------------- The disclosure under the subsection captioned "Unaudited Prospective Financial Information of the Company" is hereby amended and supplemented by adding between the table and footnotes on page 72 of the Proxy Statement, the following (with new text in bold and underlined): The following table presents a summary of the Unlevered Free Cash Flow figures from the Final Projections, broken out by Core Products and New Products, which were used in connection with Perella Weinberg's Discounted Cash Flow Analysis. Unlevered Free Cash Flow (4) ($ in millions) 2022E 2023E 2024E 2025E 2026E 2027E 2028E 2029E 2030E 2031E 2032E Core Products 52.5 45.6 44.3 45.9 48.2 52.4 56.0 56.8 56.7 55.9 53.3 New Products (0.1) (1.1) 1.3 3.2 7.4 14.6 22.7 33.9 48.1 64.5 82.3
Cautionary Statement Regarding Forward-Looking Statements . . .
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