As filed with the Securities and Exchange Commission on June 5, 2024
Registration No. 333-194012
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO FORM S-8 REGISTRATION STATEMENT NO. 333-194012
UNDER THE SECURITIES ACT OF 1933
ELEMENT SOLUTIONS INC
(Exact name of registrant as specified in its charter)
| | | | | | | | |
| | |
| Delaware | | 37-1744899 |
| (State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
| | | |
| 500 East Broward Boulevard, Suite 1860 | | |
| Fort Lauderdale, Florida | | 33394 |
| (Address of Principal Executive Offices) | | (Zip code) |
Element Solutions Inc 2024 Incentive Compensation Plan
Element Solutions Inc Amended and Restated 2013 Incentive Compensation Plan
(formerly Platform Specialty Products Corporation Amended and Restated 2013 Incentive Compensation Plan)
(Full title of the plan)
John E. Capps
Executive Vice President, General Counsel and Secretary
Element Solutions Inc
500 East Broward Boulevard, Suite 1860
Fort Lauderdale, Florida 33394
(Name and address of agent for service)
(561) 207-9600
(Telephone number, including area code, of agent for service)
Copies to:
Flora Perez, Esq.
Greenberg Traurig, P.A.
401 E. Las Olas Blvd., Suite 2000
Ft. Lauderdale, Florida 33301
(954) 765-0500
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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. |
| | | |
Large accelerated filer x | | Accelerated filer ¨ | |
Non-accelerated filer ¨ (Do not check if a smaller reporting company) | | Smaller reporting company ¨ | |
| | Emerging growth company ¨ | |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act ¨ | |
EXPLANATORY NOTE
Element Solutions Inc (f/k/a Platform Specialty Products Corporation), a Delaware corporation (the "Company"), previously filed a Registration Statement on Form S-8, File No. 333-194012, with the Securities and Exchange Commission (the "SEC") on February 18, 2014 (the "Registration Statement") with respect to a total of 15,145,950 shares of the Company’s common stock, par value $0.01 per share (the "Common Stock"), issuable under the Element Solutions Inc Amended and Restated 2013 Incentive Compensation Plan (the "Prior Plan"). The Prior Plan expired on January 22, 2024 and as of such date, no further awards were authorized for grant under the Prior Plan. On June 4, 2024 (the "Effective Date"), the Company’s stockholders approved the Element Solutions Inc 2024 Incentive Compensation Plan (the "2024 Plan") to replace the Prior Plan. Under the 2024 Plan, any shares of Common Stock underlying outstanding awards under the Prior Plan that are terminated, expire, cancelled or forfeited after the Effective Date may become available for issuance under the 2024 Plan. On the Effective Date, there were a total of 4,365,410 shares of Common Stock underlying awards outstanding under the Prior Plan.
The Company is filing this Post-Effective Amendment No. 1 to the Registration Statement (this "Post-Effective Amendment") pursuant to SEC Compliance and Disclosure Interpretation 126.43 to register up to 4,365,410 shares of Common Stock that may become available for issuance under the 2024 Plan as a result of the termination, expiration, cancellation or forfeiture of awards under the Prior Plan from and including the Effective Date. In accordance with Rule 413(a) of the Securities Act of 1933, as amended (the "Securities Act"), the Company is not registering any additional shares of Common Stock hereunder that were not previously approved by the Company’s stockholders under the Prior Plan and previously registered with the SEC under the Registration Statement. For the avoidance of doubt, the Registration Statement will continue to cover the shares of Common Stock subject to grants outstanding under the Prior Plan that will be issued upon vesting of such grants in accordance with their terms under the Prior Plan.
Contemporaneously with the filing of this Post-Effective Amendment, the Company is filing a new registration statement on Form S-8 to register an additional 10,000,000 shares of Common Stock for issuance under the 2024 Plan, which number of shares was approved by the Company’s stockholders on the Effective Date.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The documents containing the information specified in Part I of this Post-Effective Amendment will be delivered to participants in the 2024 Plan as specified by Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the SEC either as part of this Post-Effective Amendment or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Post-Effective Amendment pursuant to Item 3 of Part II of this Post-Effective Amendment, 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
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the Company with the SEC are hereby incorporated by reference into the Registration Statement:
(3) The Company's Current Reports on Form 8-K filed with the SEC on February 20, 2024 (solely with respect to Item 5.02 thereof) and June 5, 2024; and
(4) The description of the Company's shares of Common Stock, which is included in Exhibit 4.2 to the Company's Annual Report, and all amendments and reports filed for the purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the date hereof (excluding any documents or portions of such documents that are furnished under Items 2.02, 7.01 or 9.01 of a Current Report on Form 8-K and any exhibits included with such Items, which information is not incorporated by reference herein), and prior to the filing of a post-effective amendment to the Registration Statement that indicates that all the securities offered hereby have been sold or that deregisters the securities offered hereby then remaining unsold, shall also be deemed to be incorporated by reference into the Registration Statement and to be a part hereof from the date of filing of such documents with the SEC.
Any statement contained in a document incorporated or deemed to be incorporated by reference in the Registration Statement shall be deemed to be modified or superseded for purposes of the Registration Statement to the extent that a statement contained in the Registration Statement (or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein), modifies or supersedes such statement. Any statement contained in this Post-Effective Amendment or the Registration Statement shall be deemed to be modified or superseded to the extent that a statement contained in a subsequently filed document that is or is deemed to be incorporated by reference in the Registration Statement modifies or supersedes such prior statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of the Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL") permits a corporation, in its certificate of incorporation, to limit or eliminate the personal liability of a director to the corporation or its stockholders for monetary damages for breaches of fiduciary duty as a director, except for liability (a) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (c) under Section 174 of the DGCL (regarding, among other things, the payment of unlawful dividends) or (d) for any transaction from which the director derived an improper personal benefit.
Under Section 145(a) of the DGCL, a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.
Under Section 145(b) of the DGCL, a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person is or was a director, officer, employee, or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee, or agent of another enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred in connection with the defense or settlement of such action or suit, provided that such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper. Notwithstanding the preceding sentence, except as otherwise provided in our
amended and restated bylaws, the Company shall be required to indemnify any such person in connection with a proceeding (or part thereof) commenced by such person only if the commencement of such proceeding (or part thereof) by any such person was authorized by the Company’s board of directors.
As permitted by Section 102(b)(7) of the DGCL, the Company’s certificate of incorporation, as amended, 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 be amended. This provision of the Company’s 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, which 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, including for actions leading to improper personal benefit to the director, for acts or omissions not in good faith or involving intentional misconduct, for knowing violations of law and for payment of dividends or approval of stock repurchases or redemptions that are unlawful under Delaware law. This 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 amended and restated by-laws also provide that the Company shall indemnify and advance expenses to its officers and directors to the fullest extent permitted by applicable law as currently in effect or as the same may be amended.
The Company has entered into director and officer indemnification agreements with certain of its current directors and officers which, in certain respects, are broader than the specific indemnification and advancement provisions contained in its amended and restated by-laws. Specifically, such indemnification agreements provide the Company’s directors and officers with specific contractual assurances of such persons’ rights to indemnification and advancement of expenses to protect against litigation risks and expenses (regardless, among other things, of any change in the ownership of the Company or the composition of its Board of Directors).
Additionally, the Company maintains directors’ and officers’ liability insurance for each of its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
| | | | | | | | |
| Exhibit Number | | Description |
| 4.1* | | Description of Common Stock (incorporated by reference to Exhibit 4.2 to the Company's Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on February 21, 2024) |
| 5.1+ | | |
| 10.1* | | |
| 10.2* | | |
| 23.1+ | | |
| 23.2+ | | |
+ Filed herewith.
* Incorporated herein by reference.
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:
(a) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(b) 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 or 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% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(c) 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 (1)(a) and (1)(b) above do not apply if 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 Section 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 (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 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 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.
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 Post-Effective Amendment No. 1 to the Form S-8 Registration Statement No. 333-194012 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Lauderdale, State of Florida, on the 5th day of June, 2024.
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| | ELEMENT SOLUTIONS INC |
| | |
| | By: | /s/ John E. Capps |
| Name: | John E. Capps |
| Title: | Executive Vice President, General Counsel and Secretary
|
Each of the undersigned, whose signature appears below, hereby constitutes and appoints Benjamin Gliklich and John E. Capps, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this Post-Effective Amendment No. 1 to the Form S-8 Registration Statement No. 333-194012 and to file the same with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing necessary or appropriate to be done with respect to this Post-Effective Amendment No. 1 to the Form S-8 Registration Statement No. 333-194012 or any amendments hereto in the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Post-Effective Amendment No. 1 to the Form S-8 Registration Statement No. 333-194012 has been signed below by the following persons in the capacities below on the 5th day of June, 2024.
| | | | | | | | |
| Signature | | Title |
| | |
| /s/ Benjamin Gliklich | | Director and President & Chief Executive Officer |
| Benjamin Gliklich | | (principal executive officer) |
| | | |
| /s/ Carey J. Dorman | | Executive Vice President, Chief Financial Officer |
| Carey J. Dorman | | (principal financial officer) |
| | | |
| /s/ Michael Russnok | | Chief Accounting Officer |
| Michael Russnok | | (principal accounting officer) |
| | | |
| /s/ Sir Martin E. Franklin | | Executive Chairman of the Board |
| Sir Martin E. Franklin | | |
| | | |
| /s/ Ian G. H. Ashken | | Director |
| Ian G. H. Ashken | | |
| | | |
| /s/ Elyse Napoli Filon | | Director |
| Elyse Napoli Filon | | |
| | | |
| /s/ Christopher T. Fraser | | Director |
| Christopher T. Fraser | | |
| | | |
| /s/ Michael F. Goss | | Director |
| Michael F. Goss | | |
| | |
| /s/ E. Stanley O' Neal | | Director |
| E. Stanley O’ Neal | | |
| | | |
| /s/ Susan W. Sofronas | | Director |
| Susan W. Sofronas | | |
June 5, 2024
Element Solutions Inc
500 East Broward Boulevard, Suite 1860
Fort Lauderdale, Florida 33394
Re: Post Effective Amendment No. 1 to Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Element Solutions Inc (f/k/a Platform Specialty Products Corporation), a Delaware corporation (the “Company”) in connection with the preparation and filing of Post-Effective Amendment No. 1 to Registration Statement on Form S-8 (Registration No. 333-194012) with the Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof (the “Registration Statement”). Such Registration Statement relates to the registration by the Company of 4,365,410 shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), that may become available for issuance under the Element Solutions Inc 2024 Incentive Compensation Plan (the “Plan”). The Company’s stockholders approved the Plan, effective June 4, 2024 (the "Effective Date"). As of the Effective Date, the Plan will replace the Element Solutions Inc Amended and Restated 2013 Incentive Compensation Plan (the "Prior Plan") and accordingly, the number of shares of Common Stock subject to outstanding awards under the Prior Plan as of the Effective Date that subsequently cease to be subject to such awards as a result of the termination, expiration, cancellation or forfeiture of such awards may become available for issuance under the Plan. The Company is not registering any additional shares of Common Stock that were not previously approved by the Company’s stockholders under the Prior Plan and previously registered with the SEC under the Registration Statement.
In so acting, we have examined, considered and relied upon copies of the following documents: (1) the Registration Statement, (2) the Company's Certificate of Incorporation, as amended (3) the Company's Amended and Restated By-laws, (4) the Plan, and (5) such other documents and instruments that we have deemed necessary for the expression of the opinions contained herein. In our examination of the aforesaid documents, we have assumed, without independent investigation, the genuineness of all signatures, the legal capacity of all individuals who have executed any of the documents, the authenticity of all documents submitted to us as originals and the conformity to the original documents of all copies.
As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above and the representations and warranties made by representatives of the Company to us. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters.
Greenberg Traurig, P.A. | Attorneys at Law
Based upon and subject to the foregoing, we are of the opinion that the Common Stock has been duly authorized and, when issued and delivered by the Company in accordance with the Plan, will be validly issued, fully paid and non-assessable.
This opinion is rendered solely in connection with the transactions covered hereby, is limited to the matters stated herein, and no opinions may be implied or inferred beyond the matters expressly stated herein.
Our opinion expressed herein is specifically limited to the General Corporation Law of the State of Delaware and is as of the date hereof. We assume no obligation to update or supplement such opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act. In addition, we disclaim any obligation to update this letter or communicate with or advise you as to any changes in fact or law, or otherwise.
Sincerely,
/s/ Greenberg Traurig, P.A.
GREENBERG TRAURIG, P.A.
Greenberg Traurig, P.A. | Attorneys at Law
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (No. 333-194012) of Element Solutions Inc of our report dated February 21, 2024 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in Element Solutions Inc’s Annual Report on Form 10-K for the year ended December 31, 2023.
/s/ PricewaterhouseCoopers LLP
Miami, Florida
June 5, 2024
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