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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 7/01/22 Agrify Corp. S-8 7/01/22 11:543K EdgarAgents LLC/FA |
Document/Exhibit Description Pages Size
1: S-8 Registration Statement - Securities for an HTML 63K
Employee Benefit Plan
2: EX-4.4 2022 Agrify Corporation Omnibus Equity Incentive HTML 116K
Plan
3: EX-4.5 2022 Agrify Corporation Employee Stock Purchase HTML 44K
Plan
4: EX-4.6 Form of Incentive Stock Option Agreement HTML 41K
5: EX-4.7 Form of Non-Qualified Stock Option Agreement HTML 39K
6: EX-4.8 Form of Restricted Stock Unit Agreement for HTML 29K
Employees
7: EX-4.9 Form of Restricted Stock Unit Agreement for HTML 29K
Directors
8: EX-5.1 Opinion of Sherman & Howard L.L.C. HTML 21K
9: EX-23.1 Consent of Marcum LLP, Independent Registered HTML 8K
Public Accounting Firm
10: EX-23.2 Consent of Baker Tilly Us LLP, Independent Auditor HTML 9K
11: EX-FILING FEES Filing Fee Table HTML 16K
As filed with the Securities and Exchange Commission on June 30, 2022
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AGRIFY CORPORATION
(Exact name of registrant as specified in its charter)
| Nevada | 30-0943453 | |
| (State or other jurisdiction of | (I.R.S. Employer | |
| incorporation or organization) | Identification No.) |
| 76 Treble Cove Road | ||
| Building 3 | ||
| Billerica, MA | 01862 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Agrify Corporation 2022 Omnibus Equity Incentive Plan
Agrify Corporation 2022 Employee Stock Purchase Plan
(Full title of the plans)
Raymond Chang
Chief Executive Officer
76 Treble Cove Road
Building 3
Billerica,
MA 01862
(Name and address of agent for service)
(617)
896-5243
(Telephone number, including area code, of agent for service)
| With a copy to: |
Frank A. Segall, Esq. Robert A. Petitt, Esq. Burns & Levinson LLP 125 High Street (617) 345-3000 |
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 | ☐ | Accelerated filer | ☐ |
| Non-accelerated filer | ☒ | 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. ☐
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 to be contained in the Section 10(a) prospectus is omitted from this registration statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”). The document(s) containing the information specified in Part I will be sent or given to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “SEC”) and the instructions to Form S-8, such documents are not being filed with the SEC either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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Part ii
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The rules of the Securities and Exchange Commission (the “SEC”) allow us to incorporate by reference into this Registration Statement the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this Registration Statement, and information that we file later with the Commission will automatically update and supersede this information. This Registration Statement incorporates by reference the documents listed below (other than portions of these documents that are deemed furnished under applicable Commission rules rather than filed and exhibits furnished in connection with such items):
| (a) | Our Annual Report on Form 10-K for the year ended December 31, 2021 filed with the SEC on March 31, 2022; |
| (b) | Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2022 filed with the SEC on May 16, 2022;
| |
| (c) | The information specifically incorporated by reference into our Annual Report on Form 10-K for the year ended December 31, 2021 from our definitive proxy statement on Schedule 14A (other than information furnished rather than filed) filed with the SEC on April 29, 2022; |
| (d) | Our Current Reports on Form 8-K filed with the SEC October 5, 2021 (and the amendment thereto filed with the SEC on December 17, 2021), January 5, 2022, January 26, 2022, February 2, 2022, March 18, 2022, April 12, 2022, and June 9, 2022; and | |
| (e) | The description of our Common Stock contained in our registration statement on Form 8-A12B filed with the SEC on January 26, 2021; |
All documents that the registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than any such documents or portions thereof that are deemed to have been furnished and not filed in accordance with the rules of the SEC), prior to the filing of a post-effective amendment to this registration statement which indicates that all of the shares of common stock offered have been sold or which deregisters all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which 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 registration statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Our officers and directors are indemnified as provided by the Nevada Revised Statutes (“NRS”) and our articles of incorporation and bylaws.
Under the NRS, officer and director immunity from liability to a company or its stockholders for monetary liabilities applies automatically unless it is specifically limited by a company’s articles of incorporation. The NRS provides that an officer or director will not be liable for acts or omissions unless it is proven that the officer’s or director’s acts or omissions constitute a breach of fiduciary duties and such breach involved intentional misconduct, fraud, or a knowing violation of law. Our articles of incorporation provide that no director shall be liable to the Company or its stockholders for monetary damages for breach of fiduciary duty as a director; provided that the director’s liability shall not be eliminated or limited for (i) breach of any duty of loyalty to the Company or its stockholders, (ii) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) any transaction from which the director derived an improper personal benefit, or (iv) an act or omission occurring before the person was a director of the Company.
Our articles of incorporation and bylaws provide that we will indemnify our directors, officers, employees, and agents to the fullest extent permitted by the NRS. Our bylaws also provide that we may purchase and maintain liability insurance, or make other arrangements for such obligations or otherwise, to the extent permitted by the NRS.
The NRS permits us to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or contemplated action, suit, or proceeding, whether civil, criminal, administrative, or investigative, including an action by or on behalf of the Company, by reason of the fact that such person is or was a director, officer, employee, or agent of the Company, or is or was servicing at the request of the Company as a director, officer, employee, or agent of another entity, against expenses, including attorneys’ fees actually and reasonably incurred by such person in connection with the defense or settlement of such action, suit, or proceeding if such person has exercised his powers in good faith and with a view to the interests of the Company; or acted in good faith and in a manner that such person reasonably believed to be in or not opposed to the best interest of the Company, and with respect to any criminal action or proceeding, had no reasonable cause to believe such conduct was unlawful.
Indemnification under the NRS may not be made for any claim, issue, or matter as to which such person has been adjudged by a court of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the Company or for amounts paid in settlement to the Company, unless and only to the extent that the court in which the action or suit was brought or other court of competent jurisdiction determines that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
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The NRS also provides that to the extent that a director, officer, employee, or agent of the Company has been successful on the merits or otherwise in defense of any action, suit, or proceeding for which the Company is permitted to provide indemnification, or in defense of any claim, issue, or matter therein, the Company is required to indemnify such person against expenses, including attorneys’ fees, actually and reasonably incurred in connection with the defense.
Our bylaws and the NRS require the Company to advance expenses of an officer or director as incurred in defending a civil or criminal action, suit, or proceeding upon receipt of an undertaking from the officer or director to repay the amounts advanced if it is ultimately determined by a court of competent jurisdiction that the officer or director is not entitled to such indemnification.
We have also entered, and intend to continue to enter, into separate indemnification agreements with our directors and executive officers, in addition to the indemnification provided for in our amended and restated bylaws. These agreements, among other things, require us to indemnify our directors and executive officers for certain expenses, including attorneys’ fees, judgments, penalties, fines and settlement amounts incurred by a director or executive officer in any action or proceeding arising out of their services as one of our directors or executive officers or as a director or executive officer of any other company or enterprise to which the person provides services at our request.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the 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 the Registration Statement. Notwithstanding the foregoing, any increase or decrease in the 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 Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however, that paragraphs (i) and (ii) 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 Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the 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 of 1933 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Town of Billerica, Commonwealth of Massachusetts, on June 30, 2022.
| AGRIFY CORPORATION | ||
| By: | /s/ Raymond Chang | |
| Name: | Raymond Chang | |
| Title: | Chairman and Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Raymond Chang and Timothy R. Oakes, and each of them, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement on Form S-8, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the United States Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, 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 their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Raymond Chang | Chairman and Chief Executive Officer | June 30, 2022 | ||
| Raymond Chang | (principal executive officer) | |||
| /s/ Timothy R. Oakes | Chief Financial Officer | June 30, 2022 | ||
| Timothy R. Oakes | (principal financial and accounting officer) | |||
| /s/ Guichao Hua | Director | June 30, 2022 | ||
| Guichao Hua | ||||
| /s/ Timothy Mahoney | Director | June 30, 2022 | ||
| Timothy Mahoney | ||||
| /s/ Thomas Massie | President, COO and Director | June 30, 2022 | ||
| Thomas Massie | ||||
| /s/ Leonard J. Sokolow | Director | June 30, 2022 | ||
| Leonard J. Sokolow | ||||
| /s/ Krishnan Varier | Director | June 30, 2022 | ||
| Krishnan Varier | ||||
| /s/ Stuart Wilcox | Director | June 30, 2022 |
Stuart Wilcox
II-6
| This ‘S-8’ Filing | Date | Other Filings | ||
|---|---|---|---|---|
 | ||||
| Filed as of / Effective on: | 7/1/22 | |||
| Filed on: | 6/30/22 | |||
| 5/16/22 | 10-Q | |||
| 4/29/22 | DEF 14A, DEFA14A | |||
| 3/31/22 | 10-K, 10-Q | |||
| 12/31/21 | 10-K, 4, 8-K | |||
| 1/26/21 | 8-A12B, CORRESP, S-1/A, UPLOAD | |||
| List all Filings | ||||
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 6/09/22 Agrify Corp. 8-K:5 6/08/22 10:203K EdgarAgents LLC/FA 5/16/22 Agrify Corp. 10-Q 3/31/22 117:8.7M EdgarAgents LLC/FA 4/29/22 Agrify Corp. DEF 14A 6/08/22 1:4.2M EdgarAgents LLC/FA 4/12/22 Agrify Corp. 8-K:3 4/06/22 10:188K EdgarAgents LLC/FA 3/31/22 Agrify Corp. 10-K 12/31/21 124:10M EdgarAgents LLC/FA 3/18/22 Agrify Corp. 8-K:1,2,3,8 3/14/22 14:1.1M EdgarAgents LLC/FA 2/02/22 Agrify Corp. 8-K:1,3,7,9 2/01/22 12:862K EdgarAgents LLC/FA 1/26/22 Agrify Corp. 8-K:1,3,8,9 1/25/22 15:920K EdgarAgents LLC/FA 1/05/22 Agrify Corp. 8-K:1,2,3,712/31/21 12:895K EdgarAgents LLC/FA 12/17/21 Agrify Corp. 8-K/A:2,9 9/29/21 14:1.4M Workiva Inc Wde… FA01/FA 10/05/21 Agrify Corp. 8-K:1,3,7,9 9/29/21 14:2.2M MDM Corp Elec Fi… Inc/FA 1/26/21 Agrify Corp. 8-A12B 1:16K EdgarAgents LLC/FA 1/26/21 Agrify Corp. S-1/A 7:16M EdgarAgents LLC/FA 1/13/21 Agrify Corp. S-1/A 9:19M EdgarAgents LLC/FA |