Attached files
| file | filename |
|---|---|
| EX-32.1 - EXHIBIT 32.1 - AgroFresh Solutions, Inc. | a093018q3exhibit321.htm |
| EX-31.2 - EXHIBIT 31.2 - AgroFresh Solutions, Inc. | a093018q3exhibit312.htm |
| EX-31.1 - EXHIBIT 31.1 - AgroFresh Solutions, Inc. | a093018q3exhibit311.htm |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
x | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the quarterly period ended September 30, 2018
or
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission File Number: 001-36316
AgroFresh Solutions, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 46-4007249 |
(State or other jurisdiction of incorporation) | (IRS Employer Identification Number) |
One Washington Square
510-530 Walnut Street, Suite 1350
Philadelphia, PA 19106
(Address of principal executive offices)
(267) 317-9139
(Registrant’s telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. x Yes ¨ No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (Section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). x Yes ¨ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ¨ | Accelerated filer x | Non-accelerated filer ¨ | Smaller reporting company x | 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. ¨
Indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Act). ¨ Yes x No
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
The number of shares of common stock outstanding as of November 5, 2018 was 50,439,210.
TABLE OF CONTENTS
Page | |||
2
PART I - FINANCIAL INFORMATION
AgroFresh Solutions, Inc.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Unaudited)
(In thousands, except share and per share data)
September 30, 2018 | December 31, 2017 | |||||
ASSETS | ||||||
Current Assets: | ||||||
Cash and cash equivalents | $ | 26,022 | $ | 64,533 | ||
Accounts receivable, net of allowance for doubtful accounts of $1,907 and $1,550, respectively | 96,477 | 71,509 | ||||
Inventories | 18,307 | 24,109 | ||||
Other current assets | 19,247 | 18,684 | ||||
Total current assets | 160,053 | 178,835 | ||||
Property and equipment, net | 13,929 | 12,200 | ||||
Goodwill | 6,528 | 9,402 | ||||
Intangible assets, net | 725,653 | 757,882 | ||||
Deferred income tax assets | 7,020 | 8,198 | ||||
Other assets | 16,857 | 16,746 | ||||
TOTAL ASSETS | $ | 930,040 | $ | 983,263 | ||
LIABILITIES AND STOCKHOLDERS’ EQUITY | ||||||
Current Liabilities: | ||||||
Accounts payable | $ | 14,916 | $ | 15,014 | ||
Current portion of long-term debt | 8,717 | 7,926 | ||||
Income taxes payable | 5,753 | 5,931 | ||||
Accrued expenses and other current liabilities | 62,200 | 65,809 | ||||
Total current liabilities | 91,586 | 94,680 | ||||
Long-term debt | 399,960 | 402,868 | ||||
Other noncurrent liabilities | 38,518 | 38,505 | ||||
Deferred income tax liabilities | 30,806 | 31,130 | ||||
Total liabilities | 560,870 | 567,183 | ||||
Commitments and contingencies (see Note 17) | ||||||
Stockholders’ equity: | ||||||
Common stock, par value $0.0001; 400,000,000 shares authorized, 51,100,591 and 51,002,234 shares issued and 50,439,210 and 50,340,853 shares outstanding at September 30, 2018 and December 31, 2017, respectively | 5 | 5 | ||||
Preferred stock; par value $0.0001, 1 share authorized and outstanding at September 30, 2018 and December 31, 2017 | — | — | ||||
Treasury stock; par value $0.0001, 661,381 shares at September 30, 2018 and December 31, 2017 | (3,885 | ) | (3,885 | ) | ||
Additional paid-in capital | 535,043 | 533,015 | ||||
Accumulated deficit | (136,611 | ) | (108,729 | ) | ||
Accumulated other comprehensive loss | (33,383 | ) | (12,769 | ) | ||
Total AgroFresh stockholders’ equity | 361,169 | 407,637 | ||||
Non-controlling interest | 8,001 | 8,443 | ||||
Total stockholders' equity | 369,170 | 416,080 | ||||
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY | $ | 930,040 | $ | 983,263 | ||
See accompanying notes to unaudited condensed consolidated financial statements.
3
AgroFresh Solutions, Inc.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
(In thousands, except share and per share data)
Three Months Ended September 30, 2018 | Three Months Ended September 30, 2017 | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | ||||||||||
Net sales | $ | 68,698 | $ | 60,772 | $ | 125,470 | $ | 109,891 | |||||
Cost of sales (excluding amortization, shown separately below) | 16,662 | 11,620 | 32,910 | 21,365 | |||||||||
Gross profit | 52,036 | 49,152 | 92,560 | 88,526 | |||||||||
Research and development expenses | 3,491 | 3,071 | 10,293 | 10,103 | |||||||||
Selling, general, and administrative expenses | 18,212 | 14,462 | 50,133 | 44,328 | |||||||||
Amortization of intangibles | 12,002 | 10,445 | 34,342 | 31,335 | |||||||||
Change in fair value of contingent consideration | 307 | (1,424 | ) | 543 | (2,420 | ) | |||||||
Operating income (loss) | 18,024 | 22,598 | (2,751 | ) | 5,180 | ||||||||
Other (loss) income | (189 | ) | (295 | ) | 419 | (40 | ) | ||||||
(Loss) gain on foreign currency exchange | (4,731 | ) | (487 | ) | 472 | 10,584 | |||||||
Interest expense, net | (9,132 | ) | (8,638 | ) | (26,250 | ) | (27,495 | ) | |||||
Income (loss) before income taxes | 3,972 | 13,178 | (28,110 | ) | (11,771 | ) | |||||||
Income tax expense (benefit) | 1,018 | 3,632 | 214 | (11,895 | ) | ||||||||
Net income (loss) including non-controlling interests | $ | 2,954 | $ | 9,546 | $ | (28,324 | ) | $ | 124 | ||||
Less: Net loss attributable to non-controlling interests | (516 | ) | — | (442 | ) | — | |||||||
Net income (loss) attributable to AgroFresh Solutions, Inc | $ | 3,470 | $ | 9,546 | $ | (27,882 | ) | $ | 124 | ||||
Net income (loss) per share: | |||||||||||||
Basic | $ | 0.06 | $ | 0.19 | $ | (0.57 | ) | $ | — | ||||
Diluted | $ | 0.06 | $ | 0.19 | $ | (0.57 | ) | $ | — | ||||
Weighted average shares outstanding: | |||||||||||||
Basic | 49,853,181 | 49,676,923 | 49,671,648 | 49,852,337 | |||||||||
Diluted | 50,309,979 | 50,169,434 | 49,671,648 | 50,134,591 | |||||||||
See accompanying notes to unaudited condensed consolidated financial statements.
4
AgroFresh Solutions, Inc.
CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE LOSS
(Unaudited)
(In thousands)
Three Months Ended September 30, 2018 | Three Months Ended September 30, 2017 | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | ||||||||||
Net income (loss) | $ | 2,954 | $ | 9,546 | $ | (28,324 | ) | $ | 124 | ||||
Other comprehensive (loss) income: | |||||||||||||
Unrealized gain on hedging activity, net of tax of $158 and $989 | 558 | — | 3,509 | — | |||||||||
Foreign currency translation adjustments | (11,088 | ) | 2,200 | (24,123 | ) | (8,085 | ) | ||||||
Comprehensive (loss) income | $ | (7,576 | ) | $ | 11,746 | $ | (48,938 | ) | $ | (7,961 | ) | ||
See accompanying notes to unaudited condensed consolidated financial statements.
5
AgroFresh Solutions, Inc.
CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS’ EQUITY
(Unaudited)
(In thousands, except share and per share data)
Preferred Stock | Common Stock | Treasury Stock | Additional Paid-in Capital | Accumulated Deficit | Accumulated Other Comprehensive Loss | Total Stockholders’ Equity | |||||||||||||||||||
Shares | Amount | Shares | Amount | Amount | |||||||||||||||||||||
Balance at December 31, 2016 | 1 | $ | — | 50,698,587 | $ | 5 | $ | (3,885 | ) | $ | 475,598 | $ | (132,200 | ) | $ | (4,373 | ) | $ | 335,145 | ||||||
Stock-based compensation | — | — | — | — | — | 1,318 | — | — | 1,318 | ||||||||||||||||
Transfer of director compensation from liability to equity | — | — | — | — | — | 332 | — | — | 332 | ||||||||||||||||
Issuance of restricted stock | — | — | 302,808 | — | — | — | — | — | — | ||||||||||||||||
Settlement of Dow Liabilities, net of income tax | — | — | — | — | — | 55,089 | — | — | 55,089 | ||||||||||||||||
Comprehensive loss | — | — | — | — | — | — | 124 | (8,085 | ) | (7,961 | ) | ||||||||||||||
Balance at September 30, 2017 | 1 | $ | — | 51,001,395 | $ | 5 | $ | (3,885 | ) | $ | 532,337 | $ | (132,076 | ) | $ | (12,458 | ) | $ | 383,923 | ||||||
Preferred Stock | Common Stock | Treasury Stock | Additional Paid-in Capital | Accumulated Deficit | Accumulated Other Comprehensive Loss | Non-Controlling Interest | Total Stockholders’ Equity | |||||||||||||||||||||
Shares | Amount | Shares | Amount | Amount | ||||||||||||||||||||||||
Balance at December 31, 2017 | 1 | $ | — | 51,002,234 | $ | 5 | $ | (3,885 | ) | $ | 533,015 | $ | (108,729 | ) | $ | (12,769 | ) | $ | 8,443 | $ | 416,080 | |||||||
Stock-based compensation | — | — | — | — | — | 2,028 | — | — | — | 2,028 | ||||||||||||||||||
Issuance of stock, net of forfeitures | — | — | 98,357 | — | — | — | — | — | — | — | ||||||||||||||||||
Comprehensive loss | — | — | — | — | — | — | (27,882 | ) | (20,614 | ) | (442 | ) | (48,938 | ) | ||||||||||||||
Balance at September 30, 2018 | 1 | $ | — | 51,100,591 | $ | 5 | $ | (3,885 | ) | $ | 535,043 | $ | (136,611 | ) | $ | (33,383 | ) | $ | 8,001 | $ | 369,170 | |||||||
See accompanying notes to unaudited condensed consolidated financial statements.
6
AgroFresh Solutions, Inc.
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(in thousands) | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | ||||
Cash flows from operating activities: | ||||||
Net (loss) income | $ | (28,324 | ) | $ | 124 | |
Adjustments to reconcile net (loss) income to net cash (used in) provided by operating activities: | ||||||
Depreciation and amortization | 35,486 | 33,102 | ||||
Provision for bad debts | 599 | 260 | ||||
Stock-based compensation | 1,965 | 1,318 | ||||
Pension expense | 71 | 227 | ||||
Amortization of deferred financing costs | 1,842 | 1,764 | ||||
Cash received on interest rate swap | 4,041 | — | ||||
Accretion of contingent consideration | 2,894 | 7,297 | ||||
Increase (decrease) in fair value of contingent consideration | 543 | (2,420 | ) | |||
Deferred income taxes | (97 | ) | (16,445 | ) | ||
Loss on sales of property | — | 81 | ||||
Other | 81 | 93 | ||||
Changes in operating assets and liabilities: | ||||||
Accounts receivable | (30,124 | ) | (8,699 | ) | ||
Inventories | 260 | (1,363 | ) | |||
Prepaid expenses and other current assets | (4,137 | ) | (321 | ) | ||
Accounts payable | (7,208 | ) | (9,486 | ) | ||
Accrued expenses and other liabilities | 7,115 | 7,691 | ||||
Income taxes payable | (1,467 | ) | 3,050 | |||
Other assets and liabilities | 245 | (1,354 | ) | |||
Net cash (used in) provided by operating activities | (16,215 | ) | 14,919 | |||
Cash flows from investing activities: | ||||||
Cash paid for property and equipment | (3,179 | ) | (5,281 | ) | ||
Proceeds from sale of property | — | 99 | ||||
Asset Acquisition | (1,587 | ) | — | |||
Other investments | — | (1,050 | ) | |||
Net cash used in investing activities | (4,766 | ) | (6,232 | ) | ||
Cash flows from financing activities: | ||||||
Payment of Dow liabilities settlement | (10,000 | ) | (10,000 | ) | ||
Repayment of long term debt | (3,517 | ) | (2,125 | ) | ||
Net cash used in financing activities | (13,517 | ) | (12,125 | ) | ||
Effect of exchange rate changes on cash and cash equivalents | (4,013 | ) | 1,544 | |||
Net decrease in cash and cash equivalents | (38,511 | ) | (1,894 | ) | ||
Cash and cash equivalents, beginning of period | $ | 64,533 | 77,312 | |||
Cash and cash equivalents, end of period | $ | 26,022 | $ | 75,418 | ||
Supplemental disclosures of cash flow information: | ||||||
Cash paid for: | ||||||
Cash paid for interest | $ | 23,280 | $ | 12,309 | ||
Cash paid for income taxes | $ | 5,304 | $ | 1,811 | ||
Supplemental schedule of non-cash investing and financing activities: | ||||||
Accrued purchases of property and equipment | $ | 316 | $ | 1,422 | ||
Settlement of Dow liabilities not resulting from cash payment, net of deferred income taxes | $ | — | $ | 55,089 | ||
See accompanying notes to unaudited condensed consolidated financial statements.
7
AgroFresh Solutions, Inc.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
1. | Description of Business |
AgroFresh Solutions, Inc. (the “Company”) is a global leader in delivering innovative food preservation and waste reduction solutions for fresh produce, including apples, pears, citrus, kiwifruit, avocados and bananas among others. The Company is empowering the food industry with Smarter FreshnessTM, a range of proprietary and innovative solutions that are designed to help growers, packers and retailers improve produce freshness and quality while reducing waste.
The Company’s solutions range from pre-harvest offerings, such as HarvistaTM and LandSpringTM, to its marquee SmartFreshTM Quality System, which includes SmartFreshTM, AdvanStoreTM and ActiMistTM, working together to maintain the quality of stored produce. The Company has a controlling interest in Tecnidex Fruit Protection, S.A.U. (“Tecnidex”), a leading provider of post-harvest fungicides, waxes, coatings and biocides for the citrus market. Additionally, the Company’s initial retail solution, RipeLockTM, optimizes banana ripening for the benefit of retailers and consumers. The recent launch of FreshCloudTM provides customers with real-time access to unique insights in the condition of their stored fruit with proprietary sensor technology and data analytics in the storage room. The Company's key products are registered in over 45 countries, support approximately 3,700 direct customers and service over 25,000 storage rooms globally.
The Company’s core business is providing produce preservation and waste reduction solutions for growers and packers. SmartFreshTM, the Company's current principal solution, preserves the texture, firmness, taste and appearance of produce during storage, transportation and retail display. It allows growers and packers to deliver “just harvested” freshness on a year-round basis and enables retailers to increase customer satisfaction with fresh, high quality produce. An integral part of the SmartFreshTM value proposition is a direct service model providing customers with on-site applications of SmartFreshTM at their storage facilities together with mission-critical and value-added advisory services.
The Company has extended its post-harvest leadership with the acquisition of Tecnidex. For over 35 years, Tecnidex has been helping fruit and vegetable producers offer clean, safe and high-quality products to customers, now reaching 18 countries. Tecnidex brought a broad catalogue of solutions that enhanced the Company's fungicide offering, ActiMistTM, an innovative delivery system of foggable fungicides. The Company's fungicide offerings further diversify its revenue by expanding the Company's ability to provide solutions and service to the citrus industry.
The end markets that the Company serves are seasonal and are generally aligned with the seasonal growing patterns of the Company’s customers. For those customers growing, harvesting or storing apples, the Company’s primary market, the peak season in the southern hemisphere is the first and second quarters of each year, while the peak season in the northern hemisphere is the third and fourth quarters of each year. Within each half-year period (i.e., January through June for the southern hemisphere, and July through December for the northern hemisphere) the apple growing season has historically occurred during both quarters. A variety of factors, including weather, may affect the timing of the growing, harvesting and storing patterns of the Company’s customers and therefore shift the consumption of the Company’s services and products between the first and second quarters primarily in the southern hemisphere or between the third and fourth quarters primarily in the northern hemisphere.
The Company was originally incorporated as Boulevard Acquisition Corp. (“Boulevard”), a blank check company, in Delaware on October 24, 2013, and was formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination. On July 31, 2015, the Company completed a Business Combination (refer to Note 3) and changed its name to AgroFresh Solutions, Inc. Prior to consummation of the Business Combination, the Company’s efforts were limited to organizational activities, its initial public offering and related financings, and the search for suitable business acquisition transactions.
2. | Basis of Presentation and Summary of Significant Accounting Policies |
The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("GAAP") for interim financial information and in accordance with the rules and regulations of the Securities and Exchange Commission. These financial statements include all adjustments that are necessary for a fair presentation of the Company's condensed consolidated results of operations, financial condition and cash flows for the periods shown, including normal, recurring accruals and other items. The condensed consolidated results of operations for the interim periods presented are not necessarily indicative of results for the full year.
8
Adoption of Highly Inflationary Accounting in Argentina
GAAP requires the use of highly inflationary accounting for countries whose cumulative three-year inflation rate exceeds 100 percent. The Company has been closely monitoring the inflation data and currency volatility in Argentina, where there are multiple data sources for measuring and reporting inflation. In the second quarter of 2018, the Argentine peso rapidly devalued relative to the U.S. dollar, which along with increased inflation, indicated that the three-year cumulative inflation rate in that country exceeded 100 percent as of June 30, 2018. As a result, the Company has elected to adopt highly inflationary accounting as of July 1, 2018 for subsidiaries in Argentina. Under highly inflationary accounting, the functional currency of subsidiaries in Argentina became the U.S. dollar, and their income statement and balance sheet will be measured in U.S. dollars using both current and historical rates of exchange. The effect of changes in exchange rates on Argentine peso-denominated monetary assets and liabilities will be reflected in earnings. As of September 30, 2018, the Company’s subsidiaries in Argentina had a net asset position of $23.3 million. Net sales attributable to Argentina were approximately 5 percent of the Company’s consolidated net sales for each of the nine months ended September 30, 2018 and 2017.
Revenue Recognition
On January 1, 2018, the Company began to account for revenue in accordance with Accounting Standards Codification ("ASC") 606, which requires revenue recognized to represent the transfer of promised goods or services to customers at an amount that reflects the consideration which is expected to be received in exchange for those goods or services. The Company utilized the modified retrospective method of adoption to all contracts that were not completed as of January 1, 2018. Prior period results were not adjusted and continue to be reported under the accounting standards in effect for the prior period. The Company has not made any significant changes to judgments in applying ASC 606 during the nine months ended September 30, 2018.
Performance Obligations
The Company derives revenue from the sale of products created with proprietary technology to regulate the ripening of produce and through performing post application technical services for its customers. A performance obligation is a promise in a contract to transfer a distinct good or service to the customer, and is the unit of account in ASC 606. A contract’s transaction price is allocated to each distinct performance obligation and recognized as revenue when, or as, the performance obligation is satisfied. The majority of the Company’s contracts have multiple performance obligations primarily related to product application and post application services, which the Company provides. For contracts with multiple performance obligations, the Company allocates the contract’s transaction price to each performance obligation using the best estimate of the standalone selling price of each distinct good or service in the contract. The method used to estimate standalone selling price is the expected cost plus a margin approach, under which the Company calculates the costs of satisfying a performance obligation and factors in an appropriate margin for that distinct good or service.
The transaction price is primarily fixed, as prices are governed by the terms and conditions of the Company's contracts with customers, and payment is typically made under standard terms. The Company has certain transactions that provide for variable consideration through rebate and customer loyalty programs. Depending on the program, the customer may elect to receive either a credit against its account or a cash payment. The Company recognizes an accrued provision for estimated rebates and customer loyalty program payouts at the time services are provided. The primary factors considered when estimating the provision for rebates and customer loyalty programs are the average historical experience of aggregate credits issued, the historical relationship of rebates as a percentage of total gross product sales, and the contract terms and conditions of the various rebate programs in effect at the time services are performed. The Company provides standard warranty provisions.
Performance obligations related to product application are typically satisfied at a point in time when the customer obtains control upon application. Performance obligations related to post-application services are satisfied over time and revenue is recognized using the output method, as control of the service transfers to the customer over time during and after storage of the produce. The Company believes that this method provides a faithful depiction of the transfer of value over the term of the performance obligation because the level of effort in providing these services is consistent during the service period. Performance obligations related to Tecnidex sales-type leases are satisfied at the point in time that equipment is installed at the customer site.
Disaggregation of Revenue
The Company disaggregates revenue from contracts with customers into geographic region, product and timing of transfer of goods and services. The Company determined that disaggregating revenue into these categories achieves the disclosure objective of depicting how the nature, amount, timing and uncertainty of revenue and cash flows are affected by economic factors.
9
Revenues for the three months ended September 30, 2018 (in thousands) | |||||||||||||||||||
Region | North America | EMEA | Latin America | Asia Pacific | Total Revenue | ||||||||||||||
Product | |||||||||||||||||||
1-MCP based | $ | 26,029 | $ | 34,284 | $ | 779 | $ | 2,387 | $ | 63,479 | |||||||||
Fungicides, waxes, coatings, biocides | 270 | 4,047 | — | — | 4,317 | ||||||||||||||
Other* | 614 | 134 | 154 | — | 902 | ||||||||||||||
$ | 26,913 | $ | 38,465 | $ | 933 | $ | 2,387 | $ | 68,698 | ||||||||||
Pattern of Revenue Recognition | |||||||||||||||||||
Products transferred at a point in time | $ | 26,774 | $ | 38,342 | $ | 907 | $ | 2,176 | $ | 68,199 | |||||||||
Services transferred over time | 139 | 123 | 26 | 211 | 499 | ||||||||||||||
$ | 26,913 | $ | 38,465 | $ | 933 | $ | 2,387 | $ | 68,698 | ||||||||||
Revenues for the nine months ended September 30, 2018 (in thousands) | |||||||||||||||||||
Region | North America | EMEA | Latin America | Asia Pacific | Total Revenue | ||||||||||||||
Product | |||||||||||||||||||
1-MCP based | $ | 28,378 | $ | 43,508 | $ | 26,185 | $ | 12,228 | $ | 110,299 | |||||||||
Fungicides, waxes, coatings, biocides | 270 | 12,981 | — | — | 13,251 | ||||||||||||||
Other* | 1,236 | 349 | 335 | 1,920 | |||||||||||||||
$ | 29,884 | $ | 56,838 | $ | 26,520 | $ | 12,228 | $ | 125,470 | ||||||||||
Pattern of Revenue Recognition | |||||||||||||||||||
Products transferred at a point in time | $ | 29,701 | $ | 56,658 | $ | 26,448 | $ | 11,784 | $ | 124,591 | |||||||||
Services transferred over time | 183 | 180 | 72 | 444 | 879 | ||||||||||||||
$ | 29,884 | $ | 56,838 | $ | 26,520 | $ | 12,228 | $ | 125,470 | ||||||||||
*Other includes RipeLock, AdvanStore, LandSpring, Verigo (as defined in Note 3), technical services and sales-type leases related to Tecnidex
Contract Assets and Liabilities
ASC 606 requires an entity to present a revenue contract as a contract asset when the entity performs its obligations under the contract by transferring goods or services to a customer before the customer pays consideration or before payment is due. ASC 606 also requires an entity to present a revenue contract as a contract liability in instances when a customer pays consideration, or an entity has a right to an amount of consideration that is unconditional (e.g. receivable), before the entity transfers a good or service to the customer. The following table presents changes in the Company’s contract assets and liabilities during the nine months ended September 30, 2018:
Balance at January 1, 2018 | Additions | Deductions | Balance at September 30, 2018 | |||||||||||||
(in thousands) | ||||||||||||||||
Contract assets: | ||||||||||||||||
Unbilled revenue | $ | 739 | $ | 5,736 | $ | (1,613 | ) | $ | 4,862 | |||||||
Contract liabilities: | ||||||||||||||||
Deferred revenue | $ | 100 | $ | 3,717 | $ | (890 | ) | $ | 2,927 | |||||||
10
The Company recognizes contract assets in the form of unbilled revenue in instances where services are performed by the Company but not billed by period end. The Company recognizes contract liabilities in the form of deferred revenue in instances where a customer pays in advance for future services to be performed by the Company. The Company generally receives payments from its customers based on standard terms and conditions. No significant changes or impairment losses occurred to contract balances during the nine months ended September 30, 2018. Amounts reclassified from unbilled revenue to accounts receivable for the nine months ended September 30, 2018 were $1.6 million. Amounts reclassified from deferred revenue to revenue were $0.9 million for the nine months ended September 30, 2018.
Practical Expedients Elected
The Company has elected the following practical expedients in applying ASC 606 across all reportable segments:
Unsatisfied Performance Obligations. Because all of its performance obligations relate to contracts with a duration of less than one year, the Company has elected to apply the optional exemption provided in ASC 606 and, therefore, is not required to disclose the aggregate amount of the transaction price allocated to performance obligations that are unsatisfied or partially unsatisfied at the end of the reporting period.
Contract Costs. All incremental customer contract acquisition costs are expensed as they are incurred as the amortization period of the asset that the Company otherwise would have recognized is one year or less in duration.
Significant Financing Component. The Company does not adjust the promised amount of consideration for the effects of a significant financing component as the Company expects, at contract inception, that the period between when the entity transfers a promised good or service to a customer and when the customer pays for that good or service will be one year or less.
Sales Tax Exclusion from the Transaction Price. The Company excludes from the measurement of the transaction price all taxes assessed by a governmental authority that are both imposed on and concurrent with a specific revenue-producing transaction and collected by the Company from the customer.
Shipping and Handling Activities. The Company accounts for shipping and handling activities it performs after a customer obtains control of the good as activities to fulfill the promise to transfer the good, which are recognized in cost of goods sold.
Modified Retrospective Method. The Company adopted ASC 606 on January 1, 2018 utilizing the modified retrospective method, which meant the Company did not retrospectively adjust prior periods. The Company applied the modified retrospective method only to contracts that were not completed at January 1, 2018 and accounted for the aggregate effect of any contract modifications upon adoption. No cumulative adjustment to retained earnings was recorded upon adoption. The following table summarizes the amounts by which the consolidated financial statements are affected in the current reporting period by ASC 606 as compared with the guidance that was in effect before the change.
Balance at September 30, 2018 (in thousands) | As reported | ASC 606 Adjustments | Balances without adoption of ASC 606 | ||||||
Consolidated Balance Sheet | |||||||||
Liabilities | |||||||||
Accrued expenses and other current liabilities | $ | 62,200 | $ | (1,209 | ) | $ | 60,991 | ||
Equity | |||||||||
Accumulated deficit | $ | (136,611 | ) | $ | 1,209 | $ | (135,402 | ) | |
Three months ended September 30, 2018 (in thousands) | As reported | ASC 606 Adjustments | Balances without adoption of ASC 606 | ||||||
Consolidated Statements of Operations | |||||||||
Revenue | |||||||||
Net sales | $ | 68,698 | $ | 166 | $ | 68,864 | |||
Net income attributable to AgroFresh Solutions, Inc | $ | 3,470 | $ | 129 | $ | 3,599 | |||
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Nine months ended September 30, 2018 (in thousands) | As reported | ASC 606 Adjustments | Balances without adoption of ASC 606 | ||||||
Consolidated Statements of Operations | |||||||||
Revenue | |||||||||
Net sales | $ | 125,470 | $ | 1,209 | $ | 126,679 | |||
Net loss attributable to AgroFresh Solutions, Inc | (27,882 | ) | $ | 943 | $ | (26,939 | ) | ||
For additional information, these condensed consolidated financial statements should be read in conjunction with the consolidated and combined financial statements and notes included in the Company's Annual Report on Form 10-K for the year ended December 31, 2017.
Recently Issued Accounting Standards and Pronouncements
In August 2017, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") 2017-12 Targeted Improvements to Accounting for Hedging Activities. This update makes more financial and nonfinancial hedging strategies eligible for hedge accounting. It also amends the presentation and disclosure requirements and changes how companies assess effectiveness. This update will be effective for the Company for fiscal years beginning after December 15, 2018, and interim periods within those fiscal years. Early adoption is permitted upon its issuance. The Company is currently assessing the impact of the future adoption of this standard on its financial statements.
In May 2017, the FASB issued ASU 2017-09, Compensation-Stock Compensation, Scope of Modification Accounting. ASU 2017-09 addresses the changes to the terms and conditions of share-based awards. ASU 2017-09 is effective for periods beginning after December 15, 2017 and interim periods therein on a modified retrospective basis. The Company adopted the new ASU as of January 1, 2018, and it did not have a material impact on the financial statements.
In January 2017, the FASB issued ASU 2017-01, Business Combinations, Clarifying the Definition of a Business. The new accounting guidance clarifies the definition of a business and provides additional guidance to assist entities with evaluating whether transactions should be accounted for as asset acquisitions (or asset disposals) or business combinations (or disposals of a business). Under the new guidance, an entity first determines whether substantially all of the fair value of the assets acquired is concentrated in a single identifiable asset or a group of similar identifiable assets. If this criterion is met, the transaction should be accounted for as an asset acquisition as opposed to a business combination. This distinction is important because the accounting for an asset acquisition significantly differs from the accounting for a business combination. The new guidance is effective for fiscal years and interim periods within those years beginning after December 15, 2017, with early adoption permitted. During the second quarter of 2018, the Company adopted this standard in connection with the acquisition of Verigo (refer to Note 3).
In January 2017, the FASB issued ASU 2017-04, Intangibles - Goodwill and Other, which simplifies the test for goodwill impairment. The guidance is effective for the Company beginning in the first quarter of fiscal year 2020. Early adoption is permitted for interim or annual goodwill impairments tests after January 1, 2017. This standard will impact future financial statements when adopted.
In February 2016, the FASB issued ASU 2016-02, Leases. The main objective of this update is to increase transparency and comparability among organizations by recognizing lease assets and lease liabilities on the balance sheet and disclosing key information about leasing arrangements. This ASU is effective for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years. The Company will adopt ASU 2016-02 on a modified retrospective basis, applying the transition requirements as of January 1, 2019.
The Company is currently in the process of reviewing lease contracts, establishing new processes and internal controls and evaluating the impact of certain accounting policy elections. Until this effort is completed, the Company cannot fully determine the impact of adopting ASU 2016-02; however, the Company expects ASU 2016-02 to have a material impact on the Company’s consolidated financial position but not have a material impact on the Company’s consolidated results of operations or cash flows. The Company expects to complete its assessment of the full financial impact shortly after December 31, 2018, and will include all required presentation and disclosures under ASU 2016-02 in its Form 10-Q for the three months ending March 31, 2019.
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3. | Business Combinations and Asset Acquisition |
Business Combination with Dow
On July 31, 2015 (the "Closing Date"), the Company consummated a business combination (the “Business Combination”) pursuant to the Stock Purchase Agreement, dated April 30, 2015 (the “Purchase Agreement”), by and between the Company and The Dow Chemical Company ("Dow") providing for the acquisition by the Company of the AgroFresh Business from Dow, resulting in AgroFresh Inc. becoming a wholly-owned, indirect subsidiary of the Company. Pursuant to the Purchase Agreement, the Company paid the following consideration to Rohm and Haas Company (“R&H”), a subsidiary of Dow: (i) 17.5 million shares of common stock and (ii) $635 million in cash.
On April 4, 2017, the Company entered into an agreement (the “Amendment Agreement”) with Dow, R&H, Boulevard Acquisition Sponsor, LLC (the “Sponsor”), AgroFresh Inc., Avenue Capital Management II, L.P. (“Avenue”) and, solely as to certain sections of the Amendment Agreement, Joel Citron, Darren Thompson and Robert J. Campbell (collectively, the “Founding Holders”), Marc Lasry and Stephen Trevor. Pursuant to the Amendment Agreement and certain related agreements entered into on the same date (as described below), among other things, the Company and Dow agreed to modify certain obligations of the Company pursuant to (i) the Purchase Agreement, (ii) the Tax Receivables Agreement, dated July 31, 2015 (the “Tax Receivables Agreement”), among the Company, Dow, R&H and AgroFresh Inc., and (iii) the Warrant Purchase Agreement, dated July 31, 2015 (the “Warrant Purchase Agreement”), among the Company, Dow, R&H and the Sponsor. Mr. Campbell is a member of the Company's board of directors, each of Mr. Lasry and Mr. Trevor was a member of the Company’s board of directors at the time the Amendment Agreement was entered into, Dow is a significant stockholder of the Company and the Sponsor was a significant stockholder of the Company at the time the Amendment Agreement was entered into.
Amendment Agreement
Pursuant to the Amendment Agreement, the Company agreed to pay Dow the aggregate amount of $20.0 million, of which $10.0 million was paid on April 4, 2017 and the remaining $10.0 million was paid on January 31, 2018, in full satisfaction of the Company’s obligations with respect to (i) the working capital adjustment under the Purchase Agreement, (ii) certain transfer and value added tax reimbursement obligations under the Purchase Agreement, and (iii) the amount payable to Dow pursuant to the Tax Receivables Agreement on account of the 2015 tax year. During the nine months ended September 30, 2018, these liabilities were extinguished.
First Amendment to Tax Receivables Agreement
The Company, Dow, R&H and AgroFresh Inc. entered into a First Amendment to the Tax Receivables Agreement (the “TRA Amendment”). The TRA Amendment reduced, from 85% to 50%, the percentage that the Company is required to pay to Dow pursuant to the Tax Receivables Agreement of the annual tax savings, if any, in U.S. federal, state and local income tax or franchise tax that the Company actually realizes as a result of the increase in tax basis of the AgroFresh assets resulting from a Section 338(h)(10) election that the Company and Dow made in connection with the Business Combination.
Stock Buyback Agreement
The Company and Dow entered into a letter agreement (the “Stock Buyback Agreement”), pursuant to which Dow agreed to use its reasonable best efforts to purchase up to 5,070,358 shares of the Company’s common stock in the open market (representing approximately 10% of the total number of shares of the Company’s common stock then outstanding), over a period of up to 18 months.
Termination of Warrant Purchase Agreement
In April 2017, the Company, Dow, R&H and the Sponsor entered into a letter agreement, pursuant to which the Warrant Purchase Agreement was terminated effective immediately.
As a result of the Amendment Agreement, the TRA Amendment and the termination of the Warrant Purchase Agreement, the Company recorded a reduction of liabilities of $95.1 million net of deferred income taxes of $40.0 million. The net impact of $55.1 million has been recorded to additional paid-in capital as the agreements were with related parties and the transaction has been treated as a capital transaction.
Acquisition of Tecnidex
On November 7, 2017, the Company entered into a definitive agreement to acquire a controlling interest in Tecnidex. The transaction was closed on December 1, 2017. Tecnidex is a leading provider of post-harvest fungicides, waxes, coatings, and biocides for the citrus market, with clients in 18 countries. For over 35 years, Tecnidex has been helping fruit and vegetable producers offer clean, safe and
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high-quality products to their regional clients. The acquisition was accounted for as a purchase in accordance with ASC 805, Business Combination.
At the effective date of the acquisition, the Company agreed to pay holders of Tecnidex an estimated $25.0 million in cash for 75% of the outstanding capital stock, of which $20.0 million was paid on December 1, 2017. In the third quarter of 2018, the purchase price was finalized as $22.3 million after giving effect to working capital, net debt and other adjustments. The remaining $2.3 million will be paid in the fourth quarter of 2018.
In accordance with the acquisition method of accounting, the Company has allocated the purchase price to the estimated fair values of the identifiable assets acquired and liabilities assumed, with any excess allocated to goodwill. The preliminary assessment of fair value of the contingent consideration payments on the acquisition date was approximately $0.7 million and was estimated by applying a probability-based income approach utilizing an appropriate discount rate. This estimation was based on significant inputs that are not observable in the market, referred to as Level 3 inputs. During the nine months ended September 30, 2018 there was an adjustment made to consideration payable to holders of Tecnidex which resulted in a measurement period adjustment of $2.8 million to the purchase price allocation.
Acquisition of Verigo
On April 9, 2018, the Company acquired the assets of Comm-n-Sense Corp., d/b/a Verigo ("Verigo"), pursuant to the terms of an Asset Purchase Agreement, for approximately $1.8 million. Verigo, a privately-held organization, provided hardware in the form of wireless data receptors along with cloud-based software to synchronize data pulled from the hardware to support and provide tools for monitoring environmental and quality factors, such as temperature and relative humidity. The transaction was accounted for as an asset acquisition because substantially all of the fair value of the gross assets acquired was concentrated in a singular asset, the acquired software. Asset acquisitions are accounted for using a cost accumulation approach, whereby the total consideration paid is allocated to the individual assets acquired and liabilities assumed on a relative fair value basis.
4. | Related Party Transactions |
The Company is a party to ongoing agreements with Dow, a related party, including, but not limited to, operating-related agreements for certain transition services and seconded employees. In addition, during the nine months ended September 30, 2018, the Company paid $0.6 million to Dow in order to terminate the provision of IT services provided by Dow.
The Company incurred expenses for such services for the nine months ended September 30, 2018 and September 30, 2017 as follows:
(amounts in thousands) | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | |||||
Amortization of prepayment related to set-up of transition services | $ | — | $ | 620 | |||
Ongoing costs of transition services agreement | 251 | 2,228 | |||||
Rent expense | — | 693 | |||||
Other expenses | 1,484 | 379 | |||||
Total incurred expenses | $ | 1,735 | $ | 3,920 | |||
As of September 30, 2018 and September 30, 2017, the Company had an outstanding payable to Dow of $0.5 million and $0.3 million, respectively.
Refer to Note 3 regarding the contingent consideration owed to Dow as part of the Business Combination.
In addition, during 2016, the Company made a minority investment in RipeLocker, LLC ("RipeLocker"), a company led by George Lobisser, a director of the Company. On November 29, 2016, the Company entered into a Mutual Services Agreement (the “Services Agreement”) with George Lobisser and RipeLocker. Pursuant to the Services Agreement, (i) the Company agreed to provide RipeLocker with technical support, in the form of access to the Company’s research and development personnel for a specified number of hours for purposes of providing advice and input relating to RipeLocker’s products and services, and (ii) Mr. Lobisser agreed to provide consulting services to the Company as may be reasonably requested by the Company from time to time. The Services Agreement provided for Mr. Lobisser to receive a consulting fee of $5,000 per full day for time spent performing consulting services under the Services Agreement (pro-rated for any partial day), plus reimbursement for out-of-pocket expenses, provided that for each hour of technical support provided by the Company to RipeLocker, Mr. Lobisser agreed to provide one-half hour of consulting services for no consideration. In February 2017, the Company and Mr. Lobisser agreed to substantially curtail any mutual consulting services to be provided under the Services Agreement, and that any further services would be provided at no charge. For the nine months ended September 30, 2018, there were no
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material amounts paid and as of September 30, 2018, there were no material amounts owed to RipeLocker or Mr. Lobisser for consulting services.
5. | Inventories |
Inventories at September 30, 2018 and December 31, 2017 consisted of the following:
(in thousands) | September 30, 2018 | December 31, 2017 | |||||
Raw material | $ | 1,867 | $ | 2,148 | |||
Work-in-process | 4,715 | 6,585 | |||||
Finished goods | 10,400 | 14,647 | |||||
Supplies | 1,325 | 729 | |||||
Total inventories | $ | 18,307 | $ | 24,109 | |||
6. | Other Current Assets |
The Company's other current assets at September 30, 2018 and December 31, 2017 consisted of the following:
(in thousands) | September 30, 2018 | December 31, 2017 | |||||
VAT receivable | $ | 8,089 | $ | 14,088 | |||
Prepaid income tax asset | 5,054 | 2,314 | |||||
Prepaid and other current assets | 6,104 | 2,282 | |||||
Total other current assets | $ | 19,247 | $ | 18,684 | |||
7. | Property and Equipment |
Property and equipment at September 30, 2018 and December 31, 2017 consisted of the following:
(in thousands, except for useful life data) | Useful life (years) | September 30, 2018 | December 31, 2017 | ||||||
Leasehold improvements | 7-20 | $ | 3,033 | $ | 2,976 | ||||
Machinery & equipment | 1-12 | 8,456 | 7,853 | ||||||
Furniture | 1-12 | 1,734 | 1,698 | ||||||
Construction in progress | 4,195 | 2,075 | |||||||
17,418 | 14,602 | ||||||||
Less: accumulated depreciation | (3,489 | ) | (2,402 | ) | |||||
Total property and equipment, net | $ | 13,929 | $ | 12,200 | |||||
Depreciation expense for the three and nine months ended September 30, 2018 was $0.4 million and $1.2 million, respectively.
Depreciation expense for the three and nine months ended September 30, 2017 was $0.3 million and $0.9 million, respectively.
Depreciation expense is recorded in cost of sales, selling, general and administrative expense and research and development expense in the condensed consolidated statements of operations.
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8. | Goodwill and Intangible Assets |
Changes in the carrying amount of goodwill for the nine months ended September 30, 2018 are as follows:
(in thousands) | Goodwill | ||
Balance as of December 31, 2017 | $ | 9,402 | |
Measurement period adjustment | (2,807 | ) | |
Foreign currency translation | (67 | ) | |
Balance as of September 30, 2018 | $ | 6,528 | |
See Note 3 for a description of the measurement period adjustment.
The Company’s intangible assets at September 30, 2018 and December 31, 2017 consisted of the following:
September 30, 2018 | December 31, 2017 | ||||||||||||||||||
(in thousands) | Gross Carrying Amount | Accumulated Amortization | Net | Gross Carrying Amount | Accumulated Amortization | Net | |||||||||||||
Other intangible assets: | |||||||||||||||||||
Developed technology | $ | 759,367 | $ | (124,335 | ) | $ | 635,032 | $ | 759,374 | $ | (94,886 | ) | $ | 664,488 | |||||
In-process research and development | 39,000 | (4,514 | ) | 34,486 | 39,000 | (2,889 | ) | 36,111 | |||||||||||
Trade name | 29,580 | — | 29,580 | 29,816 | — | 29,816 | |||||||||||||
Service provider network | 2,000 | — | 2,000 | 2,000 | — | 2,000 | |||||||||||||
Customer relationships | 20,409 | (2,338 | ) | 18,071 | 20,306 | (806 | ) | 19,500 | |||||||||||
Software | 8,496 | (2,075 | ) | 6,421 | 1,274 | (404 | ) | 870 | |||||||||||
Software not yet placed in service | — | — | — | 5,022 | 5,022 | ||||||||||||||
Other | 100 | (37 | ) | 63 | 100 | (25 | ) | 75 | |||||||||||
Total intangible assets | $ | 858,952 | $ | (133,299 | ) | $ | 725,653 | $ | 856,892 | $ | (99,010 | ) | $ | 757,882 | |||||
At September 30, 2018, the weighted-average amortization period remaining for the finite-lived intangible assets was 16.7 years. At September 30, 2018, the weighted-average amortization periods remaining for developed technology, customer relationships, in-process R&D, software and other was 16.6, 20.9, 16.0, 2.3, and 3.8 years, respectively.
Estimated annual amortization expense for finite-lived intangible assets, excluding amounts in Work in Progress, subsequent to September 30, 2018 is as follows:
(in thousands) | Amount | ||
2018 (remaining) | $ | 12,062 | |
2019 | 46,113 | ||
2020 | 45,996 | ||
2021 | 43,705 | ||
2022 | 43,235 | ||
Thereafter | 502,962 | ||
Total | $ | 694,073 | |
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9. | Accrued and Other Current Liabilities |
The Company’s accrued and other current liabilities at September 30, 2018 and December 31, 2017 consisted of the following:
(in thousands) | September 30, 2018 | December 31, 2017 | |||||
Tax amortization benefit contingency | $ | 11,651 | $ | 11,820 | |||
Additional consideration due seller | 1,215 | 693 | |||||
Dow settlement liability | — | 10,000 | |||||
Accrued compensation and benefits | 10,103 | 8,932 | |||||
Accrued rebates payable | 6,712 | 5,027 | |||||
Insurance premium financing payable | 1,074 | 639 | |||||
Severance | 1,714 | 113 | |||||
Deferred revenue | 2,927 | 100 | |||||
Notes payable | 2,118 | 5,056 | |||||
Accrued taxes | 7,967 | 7,848 | |||||
Accrued interest | 4,814 | 6,321 | |||||
Other | 11,905 | 9,260 | |||||
Total accrued and other current liabilities | $ | 62,200 | $ | 65,809 | |||
Other current liabilities include primarily professional services, litigation and research and development accruals.
10. | Debt |
The Company’s debt, net of unamortized discounts and deferred financing fees, at September 30, 2018 and December 31, 2017 consisted of the following:
(in thousands) | September 30, 2018 | December 31, 2017 | |||||
Total Term Loan outstanding | $ | 405,525 | $ | 407,109 | |||
Tecnidex loan outstanding | 3,152 | 3,685 | |||||
Less: Amounts due within one year | 8,717 | 7,926 | |||||
Total long-term debt due after one year | $ | 399,960 | $ | 402,868 | |||
At September 30, 2018, the Company evaluated the amount recorded under the Term Loan (defined below) and determined that the fair value was approximately $410.7 million. The fair value of the debt is based on quoted inactive market prices and is therefore classified as Level 2 within the valuation hierarchy.
The Term Loan is presented net of deferred issuance costs, which are amortized using the effective interest method over the term of the Term Loan. Gross deferred issuance costs at the inception of the Term Loan were $12.9 million and as of September 30, 2018 there were $6.7 million of unamortized deferred issuance costs.
Scheduled principal repayments of debt subsequent to September 30, 2018 are as follows:
(in thousands) | Amount | ||
2018 (remaining) | $ | 4,465 | |
2019 | 5,059 | ||
2020 | 4,250 | ||
2021 | 401,625 | ||
Total | $ | 415,399 | |
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Credit Facility
On July 31, 2015, in connection with the consummation of the Business Combination, AgroFresh Inc. as the borrower and its parent, AF Solutions Holdings LLC (“AF Solutions Holdings”), a wholly-owned subsidiary of the Company, as the guarantor, entered into a Credit Agreement with Bank of Montreal, as administrative agent (the “Credit Facility”). The Credit Facility consists of a $425.0 million term loan (the “Term Loan”), with an amortization equal to 1.00% per year, and a $25.0 million revolving loan facility (the “Revolving Loan”). The Revolving Loan includes a $10.0 million letter-of-credit sub-facility, issuances against which reduce the available capacity for borrowing. As of September 30, 2018, the Company has issued $0.5 million of letters of credit, against which no funds have been drawn. The Term Loan has a scheduled maturity date of July 31, 2021, and the Revolving Loan has a scheduled maturity date of July 31, 2019. The interest rates on borrowings under the facilities are either the alternate base rate plus 3.75% or LIBOR plus 4.75% per annum, with a 1.00% LIBOR floor (with step-downs in respect of borrowings under the Revolving Loan dependent upon the achievement of certain financial ratios). The obligations under the Credit Facility are secured by liens on substantially all of the assets of (a) AgroFresh Inc. and its direct wholly-owned domestic subsidiaries, and (b) AF Solutions Holdings, including the common stock of AgroFresh Inc.
The net proceeds of the Term Loan were used to fund a portion of the purchase price payable to R&H in connection with the Business Combination. Amounts available under the Revolving Loan may also be used for working capital, general corporate purposes, and other uses, all as more fully set forth in the Credit Agreement. At September 30, 2018, there was $413.3 million outstanding under the Term Loan and no balance outstanding under the Revolving Loan.
As of the Closing Date, the Company incurred approximately $12.9 million in debt issuance costs related to the Term Loan and $1.3 million in costs related to the Revolving Loan. The debt issuance costs associated with the Term Loan were capitalized against the principal balance of the debt, and the Revolving Loan costs were capitalized in Other Assets. All issuance costs will be accreted through interest expense for the duration of each respective debt facility. The interest expense related to the amortization of the debt issuance costs during the three and nine months ended September 30, 2018 was approximately $0.6 million and $1.8 million, respectively.
On November 18, 2015, the Credit Facility was amended. An existing provision in the credit agreement permitted the Company, subject to an overall cap of $12.0 million per fiscal year and certain other conditions, to pay dividends to the Company’s public stockholders and to redeem or repurchase, through July 31, 2016, the Company’s outstanding warrants for an aggregate purchase price of up to $10.0 million. The amendment expanded the scope of this provision to also permit the repurchase of shares of the Company’s outstanding common stock or other equity securities (subject to the same overall cap and other conditions).
Certain restrictive covenants are contained in the Credit Facility, which the Company was in compliance with as of September 30, 2018, other than certain covenants that would apply only to the extent the Company draws against the Revolving Loan and has an outstanding balance at a calendar quarter-end. There were no outstanding draws against the Revolving Loan as of September 30, 2018.
Beginning with the year ended December 31, 2016, the Company is required to prepay Term Loan Borrowings and Incremental Term Loan Borrowings in an aggregate amount equal to 50% of the "Excess Cash Flow" (as defined in the Credit Facility) for the fiscal year; provided that such amount of the Excess Cash Flow in any fiscal year shall be reduced by (i) the aggregate amount of prepayments of Term Loans and Incremental Term Loans made, (ii) to the extent accompanied by permanent reductions of Revolving Commitments, the aggregate amount of prepayments of Revolving Loans (other than prepayments financed with the proceeds of Indebtedness), and (iii) repaid borrowings of Revolving Loans made on the Effective Date to account for any additional original issue discount or upfront fees that are implemented pursuant to the Fee Letter provided further that, prepayments of Term Loan Borrowings and Incremental Term Loan Borrowings shall only be required if 50% of the Excess Cash Flow for such fiscal year exceeds $5.0 million. There are no amounts due under this provision as of September 30, 2018.
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11. | Other Noncurrent Liabilities |
The Company’s other noncurrent liabilities at September 30, 2018 and December 31, 2017 consisted of the following:
(in thousands) | September 30, 2018 | December 31, 2017 | |||||
Tax amortization benefit contingency | $ | 34,628 | $ | 31,562 | |||
Other | 3,890 | 6,943 | |||||
Total other noncurrent liabilities | $ | 38,518 | $ | 38,505 | |||
Other noncurrent liabilities include long-term rebates and deferred rent.
12. | Severance |
The Company expensed $1.7 million and $2.1 million for severance for the three and nine months ended September 30, 2018, respectively. There was no severance expense for the three and nine months ended September 30, 2017. This amount, which does not include stock compensation expense, was recorded in selling, general and administrative expense in the condensed consolidated statements of operations. As of September 30, 2018, the Company had $1.7 million of severance liability, of which $1.7 million will be paid out over the next year.
13. | Stockholders’ Equity |
The authorized common stock of the Company consists of 400,000,000 shares with a par value of $0.0001 per share. Holders of the Company’s common stock are entitled to one vote for each share of common stock. As of September 30, 2018, there were 50,439,210 shares of common stock outstanding. As of September 30, 2018, there were warrants to purchase 15,983,072 shares of the Company’s common stock outstanding at a strike price of $11.50. Of the 15,983,072 warrants, 9,823,072 were issued as part of the units sold in the Company's initial public offering in February 2014 (not counting 1,201,928 warrants that were subsequently repurchased during 2015) and 6,160,000 warrants were sold in a private placement at the time of such public offering.
In connection with and as a condition to the consummation of the Business Combination, the Company issued R&H one share of Series A Preferred Stock. R&H, voting as a separate class, is entitled to appoint one director to the Company’s board of directors for so long as R&H beneficially holds 10% or more of the aggregate amount of the outstanding shares of common stock and non-voting common stock of the Company. The Series A Preferred Stock has no other rights.
14. | Stock-based Compensation |
Stock compensation expense for both equity-classified and liability-classified awards for the three and nine months ended September 30, 2018 was $0.2 million and $2.0 million, respectively. Stock compensation expense for both equity-classified and liability-classified awards for the three and nine months ended September 30, 2017 was $0.5 million and $1.7 million, respectively. Stock compensation expense is recognized in cost of goods sold, selling, general and administrative expenses, and research and development expenses. At September 30, 2018, there was $5.2 million of unrecognized compensation cost relating to outstanding unvested equity instruments expected to be recognized over the weighted average period of 1.9 years.
15. | Earnings Per Share |
Basic loss per share is calculated by dividing net income (loss) by the weighted average number of common shares outstanding for the period. Due to the loss for the nine months ended September 30, 2018, dilutive loss per share is the same as basic loss per share as the adjustment for the assumed issuance of all potentially dilutive share-based awards, including stock options, restricted stock and warrants would be anti-dilutive.
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The following is a reconciliation of the weighted-average common shares outstanding used for the computation of basic and diluted net income (loss) per common share:
Three Months Ended September 30, 2018 | Three Months Ended September 30, 2017 | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | ||||||
Basic weighted-average common shares outstanding | 49,853,181 | 49,676,923 | 49,671,648 | 49,852,337 | |||||
Effect of dilutive options, performance stock units and restricted stock | 456,798 | 492,511 | — | 282,254 | |||||
Diluted weighted-average shares outstanding | 50,309,979 | 50,169,434 | 49,671,648 | 50,134,591 | |||||
Securities that could potentially be dilutive are excluded from the computation of diluted earnings per share when a loss from continuing operations exists or when the exercise price exceeds the average closing price of the Company's common stock during the period, because their inclusion would result in an anti-dilutive effect on per share amounts.
The following represents amounts that could potentially dilute basic earnings per share in the future:
(in thousands, except share data) | Three Months Ended September 30, 2018 | Three Months Ended September 30, 2017 | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | |||||
Stock-based compensation awards(1): | |||||||||
Stock options | 322,158 | 577,500 | 322,158 | 577,500 | |||||
Restricted stock to non-directors | 336,286 | — | 278,289 | — | |||||
Restricted stock to directors | 84,427 | — | 72,655 | — | |||||
Warrants: | |||||||||
Private placement warrants | 6,160,000 | 6,160,000 | 6,160,000 | 6,160,000 | |||||
Public warrants | 9,823,072 | 9,823,072 | 9,823,072 | 9,823,072 | |||||
———————————————————————————————
(1) | SARs and Phantom Shares are payable in cash so will have no impact on number of shares |
Warrants and options are considered anti-dilutive and excluded when the exercise price exceeds the average market value of the Company’s common stock price during the applicable period. Performance share units are considered anti-dilutive if the performance targets upon which the issuance of the shares is contingent have not been achieved and the respective performance period has not been completed as of the end of the current period.
16. | Income Taxes |
The provision for income taxes consists of provisions for federal, state, and foreign incomes taxes. The effective tax rates for the periods ended September 30, 2018, and September 30, 2017, reflect the Company’s expected tax rate on reported income from continuing operations before income tax and tax adjustments. The Company operates in a global environment with significant operations in the U.S. and various other jurisdictions outside the U.S. Accordingly, the consolidated income tax rate is a composite rate reflecting the Company’s earnings and the applicable tax rates in the various jurisdictions where the Company operates.
On December 22, 2017, the Tax Cuts and Jobs Act (“TCJA”) was enacted in the U.S. The TCJA represents sweeping changes in U.S. tax law. Among other changes in tax law, the TCJA permanently reduced the U.S. corporate income tax rate to 21% beginning in 2018, imposed a one-time repatriation tax on deferred foreign earnings, established a participation exemption system by allowing a 100% dividends received deduction on qualifying dividends paid by foreign subsidiaries, limited deductions for net interest expense, and expanded the U.S. taxation of foreign earned income to include “global intangible low-taxed income” (“GILTI”).
As permitted by Staff Accounting Bulletin No. 118, the tax benefit recorded in the fourth quarter of 2017 due to the enactment of the TCJA was considered “provisional”, based on reasonable estimates. The Company is continuing to collect and analyze detailed information about the earnings and profits of its non-U.S. subsidiaries, the related taxes paid, the amounts which could be repatriated, the foreign taxes which may be incurred on repatriation, and the associated impact of these items under the TCJA. The Company may record adjustments to refine those estimates during the measurement period, as additional analysis is completed. No adjustments were recorded during the nine months ended September 30, 2018.
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The TCJA transitions the U.S. from a worldwide tax system to a territorial tax system. Under previous law, companies could indefinitely defer U.S. income taxation on unremitted foreign earnings. The TCJA imposes a one-time repatriation tax on deferred foreign earnings of 15.5% for liquid assets and 8% for illiquid assets, payable in defined increments over eight years. As a result of this requirement, the Company recognized provisional tax expense of $0.5 million in 2017, and provisionally expects to pay $0.3 million, net of estimated applicable foreign tax credits, and after utilization of FTC Credit carryforwards. These previously deferred foreign earnings may now be repatriated to the U.S. without additional U.S. federal taxation. However, any such repatriation could incur withholding and other foreign taxes in the source and intervening foreign jurisdictions, and certain U.S. state taxes. The Company continues to not recognize any U.S. income or foreign withholding taxes for the differences between the financial reporting and tax basis of the investments in foreign subsidiaries that are indefinitely reinvested outside the U.S. This amount may be recognized upon a sale or liquidation.
The Company's effective tax rate for the three and nine months ended September 30, 2018 was 25.6% and (0.8)%, respectively compared to the effective tax rate for the three and nine months ended September 30, 2017 of 27.6% and 101.1%, respectively.
The effective tax rate for the nine months ended September 30, 2018 differs from the U.S. statutory tax rate of 21%, due to unbenefited losses and certain provisions of the TCJA. The unbenefited losses related to the elimination of intercompany profit in inventory. In addition to the unbenefited losses, certain provisions of the TCJA impacted the Company. The reduction of the U.S. corporate income tax rate to 21% reduced the overall tax benefit for the Company. Other provisions like the limitation and deductibility of U.S. interest expense and the inclusion of GILTI had an immaterial impact on the effective tax rate for the nine months ended September 30, 2018. The Company has elected to account for GILTI tax in the period in which it is incurred, and therefore did not provide any deferred taxes in the consolidated financial statements at December 31, 2017 or September 30, 2018.
17. | Commitments and Contingencies |
The Company is currently involved in various claims and legal actions that arise in the ordinary course of business. The Company has recorded reserves for loss contingencies based on the specific circumstances of each case. Such reserves are recorded when it is probable that a loss has been incurred as of the balance sheet date and can be reasonably estimated. Although the results of litigation and claims can never be predicted with certainty, the Company does not believe that the ultimate resolution of these actions will have a material adverse effect on the Company’s business, financial condition or results of operations.
Purchase Commitments
The Company has various purchasing contracts for contract manufacturing and research and development services which are based on the requirements of the business. Generally, the contracts are at prices not in excess of current market prices and do not commit the business to obligations outside the normal customary terms for similar contracts.
18. | Fair Value Measurements |
Liabilities Measured at Fair Value on a Recurring Basis
The following table presents the fair value of the Company’s financial instrument liability/(asset) that are measured at fair value on a recurring basis as of September 30, 2018:
(in thousands) | Level 1 | Level 2 | Level 3 | Total | ||||||||
Tax amortization benefit contingency(1) | $ | — | $ | — | $ | 46,276 | $ | 46,276 | ||||
Contingent consideration(2) | — | — | 1,215 | 1,215 | ||||||||
Stock appreciation rights(4) | — | — | 108 | 108 | ||||||||
Phantom shares(5) | — | — | 323 | 323 | ||||||||
Total | $ | — | $ | — | $ | 47,922 | $ | 47,922 | ||||
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The following table presents the fair value of the Company’s financial instruments that are measured at fair value on a recurring basis as of December 31, 2017:
(in thousands) | Level 1 | Level 2 | Level 3 | Total | ||||||||
Tax amortization benefit contingency(1) | $ | — | $ | — | $ | 43,382 | $ | 43,382 | ||||
Contingent consideration(2) | — | — | 691 | 691 | ||||||||
Interest rate swap (3) | — | 456 | — | 456 | ||||||||
Stock appreciation rights(4) | — | — | 268 | 268 | ||||||||
Phantom shares(5) | — | — | 186 | 186 | ||||||||
Total | $ | — | $ | 456 | $ | 44,527 | $ | 44,983 | ||||
———————————————————————————————
(1) | The fair value of the tax amortization benefit contingency is measured using an income approach based on the Company’s best estimate of the undiscounted cash payments to be made, with the current portion tax effected at 35.3% and the non-current portion tax effected at 21.5% due to the TCJA enacted in the U.S and discounted to present value utilizing an appropriate market discount rate. Per the TRA Amendment, payments due to Dow under the Tax Receivable Agreement were reduced from 85% to 50% of the applicable tax savings realized by the Company. The valuation technique used did not change during the nine months ended September 30, 2018. |
(2) | The fair value of the contingent consideration related to the Tecnidex acquisition. |
(3) | The interest rate swap relates to an interest rate derivative that is measured at fair value using observable market inputs such as interest rates, our own credit risks as well as an evaluation of the counterparts' credit risks. The swap was settled during the three months ended September 30, 2018 for $4.0 million. |
(4) | The fair value of the stock appreciation rights was measured using a Black Scholes pricing model during the nine months ended September 30, 2018. The valuation technique used did not change during the nine months ended September 30, 2018. |
(5) | The fair value of phantom shares is based on the fair value of the Company's common stock. The valuation technique used did not change during the nine months ended September 30, 2018. |
There were no transfers between Level 1 and Level 2 and no transfers out of Level 3 of the fair value hierarchy during the nine months ended September 30, 2018.
At September 30, 2018, the Company evaluated the amount recorded under the Term Loan and determined that the fair value was approximately $410.7 million. The carrying amounts of cash and cash equivalents, accounts receivable, and accounts payable approximate fair value.
Changes in Financial Instruments Measured at Level 3 Fair Value on a Recurring Basis
The following table presents the changes during the period presented in our Level 3 financial instrument liability/(asset) that are measured at fair value on a recurring basis.
(in thousands) | Tax amortization benefit contingency | Contingent consideration related to acquisition | Interest rate swap | Stock appreciation rights | Phantom shares | Total | ||||||||||||
Balance, December 31, 2017 | $ | 43,382 | $ | 691 | $ | 456 | $ | 268 | $ | 186 | $ | 44,983 | ||||||
Accretion | 2,894 | — | — | — | — | 2,894 | ||||||||||||
Tecnidex acquisition | — | 524 | — | — | — | 524 | ||||||||||||
Interest rate contract | — | (456 | ) | — | — | (456 | ) | |||||||||||
Stock compensation expense | — | — | — | (160 | ) | 137 | (23 | ) | ||||||||||
Balance, September 30, 2018 | $ | 46,276 | $ | 1,215 | $ | — | $ | 108 | $ | 323 | $ | 47,922 | ||||||
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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
As used in this Management’s Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”), the terms “Company,” “AgroFresh,” “we,” “us” and “our” refer to AgroFresh Solutions, Inc. and its consolidated subsidiaries, unless the context otherwise requires or it is otherwise indicated.
The following discussion and analysis of the Company’s financial condition and results of operations should be read in conjunction with the unaudited condensed consolidated financial statements and the notes thereto contained elsewhere in this Report.
This MD&A contains the financial measure EBITDA, which is not presented in accordance with accounting principles generally accepted in the United States of America ("GAAP"). This non-GAAP financial measure is being presented because management believes that it provides readers with additional insight into the Company’s operational performance relative to earlier periods and relative to its competitors. EBITDA is a key measure used by the Company to evaluate its performance. The Company does not intend for this non-GAAP financial measure to be a substitute for any GAAP financial information. Readers of this MD&A should use this non-GAAP financial measure only in conjunction with the comparable GAAP financial measure. A reconciliation of EBITDA to the most comparable GAAP measure is provided in this MD&A.
Note Regarding Forward-Looking Statements
All statements other than statements of historical fact included in this Report including, without limitation, statements in this MD&A regarding the Company's financial position, business strategy and the plans and objectives of management for future operations, are forward looking statements. When used in this Report, words such as “anticipate,” “believe,” “estimate,” “expect,” “intend” and similar expressions, as they relate to the Company or its management, identify forward looking statements. Such forward looking statements are based on the beliefs of management, as well as assumptions made by, and information currently available to, management. Actual results and/or the timing of events could differ materially from those contemplated by these forward-looking statements due to a number of factors, including those discussed under the heading “Risk Factors” in Part I, Item 1A of our Annual Report on Form 10-K for the year ended December 31, 2017 (the "2017 Form 10-K") as well as the update to those Risk Factors disclosed in Part II, Item 1A of this Report. Any forward-looking statements included in this Report are based only on information currently available to the Company and speak only as of the date on which such statements are made. The Company undertakes no obligation to publicly update any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise. All subsequent written or oral forward-looking statements attributable to the Company or persons acting on behalf of the Company are qualified in their entirety by this paragraph.
Business Overview
AgroFresh is a global leader in delivering innovative food preservation and waste reduction solutions for fresh produce, including apples, pears, citrus, kiwifruit, avocados and bananas, among others. Our proprietary and innovative solutions are designed to help growers, packers, and retailers improve produce freshness and quality while reducing waste.
AgroFresh’s market leadership is underpinned by our global footprint, extensive applied scientific expertise, customer intimacy, and a growing portfolio of value-added products and mission-critical advisory services. Our key products are registered in over 45 countries, support approximately 3,700 direct customers, and service over 25,000 storage rooms globally. In addition, we offer a comprehensive list of solutions spanning from pre-harvest to post-harvest, from storage through retail. More importantly, we believe that our direct market approach and high touch service model best position us to address our customers’ needs. We believe this is a key differentiator compared to other companies that have narrower product offerings and limited service levels.
Freshness is the most important driver of consumer satisfaction when it comes to produce, and, at the same time, food waste is a major issue in the industry. According to the U.N.’s Food and Agricultural Organization, fruits and vegetables have the highest waste rates of any food, estimated at 40%-50% globally. AgroFresh plays a key role in the value chain by offering products and services that maintain produce freshness and reduce waste.
AgroFresh’s core business is providing produce preservation and waste reduction solutions for growers and packers. SmartFreshTM, our current principal solution, preserves the texture, firmness, taste and appearance of produce during storage, transportation and retail display. It allows growers and packers to deliver “just harvested” freshness on a year-round basis and enables retailers to increase customer satisfaction with fresh, high quality produce. An integral part of the SmartFresh value proposition is a direct service model providing customers with on-site applications of SmartFresh at their storage facilities together with mission-critical and value-added advisory services.
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In December 2017, AgroFresh acquired a controlling interest in Tecnidex Fruit Protection, S.A.U. ("Tecnidex"). With this acquisition, AgroFresh expanded its post-harvest leadership into additional crops, and increased its penetration of the produce market in southern Europe, Latin America and Africa. For over 35 years, Tecnidex has been helping fruit and vegetable producers offer clean, safe and high-quality products to customers, now reaching 18 countries. Tecnidex is a leading provider of fungicides, sanitizers, waxes, and coatings primarily focused on the citrus market. The Tecnidex acquisition brought a broad catalogue of solutions that enhanced AgroFresh’s fungicide offering, ActiMistTM, an innovative delivery system of foggable fungicides. AgroFresh’s fungicide offerings further diversify our revenue by expanding our ability to provide solutions and service to the citrus industry. Tecnidex is based in Valencia, Spain.
Complementing our post-harvest solutions, HarvistaTM technology is used for near harvest management of pome fruit, such as apples, pears, and cherries. Just as SmartFresh revolutionized post-harvest apple storage, we believe Harvista can have a similar impact in the orchard. Harvista slows ripening, reduces fruit drop, and holds fruit on the tree longer to promote better color and fruit size, thereby bringing new benefits to the grower. With maximum flexibility in application timing, it extends the harvest window by allowing growers to factor in ever-changing weather conditions and labor availability, providing peace of mind. Finally, we have found that the combination of Harvista in the orchard and SmartFresh in the storage room results in improved fruit quality metrics compared to use of either product individually.
AgroFresh provides freshness solutions across the supply chain, wherever waste occurs. For many crops, much of the waste occurs at retail. This includes bananas, one of the largest retail produce categories, where, according to internal analysis based on data from Journal of Consumer Affairs and United Nation’s Food and Agriculture Organization, it is estimated that 12-16% of banana loss occurs after the fruit reaches the grocery store. Our RipeLockTM Quality System is a retail solution to improve the quality and consumer appeal of bananas. RipeLock enables retailers to offer consumers bananas that are in better condition and maintain the consumer-preferred color and firmness longer, reducing waste and increasing sales. Additionally, through our agreement with Food Freshness Technology Holdings Limited, AgroFresh expects to market It’s Fresh!, an ethylene absorbing technology to preserve the freshness of produce for high-value crops such as berries, stone fruit, avocados, tomatoes, and cherries, to open up new opportunities to address food waste in retail.
To continue to evolve and increase the value we provide to our customers, AgroFresh recently launched our FreshCloudTM suite of produce monitoring and screening solutions. FreshCloud is the culmination of our decades-long history of innovation and scientific know-how in the physiology of fruits and vegetables. FreshCloud consists of both enhancements to our existing service offerings, as well as new innovations. FreshCloud Storage InsightsTM, the next generation of AdvanStore, combines proprietary sensor technology and data analytics in the storage room to offer customers real-time access to unique insights into the condition of their stored fruit. FreshCloud Predictive ScreeningTM, which predicts the risk of disorder development during storage by analyzing gene expression at commercial harvest, allows for more informed storage management decisions. FreshCloud Transit InsightsTM combines sensor technology and proprietary algorithms to provide insights as to the condition and quality of fruit during transit.
AgroFresh’s business is highly seasonal, driven by the timing of harvests in the northern and southern hemispheres. The first half of the year is when the southern hemisphere harvest occurs, and the second half of the year is when the northern hemisphere harvest occurs. Since the northern hemisphere harvest of our two core crops of apples and pears is typically larger, a significant portion of our sales and profits are historically generated in the second half of the year. In addition to this seasonality, factors such as weather patterns may impact the timing of the harvest within the two halves of the year.
AgroFresh is a former blank check company that completed its initial public offering on February 19, 2014. Upon the closing of the business combination with Dow on July 31, 2015 (the "Business Combination"), the Company changed its name to AgroFresh Solutions, Inc. The Company paid Dow cash consideration of $635 million and issued Dow 17.5 million shares of common stock at a deemed value of $12 per share. The transaction included a liability to Dow to deliver a variable number of warrants between the closing and April 2016, which obligation was terminated pursuant to a letter agreement entered into on April 4, 2017. The cash consideration was funded through our initial public offering, a term loan, and a private placement of 4.9 million shares of common stock that yielded $50 million of proceeds. The transaction also had an earn-out feature whereby Dow was entitled to receive a deferred payment of $50 million in March 2018 if AgroFresh achieved a specified average level of Business EBITDA (as defined in the Stock Purchase Agreement related to the Business Combination) over 2016 and 2017. The specified level of Business EBITDA was not achieved and, accordingly, the earn-out feature is no longer payable. In addition, pursuant to a tax receivables agreement entered into in connection with the Business Combination, as amended in April 2017 (the "Tax Receivables Agreement"), Dow is entitled to receive 50% of the tax savings, if any, that the Company realizes as a result of the increase in the tax basis of assets acquired pursuant to the Business Combination.
In connection with the closing of the Business Combination, AgroFresh entered into a Transition Services Agreement with Dow. Under the agreement, Dow provided AgroFresh a suite of services for a period of time ranging from six months to five years depending on the service. While most of the Dow-provided services are complete as of December 31, 2017 certain services are expected to continue through 2018. The agreement also provided for a $5 million execution fee that was paid to Dow at the closing of the Business Combination.
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Factors Affecting the Company’s Results of Operations
The Company’s results of operations are affected by a number of external factors. Some of the more important factors are briefly discussed below.
Demand for the Company’s Offerings
The Company services customers in over 45 countries and derives its revenue by assisting growers, packers and retailers to maximize the value of their crops brought to market. The Company's products and services add value to customers by reducing food spoilage and extending the life of perishable fruits. The U.S. Food and Agriculture Organization has estimated that a growing global population will require a near doubling of food production in developing countries by 2050 to meet the expected demand of a worldwide population of 9 billion people.
This global trend, among others, creates demand for the Company’s solutions. The Company’s offerings are currently protected by patents on, among other things, the encapsulation of the active ingredient, 1-MCP.
The global produce market is a function of both the size and the yield of the crop harvested; variations in either will affect total production. Given the nature of the agricultural industry, weather patterns may impact total production and the Company's resulting commercial opportunities. The Company supports a diverse customer base whose end markets vary due to the type of fruit and quality of the product demanded in their respective markets. Such variation across end markets also affects demand for the Company’s services.
Customer Pricing
The Company’s offerings are priced based on the value they provide to the Company’s customers. From time to time, the Company adjusts the pricing of its offerings depending on the volume of fruit treated, or in order to address specific market trends. The SmartFresh Quality System continues to expand its platform of services, which may have an impact on price. The Company provides a value-added service and does not typically price its products in relation to any underlying cost of materials; therefore, its margins can fluctuate with changes in the costs to provide its services to customers. The Company’s pricing may include rebate arrangements with customers in exchange for mutually beneficial long-term relationships and growth.
Direct Service Model
AgroFresh offers a direct service model for the Company’s commercially available products, including SmartFresh and Harvista. Sales and sales support personnel maintain direct face-to-face relationships with customers year round. Technical sales and support personnel work directly with customers to provide value-added advisory services regarding the application of SmartFresh. The actual application of SmartFresh is performed by service providers that are typically third-party contractors. The Harvista application service, through both aerial and ground application, is also administered by third-party service providers or made by our customers directly. The combination of SmartFresh and Harvista treatments are designed to provide the best results to customers.
The Company is shifting the terms of its contracts with service providers from annual renewal periods to two or three year durations in order to have greater certainty that experienced applicators will be available for upcoming harvest seasons. Most of the Company’s service providers are operating under multi-year contracts. Management believes the quality and experience of its service providers deliver clear commercial benefits.
Seasonality
The Company’s operations are subject to seasonal variation due to the timing of the growing seasons around the world. Northern Hemisphere growers typically harvest from August through November, and Southern Hemisphere growers typically harvest from late January to early May. Since the majority of the Company’s sales are in Northern Hemisphere countries, a proportionately greater share of its revenue is realized during the second half of the year. There are also variations in the seasonal demands from year to year depending on weather patterns and crop size. This seasonality and variations in seasonal demand could impact the ability to compare results between periods. As the Company continues to diversify into other crops and becomes increasingly less dependent on pome fruit, the Company expects that the impacts of seasonality will lessen.
Foreign Currency Exchange Rates
With a global customer base and geographic footprint, the Company generates revenue and incurs costs in a number of different currencies, with the Euro comprising the most significant non-U.S. currency. Fluctuations in the value of these currencies relative to the U.S. dollar can increase or decrease the Company’s overall revenue and profitability as stated in U.S. dollars, which is the Company’s reporting currency. In certain instances, if sales in a given geography have been adversely impacted on a long-term basis due to foreign currency
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depreciation, the Company has been able to adjust its pricing so as to mitigate the impact on profitability. See Note 2 to the condensed consolidated financial statements for a discussion of the changes to the highly inflationary accounting for Argentina as of July 1, 2018.
Domestic and Foreign Operations
The Company has both domestic and foreign operations. Fluctuations in foreign exchange rates, regional growth-related spending in research and development (“R&D”) and marketing expenses, and changes in local selling prices, among other factors, may impact the profitability of foreign operations in the future.
Critical Accounting Policies and Use of Estimates
Critical accounting policies are those accounting policies that can have a significant impact on the presentation of our financial condition and results of operations and that require the use of complex and subjective estimates based upon management’s judgment. Because of the uncertainty inherent in such estimates, actual results may differ materially from these estimates. Aside from the adoption of ASC 606, there have been no material changes to our critical accounting policies and estimates previously disclosed in the 2017 Form 10-K. For a description of our critical accounting policies and estimates as well as a listing of our significant accounting policies, see “Management's Discussion and Analysis of Financial Condition and Results of Operations - Critical Accounting Policies and Use of Estimates” and “Note 2 - Basis of Presentation and Summary of Significant Accounting Policies” in the 2017 Form 10-K.
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Results of Operations
The following table summarizes the results of operations for both the three and nine months ended September 30, 2018 and September 30, 2017:
(in thousands) | Three Months Ended September 30, 2018 | Three Months Ended September 30, 2017 | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | |||||||||
Net sales | $ | 68,698 | $ | 60,772 | $ | 125,470 | $ | 109,891 | |||||
Cost of sales (excluding amortization, shown separately below) | 16,662 | 11,620 | 32,910 | 21,365 | |||||||||
Gross profit | 52,036 | 49,152 | 92,560 | 88,526 | |||||||||
Research and development expenses | 3,491 | 3,071 | 10,293 | 10,103 | |||||||||
Selling, general, and administrative expenses | 18,212 | 14,462 | 50,133 | 44,328 | |||||||||
Amortization of intangibles | 12,002 | 10,445 | 34,342 | 31,335 | |||||||||
Change in fair value of contingent consideration | 307 | (1,424 | ) | 543 | (2,420 | ) | |||||||
Operating income (loss) | 18,024 | 22,598 | (2,751 | ) | 5,180 | ||||||||
Other (loss) income | (189 | ) | (295 | ) | 419 | (40 | ) | ||||||
(Loss) gain on foreign currency exchange | (4,731 | ) | (487 | ) | 472 | 10,584 | |||||||
Interest expense, net | (9,132 | ) | (8,638 | ) | (26,250 | ) | (27,495 | ) | |||||
Income (loss) before income taxes | 3,972 | 13,178 | (28,110 | ) | (11,771 | ) | |||||||
Income tax expense (benefit) | 1,018 | 3,632 | 214 | (11,895 | ) | ||||||||
Net income (loss) including non-controlling interests | $ | 2,954 | $ | 9,546 | $ | (28,324 | ) | $ | 124 | ||||
Less: Net loss attributable to non-controlling interests | (516 | ) | — | (442 | ) | — | |||||||
Net income (loss) attributable to AgroFresh Solutions, Inc | 3,470 | 9,546 | $ | (27,882 | ) | $ | 124 | ||||||
Comparison of Results of Operations for the three months ended September 30, 2018 compared to the three months ended September 30, 2017.
Net Sales
Net sales were $68.7 million for the three months ended September 30, 2018, an increase of $7.9 million, or 13.0%, as compared to net sales of $60.8 million for the three months ended September 30, 2017. The increase in net sales was driven by the acquisition of Tecnidex which contributed net sales of $4.1 million and growth in SmartFresh, particularly in Europe, where we were favorably impacted by increased penetration and crop size.
Cost of Sales
Cost of sales was $16.7 million for the three months ended September 30, 2018 as compared to $11.6 million for the three months ended September 30, 2017. Gross profit margin was 75.7% for the three months ended September 30, 2018 versus 80.9% for the three months ended September 30, 2017. The decrease in margin was primarily driven by the addition of Tecnidex, which has lower gross margins than our other existing businesses.
Research and Development Expenses
Research and development expenses were $3.5 million and $3.1 million, respectively, in the three months ended September 30, 2018 and September 30, 2017.
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Selling, General and Administrative Expenses
Selling, general and administrative expenses were $18.2 million for the three months ended September 30, 2018 compared to $14.5 million for the three months ended September 30, 2017. The increase was primarily driven by the addition of Tecnidex, increased severance expense and non-recurring costs related to strategic initiatives and ongoing litigation.
Amortization of Intangibles
Amortization of intangible assets was $12.0 million for the three months ended September 30, 2018 compared to $10.4 million for the three months ended September 30, 2017.
Change in Fair Value of Contingent Consideration
The Company recorded a $0.3 million loss in the three months ended September 30, 2018 related to a change in the fair value of contingent consideration, as compared to a $1.4 million gain in the three months ended September 30, 2017. As discussed in Note 3 of the unaudited condensed consolidated financial statements, pursuant to the Business Combination, the Company entered into various forms of contingent consideration, including the warrant consideration, and the tax amortization benefit contingency. These liabilities are measured at fair value each reporting date and any mark-to-market fluctuations are recognized in earnings.
Interest Expense, Net
Interest expense was $9.1 million for the three months ended September 30, 2018, as compared to $8.6 million for the three months ended September 30, 2017.
Loss on foreign currency
Loss on foreign currency was $4.7 million for the three months ended September 30, 2018, due to the adoption of highly inflationary accounting in Argentina during the quarter and inflation in Turkey and Brazil, as compared to a $0.5 million loss for the three months ended September 30, 2017.
Income taxes
Income tax expense was $1.0 million for the three months ended September 30, 2018 compared to income tax expense of $3.6 million for the three months ended September 30, 2017. During the three months ended September 30, 2018, certain losses occurred that did not receive a tax benefit. The unbenefited losses related to the elimination of intercompany profit in inventory. In addition to the unbenefited losses, certain provisions of the TCJA impacted the Company, most notably the reduction of the U.S. corporate income tax rate to 21%. Other provisions like the inclusion of GILTI had an immaterial impact on the effective tax rate for the three months ended September 30, 2018.
Comparison of Results of Operations for the nine months ended September 30, 2018 compared to the nine months ended September 30, 2017.
Net Sales
Net sales were $125.5 million for the nine months ended September 30, 2018, an increase of $15.6 million, or 14.2%, as compared to net sales of $109.9 million for the nine months ended September 30, 2017. The increase in net sales was driven by the addition of Tecnidex which contributed $13.1 million of net sales and growth in SmartFresh, particularly in Europe, where we were favorably impacted by increased penetration and crop size. These increases were partially offset by the deferral of revenue for future performance obligations from the adoption of ASC 606.
Cost of Sales
Cost of sales was $32.9 million for the nine months ended September 30, 2018 as compared to $21.4 million for the nine months ended September 30, 2017. Gross profit margin was 73.8% in the first nine months of 2018 versus 80.6% in the first nine months of 2017. The decrease in margin was primarily driven by the addition of Tecnidex and the deferral of revenue under ASC 606.
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Research and Development Expenses
Research and development expenses were $10.3 million and $10.1 million, respectively, in the nine months ended September 30, 2018 and September 30, 2017.
Selling, General and Administrative Expenses
Selling, general and administrative expenses were $50.1 million for the nine months ended September 30, 2018 compared to $44.3 million for the nine months ended September 30, 2017. This increase in selling, general and administrative expenses was primarily driven by the addition of Tecnidex, increased severance expense and non-recurring costs related to strategic initiatives and ongoing litigation.
Amortization of Intangibles
Amortization of intangible assets was $34.3 million for the nine months ended September 30, 2018 compared to $31.3 million for the nine months ended September 30, 2017.
Change in Fair Value of Contingent Consideration
The Company recorded a $0.5 million loss in the nine months ended September 30, 2018 related to a change in the fair value of contingent consideration, as compared to a $2.4 million gain in the nine months ended September 30, 2017. As discussed in Note 3 to the unaudited condensed consolidated financial statements, pursuant to the Business Combination, the Company entered into various forms of contingent consideration, including the warrant consideration, and the tax amortization benefit contingency. These liabilities are measured at fair value each reporting date and any mark-to-market fluctuations are recognized in earnings.
Gain on foreign currency
Gain on foreign currency was $0.5 million for the nine months ended September 30, 2018 as compared to $10.6 million gain for the nine months ended September 30, 2017. The reduction in the gain compared to prior period was caused by the adoption of highly inflationary accounting in Argentina during the quarter.
Interest Expense, Net
Interest expense was $26.3 million for the nine months ended September 30, 2018, as compared to $27.5 million for the nine months ended September 30, 2017. The decrease was driven by lower accretion of the Tax Receivables Agreement.
Income taxes
Income tax expense was $0.2 million for the nine months ended September 30, 2018 compared to income tax benefit of $11.9 million for the nine months ended September 30, 2017. During the nine months ended September 30, 2018, certain losses occurred that did not receive a tax benefit. The unbenefited losses related to the elimination of intercompany profit in inventory. In addition to the unbenefited losses, certain provisions of the TCJA impacted the Company, most notably the reduction of the corporate income tax rate to 21%. Other provisions like the limitation and deductibility of U.S. interest expense and the inclusion of GILTI income had an immaterial impact on the effective tax rate for the nine months ended September 30, 2018. As of September 30, 2017, in accordance with ASC 740, Income Taxes, we released the full valuation allowance against the net deferred tax assets in the U.S. tax jurisdiction, including net operating loss deferred tax assets. During the nine months ended September 30, 2017, we increased our deferred tax liabilities with intangibles due to the settlement with Dow.
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Non-GAAP Measure
The following table sets forth the non-GAAP financial measure of EBITDA. The Company believes this non-GAAP financial measure provides meaningful supplemental information as it is used by the Company’s management to evaluate the Company’s performance, is more indicative of future operating performance of the Company, and facilitates a better comparison among fiscal periods, as the non-GAAP measure excludes items that are not considered core to the Company’s operations. These non-GAAP results are presented for supplemental informational purposes only and should not be considered a substitute for the financial information presented in accordance with GAAP.
The following is reconciliation between the non-GAAP financial measure of EBITDA to its most directly comparable GAAP financial measure, net income (loss):
(in thousands) | Three Months Ended September 30, 2018 | Three Months Ended September 30, 2017 | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | |||||||||
GAAP net income (loss) including non-controlling interests | $ | 2,954 | $ | 9,546 | $ | (28,324 | ) | $ | 124 | ||||
Provision (benefit) for income taxes | 1,018 | 3,632 | 214 | (11,895 | ) | ||||||||
Interest expense(1) | 9,132 | 8,638 | 26,250 | 27,495 | |||||||||
Depreciation and amortization | 12,533 | 11,056 | 35,486 | 33,102 | |||||||||
Non-GAAP EBITDA | $ | 25,637 | $ | 32,872 | $ | 33,626 | $ | 48,826 | |||||
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(1) Interest on the term loan and accretion for debt discounts, debt issuance costs and contingent consideration.
Liquidity and Capital Resources
Cash Flow
(in thousands) | Nine Months Ended September 30, 2018 | Nine Months Ended September 30, 2017 | ||
Net cash (used in) provided by operating activities | (16,215 | ) | 14,919 | |
Net cash used in investing activities | (4,766 | ) | (6,232 | ) |
Net cash used in financing activities | (13,517 | ) | (12,125 | ) |
Cash used in operating activities was $(16.2) million for the nine months ended September 30, 2018, as compared to cash provided by operating activities of $14.9 million for the nine months ended September 30, 2017. In 2018, net loss before non-cash depreciation and amortization and changes in fair value of contingent consideration (including accretion) was $10.6 million. Other non-cash charges included stock-based compensation of $2.0 million, $1.8 million of deferred financing costs, a $0.1 million increase in the net deferred taxes, cash received on the interest rate swap of $4.0 million, and other non-cash items of $0.8 million. Additionally, the change in net operating assets was $(35.3) million in 2018, due primarily to the seasonal increase in accounts receivable during the period. For the nine months ended September 30, 2017, net income before non-cash depreciation and amortization and changes in fair value of contingent consideration (including accretion) was $38.1 million. Other non-cash charges included stock-based compensation of $1.3 million, $1.8 million of deferred financing costs, a $16.4 million increase in net deferred tax asset, and other non-cash items of $0.7 million. Additionally, the change in net operating assets was $(10.5) million for the nine months ended September 30, 2017.
Cash used in investing activities was $(4.8) million for the nine months ended September 30, 2018, as compared to $(6.2) million for the nine months ended September 30, 2017. Cash used in investing activities in 2018 was for the asset acquisition of Verigo, $(1.6) million, and purchase of fixed assets and leasehold improvements of $(3.2) million. Cash used in 2017 was for the purchase of fixed assets and leasehold improvements of $(5.3) million, and technology investments of $(1.1) million.
Cash used in financing activities was $(13.5) million for the nine months ended September 30, 2018, as compared to $(12.1) million for the nine months ended September 30, 2017. Cash used in financing activities in 2018 was for the payment of Dow liabilities of $(10.0) million and the repayment of debt in the amount of $(3.5) million. Cash used in 2017 was for the repayment of debt in the amount of $(2.1) million and the $(10.0) million payment related to the Dow liabilities settlement.
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Liquidity
Since the consummation of the Business Combination we have financed our operations primarily through the sales of our products and services. At September 30, 2018, we had $26.0 million of cash and cash equivalents, compared to $64.5 million at December 31, 2017.
Term Loan
On July 31, 2015, certain of our subsidiaries entered into a Credit Agreement with Bank of Montreal, as administrative agent (the “Credit Facility”). The Credit Facility consists of a $425.0 million term loan (the “Term Loan”), with an amortization equal to 1.00% per year, and a $25.0 million revolving loan facility (the “Revolving Loan”). The Revolving Loan includes a $10.0 million letter-of-credit sub-facility, issuances against which reduce the available capacity for borrowing. As of September 30, 2018, the Company had issued $0.5 million of letters of credit, against which no funds have been drawn. The Term Loan has a scheduled maturity date of July 31, 2021, and the Revolving Loan has a scheduled maturity date of July 31, 2019. The interest rates on borrowings under the facilities are either the alternate base rate plus 3.75%, or LIBOR plus 4.75% per annum, with a 1.00% LIBOR floor (with step-downs in respect of borrowings under the Revolving Loan dependent upon the achievement of certain financial ratios). The obligations under the Credit Facility are secured by liens on substantially all of the assets of (a) AgroFresh Inc. and its direct wholly-owned domestic subsidiaries, and (b) AF Solutions Holdings, including the common stock of AgroFresh Inc.
On November 18, 2015, the Credit Facility was amended. An existing provision in the credit agreement permitted the Company, subject to an overall cap of $12.0 million per fiscal year and certain other conditions, to pay dividends to the Company’s public stockholders and to redeem or repurchase, through July 31, 2016, the Company’s outstanding warrants for an aggregate purchase price of up to $10.0 million. The amendment expanded the scope of this provision to also permit the repurchase of shares of the Company’s outstanding common stock or other equity securities (subject to the same overall cap and other conditions).
The net proceeds of the Term Loan were used to fund a portion of the purchase price payable to Rohm and Haas Company ("R&H"), a subsidiary of Dow, in connection with the Business Combination. Amounts available under the Revolving Loan may also be used for working capital, general corporate purposes, and other uses, all as more fully set forth in the Credit Facility.
Certain restrictive covenants are contained in the credit facility which the company was in compliance with as of September 30, 2018, other than certain covenants that would apply only to the extent the Company draws against the revolving loan and has an outstanding balance at quarter-end. There were no outstanding draws against the revolving loan as of September 30, 2018.
As of the Closing Date the Company incurred approximately $12.9 million in debt issuance costs related to the Term Loan and $1.3 million in costs related to the Revolving Loan. The debt issuance costs associated with the Term Loan were capitalized against the principal balance of the debt, and the Revolving Loan costs were capitalized in Other Assets. All issuance costs will be accreted through interest expense for the duration of each respective debt facility. The accretion in interest expense during the three and nine months ended September 30, 2018 was approximately $0.6 million and $1.8 million, respectively.
Off-Balance Sheet Arrangements
As of September 30, 2018, the Company did not have any off-balance sheet arrangements as defined in Item 303(a)(4)(ii) of Regulation S-K and did not have any commitments or contractual obligations other than as detailed below. The Company has not guaranteed any debt or commitments of other entities or entered into any options on non-financial assets.
Contingent Consideration
In connection with the Business Combination pursuant to the Purchase Agreement and subsequently modified by the Amendment Agreement, Dow is entitled to receive future contingent consideration and other payments from the Company in relation to a Tax Receivables Agreement under which the Company is required to pay annually to Dow 50% of the amount of the tax savings, if any, in U.S. Federal, state and local income tax or franchise tax that the Company actually realizes as a result of the increase in tax basis of the AgroFresh Inc. assets resulting from a section 338(h)(10) election that the Company and Dow made in connection with the Business Combination; See Note 3 to the unaudited condensed consolidated financial statements contained in this Report for further discussion of contingent consideration in connection with the Business Combination.
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ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Interest Rate Risk
Our exposure to interest rate risk for changes in interest rates relates primarily to our Term Loan and Revolving Loan. The Term Loan and Revolving Loan bear interest at floating rates. For variable rate debt, interest rate changes generally do not affect the fair market value of such debt, but do impact future earnings and cash flows, assuming other factors are held constant.
In December 2017 we entered into an interest rate swap agreement that qualified for and was designated as a cash flow hedge for approximately 60% of our current outstanding Term Loan covering the next 30 months. This agreement was settled in the third quarter of 2018 and we received cash of $4.0 million upon termination. Holding debt levels constant, a 100 basis point increase in the effective interest rates would have increased the Company’s interest expense by $1.6 million for the nine months ended September 30, 2018.
Foreign Currency Risk
A portion of the Company’s operations consists of manufacturing and sales activities in foreign jurisdictions. As a result, the Company’s financial results could be significantly affected by factors such as changes in foreign currency exchange rates or weak economic conditions in the foreign markets in which the Company distributes its products or services. The Company’s operating results are exposed to changes in exchange rates between the US dollar and various foreign currencies, including the impact in Argentina. As we expand internationally, our results of operations and cash flows will become increasingly subject to changes in foreign currency exchange rates.
We have not used forward contracts or currency borrowings to hedge our exposure to foreign currency risk. Foreign currency risk can be quantified by estimating the change in results of operations or financial position resulting from a hypothetical 10% adverse change in foreign exchange rates. We believe such a change would generally not have a material impact on our financial position, but could have a material impact on our results of operations. Holding other variables constant (such as interest rates and debt levels), if the U.S. dollar appreciated by 10% against the foreign currencies used by our operations in the first nine months of 2018, revenues would have decreased by approximately $5.9 million and EBITDA would have decreased by approximately $3.5 million for the nine months ended September 30, 2018.
ITEM 4. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
An evaluation was carried out under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, of the effectiveness of the design and operation of our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this report. Based on the evaluation of our disclosure controls and procedures, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures were effective to ensure that the information required to be disclosed by us in the reports that we file or submit under the Exchange Act was recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and that such information required to be disclosed is accumulated and communicated to management, including our Chief Executive Officer and Chief Financial Officer, to allow timely decisions regarding required disclosure.
Changes in Internal Controls
Effective January 1, 2018, we adopted the new revenue standard ASC 606. We have implemented new accounting processes related to revenue recognition and related disclosures, including related control activities.
Effective January 12, 2018, the Company completed the process of installing a new ERP system. This new standalone ERP system replaced the Dow hosted ERP. This effectively ends the transition services agreement whereby Dow provided IT support to the Company. The implementation of this new ERP system involves changes to the Company’s procedures for internal control over financial reporting. The Company followed a system implementation process that required significant pre-implementation planning, design, and testing. The Company has also conducted and will continue to conduct extensive post-implementation monitoring and process modifications to ensure that internal controls over financial reporting are properly designed. A deficiency discovered in this system with respect to foreign currency translations caused us to file our quarterly report on Form 10-Q for the quarter ended June 30, 2018 late by one day. The Company has implemented new processes for such translations in the third quarter of 2018.
There were no other changes in the Company's internal control over financial reporting that occurred during the Company's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Company's internal control over financial reporting.
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PART II- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
From time to time we are named as a defendant in legal actions arising from our normal business activities. Although we cannot predict with certainty the ultimate resolution of lawsuits, investigations and claims asserted against us, we do not believe any currently pending legal proceeding to which we are a party will have a material adverse effect on our business, prospects, financial condition, cash flows or results of operations.
ITEM 1A. RISK FACTORS
Ownership of our securities involves a high degree of risk. Holders of our securities should carefully consider, in addition to the historical financial statements and related notes and other information set forth in this Report, the risk factors discussed in Part I - Item 1A - Risk Factors included in our 2017 Form 10-K and the factors set forth below, all of which could materially affect our business or future results. Except with respect to the amended and restated risk factors set forth below, there have been no material changes to the risk factors disclosed in our 2017 Form 10-K. If any of the risks or uncertainties described in any of such risk factors actually occur, our business, financial condition and operating results could be adversely affected in a material way. This could cause the trading prices of our securities to decline, perhaps significantly, and you may lose part or all of your investment.
If we are unable to maintain effective internal control over financial reporting or effective disclosure controls, this could have a material adverse effect on our business and stock price.
As a publicly traded company, we are required to comply with the SEC’s rules implementing Section 302 and 404 of the Sarbanes-Oxley Act, which require management to certify financial and other information in our quarterly and annual reports and provide an annual management report on the effectiveness of controls over financial reporting. Pursuant to the JOBS Act, our independent registered public accounting firm will not be required to attest to the effectiveness of our internal control over financial reporting until the later of the year following our first annual report required to be filed with the SEC or the date we are no longer an emerging growth company, which may be up to five full fiscal years following our initial public offering.
In December 2015, we identified a material weakness in our internal control over financial reporting. Although that material weakness was subsequently remediated, our management may be unable to conclude in future periods that our disclosure controls and procedures are effective due to the effects of various factors, which may, in part, include unremediated material weakness in internal controls over financial reporting. In addition, a deficiency discovered in our recently implemented SAP accounting system with respect to foreign currency translations caused us to file our quarterly report on Form 10-Q for the quarter ended June 30, 2018 late by one day. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act means controls and other procedures of a company that are designed to ensure that information required to be disclosed in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure.
If we are unable to comply with the requirements of Section 404 in a timely manner or to assert that our internal control over financial reporting is effective, or if our independent registered public accounting firm is unable to express an opinion as to the effectiveness of our internal control over financial reporting once we no longer qualify as an emerging growth company, investors may lose confidence in the accuracy and completeness of our financial reports and the market price of our common stock could be negatively affected, and we could become subject to investigations by NASDAQ (the exchange on which our securities are listed), the SEC or other regulatory authorities, which could require additional financial and management resources.
Dow has significant influence over us, which could limit your ability to influence the outcome of key transactions, including a change of control.
As of November 5, 2018, Dow owned approximately 41% of our outstanding common stock. In addition, Dow currently owns 3,000,000 of our outstanding warrants. Because of the degree of concentration of voting power (and the potential for such power to increase upon the purchase of additional stock or the exercise of warrants), your ability to elect members of our board of directors and influence our business and affairs, including any determinations with respect to mergers or other business combinations, the acquisition or disposition of assets, the incurrence of indebtedness, the issuance of any additional common stock or other equity securities, the repurchase or redemption of common stock and the payment of dividends, may be diminished.
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We rely heavily on information technology, and any material failure, weakness, interruption or breach of security could prevent us from effectively operating our business.
Our operations rely heavily on information systems for management of our supply chain, payment of obligations, collection of cash, credit and debit card transactions and other processes and procedures. Our FreshCloud suite of product offerings rely particularly heavily on information systems for monitoring, data collection and analysis. Our operations depend upon our ability to protect our computer equipment and systems, which, in the case of FreshCloud, are not located within our physical control, against damage from physical theft, fire, power loss, telecommunications failure or other catastrophic events, as well as from internal and external security breaches, viruses and other disruptive problems. The failure of these systems to operate effectively, maintenance problems, upgrading or transitioning to new platforms, or a breach in security of these systems could result in delays in customer service and reduce efficiency in our operations. Remediation of such problems could result in significant, unplanned capital investments.
We use hazardous materials in our business and are subject to regulation and potential liability under environmental laws.
Our business is subject to a wide range of stringent laws and regulations that relate to the raw material supply chain, environmental compliance, disposal of hazardous waste, and the manufacture, development, production, marketing and use of our products. As with any chemical manufacturing enterprise, there are inherent hazards associated with the use of our products, chemical manufacturing, and the storage and transportation of raw materials and our products. Exposure to hazardous materials, accidents or noncompliance with laws and regulations by us, the users of our products or our contract manufacturers could disrupt our operations or expose us to significant losses or liabilities.
Our suppliers or contract manufacturers may use hazardous materials in connection with producing our products. We may also from time to time send wastes to third parties for disposal.
A failure to comply with the environmental, health and safety laws and regulations to which we are subject, including any permits issued thereunder, may result in environmental remediation costs, loss of permits, fines, penalties or other adverse governmental or private actions, including regulatory or judicial orders enjoining or curtailing operations or requiring corrective measures, installation of pollution control equipment or remedial measures. We could also be held liable for any and all consequences arising out of human exposure to hazardous materials or environmental damage. In the event of a lawsuit or investigation, we could be subject to claims for liability for any injury caused to persons or property by exposure to, or release of hazardous materials or wastes related to our products. We may also be subject to claims associated with failure to warn users of our products of risks associated with our products. Further, we may be required to indemnify our suppliers, contract manufacturers, or waste disposal contractors against damages and other liabilities arising out of the production, handling, or storage of our products or raw materials or the disposal of related wastes. Such indemnification obligations could have an adverse effect on our business, financial condition and results of operations.
Environmental laws and regulations are complex, change frequently, have tended to become more stringent and stringently enforced over time and may be subject to new interpretation. We cannot predict the adverse impact that new environmental regulations, or new interpretations of existing regulations, might have on the research, development, production, and marketing of our products.
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ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS
Not applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
ITEM 5. OTHER INFORMATION
None.
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ITEM 6. EXHIBITS
Exhibit No. | Description | |
(1) | Second Amended and Restated Certificate of Incorporation, filed with the Secretary of State of the State of Delaware on July 31, 2015. | |
(4) | Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation. | |
(1) | Series A Certificate of Designation. | |
(2) | Amended and Restated Bylaws. | |
(3) | Amendment to the Amended and Restated Bylaws of AgroFresh Solutions, Inc., effective as of September 3, 2015. | |
(5) | Amendment to the Amended and Restated Bylaws of AgroFresh Solutions, Inc., effective as of November 2, 2017. | |
(1) | Specimen Common Stock Certificate. | |
(1) | Specimen Warrant Certificate. | |
(6) | Offer Letter, dated August 20, 2018, between the Company and Graham Miao. | |
* | Certification of Chief Executive Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Exchange Act of 1934, as amended. | |
* | Certification of Chief Financial Officer pursuant to Rule 13a-14(a) and Rule 15d-14(a), promulgated under the Securities Act of 1934, as amended. | |
* | Certification of Chief Executive Officer and Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
101.INS | * | XBRL Instance Document |
101.SCH | * | XBRL Taxonomy Extension Schema Document |
101.CAL | * | XBRL Taxonomy Extension Calculation Linkbase Document |
101.DEF | * | XBRL Taxonomy Extension Definition Linkbase Document |
101.LAB | * | XBRL Taxonomy Extension Label Linkbase Document |
101.PRE | * | XBRL Taxonomy Extension Presentation Linkbase Document |
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* | Filed herewith. |
(1) | Incorporated by reference to an exhibit to the Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on August 6, 2015. |
(2) | Incorporated by reference to Annex A to the Company’s definitive proxy statement (File No. 001-36197) filed with the Securities and Exchange Commission on July 16, 2015. |
(3) | Incorporated by reference to an exhibit to the Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on September 10, 2015. |
(4) | Incorporated by reference to an exhibit to the Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on June 7, 2017. |
(5) | Incorporated by reference to an exhibit to the Quarterly Report on Form 10-Q of the Company filed with the Securities and Exchange Commission on November 9, 2017. |
(6) | Incorporated by reference to an exhibit to the Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on August 30, 2018. |
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SIGNATURES
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 thereunto duly authorized.
AgroFresh Solutions, Inc. | ||
Date: | November 7, 2018 | |
/s/ Jordi Ferre | ||
By: | Jordi Ferre | |
Title: | Chief Executive Officer | |
/s/ Graham Miao | ||
By: | Graham Miao | |
Title: | Chief Financial Officer | |
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