Item
1.01 Entry into a Material Definitive Agreement.
Merger
Agreement
On
March 16, 2022, Marrone Bio Innovations, Inc., a Delaware corporation (the “Company”), entered into an Agreement and Plan
of Merger (the “Merger Agreement”) with Bioceres Crop Solutions Corp., a Cayman Islands exempted company (“Parent”),
and BCS Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”). The Merger Agreement
provides that, upon the terms and subject to the conditions set forth therein, Merger Sub will merge with and into the Company (the “Merger”),
with the Company surviving the Merger as a wholly owned subsidiary of Parent (“NewCo”). Consummation of the Merger is subject
to the approval of the Company’s stockholders, the receipt of required regulatory approvals and satisfaction of other customary
closing conditions.
The
board of directors of the Company (the “Board”) has unanimously (i) determined that the Merger Agreement and the transactions
contemplated thereby, including the Merger, are advisable, (ii) determined that the Merger Agreement and the transactions contemplated
thereby, including the Merger, are fair to and in the best interests of the Company and its stockholders, (iii) approved the Merger Agreement
and the transactions contemplated thereby, including the Merger, and (iv) resolved to recommend adoption of the Merger Agreement by the
Company’s stockholders. The Merger Agreement was also unanimously approved by the board of directors of Parent.
On
the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the Merger (the “Effective
Time”), each share of common stock, par value $0.00001 per share, of the Company (the “Company Common Stock”) issued
and outstanding immediately prior to the Effective Time, other than shares of Company Common Stock owned by Parent, the Company or any
direct or indirect wholly owned subsidiary of Parent or the Company, in each case immediately prior to the Effective Time, shall be cancelled
and extinguished and automatically converted into the right to receive 0.088 (the “Exchange Ratio”) validly issued, fully
paid and nonassesable ordinary shares, par value $0.0001 per share, of Parent and, if applicable, cash in lieu of fractional Parent ordinary
shares (the “Merger Consideration”).
The
Merger Agreement also specifies the treatment of the Company’s outstanding equity awards in connection with the Merger, which shall
be treated as follows at the Effective Time:
(i)
each outstanding restricted stock unit award relating to shares of Company Common Stock (a “Company RSU”) (that is not a
Company RSU that provides for settlement and issuance of shares of Company Common Stock in connection with a change in control of the
Company (a “Change in Control Settled RSU”)) that is unvested immediately prior to the Effective Time and does not vest as
a result of the consummation of the transactions contemplated by the Merger Agreement shall be assumed by Parent (each, an “Assumed
RSU”), with each such Assumed RSU being subject to substantially the same terms and conditions, except that the number of Parent
ordinary shares subject to each Assumed RSU Award shall be equal to the product of (x) the number of shares of Company Common Stock underlying
such unvested Company RSU as of immediately prior to the Effective Time (with any performance milestones deemed achieved based on maximum
level of performance) multiplied by (y) the Exchange Ratio;
(ii)
each outstanding Company RSU that is vested immediately prior to the Effective Time (taking into account any acceleration of vesting
as a result of the consummation of the transactions contemplated by the Merger Agreement), each Change in Control Settled RSU (whether
or not vested) and each unvested Company RSU held by a non-employee director of the Company will be settled immediately before the Effective
Time by way of the issuance of one share of Company Common Stock for each such Company RSU and such shares of Company Common Stock will
be converted into the right to receive the Merger Consideration;
(iii)
each outstanding option to purchase Company Common Stock (a “Company Option”) that is unvested as of immediately prior to
the Effective Time (and does not vest as a result of the consummation of the transactions contemplated by the Merger Agreement) and each
Company Option that is outstanding and vested as of immediately prior to the Effective Time (or vests as a result of the consummation
of the transactions contemplated by the Merger Agreement) for which the exercise price per share is equal to or greater than the Cash
Equivalent Consideration (as defined in the Merger Agreement) (a “Rolled Vested Option), shall be assumed by Parent (each, an “Assumed
Option), with each such Assumed Option being subject to substantially the same terms and conditions, except that (A) the number of Parent
ordinary shares subject to each Assumed Option shall be equal to the product of (x) the number of shares of Company Common Stock underlying
such Company Option as of immediately prior to the Effective Time multiplied by (y) the Exchange Ratio, and (B) the per share exercise
price of each Assumed Option shall be equal to the quotient determined by dividing (x) the exercise price per share at which such Company
Option was exercisable immediately prior to the Effective Time by (y) the Exchange Ratio;
(iv)
each Company Option, other than a Rolled Vested Option, that is outstanding and vested as of immediately prior to the Effective Time
(or vests as a result of the consummation of the transactions contemplated by the Merger Agreement) shall by cancelled and converted
into the right to receive the Merger Consideration in respect of each “net” share underlying such Company Option, which is
the quotient obtained by dividing (A) the product of (x) the excess of the Cash Equivalent Consideration (as defined in the Merger Agreement)
over the per share exercise price of such Company Option multiplied by (y) the number of shares subject to such Company Option by (B)
the Cash Equivalent Consideration (as defined in the Merger Agreement); and
(v)
with respect to the employee stock purchase plan (“ESPP”), the Company shall make any pro rata adjustments necessary to reflect
a shortened offer period under the ESPP and treat any shortened offer period as a fully effective and completed offer period for all
purposes pursuant to the ESPP, cause the exercise, no later than one business day, prior to the date on which the Effective Time occurs,
of each outstanding purchase right pursuant to the ESPP, and then terminate the ESPP.
The
Merger Agreement contains representations and warranties of the Company and Parent relating to their respective businesses and public
filings, in each case generally subject to a materiality qualifier. Additionally, the Merger Agreement provides for pre-closing covenants
of the Company, including (i) covenants relating to conducting its business in the ordinary course consistent with past practice and
refraining from taking certain types of actions without Parent’s consent, (ii) covenants relating to removing certain inventory
from certain jurisdictions and (iii) certain restrictions on the Company’s ability to solicit alternative acquisition proposals
from third parties, and/or to provide information to third parties and to engage in discussions with third parties, in each case, in
connection with alternative acquisition proposals, subject to certain exceptions (the “No-Shop”).
The
consummation of the Merger is subject to certain closing conditions, including (i) the approval of the Company’s stockholders (the
“Company Stockholder Approval”), (ii) the expiration or termination of all waiting periods under the Hart-Scott Rodino Antitrust
Improvements Act of 1976 and receipt of any other specified merger control consents or clearances, (ii) the effectiveness of the registration
statement to be filed by Parent with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to the Merger Agreement,
(iii) the approval for listing on Nasdaq of Parent’s ordinary shares to be issued as Merger Consideration in connection with the
Merger, subject to official notice of issuance, (iv) the absence of any judgment or law issued by any governmental entity enjoining or
otherwise prohibiting the consummation of the Merger, and (vii) other customary conditions specified in the Merger Agreement.
Pursuant
to the terms of the Merger Agreement, each of the Company and Parent is required to use reasonable best efforts to consummate the Merger,
including with respect to satisfaction of the relevant closing conditions.
Prior
to obtaining the Company Stockholder Approval, the Board may, in certain limited circumstances, withdraw or modify its recommendation
that the Company’s stockholders adopt the Merger Agreement or recommend or otherwise declare advisable any Superior Proposal (as
defined in the Merger Agreement) (a “Company Recommendation Change”), subject to complying with notice and other specified
conditions, including giving Parent the opportunity to propose revisions to the terms of the transaction contemplated by the Merger Agreement
during a matching right period. Notwithstanding a Company Recommendation Change, unless Parent terminates the Merger Agreement, the Company
is still required to convene the meeting of its stockholders.
The
Merger Agreement also provides for certain termination rights of Parent and the Company, including the right of either party to terminate
the Merger Agreement if the Merger is not consummated by the date that is eight (8) months following the date of the Merger Agreement.
Either party may also terminate the Merger Agreement if the Company Stockholder Approval has not been obtained at a duly convened meeting
of the Company’s stockholders or a judgment enjoining or otherwise prohibiting consummation of the Merger becomes final and non-appealable.
In
addition, Parent may terminate the Merger Agreement if the Board effects a Company Recommendation Change, fails to include its recommendation
to vote in favor of the Merger in the proxy statement/prospectus to be filed with the SEC in connection with the transaction or willfully
breaches the provisions of the No-Shop in any material respect prior to the Company Stockholder Approval having been obtained. If the
Merger Agreement is terminated by Parent in connection with such actions, then the Company shall be obligated to pay Parent a fee equal
to $9,700,000.
Prior
to the Effective Time, Parent is required to take all necessary corporate action so that upon and after the Effective Time, (x) if the
size of the board of directors of Parent is 8 or less members, then 2 members thereof shall have been designated by the Board and (y)
if the size of the board of directors of Parent is more than 8 members, then 3 members thereof shall have been designated by the Board.
In no event will the total number of directors that comprise the board of directors of Parent as of the Effective Time exceed 11 members.
The
foregoing summary of the Merger Agreement is not complete and is qualified in its entirety by the full text of the Merger Agreement,
which is attached hereto as Exhibit 2.1 and is incorporated by reference herein.
The
Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other
factual information about the Company, Parent or their respective subsidiaries or affiliates. The representations, warranties and covenants
contained in the Merger Agreement were made only for purposes of the Merger Agreement and as of specific dates, were solely for the benefit
of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified
by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead
of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ
from those applicable to investors. Accordingly, the representations, warranties and covenants, and any descriptions thereof, may not
be accurate characterizations of the actual state of facts or condition of the parties to the Merger Agreement or any of their respective
subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the
date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s or Parent’s
public disclosures.
Support
Agreement
On
March 16, 2022, concurrently with the execution of the Merger Agreement and as a condition to Parent’s entry into the Merger Agreement,
Parent entered into a Transaction Support Agreement (the “Support Agreement”), with certain of the Company’s stockholders
(the “Supporting Stockholders”) who, collectively and in the aggregate, hold voting power over approximately 48.9% of the
outstanding Company Common Stock (the “Subject Shares”). Pursuant to the terms of the Support Agreement, the Supporting Stockholders
have agreed to take certain actions to support the transactions contemplated by the Merger Agreement, including not transferring the
Subject Shares during the term of the Support Agreement and voting the Subject Shares in favor of the Merger Agreement and transaction
contemplated thereby and against any alternative acquisition proposals.
Notwithstanding
the voting obligations in the Support Agreement, (x) if the Board effects a Company Recommendation Change that is not in response to
a Superior Proposal, the Supporting Stockholders in the aggregate will only have an obligation under the Support Agreement to vote a
number of Subject Securities representing 25% of the outstanding Company Common Stock and (y) if the Board effects a Company Recommendation
Change in response to a Superior Proposal, then the Supporting Stockholders will have no obligations in respect of how to vote their
respective Subject Securities.
The
Support Agreement will terminate automatically as of the earliest of (i) the Effective Time, (ii) the termination of the Merger Agreement
in accordance with its terms, (iii) with respect to any Supporting Stockholder, the mutual agreement of Parent and such Supporting Stockholder,
and (iv) with respect to any Supporting Stockholder, such time as any modification or amendment to the Merger Agreement is effected without
such Supporting Stockholder’s consent that materially and adversely affects such Supporting Stockholder.
The
foregoing summary of the Support Agreement is not complete and is qualified in its entirety by the full text of the Support Agreement,
which is attached hereto as Exhibit 99.1 and is incorporated by reference herein.