Exhibit
10.1
CERTAIN
IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS BOTH (I) NOT MATERIAL AND (II) WOULD BE COMPETITIVELY
HARMFUL IF PUBLICLY DISCLOSED. SUCH PORTIONS ARE MARKED AS INDICATED WITH BRACKETS (“[***]”) BELOW
July
3, 2020
Kevin
Helash
5840
Valle Vista Court
Granite
Bay
California
95746
Dear
Kevin,
I
am pleased to offer you the full-time position of Chief Executive Officer, with Marrone Bio Innovations, Inc. (the “Company”
or “MBI”), reporting to the Board of Directors. Your actual start date will be determined upon successfully passing
your drug test and background check. We anticipate your start date to be as soon as reasonably possible. However, Human Resources
will notify you as to when you can officially start your employment with Marrone Bio Innovations.
You
will receive a base salary of $ 385,000.00 on an annualized basis. Your per payroll rate, prior to withholding, is $14,807.70,
which is based on twenty-six (26) payrolls per calendar year. Direct deposit of paychecks to your bank account is available.
MBI
will provide you with a company cell phone and laptop computer.
Subject
to the approval of our Board of Directors and Compensation Committee of the Board, you will be granted an option to purchase 2,450,000
shares of the Company’s common stock (the “Option”). The price per share of any approved Option will be the
closing price of our common stock as of the grant date, which is anticipated to be your first day of employment (the “Vesting
Commencement Date”). Your entitlement to any Option that may be approved and granted to you is, of course, conditioned upon
your signing of an Award Agreement and will be subject to its terms and the terms of our 2013 Stock Incentive Plan (as amended,
the “Plan”). The Option will be structured as follows:
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Time-Based
Tranche. Two hundred twenty-five thousand (225,000) shares of the Option will be subject to time-based vesting over a period
of four (4) years as measured from the Vesting Commencement Date (the “Time-Based Tranche”). Twenty-five percent
(25%) of the Time-Based Tranche (i.e., 56,250 shares) will vest on the first anniversary of the Vesting Commencement Date,
provided you remain employed with us on that date. Thereafter, the remaining seventy-five percent (75%) of the
shares under the Time-Based Tranche (i.e., 168,750 shares) vest over the next following 3 years on a pro-rata basis equally
each month (i.e., 4,687.50 shares per month, for thirty-six months), with monthly vesting to occur on the last day of each
calendar month, provided you remain employed with us as of the last day of that calendar month.
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Enhanced
Time-Based Tranche. Two hundred and twenty five thousand (225,000) shares of the Option will be subject to time-based vesting
over a period of four (4) years as measured from the Vesting Commencement Date subject to acceleration if certain performance
milestones are achieved on or before December 31, 2020 (the “Enhanced Time-Based Tranche”). Generally,
the shares under the Enhanced Time-Based Tranche will vest over the four (4) year period starting from the Vesting Commencement
Date, on a pro-rata basis equally each month (i.e. 4,687.50 shares per month, for forty-eight months), with monthly vesting
to occur on the last day of each calendar month, provided you remain employed with us as of the last day of that calendar
month. Notwithstanding the foregoing, vesting on any unvested portion of the Enhanced Time-Based Tranche will accelerate
on the date on which the Company files its Annual Report on Form 10-K if all three of the following milestones are satisfied:
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Milestone
One: the Company reports 2020 gross revenues of at least $[***] million;
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Milestone
Two: the Company reports gross margins for 2020 of at least [***]%;
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Milestone
Three: the Company reports operating expenses for 2020 of no more than $[***] million.
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Performance
Tranche. Two million (2,000,000) shares of the Option will also subject to performance-based vesting, but only if the performance
criteria are satisfied by a specific performance deadline (the “Performance Tranche”). Vesting of the
Performance Tranche is contingent on the closing price for the Company’s stock, as quoted on Nasdaq, equaling or exceeding
$[***] per share for 30 consecutive trading days, by that date which is 30 days following the reporting of financial results
for the 2nd Quarter of 2022 (the “Performance Deadline”). If the performance criteria are satisfied
on or before the Performance Deadline, the Performance Tranche will vest on the date that the performance criteria are satisfied,
provided you remain employed with us on that date. If you terminate employment prior to the date on which the performance
criteria are satisfied or the performance criteria are not satisfied on or before the Performance Deadline, then all of the
shares under the Performance Tranche will permanently and irrevocably forfeit at the earlier of the Performance Deadline or
your termination date.
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Any
portion of the Option shares that are not forfeited as of the Performance Deadline (i.e., the Time-Based Tranche and, if not
yet vested, the Enhanced Time-Based Tranche) shall continue to vest for so long as you provide “Continuous Service”
to the Company or a “Related Entity” as those terms are defined in the Plan.
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You
will be eligible to participate in the Company’s discretionary bonus plan, which changes from year to year, must be approved
by the Board of Directors, is based on Company and individual goals, and may be paid out, if at all, in either cash or equity
as determined by the Board of directors. Your portion of the 2020 bonus program, for any bonus earned, will be paid on a pro-rata
basis for the portion of the year worked for the Company. The determination of the Company’s Board of Directors with respect
to the amount of bonus earned, if any, will be final and binding. Your target bonus, assuming achievement of 100% of all Company
and individual goals, will be 45% of your salary, unless adjusted by the Board of Directors for any year.
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1540 Drew Avenue · Davis, CA 95618 · Phone: 530-750-2800
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You
will be eligible for the Company’s benefits programs on the first day of the first full month of your employment. The benefits
currently offered are as follows:
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Medical
(PPO Plan), Dental and Vision Insurance for you. The Company will pay for 50% of your dependent premium for medical and dental
insurance and you may pay the remaining 50% on a pre-tax basis under the Company’s medical plan.
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Cafeteria
Plan (Section 125 Plan) which gives you the ability to set aside a portion of your paycheck on a pre-tax basis for dependent
premiums as well as set up a flexible spending account for dependent care and unreimbursed medical expenses.
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Long-term
Disability Insurance for you, and 1x your annual salary in Life Insurance.
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Voluntary
Supplemental Term Life Insurance and AD&D.
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You
will be eligible to participate in the 401(k) Plan. Subject to terms of the Plan, you will receive a Company match of $1 for $1
for the first 3% of your salary you contribute and $0.50 for the next 2% of your salary (i.e. the maximum match is 4% if you contribute
5% of your salary).
You
may participate in the Employee Stock Purchase Plan (ESPP) beginning on the next ESPP enrollment date following your date of hire.
You
will accrue 7.69 hours of vacation per pay period, which is equivalent to 200 hours on an annual basis.
All
the benefit programs and plans are offered solely at the discretion of the Company and may be modified at any time. In addition
to a timely response, this offer is contingent upon the successful completion and evaluation of (1) reference checks, (2)
a background check, which may include criminal and education credential checks, and (3) a pre-employment drug test within 24 hours
of notification by the Company as a condition of employment. For purposes of federal immigration laws, you are required to provide
to the Company documentary evidence of your identity and eligibility to work in the United States. Such documentation must be
provided to us within three (3) business days of your date of hire or our contingent employment relationship with you will be
terminated. You will also be required, as a condition of employment, to sign the Company’s standard Employee Confidential
Information and Assignment of Inventions Agreement.
Your
employment with the Company is for no specified period and constitutes at-will employment. As a result, you are free to resign
at any time, for any reason or for no reason. We prefer that if you resign you would provide a four-week notice. Similarly, the
Company is free to conclude its employment relationship with you at any time, with or without cause. However, in the event that
your employment is actually or constructively terminated by the Company without cause (whether or not occurring in connection
with a change of control of the Company) the Company will continue to pay salary as well as Life, Medical, Dental and Disability
coverage for a period of twelve (12) months post termination.
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1540 Drew Avenue · Davis, CA 95618 · Phone: 530-750-2800
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To
indicate your acceptance of the Company's offer, please sign and date this letter in the space provided below and return it to
Human Resources. This letter sets forth the terms of your employment with the Company and supersedes any prior representations
or agreements, whether written or oral. This letter may not be modified or amended except by a written agreement signed by the
Company and by you.
Please
respond no later than July 6, 2020. If we do not receive your acceptance by that time, we will assume you are not interested,
and this offer will be automatically withdrawn without further action as we will need to proceed with other candidates we have
for this position.
I
look forward to continuing to build MBI together with you.
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Sincerely,
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/s/
Linda V. Moore
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Linda
V. Moore
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EVP
& General Counsel
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I,
Kevin Helash, accept the terms of this agreement.
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Signature:
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/s/
Kevin Helash
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Date
Signed:
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July
3, 2020
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1540 Drew Avenue · Davis, CA 95618 · Phone: 530-750-2800
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Exhibit
10.2
CHANGE
IN CONTROL AGREEMENT
This
Change in Control Agreement (the “Agreement”) is made and entered into by and between Kevin Helash (“Executive”)
and Marrone Bio Innovations, Inc., a Delaware corporation (the “Company”), effective as of Executive’s first
date of employment by the Company (the “Effective Date”).
RECITALS
1.
It is expected that the Company from time to time will consider the possibility of an acquisition by another company or other
change in control. The Board of Directors of the Company (the “Board”) recognizes that such consideration can be a
distraction to Executive and can cause Executive to consider alternative employment opportunities. The Board has determined that
it is in the best interests of the Company and its stockholders to assure that the Company will have the continued dedication
and objectivity of Executive, notwithstanding the possibility, threat or occurrence of a Change in Control (as defined herein)
of the Company.
2.
The Board believes that it is in the best interests of the Company and its stockholders to provide Executive with an incentive
to continue his or her employment and to motivate Executive to maximize the value of the Company upon a Change in Control for
the benefit of its stockholders.
3.
The Board believes that it is imperative to provide Executive with certain severance benefits upon Executive’s termination
of employment following a Change in Control. The severance benefits will provide Executive with enhanced financial security and
incentive and encouragement to remain with the Company notwithstanding the possibility of a Change in Control.
4.
Certain capitalized terms used in the Agreement are defined on Exhibit A hereto.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto agree as follows:
1.
At-Will Employment. The Company and Executive acknowledge that Executive’s employment is and will continue to be
at-will, as defined under applicable law.
2.
Severance Benefits.
(a)
Involuntary Termination In Connection with a Change in Control. If (i) Executive terminates his or her employment with
the Company (or any parent, subsidiary or successor of the Company) for Good Reason (as defined herein) or (ii) the Company (or
any parent, subsidiary or successor of the Company) terminates Executive’s employment without Cause (as defined herein),
and either such termination is In Connection with a Change in Control, Executive will receive the following severance benefits
from the Company, provided that Executive signs and does not revoke the release as required by Section 3(a) and complies with
the covenants set forth in Sections 3(b)-(d):
(i)
Severance Payment. Executive will receive a single lump sum severance payment (less applicable withholding taxes) in an
amount equal to twelve (12) months of Executive’s annual salary, determined at a rate equal to the greater of (A) Executive’s
annual salary as in effect immediately prior to the Change in Control, or (B) Executive’s then current annual salary as
of the date of such termination.
(ii)
Equity Awards. One hundred percent (100%) of Executive’s then outstanding and unvested Equity Awards as of the date
of Executive’s termination of employment will become vested, all restrictions and repurchase rights will lapse, all performance
goals or other vesting criteria will be deemed achieved at target levels and all other terms and conditions met. The Equity Awards
will otherwise remain subject to the terms and conditions of the applicable Equity Award agreement
(iii)
Bonus Payment. Executive will receive a single lump sum cash payment (less applicable withholding taxes) in an amount equal
to 20% of the Executive’s then-current base salary, prorated based on the percentage of the current year completed prior
to Executive’s termination.
(iv)
Benefits. If the Executive, and any spouse and/or dependents of the Executive (“Family Members”), has coverage
on the date of his or her termination under a group health plan sponsored by the Company, the Company agrees to pay for health
continuation coverage premiums for Executive and his or her Family Members at the same level of health coverage as in effect on
the day immediately preceding the date of termination; provided, however, that (1) Executive constitutes a qualified beneficiary,
as defined in Section 4980(B)(g)(1) of the Code; and (2) Executive elects continuation coverage pursuant to the COBRA, within
the time period prescribed pursuant to COBRA. The Company will pay such COBRA premiums to provide for continuation benefits on
behalf of the Executive and his or her Family Members for twelve (12) months following the date of his or her termination. Executive
will thereafter be responsible for the payment of COBRA premiums (including, without limitation, all administrative expenses)
for any remaining COBRA period. Notwithstanding the foregoing, in the event that the Company determines, in its sole discretion,
that the Company may be subject to a tax or penalty pursuant to Section 4980D of the Code as a result of providing some or all
of the payments described in this Section 2(a)(iv), the Company may reduce or eliminate its obligations under this Section 2(a)(iv)
to the extent it deems necessary, with no offset or other consideration required.
(b)
Timing of Severance Payments. Subject to Section 8 of this Agreement, the Company will pay or, as applicable, commence
payment of the cash severance payments to which Executive is entitled under this Agreement in accordance with Section 3 of this
Agreement.
(c)
Voluntary Resignation; Termination For Cause. If, at any time prior to or after a Change in Control, Executive’s
employment with the Company terminates (i) voluntarily by Executive (other than for Good Reason) or (ii) for Cause by the Company,
then Executive will not be entitled to receive severance or other benefits except for those (if any) as may then be established
under the Company’s then existing severance and benefits plans and practices or pursuant to other written agreements with
the Company, including, without limitation, any Equity Award agreement.
(d)
Disability; Death. If, at any time prior to or after a Change in Control, the Company terminates Executive’s employment
as a result of Executive’s Disability, or Executive’s employment terminates due to his or her death, then Executive
will not be entitled to receive severance or other benefits except for those (if any) as may then be established under the Company’s
then existing written severance and benefits plans and practices or pursuant to other written agreements with the Company, including,
without limitation, any Equity Award agreement.
(e)
Exclusive Remedy; Effect of Other Agreements.
(i)
The provisions of this Agreement supersede and the provisions of the Original Offer Letter as to any matters expressly covered
by this Agreement. The provisions of the Original Offer Letter shall continue to apply as to any matters not expressly covered
by this Agreement.
(ii)
Except as provided in subsection (e)(i) above, (A) the provisions of this Section 2 are intended to be and are exclusive and in
lieu of any other rights or remedies to which Executive or the Company may otherwise be entitled, whether at law, tort or contract,
in equity, or under this Agreement and (B) Executive will be entitled to no benefits, compensation or other payments or rights
upon termination of employment, other than those benefits expressly set forth in this Section 2 or as may be provided in any Equity
Award.
(iii)
The Executive acknowledges and agrees that, except as expressly in this Section 2, the Executive does not have, is not eligible
for, entitled to, and shall not receive (i) any other compensation or benefits except to the extent provided by the Board, (ii)
any further stock options or other equity grants or awards or (iii) any further rights, title or interest in or to (A) the Company
or any Subsidiary or (B) any of their respective businesses, properties or assets.
3.
Conditions to Receipt of Severance; Additional Obligations.
(a)
Release. The receipt of any severance or other benefits pursuant to Section 2 will be subject to Executive signing and
not revoking a release of claims agreement in a form reasonably acceptable to the Company, and such release becoming effective
and irrevocable within sixty (60) days of Executive’s termination or such earlier deadline required by the release (such
deadline, the “Release Deadline”). No severance or other benefits will be paid or provided until the release of claims
agreement becomes effective and irrevocable, and any severance amounts or benefits otherwise payable between the date of Executive’s
termination and the date such release becomes effective shall be paid on the effective date of such release. Notwithstanding the
foregoing, and subject to the release becoming effective and irrevocable by the Release Deadline, any severance payments or benefits
under this Agreement that would be considered Deferred Compensation Separation Benefits (as defined in Section 8(a)) shall be
paid on the sixtieth (60th) day following Executive’s “separation from service” within the meaning of Section
409A of the Code, or, if later, such time as required by Section 8(a). If the release does not become effective by the Release
Deadline, Executive will forfeit all rights to severance payments and benefits under this Agreement.
(b)
Non-Solicitation. Executive agrees that, while Executive is employed by the Company and for one (1) year thereafter, Executive
shall not, in any capacity, whether for his or her own account or on behalf of any other person or organization, directly or indirectly,
with or without compensation, (a) solicit, divert or encourage any officers, directors, employees, agents, consultants or representatives
of the Company (including any subsidiary), to terminate his, her or its relationship with the Company (including any subsidiary),
(b) hire any such officer, director, employee, consultant or representative so solicited, diverted or encouraged, (c) solicit,
divert or encourage any officers, directors, employees, agents, consultants or representatives of the Company (including any subsidiary)
to become officers, directors, employees, agents, consultants or representatives of another business, enterprise or entity, or
(d) hire any employee of the Company (including any subsidiary) who has left the employment of the Company (including any subsidiary)
(other than as a result of the termination of such employee’s employment by the Company (including any subsidiary)) within
9 months of termination of such employee’s employment; provided, that solicitations incidental to general advertising or
other general solicitations in the ordinary course not specifically targeted at such persons and employment of any person not
otherwise solicited in violation hereof shall not be considered a violation of this Section 3(b). In addition, the Executive shall
not be in violation of this Section 3(b) solely by providing a reference for a former employee of the Company.
(c)
Non-Disparagement.
(i)
Executive agrees that, while Executive is employed by the Company and for two (2) years thereafter, Executive shall not, directly
or indirectly, (A) make any statement, whether in commercial or non-commercial speech, disparaging or criticizing in any way the
Company or any of its subsidiaries or affiliates, or any products or services offered by any of these entities, or (B) engage
in any other conduct or make any other statement that, in each case, should reasonably be expected to impair the goodwill or reputation
of the Company; provided, however, that nothing herein or elsewhere shall prevent Executive from making truthful disclosures or
statements (x) reasonably necessary in connection with any litigation, arbitration or mediation or (y) as required by law or by
any court, arbitrator, governmental body or other person with apparent authority to require such disclosures or statements.
(ii)
While Executive is employed by the Company and for two (2) years thereafter, no executive officer of the Company with the title
of Senior Vice President and above shall, directly or indirectly, individually or in concert with others, engage in any conduct
or make any statement, calculated or likely to have the effect of undermining, disparaging or otherwise reflecting poorly upon
Executive; provided, however, that nothing herein or elsewhere shall prevent such individual from making truthful disclosures
or statements (x) reasonably necessary in connection with any litigation, arbitration or mediation or (y) as required by law or
by any court, arbitrator, governmental body or other person with apparent authority to require such disclosures or statements.
(d)
Confidentiality Agreement. The Executive acknowledges and agrees that his obligations under the Confidentiality Agreement
shall continue in full force and effect, including after the Termination Date. Executive’s receipt of any payments or benefits
under Section 2 will be subject to (i) Executive continuing to comply with the terms of any form of confidential information agreement
(d) (ii) on Termination Date, the Executive shall have surrendered to the Company (or, in accordance with the Termination Certificate,
shall have deleted or destroyed) the personal property of the Company in Executive’s possession or control.
(e)
No Duty to Mitigate. Executive will not be required to mitigate the amount of any payment contemplated by this Agreement,
nor will any earnings that Executive may receive from any other source reduce any such payment.
4.
Limitation on Payments. In the event that the severance and other benefits provided for in this Agreement or otherwise
payable to Executive (i) constitute “parachute payments” within the meaning of Section 280G of the Code and (ii) but
for this Section 4, would be subject to the excise tax imposed by Section 4999 of the Code, then Executive’s severance benefits
under Section 2 will be either:
(a)
delivered in full, or
(b)
delivered as to such lesser extent which would result in no portion of such severance benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts, taking into account the applicable federal, state and local income
taxes and the excise tax imposed by Section 4999, results in the receipt by Executive on an after-tax basis, of the greatest amount
of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of
the Code. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 4 will be
made in writing by the Company’s independent public accountants immediately prior to a Change in Control or a “Big
Four” national accounting firm selected by the Company (the “Accountants”), whose determination will be conclusive
and binding upon Executive and the Company for all purposes in the absence of manifest error. The Accountants shall provide Executive
with a written report of its determinations hereunder, including reasonably detailed supporting calculations.. For purposes of
making the calculations required by this Section 4, the Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of
the Code. The Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably
request in order to make a determination under this Section. The Company will bear all costs the Accountants may reasonably incur
in connection with any calculations contemplated by this Section 4. Any reduction in payments and/or benefits required by this
Section 4 shall occur in a manner necessary to provide Executive with the greatest economic benefit. If more than one manner of
reduction of payments or benefits yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. In
no event will Executive exercise any discretion with respect to the ordering of any reduction of payments or benefits pursuant
to this Section 4.
5.
Successors.
(a)
Company Successors. Any successor to the Company (whether direct or indirect and whether by purchase, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company’s business and/or assets will assume the obligations
under this Agreement and agree expressly to perform the obligations under this Agreement in the same manner and to the same extent
as the Company would be required to perform such obligations in the absence of a succession. For all purposes under this Agreement,
the term “Company” will include any successor to the Company’s business and/or assets which executes and delivers
the assumption agreement described in this Section 5(a) or which becomes bound by the terms of this Agreement by operation of
law.
(b)
Executive’s Successors. The terms of this Agreement and all rights of Executive hereunder will inure to the benefit
of, and be enforceable by, Executive’s personal or legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
6.
Notice.
(a)
General. Notices and all other communications contemplated by this Agreement will be in writing and will be deemed to have
been duly given when personally delivered or when mailed by U.S. registered or certified mail, return receipt requested and postage
prepaid. In the case of Executive, mailed notices will be addressed to him or her at the home address which he or she most recently
communicated to the Company in writing. In the case of the Company, mailed notices will be addressed to its corporate headquarters,
and all notices will be directed to the attention of the Company’s General Counsel.
(b)
Notice of Termination. Any termination by the Company for Cause or by Executive for Good Reason or as a result of a voluntary
resignation will be communicated by a notice of termination to the other party hereto given in accordance with Section 6
6 (a) of this Agreement. Such notice will indicate the specific termination provision in this Agreement relied
upon, will set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination under the provision
so indicated, and will specify the termination date. The failure by Executive to include in the notice any fact or circumstance
which contributes to a showing of Good Reason will not waive any right of Executive hereunder or preclude Executive from asserting
such fact or circumstance in enforcing his or her rights hereunder.
7.
Arbitration. The Company and Executive each agree that any and all disputes arising out of the terms of this Agreement,
Executive’s employment by the Company, Executive’s service as an officer or director of the Company, or Executive’s
compensation and benefits, their interpretation and any of the matters herein released, will be subject to binding arbitration.
In the event of a dispute, the parties (or their legal representatives) will promptly confer to select a single arbitrator mutually
acceptable to both parties. If the parties cannot agree on an arbitrator, then the moving party may file a demand for arbitration
with the Judicial Arbitration and Mediation Services (“JAMS”) in San Francisco County, California, who will be selected
and appointed consistent with the Employment Arbitration Rules and Procedures of JAMS (the “JAMS Rules”), except that
such arbitrator must have the qualifications set forth in this paragraph. Any arbitration will be conducted in a manner consistent
with the JAMS Rules, supplemented by the California Rules of Civil Procedure. The parties further agree that the prevailing party
in any arbitration will be entitled to injunctive relief in any court of competent jurisdiction to enforce the arbitration award.
The parties hereby agree to waive their right to have any dispute between them resolved in a court of law by a judge or jury.
This paragraph will not prevent either party from seeking injunctive relief (or any other provisional remedy) from any court having
jurisdiction over the parties and the subject matter of their dispute relating to Executive’s obligations under this Agreement
and the Company’s form of confidential information agreement. The Company agrees to pay all expenses of arbitration, including
JAMS administrative fees and artibtrator fees up to a cap of $10,000.
8.
Code Section 409A.
(a)
Each payment and benefit payable under this Agreement is intended to constitute a separate payment for purposes of Section 1.409A-2(b)(2)
of the Treasury Regulations. Notwithstanding anything to the contrary in this Agreement, no Deferred Compensation Separation Benefits
(as defined below) or other severance benefits that otherwise are exempt from Section 409A (as defined below) pursuant to Treasury
Regulation Section 1.409A-1(b)(9) will be considered due or payable until Executive has a “separation from service”
within the meaning of Section 409A of the Code, and the final regulations and any guidance promulgated thereunder (“Section
409A”). Further, if Executive is a “specified employee” within the meaning of Section 409A at the time of his
or her separation from service (other than due to Executive’s death), then the severance benefits payable to Executive under
this Agreement that are considered deferred compensation under Section 409A, if any, and any other severance payments or separation
benefits that are considered deferred compensation under Section 409A, if any (together, the “Deferred Compensation Separation
Benefits”) otherwise due to Executive on or within the six (6) month period following his or her separation from service
will accrue during such six (6) month period and will become payable in a lump sum payment (less applicable withholding taxes)
on the first payroll date that occurs on or after the date six (6) months and one (1) day following the date of Executive’s
separation from service. All subsequent payments of Deferred Compensation Separation Benefits, if any, will be payable in accordance
with the payment schedule applicable to each payment or benefit. If Executive dies following his or her separation from service
but prior to the six (6) month anniversary of his or her date of separation, then any payments delayed in accordance with this
paragraph will be payable in a lump sum (less applicable withholding taxes) to Executive’s estate as soon as administratively
practicable after the date of his or her death and all other Deferred Compensation Separation Benefits will be payable in accordance
with the payment schedule applicable to each payment or benefit.
(b)
The foregoing provisions are intended to comply with the requirements of Section 409A so that none of the severance payments and
benefits to be provided hereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities herein
will be interpreted to so comply. The Company and Executive agree to work together in good faith to consider amendments to this
Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional
tax or income recognition prior to actual payment to Executive under Section 409A.
9.
Miscellaneous Provisions.
(a)
Waiver. No provision of this Agreement will be modified, waived or discharged unless the modification, waiver or discharge
is agreed to in writing and signed by Executive and by an authorized officer of the Company (other than Executive). No waiver
by either party of any breach of, or of compliance with, any condition or provision of this Agreement by the other party will
be considered a waiver of any other condition or provision or of the same condition or provision at another time.
(b)
Headings. All captions and section headings used in this Agreement are for convenient reference only and do not form a
part of this Agreement.
(c)
Choice of Law. The validity, interpretation, construction and performance of this Agreement will be governed by the laws
of the State of California (with the exception of its conflict of laws provisions).
(d)
Integration. This Agreement, together with the form of confidential information agreement and the standard forms of Equity
Award agreement that describe Executive’s outstanding Equity Awards (other than as such Equity Award agreements have been
revised pursuant to this Agreement), represents the entire agreement and understanding between the parties as to the subject matter
herein and supersedes all prior or contemporaneous agreements whether written or oral. With respect to Equity Awards granted on
or after the date of this Agreement, the acceleration of vesting provisions provided herein will apply to such Equity Awards except
to the extent otherwise explicitly provided in the applicable Equity Award agreement. No waiver, alteration, or modification of
any of the provisions of this Agreement will be binding unless in a writing and signed by duly authorized representatives of the
parties hereto. In entering into this Agreement, no party has relied on or made any representation, warranty, inducement, promise,
or understanding that is not in this Agreement. To the extent that any provisions of this Agreement conflict with those of any
other agreement between the Executive and the Company, the terms in this Agreement will prevail.
(e)
Severability. In the event that any provision or any portion of any provision hereof becomes or is declared by a court
of competent jurisdiction to be illegal, unenforceable, or void, this Agreement will continue in full force and effect without
said provision or portion of provision. The remainder of this Agreement shall be interpreted so as best to effect the intent of
the Company and Executive.
(f)
Withholding. All payments made pursuant to this Agreement will be subject to withholding of applicable income and employment
taxes.
(g)
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
(Remainder
of page intentionally left blank)
IN
WITNESS WHEREOF, each of the parties has executed this Agreement, in the case of the Company by its duly authorized officer, as
of the day and year set forth below.
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MARRONE
BIO INNOVATIONS, INC.
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EMPLOYEE:
Kevin Helash
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/s/
Linda V. Moore
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/s/
Kevin Helash
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Linda
V. Mooore
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Signature
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EVP
and General Counsel
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July
3, 2020
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July
3, 2020
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Date
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Date
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EXHIBIT
A
DEFINITIONS
“Board”
shall mean the Company’s Board of Directors.
“Cause”
shall mean a determination by the Board that the Executive has (i) committed a material breach of this Agreement or any other
material written policy of the Company, which breach is not cured to the satisfaction of the Board within fifteen days after written
notice of such breach is provided to the Executive from the Board, (ii) failed to substantially perform the Executive’s
duties to the Company (under this Agreement or otherwise), which failure is not cured to the satisfaction of the Board within
fifteen days after written notice of such failure is provided to the Executive from the Board, (iii) failed to follow a reasonable
and lawful policy or directive of the Board, which failure is not cured to the satisfaction of the Board within fifteen days after
written notice of such failure is provided to the Executive from the Board, (iv) been indicted for any felony or convicted of
a crime involving dishonesty or physical harm to any person, (v) engaged in dishonesty, unethical conduct, gross negligence or
willful misconduct in the performance of his/her duties to the Company which has resulted in, or is reasonably expected to result
in, material injury to the business or reputation of the Company, (vi) engaged in conduct which constitutes a material violation
of federal or state law relating to the Company or its business, (vii) misappropriated assets of the Company, or (viii) been under
the influence of alcohol or illegal drugs (or has engaged in abusive use of legal drugs) in performing his or her duties to the
Company (which the Board has determined has materially adversely affected the Executive’s performance of his/her duties
to the Company).
“Change
in Control” shall mean any of the following transactions, provided, however, that the Company shall determine under
parts (iii) and (iv) whether multiple transactions are related, and its determination shall be final, binding and conclusive:
(i)
a merger or consolidation in which the Company is not the surviving entity, except for a transaction the principal purpose of
which is to change the state in which the Company is incorporated; or
(ii)
the sale, transfer or other disposition of all or substantially all of the assets of the Company; or
(iii)
any reverse merger or series of related transactions culminating in a reverse merger (including, but not limited to, a tender
offer followed by a reverse merger) in which the Company is the surviving entity but (A) the shares of Company common stock outstanding
immediately prior to such merger are converted or exchanged by virtue of the merger into other property, whether in the form of
securities, cash or otherwise, or (B) in which securities possessing more than fifty percent (50%) of the total combined voting
power of the Company’s outstanding securities are transferred to a person or persons different from those who held such
securities immediately prior to such merger or the initial transaction culminating in such merger, but excluding any such transaction
or series of related transactions that the Company determines shall not be a Change in Control; or
(iv)
acquisition in a single or series of related transactions by any person or related group of persons (other than the Company or
by a Company-sponsored employee benefit plan) of beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) of
securities possessing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities
but excluding any such transaction or series of related transactions that the Company determines shall not be a Change in Control.
provided
that any such transaction must also constitute a “change in the ownership or effective control, or in the ownership of a
substantial portion of the assets” (as defined in Section 409A) of the Company.
“Confidentiality
Agreement” shall mean Employee Confidential Information and Assignment of Inventions Agreement, dated as of the first
date of Executive’s employment by Company between the Executive and the Company.
“Disability”
shall mean total and permanent disability as defined in Section 22(e)(3) of the Code.
“Equity
Award” shall mean each then outstanding award under a Stock Plan relating to the Company’s common stock (whether
stock options, stock appreciation rights, shares of restricted stock, restricted stock units, performance shares, performance
units or other similar awards).
“Good
Reason” shall mean the occurrence of any of the following, without Executive’s express written consent:
(i)
A material reduction of Executive’s authority, duties or responsibilities, taken as a whole;
(ii)
A reduction in Executive’s base compensation;
(iii)
A material change in the geographic location at which Executive must perform his or her services; provided that in no instance
will the relocation of Executive to a facility or a location of fifty (50) miles or less from Executive’s then current office
location be deemed material for purposes of this Agreement;
(iv)
failure of the Company to obtain the assumption of this Agreement by any successor to the Company; or
(v)
any material breach or material violation of a material provision of this Agreement by the Company (or any successor to the Company);
provided,
that the foregoing events shall constitute “Good Reason” only if (i) Executive terminates his or her employment within
60 days of the occurrence of such event and (ii) the Executive has provided the Company with written notice of such event within
10 days after the event occurs and the Company fails to remedy such event within 15 days after first receiving such written notice.
“In
Connection with a Change in Control”. A termination of Executive’s employment will be “in Connection with
a Change in Control” if Executive’s employment terminates at any time on or within twelve (12) months following a
Change in Control.
“MBI
Parties” shall mean (i) the Company, (ii) each Subsidiary, (iii) any successor to the Company, and (iv) each of their
respective current and former officers, directors, affiliates, attorneys, agents, employees and representatives
“Original
Offer Letter” shall mean the letter agreement between the Company and the Executive dated as of July 3, 2020.
Exhibit
99.1
Marrone
Bio Appoints Kevin Helash as Chief Executive Officer
Agricultural Industry Veteran Brings Extensive Experience in Global Markets and Biological Solutions
DAVIS,
Calif., July 6, 2020 —Marrone Bio Innovations, Inc., (NASDAQ: MBII), an international leader in providing growers with
sustainable bioprotection and plant health solutions to global agricultural needs, today announced the appointment of Kevin Helash
as its new chief executive officer. Concurrent with joining the company, he will be appointed to serve as a member of the board
of directors. Helash, 55, a native of Manitoba, Canada, will join the company as early as August 1, 2020. His effective date is
pending receipt of permanent residency status or the applicable visa, both of which are in process.
A
28-plus-year agricultural industry veteran, Helash comes to Marrone Bio from Agrinos AS, a global-scale biological crop
input provider specializing in biofertilizers and biostimulant products. As chief executive officer of Agrinos since November
2017, Helash has led a major restructuring and transformation of the company to create a platform for future long-term growth.
Prior
to joining Agrinos, Helash was a vice president and corporate officer with Agrium (now Nutrien Ltd.), one of the world’s
largest agricultural product distributors. During his 26-year career, he held senior management roles leading global sales,
marketing, logistics and supply chain strategies. In international leadership positions for Agrium spanning the Americas and Europe,
he interfaced directly with growers, retail and wholesale distributors, and investors. As head of the company’s Canadian
retail operations, Helash grew the organization to a multi-billion-dollar revenue entity, and led the successful acquisition and
integration of Viterra’s retail agribusiness to create the largest agricultural retail organization in Canada.
“After
a comprehensive search process, we are delighted to have someone with Kevin’s extensive experience in the agricultural industry
join Marrone Bio as we continue to drive the company toward profitability through a combination of revenue growth, margin expansion
and cost management,” said Bob Woods, chairman of the board. “His passion for and leadership in the biologicals space
— coupled with his track record of delivering key operational and financial objectives — make him the ideal candidate
to take Marrone Bio to its next level of success.”
“Marrone
Bio has a strong reputation of delivering innovative, sustainable solutions to its customers, and I’m excited to be part
of the next chapter in its business evolution,” Helash said. “The company has made significant strides in its commercial
operations, driving revenue growth and gross margin expansion. Recent initiatives and R&D advancements have strengthened its
position as a unique leader in the biologicals industry, with top-of-mind awareness among growers, distributors and potential
partners.
“In
joining Marrone Bio, I will have the good fortune of being surrounded by a great team that is highly versed in agriculture and
the key role biologicals play in a more sustainable – and profitable – future for farmers around the world,”
Helash added. “I look forward to building on a results-oriented, customer-driven culture to achieve our goals as we move
along the path to profitability.”
Helash
replaces Dr. Pamela Marrone, founder of Marrone Bio, who announced her intention to retire as CEO in December 2019. Dr. Marrone
will remain with Marrone Bio as CEO until Helash’s first day of employment, and thereafter will continue to serve as a non-employee
director of the company.
“Pam
has guided Marrone Bio from technology concept to commercial success, and has been a tireless advocate for the important role
biological solutions have to play in sustainable agriculture,” Woods said. “We are grateful for her vision and leadership,
and are delighted that she will continue to serve the company as a member of the board of directors and a consultant.”
About
Marrone Bio Innovations
Marrone
Bio Innovations Inc. (NASDAQ: MBII) is a growth-oriented company leading the movement to a more sustainable world through the
discovery, development and sale of innovative biological products for crop protection, plant health and waterway systems treatment
that help customers operate more sustainably while increasing their return on investment. MBI has screened over 18,000 microorganisms
and 350 plant extracts, leveraging its in-depth knowledge of plant and soil microbiomes enhanced by advanced molecular technologies
and natural product chemistry to rapidly develop seven product lines. Supported by a robust portfolio of over 400 issued and pending
patents, MBI’s currently available commercial products are Regalia®, Stargus®, Grandevo®,
Venerate®, Majestene®, Haven® and Amplitude®, Zelto®
Jet Oxide® and Jet Ag® and Zequanox®, with a breakthrough bioherbicide and biofumigant
in the Company’s product pipeline. MBI’s Pro Farm Finland-based subsidiary employs a proprietary technology derived
from wood waste to stimulate plant growth and improve plant health, resulting in improved yields and crop quality. Products include
UBP-110®, LumiBio™, LumiBio Valta™, LumiBio Kelta™, Foramin®.
Learn
more about Marrone Bio Innovations at www.marronebio.com. We also use our investor relations website, https://investors.marronebio.com,
as well as our corporate Twitter account, @Marronebio, as means of disclosing material non-public information, and encourage our
investors and others to monitor and review the information we make public in these locations. Follow us on social media: Twitter,
LinkedIn and Instagram.
Marrone
Bio Innovations Forward Looking Statements
This
press release contains forward-looking statements that involve substantial risks and uncertainties. All statements, other than
statements of historical facts, included in this press release regarding strategy, future operations and plans, including assumptions
underlying such statements, are forward-looking statements, and should not be relied upon as representing MBI’s views as
of any subsequent date. Examples of such statements include statements regarding the timing of Helash’s employment and appointment
to the company’s board of directors and the company’s goals for future performance. Such forward-looking statements
are based on information available to the Company as of the date of this release and involve a number of risks and uncertainties,
some beyond the Company’s control, that could cause actual results to differ materially from those anticipated by these
forward-looking statements, including the recent uncertainty in the global economy and industry-specific economy caused by the
COVID-19 pandemic, consumer, regulatory and other factors affecting demand for the Company’s products, weather, regulatory
and other factors affecting demand for the MBI’s products, any difficulty in marketing MBI’s products in its target
markets, competition in the market for pest management products, lack of understanding of bio-based pest management products by
customers and growers, and adverse decisions by regulatory agencies and other relevant third parties. Additional information that
could lead to material changes in MBI’s performance is contained in its filings with the SEC. MBI is under no obligation
to, and expressly disclaims any responsibility to, update or alter forward-looking statements contained in this release, whether
as a result of current information, future events or otherwise.
Investor
Relations Contact:
Greg
Falesnik or Luke Zimmerman
MZ
Group – MZ North America
Phone:
949-385-6449
MBII@mzgroup.us