Securities Registration: Employee Benefit Plan (s-8)
June 04 2018 - 6:08AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on June 1, 2018
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
MARRONE
BIO INNOVATIONS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
|
|
20-5137161
|
(State
or other jurisdiction
of
Incorporation or organization)
|
|
(I.R.S.
Employer
Identification
No.)
|
1540
Drew Avenue
Davis,
CA 95618
(530)
750-2800
(Address
of principal executive offices)
Marrone
Bio Innovations, Inc. 2013 Stock Incentive Plan, As Amended
(Full
title of the Plan)
Pamela
G. Marrone
Chief
Executive Officer
1540
Drew Avenue
Davis,
CA 95618
(530)
750-2800
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
Copies to:
Charles
S. Farman, Esq.
Alfredo
B. D. Silva, Esq.
Morrison
& Foerster LLP
425
Market Street
San
Francisco, California 94105
(415)
268-7000
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 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
|
[ ]
|
|
|
|
|
Non-accelerated
filer
|
[ ]
(Do not check if a smaller reporting company)
|
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 7(a)(2)(B) of the Securities Act.
[X]
CALCULATION
OF REGISTRATION FEE
Title
of Securities to be Registered
|
|
Amount
to be Registered (1)
|
|
|
Proposed
Maximum Offering Price Per Share (3)
|
|
|
Proposed
Maximum Aggregate Offering Price (3)
|
|
|
Amount
of Registration Fee (3)
|
|
Common stock,
$0.00001 par value per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
—2013
Stock Incentive Plan
|
|
|
3,500,000
|
(2)
|
|
$
|
1.61
|
(3)
|
|
$
|
5,635,000
|
|
|
$
|
701.56
|
|
TOTAL:
|
|
|
3,500,000
|
|
|
|
|
|
|
$
|
5,635,000
|
|
|
$
|
701.56
|
|
(1)
|
Pursuant
to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall
also cover any additional shares of the Registrant’s common stock that become issuable under the 2013 Stock Incentive
Plan, as amended (the “Amended 2013 Plan”), by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding
shares of common stock.
|
(2)
|
On
April 30, 2018, the Registrant filed with the Securities and Exchange Commission (the “Commission”) a definitive
proxy statement that included a proposal to increase the maximum aggregate number of shares available under the Marrone Bio
Innovations, Inc. 2013 Stock Incentive Plan, as amended (the “2013 Plan”) by 3,500,000 shares to 14,452,472. The
proposal to approve the share increase for the 2013 Plan was approved by the Registrant’s stockholders on May 30, 2018.
|
(3)
|
Estimated
in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $1.61, the
average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Market on May
31, 2018.
|
EXPLANATORY
NOTE
This
Registration Statement is being filed to register an aggregate of 3,500,000 shares of common stock authorized and reserved for
issuance under the 2013 Plan. On April 30, 2018, the Registrant filed with the Commission a definitive proxy statement that included
a proposal to increase the maximum aggregate number of shares of common stock authorized and reserved for issuance under the 2013
Plan by 3,500,000 shares to 14,452,472 shares. The proposal to approve the increase to the 2013 Plan was approved by the Registrant’s
stockholders on May 30, 2018. This Registration Statement registers the 3,500,000 additional shares of common stock authorized
and reserved for issuance under the 2013 Plan.
Pursuant
to General Instruction E of Form S-8, the Registrant incorporates by reference into this Registration Statement, except to the
extent supplemented, amended or superseded by the information set forth herein, the contents of its Registration Statements on
Form S-8 relating to the Existing 2013 Plan, the 2011 Stock Plan and the Stock Option Plan, as filed with the Commission on September
6, 2013 (Registration No. 333-191048), August 15, 2017 (Registration No. 333-219981) and February 2, 2018 (Registration No. 333-222846),
respectively.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
The
information required by Part I is not filed as part of this Registration Statement in accordance with Rule 428 under the Securities
Act, and the Note to Part I of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE
REGISTRATION
STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the
Commission:
(a)
The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, which includes audited consolidated
financial statements for the fiscal year ended December 31, 2017 filed with the Commission on April 5, 2018;
(b)
The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2018, filed with the Commission on
May 15, 2018;
(c)
The Registrant’s Current Reports on Form 8-K filed with the Commission on January 3, 2018, February 1, 2018, February 6,
2018, March 26, 2018, April 10, 2018, April 16, 2018, April 18, 2018, April 20, 2018, May 7, 2018 and May 31, 2018, respectively;
(d)
The description of the Registrant’s common stock contained in the Registrant’s Registration Statement on Form 8-A
(File No. 001-36030), filed with the Commission on July 29, 2013, pursuant to Section 12(b) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description;
and
(e)
All other reports that the Registrant filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal
year covered by the audited financial statements described in (a) above.
All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of
this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates
that all securities offered have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated
by reference in this Registration Statement and to be part hereof from the date of filing of such documents;
provided
,
however
, that documents or information deemed to have been furnished and not filed in accordance with the rules of the
Commission shall not be deemed incorporated by reference into this Registration Statement. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed
to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
The
Registrant’s Amended and Restated Bylaws provide generally for indemnification of its directors and executive officers,
and other officers, employees and agents to the fullest extent permitted by law. Pursuant to Section 145 of the Delaware General
Corporation Law (“DGCL”), a corporation generally has the power to indemnify its present and former directors, officers,
employees and agents against expenses incurred by them in connection with any suit to which they are, or are threatened to be
made, a party by reason of their serving in such positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of a corporation, and with respect to any criminal action, they had no
reasonable cause to believe their conduct was unlawful. With respect to suits by or in the right of a corporation, however, indemnification
is not available if such person is adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation
unless the court determines that indemnification is appropriate. In addition, a corporation has the power to purchase and maintain
insurance for such person. The statute also expressly provides that the power to indemnify that it authorizes is not exclusive
of any rights granted under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
As
permitted by Section 102 of the DGCL, the Registrant’s stockholders have approved and incorporated provisions into Article
VII of the Registrant’s Amended and Restated Certificate of Incorporation and Article XIII of the Registrant’s Amended
and Restated Bylaws eliminating a director’s personal liability for monetary damages to the Registrant and its stockholders
arising from a breach of a director’s fiduciary duty, except for liability under Section 174 of the DGCL or liability for
any breach of the director’s duty of loyalty to us or its stockholders, for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law or for any transaction in which the director derived an improper
personal benefit.
The
Registrant has entered and intends to continue to enter into separate indemnification agreements with certain of its officers
and directors that are, in some cases, broader than the specific indemnification provisions provided by the DGCL and the Registrant’s
charter documents, and may provide additional procedural protection. These agreements will require the Registrant, among other
things, to indemnify and hold harmless such officer or director against certain liabilities that may arise by reason of the officer
or director’s status or service as an officer or director of the Registrant and to (a) advance expenses, as incurred, to
such officer or director in connection with a legal proceeding subject to limited exceptions and (b) cover such officer or director
under any general or directors’ and officers’ liability insurance policy maintained by the Registrant.
In
addition, the Registrant maintains standard policies of insurance under which coverage is provided to its directors and officers
against loss arising from claims made by reason of breach of duty or other wrongful act, and to the Registrant with respect to
payments which may be made by it to such directors and officers pursuant to the above indemnification provisions or otherwise
as a matter of law. The Registrant also makes available standard life insurance and accidental death and disability insurance
policies to its employees.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
See
the Exhibit Index included immediately prior to the signature page of this Registration Statement, which is incorporated by reference
herein.
Item
9. Undertakings.
A.
The undersigned Registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement.
Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation
of Registration Fee” table in the effective registration statement;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
Provided,
however
, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration
statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
B.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy
as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
EXHIBIT
INDEX
*
Incorporated by reference to exhibits previously filed.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Davis, State of California, on the 1st of June, 2018.
MARRONE
BIO INNOVATIONS, INC.
|
|
|
|
|
By:
|
/s/
Pamela
G. Marrone
|
|
|
Pamela
G. Marrone
|
|
|
Chief
Executive Officer
|
|
POWER
OF ATTORNEY
KNOW
ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below, constitutes and appoints Pamela G. Marrone and
James B. Boyd, and each of them, her or his true and lawful attorneys-in-fact and agents, each with full power of substitution
and resubstitution, for her or him and in her or his name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to sign any registration statement for the same Offering
covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities
Act of 1933, as amended, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each
of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that
such attorneys-in-fact and agents or any of them, or her or his or their substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
/s/
Pamela
G. Marrone
|
|
Chief
Executive
|
|
June
1, 2018
|
Pamela
G. Marrone
|
|
Officer
and Director (Principal Executive Officer)
|
|
|
|
|
|
|
|
/s/
James B. Boyd
|
|
Chief
Financial Officer and President
|
|
June
1, 2018
|
James
B. Boyd
|
|
(Principal
Financial Officer and Principal
Accounting
Officer)
|
|
|
|
|
|
|
|
/s/
Robert
A. Woods
|
|
Chair
of the Board
|
|
June
1, 2018
|
Robert
A. Woods
|
|
|
|
|
|
|
|
|
|
/s/
George
Kerckhove
|
|
Director
|
|
June
1, 2018
|
George
Kerckhove
|
|
|
|
|
|
|
|
|
|
/s/
Yogesh
Mago
|
|
Director
|
|
June
1, 2018
|
Yogesh
Mago
|
|
|
|
|
|
|
|
|
|
/s/
Richard
Rominger
|
|
Director
|
|
June
1, 2018
|
Richard
Rominger
|
|
|
|
|
|
|
|
|
|
/s/
Zachary
Wochok
|
|
Director
|
|
June
1, 2018
|
Zachary
Wochok
|
|
|
|
|
Marrone Bio Innovations (NASDAQ:MBII)
Historical Stock Chart
From Mar 2024 to Apr 2024
Marrone Bio Innovations (NASDAQ:MBII)
Historical Stock Chart
From Apr 2023 to Apr 2024