United States
Securities and Exchange Commission
Washington, D.C. 20549
Form
Current Report
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Item 5.03 Amendments to Bylaws.
On January 28, 2022, the Board of Directors (the “Board”) of Danimer Scientific, Inc. (the “Company”) amended and restated the Company’s Amended and Restated Bylaws (as so amended and restated, the “Bylaws”), effective January 28, 2022, to make certain updates and conforming and technical changes, including, among other things, the following: (a) enhancing the advance notice provisions and clarification of the procedures for the Company’s stockholders seeking to present business at a meeting of the Company’s stockholders such as nominating director candidates and/or submitting stockholder proposals; (b) giving the Board the power to solicit additional information reasonably foreseeable to be material to a stockholder’s decision about the nominees or a stockholder proposal, as part of the updated advance notice provisions; (c) allowing the Board to postpone, reschedule or cancel a previously scheduled annual meeting of stockholders; (d) clarifying that if a quorum is present at the original duly organized meeting of stockholders, it shall also be deemed present at an adjourned session of such meeting; and (e) adding a new Article IX to the Bylaws, which provides for certain emergency measures to be taken by “designated officers” if a quorum of directors is not able to be convened to transact business in the event of specified emergencies.
The Bylaws are filed with this Current Report on Form 8-K as Exhibit 3.1 and are incorporated by reference herein. The foregoing summary of amendments to the Company’s Amended and Restated Bylaws is qualified in its entirety by reference to the full text of the Bylaws.
Item 8.01 Other Events.
Risk Factor Update
The Company is also filing this Form 8-K to update the following risk factor previously disclosed in its Form 8-K filed with the SEC on December 13, 2021, which risk factor, as so updated, supplements the risk factors contained in the Company’s filings under the Securities Exchange Act of 1934, as amended, and should be read in conjunction with those other risk factors.
Techniques employed by short sellers may drive down the market price of our common stock and/or spur litigation or regulatory action.
Short selling is the practice of selling securities that a seller does not own but rather has borrowed from a third party with the intention of buying identical securities back at a later date to return to the lender. Short sellers hope to profit from a decline in the value of the securities between the sale of the borrowed securities and the purchase of the replacement securities, as short sellers expect to pay less in that purchase than they received in the sale. As it is in short sellers’ interest for the price of the security to decline, many short sellers publish, or arrange for the publication of, negative opinions and allegations regarding the relevant issuer and its business prospects in order to create negative market momentum and generate profits for themselves after selling a security short. These short attacks have, in the past, led to selling of shares in the market.
We have had instances where we have been the subject of negative publicity campaigns based on incomplete, outdated or misunderstood information. We do not believe there is any merit to these campaigns and we believe that their sole purpose was to benefit the short sellers of our securities. Furthermore, we believe that our responses to such campaigns, together with the substantial amount of publicly available information about our company, sufficiently demonstrate the lack of merit of each claim. It is not clear what long-term effect such negative publicity could have on us and/or whether we will continue to be subject to short seller attacks from time to time in the future. If we were to become the subject of any additional unfavorable allegations, whether such allegations are proven to be true or untrue, we may have to expend a significant amount of resources to investigate such allegations and/or defend ourselves. While we would prefer to strongly defend against any such short seller attacks, we may be constrained in the manner in which we can proceed against the relevant short sellers by principles of freedom of speech, applicable state law or issues of commercial confidentiality. Such a situation could be costly and time-consuming, and could divert management’s attention from the day-to-day operations of our company. Even if such allegations are ultimately proven to be groundless, allegations against us could severely impact the market price of our common stock and our business operations.
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We believe that the several previously disclosed class action securities claims, the first of which was filed against the Company on May 14, 2021, are a result of these short seller reports. Prior thereto, on May 5, 2021, the Company received a letter from the Atlanta regional office of the Securities and Exchange Commission (the “SEC”), in connection with a non-public, fact-finding inquiry, requesting that the Company voluntarily produce certain specified information. On July 14, 2021, the Company timely and voluntarily produced the information requested by the SEC. On January 26, 2022, the Company received a follow-up request from the SEC for additional documents and information. The Company intends to fully comply with this and any subsequent requests it may receive.
Item 9.01 Financial Statements and Exhibits.
| Exhibit No. | Description | |
| 3.1 | Second Amended and Restated Bylaws of Danimer Scientific, Inc., effective January 28, 2022 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: February 3, 2022
| DANIMER SCIENTIFIC, INC. | ||
| By: | /s/ John A. Dowdy, III | |
| Name: | John A. Dowdy, III | |
| Title: | Chief Financial Officer | |
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