UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

DANIMER SCIENTIFIC, INC.

(Exact name of Registrant as Specified in Its Charter)

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Securities registered pursuant to Section 12(b) of the Act:

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 8.01 Other Events

On March 2, 2023, Danimer Scientific, Inc. (the "Company"), formerly known as Live Oak Acquisition Corp. ("Live Oak"), filed a petition in the Delaware Court of Chancery (the “Court of Chancery”) pursuant to Section 205 (the “Section 205 Petition”) of the Delaware General Corporation Law (“DGCL”), seeking validation of its Fourth Amended and Restated Certificate of Incorporation, which increased the authorized number of shares of Class A common stock, par value $0.0001 per share (the “Class A common stock”) in connection with the closing of its business combination transaction with Meredian Holdings Group, Inc. The Company’s filing is in response to uncertainty created by a recent Court of Chancery holding in Garfield v. Boxed, Inc., 2022 WL 17959766 (Del. Ch. Dec. 27, 2022) that potentially affects the Company and many other similarly situated companies that were formed and became publicly traded as a special purpose acquisition company (“SPAC”).

Out of an abundance of caution, the Company has elected to pursue the remedial actions described below. Concurrently with the filing of the petition, the Company filed a motion to expedite the hearing of the Section 205 Petition, which was subsequently granted on March 3, 2023.

Background

At a special meeting of stockholders of Live Oak, held on December 28, 2020 (the “Live Oak Special Meeting”), a majority of the then-outstanding shares of Live Oak’s Class A common stock and Class B common stock, voting together as a single class, voted to approve the Company’s Fourth Amended and Restated Certificate of Incorporation, which, among other things, increased the authorized shares of the Company’s common stock from 110,000,000 shares to 200,000,000 shares (converting all of its Class B common stock into the same number of shares of its Class A common stock) (the “Authorized Share Charter Amendment”).

The aforementioned Boxed decision has created uncertainty as to whether Section 242(b)(2) of the DGCL would have required the Authorized Share Charter Amendment to be approved by a separate vote of the majority of the then-outstanding shares of Live Oak’s Class A common stock.

The Company continues to believe that a separate vote of the Live Oak’s Class A common stock was not required to approve the Authorized Share Charter Amendment. Further, an analysis of the votes from the Live Oak Special Meeting confirm that the Authorized Share Charter Amendment was approved by a majority of each of the outstanding shares of Class A common stock and Class B common stock, when viewed separately. However, to remove uncertainty created in light of the Boxed decision, the Company filed a petition in the Court of Chancery pursuant to Section 205 of the DGCL seeking validation of the Authorized Share Charter Amendment and the shares issued pursuant thereto to resolve any uncertainty with respect to those matters. Section 205 of the DGCL permits the Court of Chancery, in its discretion, to validate potentially defective corporate acts and stock after considering a variety of factors.

Since the Boxed decision was issued, the Company is informed that, through March 6, 2023, the Court of Chancery has heard twenty-three Section 205 petitions brought by companies facing similar uncertainty arising out of the Boxed decision and has approved each such petition.

If the Company is not successful in its Section 205 Petition, the uncertainty with respect to the Company’s authorized capitalization could have a material adverse impact on the Company, including without limitation on the Company’s ability to timely file its Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and the potential adverse consequences resulting therefrom.

Hearing Date

On March 3, 2023, the Court of Chancery granted the motion to expedite and set a hearing date for the Section 205 Petition to be heard at 11:00 a.m. on March 17, 2023, at the Leonard L. Williams Justice Center, 500 North King Street, Wilmington, Delaware 19801. As required by the Court of Chancery, a copy of the Company’s Section 205 Petition in the form filed with the Court of Chancery is attached hereto as Exhibit 99.1. If any stockholder of the Company wishes to express a position on the Section 205 Petition, such stockholder of the Company may (i) appear at the Section 205 hearing or (ii) file a written submission with the Register in Chancery, Leonard L. Williams Justice Center, 500 North King Street, Wilmington, Delaware 19801, referring to the case captioned, In re Danimer Scientific, Inc., Case Number 2023-0267-LWW in advance of the hearing, and any such written submission should be emailed to the Company’s counsel, Kevin Gallagher, Richards, Layton & Finger, P.A. at gallagher@rlf.com.

Forward-Looking Statements

This current report on Form 8-K (this “Current Report”) includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. In some cases, you can identify forward-looking statements by terminology such as “may,” “should,” “could,” “would,” “expect,” “plan,” “anticipate,” “intend,” “believe,” “estimate,” “continue,” “project” or the negative of such terms and other similar expressions that predict or indicate future events or trends or that are not statements of present or historical matters. These forward-looking statements are not intended to serve as, and must not be relied on by an investor or any other person as, a guarantee, an assurance, or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and may differ from these forward-looking statements.

In particular, no assurances can be made regarding the outcome or timing of the Company’s Section 205 Petition. If the Company is unsuccessful in the Section 205 Petition, the uncertainty with respect to the Company’s capitalization could limit its ability to complete equity financing transaction or issue stock-based compensation to its employees, directors and officers until the underlying issues are definitively resolved. As described above, this uncertainty could have a material adverse effect on the Company.

Item 9.01 Financial Statements and Exhibits.

d) Exhibits.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.