According to the Complaint, Amyris, Inc. is a science and technology leader in the research, development, and production of sustainable ingredients for the Health and Wellness, Clean Beauty, and Flavors and Fragrances markets.
On June 1, 2020, the Company’s Board of Directors caused the Company and certain of its subsidiaries to enter into Amendment No. 1 to the Amended and Restated Loan and Security Agreement, dated October 28, 2019 with Foris Ventures, LLC. As of June 15, 2020, Foris was the Company’s largest shareholder, beneficially owning approximately 31.5% of the Company’s outstanding common stock. Pursuant to the Loan Agreement Amendment, among other things, Foris has the option to convert all or a portion of its outstanding secured indebtedness under the Loan Agreement Amendment into shares of the Company’s common stock at a conversion price equal to $3.00, subject to the Company’s stockholder approval to issue shares of the Company’s common stock upon exercise of the Conversion Option in accordance with Nasdaq Listing Standard Rule 5635(d).
On June 1, 2020 and June 4, 2020, the Company entered into separate security purchase agreements (the “Purchase Agreements,” and together with the Loan Agreement Amendment, the “Agreements”) with certain accredited investors for the issuance of an aggregate of 32,614,573 shares of the Company’s common stock, and 102,156.21 shares of the Company’s Series E Convertible Preferred Stock, convertible into 34,052,070 shares of common stock at a price of $3.00 per common share and $1,000 per preferred share, resulting in an aggregate purchase price of $200 million (the “Offering”). Pursuant to the Purchase Agreements, and in accordance with Nasdaq Listing Standard Rule 5635(d), the Company must obtain stockholder approval for the issuance of shares of common stock issuable upon conversion of the preferred stock with respect to the transactions contemplated by the Purchase Agreements.
The Board approved the Offering and the issuance and sale of up to $200 million of equity securities at purchase price of $3.00 on May 28, 2020. A “Pricing Committee” of the Board approved the final terms of the Offering, including the issuance of shares of common stock issuable upon the conversion of shares of preferred stock, on June 2, 2020. The Board approved the Loan Agreement Amendment on June 2, 2020. The consummation of the Offering occurred on June 5, 2020.
Defendants filed the Proxy Statement with the SEC, which scheduled a special meeting of Amyris’ stockholders for August 14, 2020 to vote upon: (1) Approval of the issuance of shares of our common stock issuable upon exercise by Foris Ventures, LLC of its option to convert all or any portion of the secured indebtedness outstanding under the Amended and Restated Loan and Security Agreement dated October 28, 2019, as further amended on June 1, 2020, into shares of our common stock, in accordance with Nasdaq Listing Standard Rule 5635(d). AND (2) Approval of the issuance of shares of our common stock issuable upon the conversion of our Series E Convertible Preferred Stock in accordance with Nasdaq Listing Standard Rule 5635(d).
The Complaint alleges that the Proxy Statement fails to disclose the Company’s financial advisors in connection with the Agreements and the terms of their engagements, including: (i) the amount of compensation the financial advisors have received or will receive in connection with their engagements; (ii) whether the financial advisors have performed past services for any parties to the Agreements or their affiliates; (iii) the timing and nature of such services; and (iv) the amount of compensation received by the financial advisors for providing such services. The Complaint further alleges that the Proxy Statement fails to disclose a fair summary of the process and negotiations leading up to the execution of the Agreements and that the omission of the above-referenced material information renders the Proxy Statement false and misleading.