LEGAL PROCEEDINGS.
−Removed: As of March 31, 2023, there were no material pending legal proceedings to which the Company is a party or as to which any of its property is subject other than described below.
+Added: As of June 30, 2023, there were no material pending legal proceedings to which the Company is a party or as to which any of its property is subject other than described below.
As previously disclosed, the Company, its Chief Executive Officer Andy Heyward, and its Chief Financial Officer Robert Denton were named as defendants in a putative class action lawsuit filed in the U.S.
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2:20-cv-07457 DSF (RAOx).
−Removed: Lead plaintiffs alleged generally that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) by issuing allegedly false or misleading statements about the Company, initially over an alleged class period running from March into early July 2020, and, in their second amended complaint, over a class period alleged to extend into March 2021.
+Added: Lead plaintiffs alleged generally that the defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) by issuing allegedly false or misleading statements about the Company, initially over an alleged class period running from March into early July 2020.
Plaintiffs sought unspecified damages on behalf of the alleged class of persons who invested in the Company’s common stock during the alleged class period.
−Removed: Defendants filed motions to dismiss the different versions of lead plaintiffs’ pleading.
−Removed: Most recently, on July 15, 2022, the Court granted defendants’ motion directed to lead plaintiffs’ second amended complaint, ordering that the complaint and the action be dismissed in their entirety and with prejudice.
+Added: Defendants moved to dismiss lead plaintiffs’ amended complaint;
+Added: and in a decision issued on August 30, 2021, the Court dismissed the amended complaint but granted lead plaintiffs a further opportunity to plead a claim.
+Added: On September 27, 2021, lead plaintiffs filed a second amended complaint, naming the same defendants.
+Added: The new complaint alleged again that the Company made numerous false or misleading statements about the Company’s business and business prospects, this time over an expanded alleged class period that extended into March 2021;
+Added: they again alleged that these misstatements violated Section 10(b) and 20(a) of the Exchange Act.
+Added: Lead plaintiffs again sought unspecified damages on behalf of an alleged class of persons who invested in the Company’s common stock during the expanded alleged class period.
+Added: In November 2021, defendants filed a motion to dismiss the second amended complaint.
+Added: On July 15, 2022, the Court issued a decision dismissing the second amended complaint in its entirety and with prejudice.
On August 12, 2022, lead plaintiffs filed a notice of appeal to the United States Court of Appeals for the Ninth Circuit.
−Removed: Briefing of the appeal concluded earlier this year.
+Added: Briefing of the appeal has concluded, and calendar inquiries from the Court of Appeals suggest that it may entertain a hearing on the appeal in either November or December 2023.
The Company cannot predict whether the Court will entertain oral argument of the appeal, when a hearing might be scheduled, the outcome of the appeal or the timing of a decision on the appeal.
−Removed: In the meantime, there is no other activity in the case.
Related to the securities class action, the Company’s directors (other than Dr.
−Removed: Cynthia Turner-Graham), together with Messrs.
−Removed: Heyward and Denton and former director Michael Klein, have been named as defendants in several punitive stockholder derivative lawsuits.
+Added: Cynthia Turner-Graham, Michael Hirsh and Stefan Piech), together with Messrs.
+Added: Heyward and Denton and former director Michael Klein, have been named as defendants in several putative stockholder derivative lawsuits.
As previously disclosed, these include a consolidated proceeding pending in the U.S.
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Pursuant to agreements among the parties, the courts in all of the derivative lawsuits have stayed proceedings pending the outcome of the securities class action.
−Removed: The Company cannot predict the impact of the securities class action’s outcome on appeal on the shareholder derivative lawsuits.
+Added: The Company cannot predict the impact of the securities class action’s dismissal on the shareholder derivative lawsuits.
Finally, the Company is also a nominal defendant in an action filed in January 2022 in the U.S.
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On May 1, 2023, plaintiff filed an amended complaint.
+Added: Pursuant to the court’s rules, defendants submitted a pre-motion letter seeking leave to file a motion to dismiss, which plaintiff opposed.
+Added: On July 21, 2023, the court issued an order advising that it believed it could resolve the motion to dismiss based on the pre-motion letters, but giving the parties the opportunity to request further briefing on the defendants’ proposed motion.
+Added: By stipulation submitted August 1, 2023, the parties requested further briefing and proposed a schedule that contemplates defendants’ filing of a joint motion by September 8, 2023, with briefing to continue into early November.
+Added: Table of Conten t s
+Added: The court has ordered the parties’ stipulation.
The Company anticipates that defendants will renew their motions to dismiss, but no schedule for doing so has yet been set.
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There have been no material changes to the Risk Factors set forth in our Annual Report on Form 10-K for the year ended December 31, 2022.
−Removed: UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS.
−Removed: DEFAULTS UPON SENIOR SECURITIES.
−Removed: MINE SAFETY DISCLOSURES.
−Removed: Not applicable.
Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.