Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 1 of 14 PageID #: 1
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF DELAWARE
`
`Case No.
`
`
`
`COMPLAINT FOR VIOLATIONS
`OF THE FEDERAL SECURITIES
`LAWS
`
`
`JURY TRIAL DEMANDED
`
`
`MICHAEL KENT,
`
`Plaintiff,
`
`
` vs.
`
`TURNING POINT THERAPEUTICS, INC.,
`MARK J. ALLES, BARBARA W. BODEM,
`ATHENA COUNTOURIOTIS, PATRICK
`MACHADO, GARRY NICHOLSON,
`SIMEON J. GEORGE, and CAROL
`GALLAGHER,
`
` Defendants.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`
`
`
`
`Plaintiff Michael Kent (“Plaintiff”), upon information and belief, including an examination
`
`and inquiry conducted by and through his counsel, except as to those allegations pertaining to
`
`Plaintiff, which are alleged upon personal belief, alleges the following for his Complaint:
`
`NATURE OF THE ACTION
`
`Plaintiff brings this action against Turning Point Therapeutics, Inc. (“Turning
`
`1.
`
`Point” or the “Company”) and its corporate directors for violating 14(d)(4), 14(e) and 20(a) of the
`
`Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(d)(4), 78n(e), 78t(a),
`
`and U.S. Securities and Exchange Commission (“SEC”) Rule 14d-9, 17 C.F.R. §240.14d-9(d)
`
`(“Rule 14d-9”), in connection with the Board’s attempt to sell Turning Point to Bristol-Myers
`
`Squibb Company (“Bristol-Myers Squibb”) (the “Proposed Transaction”).
`
`2.
`
`On June 2, 2022, Turning Point entered into an Agreement and Plan of Merger with
`
`Bristol-Myers Squibb and its wholly owned subsidiary, Rhumba Merger Sub Inc. (“Purchaser”)
`
`(the “Merger Agreement”). Pursuant to the terms of the Merger Agreement, Bristol-Myers
`
`Squibb will acquire Turning Point for $76.00 in cash per share of Turning Point common stock
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 2 of 14 PageID #: 2
`
`via a tender offer (the “Tender Offer”). Pursuant to the Merger Agreement, Purchaser commenced
`
`the Tender Offer on June 17, 2022.
`
`3.
`
`On June 17, 2022, the Board authorized the filing of the materially incomplete and
`
`misleading Schedule 14D-9 Solicitation/Recommendation Statement (the “Recommendation
`
`Statement”) with the SEC. Specifically, the Recommendation Statement, which recommends that
`
`Turning Point stockholders tender their shares in the Tender Offer, contains materially incomplete
`
`and misleading information concerning, among other things: (a) the Company’s financial
`
`projections; (b) the financial analyses that support the fairness opinion provided by the
`
`Company’s financial advisor, Goldman Sachs & Co. LLC (“Goldman Sachs”); (c) the background
`
`of the Proposed Transaction; and (d) Company insiders’ potential conflicts of interest.
`
`4.
`
`It is imperative that the material information omitted from the Recommendation
`
`Statement is disclosed to the Company’s stockholders prior to the forthcoming stockholder vote
`
`so that they can properly exercise their corporate suffrage rights.1
`
`5.
`
`For these reasons and as set forth in detail herein, Plaintiff seeks to enjoin
`
`Defendants from taking any steps to consummate the Proposed Transaction unless and until the
`
`material information discussed below is disclosed to the Company’s stockholders or, in the event
`
`the Proposed Transaction is consummated, to recover damages resulting from the defendants’
`
`violations of the Exchange Act.
`
`JURISDICTION AND VENUE
`
`6.
`
`This Court has jurisdiction over the claims asserted herein for violations of Sections
`
`14(a) and 20(a) of the Exchange Act and SEC Rule 14a-9 promulgated thereunder pursuant to
`
`
`1 The Tender Offer is currently scheduled to expire at one minute following 11:59 p.m., Eastern
`Time, on July 18, 2022.
`
`2
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 3 of 14 PageID #: 3
`
`Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. § 1331 (federal question
`
`jurisdiction).
`
`7.
`
`Personal jurisdiction exists over the defendants because each defendant either
`
`conducts business in or maintains operations within this District, or is an individual with sufficient
`
`minimum contacts with this District so as to make the exercise of jurisdiction by this Court
`
`permissible under traditional notions of fair play and substantial justice.
`
`8.
`
`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because defendants
`
`are found or are inhabitants or transact business in this District.
`
`THE PARTIES
`
`9.
`
`Plaintiff is, and has been at all relevant times, the owner of shares of Turning Point
`
`common stock.
`
`10.
`
`Defendant Turning Point is a Delaware corporation, with its principal executive
`
`offices located at 10628 Science Center Drive, Suite 200, San Diego, California 92121. Turning
`
`Point’s shares trade on the Nasdaq Global Select Market under the ticker symbol “TPTX.”
`
`11.
`
`Defendant Mark J. Alles has been Chairman of the Board and a director of the
`
`Company at all relevant times.
`
`12.
`
`Defendant Barbara W. Bodem is and has been a director of the Company at all
`
`relevant times.
`
`13.
`
`Defendant Athena Countouriotis has been Chief Executive Officer, President, and
`
`a director of the Company at all relevant times.
`
`14.
`
`Defendant Patrick Machado is and has been a director of the Company at all
`
`relevant times.
`
`3
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 4 of 14 PageID #: 4
`
`15.
`
`Defendant Garry Nicholson is and has been a director of the Company at all
`
`relevant times.
`
`16.
`
`Defendant Simeon J. George is and has been a director of the Company at all
`
`relevant times.
`
`17.
`
`Defendant Carol Gallagher is and has been a director of the Company at all relevant
`
`times.
`
`18.
`
`Defendants identified in paragraphs 11-17 are collectively referred to herein as the
`
`“Board” or the “Individual Defendants.”
`
`SUBSTANTIVE ALLEGATIONS
`
`The Proposed Transaction
`
`19.
`
`On June 3, 2022, Turning Point announced that it had entered into the Proposed
`
`Transaction, stating, in relevant part:
`
`(NEW YORK & SAN DIEGO, June 3, 2022) – http://www.bms.com/
`(NYSE:BMY) and Turning Point Therapeutics, Inc. (NASDAQ:TPTX) today
`announced a definitive merger agreement under which Bristol Myers Squibb will
`acquire Turning Point Therapeutics for $76.00 per share. The transaction was
`unanimously approved by both the Bristol Myers Squibb and Turning Point
`Therapeutics Boards of Directors and is anticipated to close during the third quarter
`of 2022.
`
`Turning Point Therapeutics is a clinical-stage precision oncology company with a
`pipeline of investigational medicines designed to target the most common
`mutations associated with oncogenesis. Turning Point Therapeutics’ lead asset,
`repotrectinib, is a next-generation, potential best-in-class tyrosine kinase inhibitor
`(TKI) targeting the ROS1 and NTRK oncogenic drivers of non-small cell lung
`cancer (NSCLC) and other advanced solid tumors. Repotrectinib has been granted
`three Breakthrough Therapy Designations from the U.S. Food and Drug
`Administration. In the Phase 1/2 TRIDENT-1 clinical trial, longer duration of
`response has been observed in the landmark analysis with repotrectinib than with
`existing ROS1 agents in first-line NSCLC.
`
`Bristol Myers Squibb expects repotrectinib to be approved in the U.S. in the second
`half of 2023 and become a new standard of care for patients with ROS1-positive
`
`4
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 5 of 14 PageID #: 5
`
`NSCLC in the first-line setting. The company also plans to continue to explore the
`potential of Turning Point Therapeutics’ promising pipeline of novel compounds.
`
`“The acquisition of Turning Point Therapeutics further broadens our leading
`oncology franchise by adding a best-in-class, late-stage precision oncology asset,”
`said Giovanni Caforio, M.D., Board Chair and Chief Executive Officer, Bristol
`Myers Squibb. “With this transaction, we are continuing our strong track record of
`strategic business development to further enhance our growth profile.”
`
`“Today’s news builds upon our long legacy of pioneering next-generation
`medicines for patients with cancer,” said Samit Hirawat, M.D., Chief Medical
`Officer, Global Drug Development, Bristol Myers Squibb. “With repotrectinib, we
`have the opportunity to change the standard of care and address a significant unmet
`medical need for ROS1-positive non-small cell lung cancer patients.”
`
`“Through this transaction, we will be able to harness the full potential of our
`precision oncology platform to advance the standard of care for cancer patients.
`Since our founding, we have leveraged our deep scientific expertise to develop a
`pipeline of promising precision oncology assets,” said Athena Countouriotis, M.D.,
`President and Chief Executive Officer, Turning Point Therapeutics. “With Bristol
`Myers Squibb’s leadership in oncology, strong commercial capabilities and
`manufacturing footprint, we will be able to further accelerate the pace at which we
`can bring our novel medicines to benefit people diagnosed with cancer around the
`world.”
`
`Financial Details and 2022 Financial Guidance
`
`The transaction supports Bristol Myers Squibb’s medium- to long-term growth
`strategy with accretion to non-GAAP earnings per share (EPS) beginning in
`2025. The transaction is expected to be up to $0.08 per share dilutive to non-GAAP
`EPS in 2022 prior to any impact from an acquired in-process research and
`development charge based on final accounting treatment. The accounting treatment
`as a business combination or asset acquisition will be determined upon the expected
`close of the transaction in the third quarter of 2022.
`
`Transaction Terms and Financing
`
`Under the terms of the merger agreement, Bristol Myers Squibb will promptly
`commence a tender offer to acquire all of the outstanding shares of Turning Point
`Therapeutics’ common stock at a price of $76.00 per share in an all-cash transaction
`for a total consideration of $4.1 billion in equity value. Turning Point Therapeutics’
`Board of Directors unanimously recommends that Turning Point Therapeutics
`shareholders tender their shares in the tender offer.
`
`The transaction is subject to customary closing conditions, including the tender of
`a majority of the outstanding shares of Turning Point Therapeutics’ common stock
`
`5
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 6 of 14 PageID #: 6
`
`and the expiration or termination of the waiting period under the Hart-Scott-Rodino
`Antitrust Improvements Act of 1976. Following the successful closing of the tender
`offer, Bristol Myers Squibb will acquire all remaining shares of Turning Point
`Therapeutics that are not tendered into the tender offer through a second-step
`merger at the same price of $76.00 per share.
`
`Bristol Myers Squibb expects to finance the acquisition with cash on hand.
`
`The Materially Incomplete and Misleading Recommendation Statement
`
`20.
`
`On June 17, 2022, the Board caused to be filed a materially incomplete and
`
`misleading Recommendation Statement with the SEC. The Recommendation Statement, which
`
`recommends that Turning Point stockholders tender their shares in the Tender Offer, fails to
`
`disclose material information to Company stockholders, or provides them with materially
`
`misleading information, concerning: (a) the Company’s financial projections; (b) the financial
`
`analyses that support the fairness opinion provided by Goldman Sachs; (c) the background of the
`
`Proposed Transaction; and (d) Company insiders’ potential conflicts of interest.
`
`Material Misrepresentations and/or Omissions Concerning Turning Point’s Financial
`Projections
`
`
`21.
`
`The Recommendation Statement fails to disclose material information concerning
`
`the financial projections for Turning Point.
`
`22.
`
`For example, the Recommendation Statement sets forth that at a May 18, 2022
`
`meeting between the Corporate Strategy Committee of the Board (the “Committee”) and Turning
`
`Point senior management, Turning Point senior management:
`
`discussed further revisions to Turning Point’s management projections the Board
`had previously approved, to include the effect of capital expenditures and
`depreciation and amortization on cash flows, to extend the years covered in the
`projections from 2044 to 2046 and to update revenue estimates for new assets
`generated through the Turning Point platform. The Committee authorized the
`revisions to the management projections.
`
`
`6
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 7 of 14 PageID #: 7
`
`Recommendation Statement at 16-17 (emphasis added). The Recommendation Statement,
`
`however, fails to disclose: (a) the Company’s initial projected revenue estimates prepared in
`
`connection with the “May Forecasts” and any other financial projection metrics prepared in
`
`connection with the “May Forecasts”; (b) quantification of the revisions made to the “May
`
`Forecasts” discussed at the May 18, 2022 meeting; and (c) whether the full Board approved the
`
`revisions to the Company’s financial projections discussed at the May 18, 2022 Committee
`
`meeting.
`
`23.
`
`Additionally, the Recommendation Statement fails to disclose the Company’s
`
`stock-based compensation expense over the projection period and the updated fully diluted share
`
`count, discussed by the Board at its June 2, 2022 Board meeting. See id. at 19.
`
`24. Moreover, with respect to the Company’s “May Forecasts” and “Projections,” the
`
`Recommendation Statement fails to disclose the line items underlying the Company’s: (a)
`
`Unlevered Free Cash Flow; and (b) NOPAT, as applicable.
`
`Material Misrepresentations and/or Omissions Concerning Goldman Sachs’ Financial
`Analyses
`
`
`25.
`
`The Recommendation Statement fails to disclose material information concerning
`
`the financial analyses performed by the Company’s financial advisor, Goldman Sachs.
`
`26. With respect to Goldman Sachs’ Illustrative Discounted Cash Flow Analysis, the
`
`Recommendation Statement fails to disclose a quantification of: (a) the terminal year estimate of
`
`the free cash flow to be generated by Turning Point; (b) the Company’s terminal values; (c) the
`
`inputs and assumptions underlying the discount rate range of 10.5% to 12.5%; and (d) the net cash
`
`balance of Turning Point as of March 31, 2022 pro forma for in-license on TPX-4589.
`
`
`
`7
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 8 of 14 PageID #: 8
`
`Material Misrepresentations and/or Omissions Concerning the Background of the Proposed
`Transaction
`
`
`27.
`
`The Recommendation Statement fails to disclose material information concerning
`
`the background leading to the Proposed Transaction.
`
`28.
`
`The Recommendation Statement fails to disclose whether the non-disclosures
`
`agreements (“NDAs”) the Company entered into with potential buyers, including but not limited
`
`to the nine potential buyers that executed NDAs in connection with Goldman Sachs’ February
`
`2022 outreach process, include a “don’t-ask, don’t-waive” standstill provision that is still in effect
`
`and presently precluding any of the parties from submitting a topping bid for the Company.
`
`Material Misrepresentations and/or Omissions Concerning Company Insiders’ Potential
`Conflicts of Interest
`
`
`29.
`
`The Recommendation Statement fails to disclose material information concerning
`
`the potential conflicts of interest faced by Company insiders.
`
`30.
`
`The Recommendation Statement fails to disclose the details of any employment
`
`and retention-related discussions and negotiations that occurred between Bristol-Myers Squibb
`
`and Turning Point’s executive officers, including who participated in all such communications,
`
`when they occurred and their content.
`
`31.
`
`Additionally, the Recommendation Statement fails to disclose whether any of
`
`Bristol-Myers Squibb’s proposals or indications of interest mentioned management retention in
`
`the combined company following the Proposed Transaction or the purchase of or participation in
`
`the equity of the surviving corporation.
`
`32.
`
`In sum, the omission of the above-referenced information renders statements in the
`
`“Certain Financial Projections,” “Opinion of Goldman Sachs & Co. LLC,” “Background of the
`
`Offer and the Merger” and “Potential for Future Arrangements” sections of the Recommendation
`
`8
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 9 of 14 PageID #: 9
`
`Statement materially incomplete and misleading in contravention of the Exchange Act. Absent
`
`disclosure of the foregoing material information prior to the expiration of the Tender Offer,
`
`Plaintiff and the other stockholders of Turning Point will be unable to make a sufficiently informed
`
`decision in connection with the Tender Offer and are thus threatened with irreparable harm
`
`warranting the injunctive relief sought herein.
`
`CLAIMS FOR RELIEF
`
`COUNT I
`
`Claims Against All Defendants for Violations of Section 14(d) of the
`Exchange Act and SEC Rule 14d-9 Promulgated Thereunder
`
`Plaintiff repeats all previous allegations as if set forth in full.
`
`Defendants have caused the Recommendation Statement to be issued with the
`
`33.
`
`34.
`
`intention of soliciting Turning Point stockholders to tender their shares in the Tender Offer.
`
`35.
`
`Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder
`
`require full and complete disclosure in connection with tender offers.
`
`36.
`
`Section 14(d)(4) of the Exchange Act states:
`
`Any solicitation or recommendation to the holders of such a security to accept or
`reject a tender offer or request or invitation for tenders shall be made in accordance
`with such rules and regulations as the Commission may prescribe as necessary or
`appropriate in the public interest or for the protection of investors.
`
`37.
`
`SEC Rule 14d-9 sets forth, in relevant part:
`
`Any solicitation or recommendation to holders of a class of securities referred to in
`section 14(d)(1) of the Act with respect to a tender offer for such securities shall
`include the name of the person making such solicitation or recommendation and
`the information required by Items 1 through 8 of Schedule 14D-9 (§ 240.14d-101)
`or a fair and adequate summary thereof[.]
`
`38.
`
`Item 8 of Schedule 14D-9 requires a company’s directors to “[f]urnish such
`
`additional material information, if any, as may be necessary to make the required statements, in
`
`light of the circumstances under which they are made, not materially misleading.”
`
`9
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 10 of 14 PageID #: 10
`
`39.
`
`The Recommendation Statement violates Section 14(d)(4) and Rule 14d-9 because
`
`it omits material facts, including those set forth above, which omission renders the
`
`Recommendation Statement false and/or misleading.
`
`40.
`
`Defendants knowingly or with deliberate recklessness omitted the material
`
`information identified above from the Recommendation Statement, causing certain statements
`
`therein to be materially incomplete and therefore misleading. Indeed, while defendants
`
`undoubtedly had access to and/or reviewed the omitted material information in connection with
`
`approving the Proposed Transaction, they allowed it to be omitted from the Recommendation
`
`Statement, rendering certain portions of the Recommendation Statement materially incomplete
`
`and therefore misleading.
`
`41.
`
`The misrepresentations and omissions in the Recommendation Statement are
`
`material to Plaintiff and the other stockholders of Turning Point, who will be deprived of their
`
`right to make an informed decision whether to tender their shares or seek appraisal if such
`
`misrepresentations and omissions are not corrected prior to the expiration of the Tender Offer.
`
`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s equitable
`
`powers can Plaintiff be fully protected from the immediate and irreparable injury that defendants’
`
`actions threaten to inflict.
`
`COUNT II
`
`Claims Against All Defendants for Violations of Section 14(e) of the Exchange Act
`
`42.
`
`43.
`
`Plaintiff repeats all previous allegations as if set forth in full.
`
`Section 14(e) of the Exchange Act provides that it is unlawful “for any person to
`
`make any untrue statement of a material fact or omit to state any material fact necessary in order
`
`to make the statements made, in the light of the circumstances under which they are made, not
`
`misleading . . . in connection with any tender offer or request or invitation for tenders, or any
`
`10
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 11 of 14 PageID #: 11
`
`solicitation of security holders in opposition to or in favor of any such offer, request, or invitation.”
`
`15 U.S.C. § 78n(e).
`
`44.
`
`Defendants violated Section 14(e) of the Exchange Act by issuing the
`
`Recommendation Statement to Turning Point stockholders in which they made untrue statements
`
`of material facts or failed to state all material facts necessary in order to make the statements made,
`
`in light of the circumstances under which they are made, not misleading. Specifically, the
`
`Recommendation Statement misrepresented and/or omitted material facts concerning the
`
`Company’s financial projections, Goldman Sachs’ financial analyses, the background of the
`
`Proposed Transaction, and Company insiders’ potential conflicts of interest.
`
`45.
`
`Defendants knew that Plaintiff would rely upon their statements in the
`
`Recommendation Statement in determining whether to tender his shares pursuant to the Tender
`
`Offer or seek appraisal.
`
`46.
`
`As a direct and proximate result of these defendants’ unlawful course of conduct in
`
`violation of Section 14(e) of the Exchange Act, absent injunctive relief from the Court, Plaintiff
`
`has sustained and will continue to sustain irreparable injury by being denied the opportunity to
`
`make an informed decision in deciding whether or not to tender his shares or seek appraisal.
`
`COUNT III
`
`Claims Against the Individual Defendants for Violations
`of Section 20(a) of the Exchange Act
`
`Plaintiff repeats all previous allegations as if set forth in full.
`
`The Individual Defendants acted as controlling persons of Turning Point within the
`
`47.
`
`48.
`
`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
`
`officers and/or directors of Turning Point, and participation in and/or awareness of the Company’s
`
`operations and/or intimate knowledge of the false statements contained in the Recommendation
`
`11
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 12 of 14 PageID #: 12
`
`Statement filed with the SEC, they had the power to influence and control and did influence and
`
`control, directly or indirectly, the decision-making of the Company, including the content and
`
`dissemination of the various statements which Plaintiff contends are false and misleading.
`
`49.
`
`Each of the Individual Defendants was provided with or had unlimited access to
`
`copies of the Recommendation Statement and other statements alleged by Plaintiff to be
`
`misleading prior to and/or shortly after these statements were issued and had the ability to prevent
`
`the issuance of the statements or cause the statements to be corrected.
`
`50.
`
`In particular, each of the Individual Defendants had direct and supervisory
`
`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
`
`the power to control or influence the particular transactions giving rise to the securities violations
`
`as alleged herein, and exercised the same. The Recommendation Statement at issue contains the
`
`unanimous recommendation of each of the Individual Defendants to approve the Proposed
`
`Transaction. They were, thus, directly involved in the making of the Recommendation Statement.
`
`51.
`
`In addition, as the Recommendation Statement sets forth at length, and as described
`
`herein, the Individual Defendants were each involved in negotiating, reviewing, and approving the
`
`Proposed Transaction. The Recommendation Statement purports to describe the various issues
`
`and information that they reviewed and considered—descriptions the Company directors had input
`
`into.
`
`52.
`
`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
`
`of the Exchange Act.
`
`53.
`
`As set forth above, the Individual Defendants had the ability to exercise control
`
`over and did control a person or persons who have each violated Section 14(e), Section 14(d) and
`
`SEC Rule 14d-9, promulgated thereunder, by their acts and omissions as alleged herein. By virtue
`
`12
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 13 of 14 PageID #: 13
`
`of their positions as controlling persons, these defendants are liable pursuant to Section 20(a) of
`
`the Exchange Act. As a direct and proximate result of defendants’ conduct, Turning Point
`
`stockholders will be irreparably harmed.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff demands judgment and preliminary and permanent relief,
`
`including injunctive relief, in his favor on behalf of Turning Point, and against defendants, as
`
`follows:
`
`A.
`
`Preliminarily and permanently enjoining defendants and all persons acting in
`
`concert with them from proceeding with, consummating, or closing the Proposed Transaction,
`
`including the expiration of the Tender Offer, unless and until defendants disclose the material
`
`information identified above which has been omitted from the Recommendation Statement;
`
`B.
`
`In the event defendants consummate the Proposed Transaction, rescinding it and
`
`setting it aside or awarding rescissory damages to Plaintiff;
`
`C.
`
`Directing the Individual Defendants to file a Recommendation Statement that does
`
`not contain any untrue statements of material fact;
`
`D.
`
`Awarding Plaintiff the costs of this action, including reasonable allowance for
`
`Plaintiff’s attorneys’ and experts’ fees; and
`
`E.
`
`Granting such other and further relief as this Court may deem just and proper.
`
`
`
`
`
`13
`
`

`

`Case 1:22-cv-00879-UNA Document 1 Filed 06/29/22 Page 14 of 14 PageID #: 14
`
`
`
`Plaintiff demands a trial by jury on all claims and issues so triable.
`
`JURY DEMAND
`
`Dated: June 29, 2022
`
`
`
`
`
`By
`
`
`LONG LAW, LLC
`
`/s/ Brian D. Long
`Brian D. Long (#4347)
`3828 Kennett Pike, Suite 208
`Wilmington, DE 19807
`Telephone: (302) 729-9100
`Email: BDLong@longlawde.com
`
`Attorneys for Plaintiff
`
`14
`
`