Case 1:22-cv-01133-UNA Document 1 Filed 08/30/22 Page 1 of 15 PageID #: 1
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`UNITED STATES DISTRICT COURT
`DISTRICT OF DELAWARE
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`Case No.
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`COMPLAINT FOR VIOLATIONS
`OF THE FEDERAL SECURITIES
`LAWS
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`JURY TRIAL DEMANDED
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`RICHARD LAWRENCE,
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`Plaintiff,
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`v.
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`TYME TECHNOLOGIES, INC., DOUGLAS
`A. MICHELS, CHRISTINE D. BAKER,
`DAVID CARBERRY, DONALD W.
`DEGOLYER, RICHARD CUNNINGHAM,
`STEVEN HOFFMAN, GERALD H. SOKOL,
`and TIMOTHY C. TYSON,
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`Defendants.
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`Plaintiff Richard Lawrence (“Plaintiff”), upon information and belief, including an
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`examination and inquiry conducted by and through his counsel, except as to those allegations
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`pertaining to Plaintiff, which are alleged upon personal belief, alleges the following for his
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`Complaint:
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`NATURE OF THE ACTION
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`Plaintiff brings this action against Tyme Technologies, Inc. (“Tyme” or the
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`1.
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`“Company”) and its corporate directors for violating Sections 14(a) and 20(a) of the Securities
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`Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(a), 78t(a), and U.S. Securities and
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`Exchange Commission (“SEC”) Rule 14a-9, 17 C.F.R. §240.14a-9 (“Rule 14a-9”), in connection
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`with an attempt by the Tyme’s board of directors to effect a merger with Syros Pharmaceuticals,
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`Inc. (“Syros”) (the “Proposed Transaction”).
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`2.
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`On July 3, 2022, the Company entered into an Agreement and Plan of Merger with
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`Syros and Tack Acquisition Corp. (“Merger Sub”) (the “Merger Agreement”). The Merger
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`Agreement provides Syros and Tyme will combine, with Tyme stockholders receiving
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`approximately 0.4312 shares of Syros common stock for each share of Tyme common stock,
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`subject to adjustment based Tyme’s net cash and the number of shares of Tyme common stock
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`outstanding.1
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`3.
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`The Merger Agreement obligates Tyme to issue additional shares of its Class C
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`commons stock (the “Stock Issuance”). Because doing so will increase the Company’s
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`outstanding stock by 94%, Nasdaq listing rules require Tyme to obtain stockholder approval of
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`the Stock Issuance. The Proposed Transaction is therefore contingent on this approval.
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`4.
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`The Company’s corporate directors subsequently authorized the August 9, 2022
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`filing of the materially incomplete and misleading Schedule 14A Definitive Proxy Statement (the
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`“Proxy Statement”) with the SEC. The Proxy Statement, which recommends that Tyme
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`stockholders vote in favor of the Proposed Transaction, omits or misrepresents material
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`information necessary and essential to that decision. Defendants authorized the issuance of the
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`false and misleading Proxy Statement in violation of Sections 14(a) and 20(a) of the Exchange
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`Act.
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`5.
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`It is imperative that the material information omitted from the Proxy Statement is
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`disclosed to the Company’s stockholders prior to the forthcoming stockholder vote so that they
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`can properly exercise their corporate suffrage rights.2
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`6.
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`For these reasons and as set forth in detail herein, Plaintiff seeks to enjoin
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`Defendants from taking any steps to consummate the Proposed Transaction unless and until the
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`1 Upon consummation of the Proposed Transaction, Tyme’s existing stockholders will own
`approximately 37% and Syros stockholders, together with investors in a private placement
`financing to be conducted by Syros concurrently with the merger (the “PIPE Financing”), will own
`approximately 63% of the outstanding shares of the combined company.
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`2 The Special Meeting at which stockholders will be asked to approve the Proposed Transaction
`currently is scheduled for August 29, 2022.
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`material information discussed below is disclosed to the Company’s stockholders or, in the event
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`the Proposed Transaction is consummated, to recover damages resulting from the defendants’
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`violations of the Exchange Act.
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`JURISDICTION AND VENUE
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`7.
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`This Court has jurisdiction over the claims asserted herein for violations of Sections
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`14(a) and 20(a) of the Exchange Act and SEC Rule 14a-9 promulgated thereunder pursuant to
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`Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. § 1331 (federal question
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`jurisdiction).
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`8.
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`Personal jurisdiction exists over the defendants because each defendant either
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`conducts business in or maintains operations within this District, or is an individual with sufficient
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`minimum contacts with this District so as to make the exercise of jurisdiction by this Court
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`permissible under traditional notions of fair play and substantial justice.
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`9.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because defendants
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`are found or are inhabitants or transact business in this District.
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`THE PARTIES
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`10.
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`Plaintiff is, and has been at all times relevant hereto, the owner of Tyme common
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`stock.
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`11.
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`Defendant Tyme is a Delaware corporation with its principal executive offices
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`located at 1 Pluckemin Way, Suite 103, Bedminster, New Jersey 07921. Tyme’s shares trade on
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`the Nasdaq Capital Market under the ticker symbol “TYME.” Tyme is a biotechnology company
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`focused on developing cancer metabolism-based therapies (“CMBTs”) that are intended to be
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`effective across a broad range of solid tumors and hematologic cancers, while also maintaining
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`patients’ quality of life through relatively low toxicity profiles. Tyme is focused on developing its
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`novel compound, SM-88 and its preclinical pipeline of novel CMBTs. According to the Company,
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`early clinical results demonstrated by SM-88 in multiple advanced cancers, including prostate,
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`sarcomas and breast, reinforce the potential of its emerging pipeline.
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`12.
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`Defendant Douglas A. Michels is and has been Chairman of the Board and a
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`director of the Company at all times relevant hereto.
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`13.
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`Defendant Christine D. Baker is and has been a director of the Company at all times
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`relevant hereto.
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`14.
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`Defendant David Carberry is and has been a director of the Company at all times
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`relevant hereto.
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`15.
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`Defendant Donald W. DeGolyer is and has been a director of the Company at all
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`times relevant hereto.
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`16.
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`Defendant Richard Cunningham is and has been the Company’s Chief Executive
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`Officer and a director of the Company at all times relevant hereto.
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`17.
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`Defendant Steven Hoffman is and has been a director of the Company at all times
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`relevant hereto.
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`18.
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`Defendant Gerald H. Sokol is and has been a director of the Company at all times
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`relevant hereto.
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`19.
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`Defendant Timothy C. Tyson is and has been a director of the Company at all times
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`relevant hereto.
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`20.
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`Defendants identified in paragraphs 11-19 are collectively referred to herein as the
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`“Board” or the “Individual Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`The Proposed Transaction
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`21.
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`On May 19, 2022, Tyme and Syros jointly announced in relevant part:
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`CAMBRIDGE, Mass. and BEDMINSTER, New Jersey, July 5, 2022 – Syros
`Pharmaceuticals (NASDAQ:SYRS), a leader in the development of medicines that
`control
`the
`expression of genes,
`and TYME Technologies,
`Inc.
`(NASDAQ:TYME), today announced that the companies have entered into a
`definitive merger agreement pursuant to which Syros will acquire TYME,
`including its pipeline assets and net cash at closing which after accounting for wind-
`down and transaction expenses is currently estimated to be approximately $60
`million. The combined company will trade on Nasdaq under the ticker symbol
`“SYRS” and will be led by Syros’ existing management team, including Nancy
`Simonian, M.D., Chief Executive Officer of Syros, and will remain focused on
`advancing Syros’ pipeline of small molecule medicines for the treatment of cancer.
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`Concurrent with the merger, Syros announced an oversubscribed $130 million
`private investment in public equity (PIPE) financing at a price per unit of $0.94.
`New and existing investors in the PIPE which was led by a life sciences-focused
`investment fund include Syros co-founder and founding investor Flagship
`Pioneering, Avidity Partners, Deep Track Capital, Bain Capital Life Sciences,
`Invus, Samsara BioCapital, Adage Capital Partners LP, Ally Bridge Group and
`Cowen Healthcare Investments, as well as other investors. Additionally, Syros
`stockholders holding approximately 28% of the outstanding shares of Syros
`common stock and TYME stockholders holding approximately 30% of the
`outstanding shares of TYME common stock signed support agreements obligating
`them to vote in favor of the transactions.
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`Syros also announced an amendment to its senior secured loan facility with Oxford
`Finance LLC which, subject to certain conditions, will extend the interest-only
`payment period from March 1, 2023 to March 1, 2024 (and, upon the achievement
`of certain milestones, September 1, 2024), and will extend the maturity date from
`February 1, 2025 to February 1, 2026 (and, upon the achievement of certain
`milestones, August 1, 2026).
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`Following the closing of the merger, financing and debt agreement amendment, the
`total cash balance of the combined company is expected to be approximately $240
`million (after transaction expenses), sufficient to fund Syros’ planned operating
`expenses and capital expenditure requirements into 2025.
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`“This is a pivotal moment for Syros. We believe these transactions will bring us
`the necessary capital to advance our late-stage clinical programs toward
`commercialization, including tamibarotene, currently being studied in the
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`SELECT-MDS-1 trial, the randomized portion of the SELECT-AML-1 trial, and
`SY-2101, which we plan to advance into a Phase 3 trial next year for the treatment
`of acute promyelocytic leukemia,” said Dr. Simonian. “After evaluating safety
`lead-in data from the SY-5609 Phase 1 trial in pancreatic cancer we will assess the
`optimal path forward for this program. Additionally, we have decided to seek
`partnerships for our discovery programs. Together, these decisions allow us to
`focus on the most advanced programs across our targeted hematology portfolio
`where we believe we can more rapidly address significant unmet needs. We are
`grateful for our new and existing investors, as well as to the TYME team for their
`spirit of collaboration throughout this process and look forward to delivering on our
`vision of bringing forward medicines that redefine the standard of care for cancer
`patients.”
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`“Following an extensive review of numerous strategic alternatives, it was clear that
`the proposed merger with Syros was the best option for our shareholders,” said
`Richie Cunningham, Chief Executive Officer of TYME Technologies. “The team
`at Syros shares our unwavering commitment to develop medicines that make a
`profound difference in patients’ lives. Syros has a robust pipeline with its lead
`program in Phase 3, an experienced management and board, and now is well
`capitalized to execute on its clinical endeavors. Additionally, Syros will continue
`our work of evaluating the best path forward for the SM–88 program.”
`In conjunction with these strategic transactions, Syros provided an update on the
`following clinical and discovery programs:
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`Tamibarotene: Oral RARα Agonist
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`Higher-Risk Myelodysplastic Syndrome (HR-MDS)
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`Syros continues to progress the ongoing SELECT-MDS-1 Phase 3 trial in newly
`diagnosed RARA-positive patients with HR-MDS and remains on track to report
`topline data in the fourth quarter of 2023 or the first quarter of 2024, with a potential
`new drug application (NDA) filing expected in 2024.
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`Acute Myeloid Leukemia (AML)
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`Syros continues to evaluate tamibarotene in combination with venetoclax and
`azacitidine in the ongoing SELECT-AML-1 Phase 2 trial in newly diagnosed
`RARA-positive patients with unfit AML. Syros expects to report clinical activity
`and safety data from the safety lead-in portion of the study in second half of 2022.
`Syros also plans to initiate the randomized portion of the trial in an additional eighty
`RARA-positive unfit AML patients, evaluating the triplet regimen of tamibarotene,
`venetoclax and azacitidine versus venetoclax and azacitidine with data expected in
`2023 or 2024.
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`SY-2101: Oral Arsenic Trioxide
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`Syros is advancing the ongoing dose confirmation trial of SY-2101 in patients with
`newly diagnosed acute promyelocytic leukemia (APL) and expects to announce
`pharmacokinetic and safety data in mid-2022. Syros now expects to initiate a Phase
`3 clinical trial of SY-2101 in the second half of 2023.
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`SY-5609: Oral Selective CDK7 Inhibitor
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`in
`in combination with chemotherapy
`is evaluating SY-5609
`Syros
`relapsed/refractory metastatic pancreatic cancer patients. The company expects to
`report safety and clinical activity data from the safety lead-in portion of the trial in
`the second half of 2022. Based on the safety lead-in data, Syros will determine the
`best course for further development of SY-5609.
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`In addition, the arm of Roche’s ongoing Phase 1/1b INTRINSIC trial evaluating
`SY-5609 in combination with atezolizumab, it’s PD-L1 inhibitor, in BRAF-mutant
`colorectal cancer is now open for enrollment. Under the terms of Syros’ agreement
`with Roche, Roche is the sponsor of the trial and Syros is supplying SY-5609.
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`Gene Control Discovery Engine
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`Syros is seeking partnerships for its discovery programs, including its CDK12
`program. Syros remains on track to nominate a development candidate from its
`CDK12 program in the third quarter of 2022.
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`Syros will continue to execute on its existing collaborations with Incyte
`Corporation and Global Blood Therapeutics, for which its research efforts are fully
`funded externally, as provided in each agreement.
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`Transaction Details
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`In the merger, Syros expects to issue approximately 74.3 million shares of its
`common stock to TYME stockholders to acquire TYME’s expected net cash at
`closing and TYME stockholders are expected to receive approximately 0.4312
`shares of Syros common stock for each share of TYME common stock. The actual
`number of shares to be issued in the merger and the exchange ratio will be subject
`to adjustment based on the amount of TYME’s net cash at closing and the number
`of TYME shares outstanding at closing. Upon closing of the merger, TYME will
`become a wholly owned subsidiary of Syros. The merger agreement has been
`approved by the Board of Directors of each company.
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`In the PIPE financing, Syros agreed to sell units comprising (i) an aggregate
`of 138.1 million shares of its common stock and pre-funded warrants to purchase
`shares of common stock and (ii) accompanying warrants to purchase an aggregate
`of up to 138.1 million additional shares of common stock (or pre-funded warrants
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`in lieu thereof), at a price per unit of $0.94 (or $0.9399 per unit comprising a pre-
`funded warrant and accompanying warrant). The exercise price of the warrants
`is $1.034 per share, or if exercised for a pre-funded warrant in lieu thereof, $1.0399
`per pre-funded warrant (representing the warrant exercise price of $1.034 per share
`minus the $0.0001 per share exercise price of each such pre-funded warrant).
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`The warrants are exercisable at any time during the period beginning six months
`after the closing of the PIPE financing and ending five years after such closing.
`The pre-funded warrants are exercisable at any time after their original issuance
`and will not expire. The expected gross proceeds from the PIPE financing are $130
`million, before deducting estimated offering expenses.
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`The merger, together with the PIPE financing, is intended to be tax free for U.S.
`federal income tax purposes to TYME stockholders.
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`The number of shares of Syros common stock issuable in the PIPE financing and
`the merger are subject to adjustment in the event of any reverse stock split that may
`be effectuated by Syros in connection with the transactions.
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`The transactions are expected to close in the second half of 2022 concurrently with
`each other, subject to approval by the stockholders of Syros and TYME, the
`effectiveness of a registration statement to be filed with the U.S. Securities and
`Exchange Commission (the “SEC”) to register the shares of Syros common stock
`to be issued in connection with the merger and the satisfaction of other customary
`closing conditions.
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`Net proceeds from the merger and the PIPE financing are expected to be used to
`advance Syros’ clinical development pipeline, business development activities,
`working capital and other general corporate purposes.
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`The securities to be sold in the PIPE have not been registered under the Securities
`Act of 1933, as amended (“Securities Act”), or any state or other applicable
`jurisdiction’s securities laws, and may not be offered or sold in the United States
`absent registration or an applicable exemption from the registration requirements
`of the Securities Act and applicable state or other jurisdictions’ securities laws.
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`Management and Organization
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`Effective as of the closing of the transactions, the Syros leadership team will
`continue to be responsible for all executive positions of the combined company.
`Nancy Simonian, M.D., will be the Chief Executive Officer, David A. Roth, M.D.,
`will serve as Chief Medical Officer, Kristin Stephens will serve as Chief
`Development Officer, Eric Olson, Ph.D., will serve as Chief Scientific Officer,
`Jason Haas will serve as Chief Financial Officer and Conley Chee will serve as
`Chief Commercial Officer. Additionally, effective as of the closing of the
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`transactions, Syros expects to add a board member nominated by TYME and a
`board member nominated by a PIPE investor.
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`Advisors
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`Piper Sandler & Co. is acting as financial advisor to Syros. Moelis & Company
`LLC is acting as financial advisor to TYME. Cowen and Piper are acting as
`placement agents for the PIPE transaction. WilmerHale LLP is acting as legal
`counsel to Syros. Faegre Drinker Biddle & Reath LLP is acting as legal counsel to
`TYME.
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`The Materially Incomplete and Misleading Proxy Statement
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`22.
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`The Board caused to be filed the materially incomplete and misleading Proxy
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`Statement with the SEC on August 9, 2022. The Proxy Statement, which recommends that Tyme
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`stockholders vote their shares in favor of the Proposed Transaction, fails to disclose material
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`information to Company stockholders, or provides them with materially misleading information,
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`concerning: (a) the financial projections for Tyme, Syros and the pro forma combined company;
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`(b) the financial analyses that support the fairness opinions provided by the Company’s financial
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`advisor, Moelis & Company LLC (“Moelis”); (c) potential conflicts of interest faced by Moelis;
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`and (d) the background of the Proposed Transaction.
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`Material Misrepresentations and/or Omissions Concerning Financial Forecasts for Tyme,
`Syros, and the Pro Forma Combined Company
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`23.
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`The Proxy Statement fails to disclose material information concerning the financial
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`forecasts for Tyme and Syros, including the line items underlying the calculation of EBIT and
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`Unlevered Free Cash Flow for the “SM-88 Development Case” and “Tyme’s Adjusted Syros
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`Forecast” financial forecasts.
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`24.
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`The Proxy Statement similarly fails to disclose the line items underlying the
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`calculation of EBIT and Unlevered Free Cash Flow for the “Initial Syros Management Forecast,”
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`the “Syros Management Forecast,” and the “Syros Probability-Adjusted Forecast” financial
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`forecasts.
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`25.
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`In addition, the Proxy Statement fails to disclose the estimates prepared and
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`provided to Moelis by Tyme management of “(1) Tyme’s projected utilization on a standalone
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`basis of net operating losses to achieve future tax savings and (2) Syros’s projected utilization on
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`a standalone basis of net operating losses to achieve future tax savings (referred to . . . as the
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`‘Combined Company NOL Utilization Estimates’)[.]”3
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`26.
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`The Proxy Statement further fails to disclose, with respect to the pro forma
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`combined company, “the estimates prepared and provided to Moelis by the management of Tyme
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`as to the combined company’s projected utilization of net operating losses to achieve future tax
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`savings[.]”4
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`Material Misrepresentations and/or Omissions Concerning Moelis’ Financial Analyses
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`27.
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`The Proxy Statement fails to disclose material information concerning Moelis’s
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`financial analyses.
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`28. With respect to the Discounted Cash Flow Analysis – Tyme performed by Moelis,
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`the Proxy Statement fails to disclose (a) the inputs and assumptions underlying the range of
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`discount rates utilized by Moelis in connection with the analysis; (b) the estimated projected
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`distributions after accounting for the “Dissolution Enhancements” (as defined in the Proxy
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`Statement).5
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`29. With respect to the Discounted Cash Flow Analysis – Syros performed by Moelis,
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`the Proxy Statement fails to disclose (a) the projection metric to which Moelis applied perpetuity
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`3 See Proxy Statement at 177.
`4 See id.
`5 See id. at 179.
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`growth rates and the terminal values; (b) the inputs and assumptions underlying the range of
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`discount rates utilized by Moelis in connection with the analysis; (c) the estimate of Tyme’s Net
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`Cash utilized in the analysis; (d) the gross proceeds expected to be received in the PIPE Financing;
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`and (e) Tyme’s estimate of transaction expenses.
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`30. With respect to Moelis’ additional discounted cash flow analyses of Tyme and
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`Syros, the Proxy Statement fails to disclose a quantification of the projection metric to which
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`Moelis applied perpetuity growth rates and the terminal values.
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`31. With respect to Moelis’ analysis of publicly traded companies, the Proxy Statement
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`fails to disclose the identities of the companies analyzed by Moelis; and the individual multiples
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`and financial metrics for each of the selected companies.
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`32. With respect to Moelis’ analysis of one-year forward stock price targets for Syros
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`common stock, the Proxy Statement fails to disclose the individual price targets observed and the
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`sources thereof.
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`Material Misrepresentations and/or Omissions Concerning Moelis’ Potential Conflicts of
`Interest
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`33.
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`The Proxy Statement fails to disclose material information concerning the potential
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`conflicts of interest faced by Moelis, including the details of any services Moelis has provided to
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`Tyme or Syros in the past and the amount of compensation Moelis has received for any services
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`provided.
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`Material Misrepresentations and/or Omissions Concerning the Background of the Proposed
`Transaction
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`34.
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`The Proxy Statement fails to disclose material information concerning the
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`background of the Proposed Transaction, including the terms of the confidentiality agreements
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`(“NDAs”) the Company entered into with parties during the process leading up to the Proposed
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`Transaction, including whether any of the NDAs contain a “don’t-ask, don’t-waive” standstill
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`provision that is still in effect and presently precluding a party submitting a topping bid for the
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`Company.
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`35.
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`In sum, the omission of the above-referenced information renders statements in the
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`“Certain Prospective Financial Information Considered by Tyme’s Board of Directors,” “Opinion
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`of Moelis & Company LLC,” and “Background of the Merger” sections of the Proxy Statement
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`materially incomplete and misleading in contravention of the Exchange Act. Absent disclosure of
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`the foregoing material information prior to the stockholder vote, Plaintiff and the other
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`stockholders of Tyme will be unable to make a sufficiently informed decision in connection with
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`the Proposed Transaction and are thus threatened with irreparable harm warranting the injunctive
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`relief sought herein.
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`CLAIMS FOR RELIEF
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`COUNT I
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`Claims for Violation of Section 14(a) of the Exchange Act and Rule 14a-9 Promulgated
`Thereunder Against the Individual Defendants and Tyme
`
`36.
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`37.
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`Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
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`The Individual Defendants disseminated the false and misleading Proxy Statement,
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`which contained statements that, in light of the circumstances under which they were made,
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`omitted to state material facts necessary to make the statements therein not materially misleading,
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`in violation of Section 14(a) of the Exchange Act and Rule 14a-9. Tyme is liable as the issuer of
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`these statements.
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`38.
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`The Proxy Statement was prepared, reviewed, and/or disseminated by the
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`Individual Defendants. By virtue of their positions within the Company, the Individual Defendants
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`were aware of this information and their duty to disclose this information in the Proxy Statement.
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`39.
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`The Individual Defendants were at least negligent in filing the Proxy Statement
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`with these materially false and misleading statements.
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`40.
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`The omissions and false and misleading statements in the Proxy Statement are
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`material in that a reasonable stockholder will consider them important in deciding how to vote on
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`the Proposed Transaction. In addition, a reasonable investor will view a full and accurate
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`disclosure as significantly altering the total mix of information made available in the Proxy
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`Statement and in other information reasonably available to stockholders.
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`41.
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`The Proxy Statement is an essential link in causing Plaintiff and the Company’s
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`stockholders to approve the Proposed Transaction.
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`42.
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`By reason of the foregoing, defendants violated Section 14(a) of the Exchange Act
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`and Rule 14a-9 promulgated thereunder.
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`43.
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`Because of the false and misleading statements in the Proxy Statement, Plaintiff is
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`threatened with irreparable harm.
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`COUNT II
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`Claims for Violation of Section 20(a) of the Exchange Act
`Against the Individual Defendants
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`Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
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`The Individual Defendants acted as controlling persons of Tyme within the
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`44.
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`45.
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`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
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`officers and/or directors of Tyme and participation in and/or awareness of the Company’s
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`operations and/or intimate knowledge of the false statements contained in the Proxy Statement,
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`they had the power to influence and control and did influence and control, directly or indirectly,
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`the decision making of the Company, including the content and dissemination of the various
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`statements that Plaintiff contends are false and misleading.
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`46.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Proxy Statement alleged by Plaintiff to be misleading prior to and/or shortly after
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`these statements were issued and had the ability to prevent the issuance of the statements or cause
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`them to be corrected.
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`47.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
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`the power to control and influence the particular transactions giving rise to the violations as alleged
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`herein, and exercised the same. The Proxy Statement contains the unanimous recommendation of
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`the Individual Defendants to approve the Proposed Transaction. They were thus directly involved
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`in the making of the Proxy Statement.
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`48.
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`By virtue of the foregoing, the Individual Defendants violated Section 20(a) of the
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`Exchange Act.
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`49.
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`As set forth above, the Individual Defendants had the ability to exercise control
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`over and did control a person or persons who have each violated Section 14(a) of the Exchange
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`Act and Rule 14a-9, by their acts and omissions as alleged herein. By virtue of their positions as
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`controlling persons, these defendants are liable pursuant to Section 20(a) of the Exchange Act. As
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`a direct and proximate result of defendants’ conduct, Plaintiff is threatened with irreparable harm.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff demands judgment and preliminary and permanent relief,
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`including injunctive relief, in his favor on behalf of Mandiant, and against defendants, as follows:
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`A.
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`Preliminarily and permanently enjoining defendants and all persons acting
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`in concert with them from proceeding with, consummating, or closing the Proposed Transaction
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`and any vote on the Proposed Transaction, unless and until defendants disclose and disseminate
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`the material information identified above to Company stockholders;
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`B.
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`In the event defendants consummate the Proposed Transaction, rescinding
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`it and setting it aside or awarding rescissory damages to Plaintiff;
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`C.
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`Declaring that defendants violated Sections 14(a) and/or 20(a) of the
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`Exchange Act;
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`D.
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`Awarding Plaintiff the costs of this action, including reasonable allowance
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`for Plaintiff’s attorneys’ and experts’ fees; and
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`E.
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`Granting such other and further relief as this Court may deem just and
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`proper.
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`Plaintiff demands a trial by jury on all claims and issues so triable.
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`JURY DEMAND
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`Dated: August 30, 2022
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`LONG LAW, LLC
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`/s/ Brian D. Long
`Brian D. Long (#4347)
`3828 Kennett Pike, Suite 208
`Wilmington, DE 19807
`Telephone: (302) 729-9100
`Email: BDLong@longlawde.com
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`Attorneys for Plaintiff
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`By
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