Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 1 of 15 PageID #: 1
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`Daniel Sadeh, Esq.
`HALPER SADEH LLP
`667 Madison Avenue, 5th Floor
`New York, NY 10065
`Telephone: (212) 763-0060
`Facsimile: (646) 776-2600
`Email: sadeh@halpersadeh.com
`
`Counsel for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`
`Case No:
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`JURY TRIAL DEMANDED
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`
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`LISA SAVAGE,
`
`Plaintiff,
`
`v.
`
`CHECKMATE PHARMACEUTICALS,
`INC., MIKE POWELL, PETER
`COLABUONO, ALAN FUHRMAN,
`JON WIGGINTON, ALAN BASH,
`KEITH FLAHERTY, OREN K.
`ISACOFF, and JOY YAN,
`
`
`Defendants.
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`
`
`
`
`
`
`
`
`
`
`COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS
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`Plaintiff Lisa Savage (“Plaintiff”), by Plaintiff’s undersigned attorneys, for Plaintiff’s
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`complaint against Defendants (defined below), alleges the following based upon personal
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`knowledge as to Plaintiff and Plaintiff’s own acts, and upon information and belief as to all other
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`matters, based upon, inter alia, the investigation conducted by and through Plaintiff’s attorneys.
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`NATURE OF THE ACTION
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`1.
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`This is an action against Checkmate Pharmaceuticals, Inc. (“Checkmate” or the
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`“Company”) and its Board of Directors (the “Board” or the “Individual Defendants”) for their
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`violations of Sections 14(e), 14(d)(4), and 20(a) of the Securities Exchange Act of 1934 (the
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 2 of 15 PageID #: 2
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`“Exchange Act”), 15 U.S.C. §§ 78n(e), 78n(d)(4), and 78t(a), and Rule 14d-9 promulgated
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`thereunder by the SEC, 17 C.F.R. § 240.14d-9, in connection with the proposed acquisition (the
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`“Proposed Transaction”) of Checkmate by Regeneron Pharmaceuticals, Inc. (“Regeneron”).
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`JURISDICTION AND VENUE
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`2.
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`The claims asserted herein arise under and pursuant to Sections 14(e), 14(d)(4),
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`and 20(a) of the Exchange Act (15 U.S.C. §§ 78n(e), 78n(d)(4), and 78t(a)) and Rule 14d-9
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`promulgated thereunder by the SEC (17 C.F.R. § 240.14d-9).
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`3.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. § 1331, and Section 27 of the Exchange Act, 15 U.S.C. § 78aa.
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`4.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and Section 27 of
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`the Exchange Act (15 U.S.C. § 78aa(c)) as a substantial portion of the transactions and wrongs
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`complained of herein had an effect in this District, and the alleged misstatements entered and the
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`subsequent damages occurred in this District.
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`5.
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`In connection with the acts, conduct and other wrongs alleged in this complaint,
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`Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce,
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`including but not limited to, the United States mails, interstate telephone communications and the
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`facilities of the national securities exchange.
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`PARTIES
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`6.
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`Plaintiff is, and has been at all relevant times hereto, an owner of Checkmate
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`common stock.
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`7.
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`Defendant Checkmate is a clinical-stage biotechnology company that focuses on
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`developing and commercializing novel therapeutics for the treatment of cancer. The Company is
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 3 of 15 PageID #: 3
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`incorporated in Delaware. The Company’s common stock trades on the NASDAQ under the ticker
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`symbol, “CMPI.”
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`8.
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`9.
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`10.
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`11.
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`12.
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`Defendant Mike Powell (“Powell”) is Chairman of the Board of the Company.
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`Defendant Peter Colabuono (“Colabuono”) is a director of the Company.
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`Defendant Alan Fuhrman (“Fuhrman”) is a director of the Company.
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`Defendant Jon Wigginton (“Wigginton”) is a director of the Company.
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`Defendant Alan Bash (“Bash”) is President, Chief Executive Officer, and a
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`director of the Company.
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`13.
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`14.
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`15.
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`16.
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`Defendant Keith Flaherty (“Flaherty”) is a director of the Company.
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`Defendant Oren K. Isacoff (“Isacoff”) is a director of the Company.
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`Defendant Joy Yan (“Yan”) is a director of the Company.
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`Defendants Powell, Colabuono, Fuhrman, Wigginton, Bash, Flaherty, Isacoff, and
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`Yan are collectively referred to herein as the “Individual Defendants.”
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`17.
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`Defendants Checkmate and the Individual Defendants are collectively referred to
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`herein as the “Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`A. The Proposed Transaction
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`18.
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`On April 19, 2022, Checkmate and Regeneron announced a definitive agreement
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`for the acquisition of Checkmate by Regeneron at an all-cash price of $10.50 per share of
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`Checkmate common stock. The press release announcing the Proposed Transaction states, in
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`pertinent part:
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`Regeneron to Acquire Checkmate Pharmaceuticals and Its Investigational
`Immune Activator for Potential Use in Multiple Tumor Types
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`3
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 4 of 15 PageID #: 4
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`NEWS PROVIDED BY
`Regeneron Pharmaceuticals, Inc.
`Apr 19, 2022, 07:00 ET
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`Proposed ~$250 million all-cash acquisition strengthens Regeneron's portfolio
`of diverse and combinable immuno-oncology candidates
`
`Lead investigational asset vidutolimod is a potential best-in-class TLR9
`agonist, with demonstrated clinical responses observed in PD-1 refractory
`melanoma as monotherapy
`
`Vidutolimod is currently being studied in combination with other agents for
`melanoma, non-melanoma skin cancers, and head and neck cancer
`
`TARRYTOWN, N.Y. and CAMBRIDGE, Mass., April 19, 2022 /PRNewswire/ --
`Regeneron Pharmaceuticals,
`Inc.
`(NASDAQ: REGN)
`and Checkmate
`Pharmaceuticals, Inc. (NASDAQ: CMPI), a clinical stage biopharmaceutical
`company focused on proprietary technology to harness the power of the immune
`system to combat cancer, today announced a definitive agreement for the
`acquisition of Checkmate by Regeneron at an all-cash price of $10.50 per share of
`Checkmate common stock. The proposed acquisition values Checkmate at a total
`equity value of approximately $250 million.
`
`Checkmate's lead investigational candidate is vidutolimod, an advanced generation
`CpG-A oligodeoxynucleotide Toll-like receptor 9 (TLR9) agonist delivered in a
`virus-like particle.
`
`
`
`The merger agreement provides for Regeneron, through a subsidiary, to initiate a
`tender offer to acquire all outstanding shares of Checkmate at an all-cash price
`of $10.50 per share of Checkmate common stock. The closing of the tender offer
`will be subject to certain conditions, including the tender of at least a majority of
`the outstanding shares of Checkmate common stock, the expiration of the waiting
`period under the Hart-Scott-Rodino Antitrust Improvements Act and other
`customary closing conditions. Upon the successful completion of the tender offer,
`Regeneron will acquire all shares not acquired in the tender through a second-step
`merger. The transaction is expected to close in mid-2022.
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`Regeneron's legal advisor for the transaction is Wachtell, Lipton, Rosen & Katz.
`Centerview Partners is serving as Checkmate's financial advisor and Goodwin
`Procter LLP is serving as its legal advisor.
`
`About Vidutolimod
`
`Vidutolimod works by two complementary mechanisms that together have a unique
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`*
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`*
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`*
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 5 of 15 PageID #: 5
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`ability to drive a strong systemic anti-tumor T cell response. First, the virus-like
`particle (VLP) activates an immune response to the VLP, leading to the production
`of antibodies that deliver the VLP into plasmacytoid dendritic cells (pDC) and
`other immune cells via specialized receptors called FcRs. This provides an initial
`stimulatory signal to pDC and brings the CpG-A to TLR9 (the receptor for CpG
`DNA) inside the pDC. Second, CpG-A stimulates TLR9 in a manner that induces
`pDC to release significantly higher levels of IFN-α and other type I interferons than
`other innate immune activators, resulting in a stronger anti-tumor T cell response.
`Animal models and in vitro experiments suggest
`that, when activated by
`vidutolimod by this combination of signals, pDC recruit and coordinate a variety
`of other immune cells, culminating in the generation of a strong anti-tumor T cell
`response.
`
`About Regeneron
`
`Regeneron (NASDAQ: REGN) is a leading biotechnology company that invents
`life-transforming medicines for people with serious diseases. Founded and led for
`nearly 35 years by physician-scientists, our unique ability to repeatedly and
`consistently translate science into medicine has led to nine FDA-approved
`treatments and numerous product candidates in development, almost all of which
`were homegrown in our laboratories. Our medicines and pipeline are designed to
`help patients with eye diseases, allergic and inflammatory diseases, cancer,
`cardiovascular and metabolic diseases, pain, hematologic conditions, infectious
`diseases and rare diseases.
`
`Regeneron is accelerating and improving the traditional drug development process
`through our proprietary VelociSuite® technologies, such as VelocImmune®, which
`uses unique genetically humanized mice to produce optimized fully human
`antibodies and bispecific antibodies, and through ambitious research initiatives
`such as the Regeneron Genetics Center, which is conducting one of the largest
`genetics sequencing efforts in the world.
`
`For additional information about the company, please visit www.regeneron.com or
`follow @Regeneron on Twitter.
`
`About Checkmate Pharmaceuticals
`
`Checkmate Pharmaceuticals is a clinical stage biotechnology company focused on
`developing its proprietary technology to harness the power of the immune system
`to combat cancer. Checkmate Pharmaceuticals' product candidate, vidutolimod
`(CMP-001), is an advanced generation Toll-like receptor 9 (TLR9) agonist,
`delivered as a biologic virus-like particle utilizing a CpG-A oligodeoxynucleotide
`as a key component, designed to trigger the body's innate immune system to attack
`tumors in combination with other therapies. Information regarding Checkmate
`Pharmaceuticals is available at www.checkmatepharma.com.
`
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`19.
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`On May 2, 2022, Defendants caused to be filed with the SEC a Schedule 14D-9
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`Solicitation/Recommendation Statement under Section 14(d)(4) of the Exchange Act (the
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`“Solicitation Statement”) in connection with the Proposed Transaction.
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`B. The Solicitation Statement Contains Materially False and Misleading Statements
`and Omissions
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`20.
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`The Solicitation Statement, which recommends that Checkmate shareholders
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`tender their shares in connection with the Proposed Transaction, omits and/or misrepresents
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`material information concerning: (i) Checkmate’s financial projections; (ii) the financial analyses
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`performed by the Company’s financial advisor, Centerview Partners LLC (“Centerview”), in
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`connection with its fairness opinion; and (iii) potential conflicts of interest involving Company
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`insiders.
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`21.
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`The omission of the material information (referenced below) renders the following
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`sections of the Solicitation Statement false and misleading, among others: (i) Recommendation of
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`the Checkmate Board; (ii) Reasons for the Recommendation; (iii) Certain Financial Projections;
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`and (iv) Opinion of Checkmate’s Financial Advisor.
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`22.
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`The tender offer in connection with the Proposed Transaction is set to expire at one
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`minute after 11:59 p.m. Eastern Time, on May 30, 2022 (the “Expiration Date”). It is imperative
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`that the material information that was omitted from the Solicitation Statement be disclosed to the
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`Company’s shareholders prior to the Expiration Date to enable them to make an informed decision
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`as to whether to tender their shares. Plaintiff may seek to enjoin Defendants from closing the tender
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`offer or the Proposed Transaction unless and until the material misstatements and omissions
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`(referenced below) are remedied. In the event the Proposed Transaction is consummated, Plaintiff
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`may seek to recover damages resulting from Defendants’ misconduct.
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`1. Material Omissions Concerning Checkmate’s Financial Projections
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`23.
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`The Solicitation Statement omits material information concerning Checkmate’s
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`financial projections.
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`24. With respect to the Company’s financial projections, the Solicitation Statement
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`fails to disclose: (1) all line items underlying the Company’s financial projections; and (2) a
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`reconciliation of all non-GAAP to GAAP metrics.
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`25.
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`The Solicitation Statement further fails to quantify the assumptions underlying the
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`risk-adjusted projections of Checkmate, and further fails to disclose the non-risk-adjusted
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`projections in order for the Company’s shareholders to evaluate and assess the financial impact
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`the Company’s risk-adjustments had on Checkmate’s financial projections.
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`26.
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`The disclosure of this information is material because it would provide the
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`Company’s shareholders with a basis to project the future financial performance of the Company
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`and would allow shareholders to better understand the financial analyses performed by the
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`Company’s financial advisor in support of its fairness opinion. Shareholders cannot hope to
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`replicate management’s inside view of the future prospects of the Company. Without such
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`information, which is uniquely possessed by Defendant(s) and the Company’s financial advisor,
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`the Company’s shareholders are unable to determine how much weight, if any, to place on the
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`Company’s financial advisor’s fairness opinion in determining whether to tender their shares in
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`connection Proposed Transaction.
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`27. When a company discloses non-GAAP financial metrics in a Solicitation Statement
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`that were relied upon by its board of directors in recommending that shareholders exercise their
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`corporate suffrage rights in a particular manner, the company must also disclose, pursuant to SEC
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`Regulation G, all projections and information necessary to make the non-GAAP metrics not
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`misleading, and must provide a reconciliation (by schedule or other clearly understandable
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`method) of the differences between the non-GAAP financial metrics disclosed or released with the
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`most comparable financial metrics calculated and presented in accordance with GAAP. 17 C.F.R.
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`§ 244.100.1
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`28.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`the total mix of information available to the Company’s shareholders.
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`2. Material Omissions Concerning Centerview’s Analyses
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`29.
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`In connection with the Proposed Transaction, the Solicitation Statement omits
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`material information concerning analyses performed by Centerview.
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`30. With respect to Centerview’s “Selected Precedent Transactions Analysis,” the
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`Solicitation Statement fails to disclose the closing dates of each transaction.
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`31.
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`The Solicitation Statement fails to disclose the following concerning Centerview’s
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`“Discounted Cash Flow Analysis”: (1) the individual inputs and assumptions underlying the
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`discount rates used in the analysis; (2) the forecasted risk-adjusted, after-tax unlevered free cash
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`flows of Checkmate over the period beginning on April 1, 2022 and ending on December 31, 2040,
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`and all underlying line items; (3) the terminal values of Checkmate; (4) the basis for Centerview’s
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`assumption that unlevered free cash flows would decline after December 31, 2040 at a rate of
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`50.0% year-over-year in perpetuity; (5) Checkmate’s federal net operating losses and future losses
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`and federal research and development tax credits; and (6) the present value of the estimated costs
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`
`1 Mary Jo White, Keynote Address, International Corporate Governance Network Annual
`Conference: Focusing the Lens of Disclosure to Set the Path Forward on Board Diversity, Non-
`GAAP, and Sustainability (June 27, 2016), https://www.sec.gov/news/speech/chair-white-icgn-
`speech.html (footnotes omitted) (last visited May 13, 2022) (“And last month, the staff issued
`guidance addressing a number of troublesome practices which can make non-GAAP disclosures
`misleading: the lack of equal or greater prominence for GAAP measures; exclusion of normal,
`recurring cash operating expenses; individually tailored non-GAAP revenues; lack of
`consistency; cherry-picking; and the use of cash per share data. I strongly urge companies to
`carefully consider this guidance and revisit their approach to non-GAAP disclosures.”).
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`associated with future equity raises.
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`32.
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`The Solicitation Statement fails to disclose the following concerning Centerview’s
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`“Analyst Price Target Analysis”: (1) the individual price targets observed by Centerview in its
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`analysis; and (2) the sources thereof.
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`33. With respect to Centerview’s “Premia Paid Analysis,” the Solicitation Statement
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`fails to disclose the transactions observed and the premiums paid therein.
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`34.
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`The valuation methods, underlying assumptions, and key
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`inputs used
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`by Centerview in rendering its purported fairness opinion must be fairly disclosed to the
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`Company’s shareholders. The description of Centerview’s fairness opinion and analyses, however,
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`fails to include key inputs and assumptions underlying those analyses.
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`35. Without the information described above, the Company’s shareholders are unable
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`to fully understand Centerview’s fairness opinion and analyses, and are thus unable to determine
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`how much weight, if any, to place on them in determining whether to tender their shares in
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`connection with the Proposed Transaction. This omitted information, if disclosed, would
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`significantly alter the total mix of information available to the Company’s shareholders.
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`3. Material Omissions Concerning Company Insiders’ Potential Conflicts of
`Interest
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`36.
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`The Solicitation Statement omits material information concerning potential
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`conflicts of interest involving Company insiders.
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`37.
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`The Solicitation Statement fails to disclose the details of all employment-related
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`and compensation-related discussions and negotiations concerning the Company’s officers and
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`directors, including the parties to such communications, when they occurred, and the specific
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`content discussed/communicated.
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`38.
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`Any communications
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`regarding post-transaction employment during
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`the
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 10 of 15 PageID #: 10
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`negotiation of the underlying transaction must be disclosed to shareholders. This information is
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`necessary for shareholders to understand potential conflicts of interest of management and the
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`Board. Such information may illuminate the motivations that would prevent fiduciaries from acting
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`solely in the best interests of the Company’s shareholders.
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`39.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`the total mix of information available to the Company’s shareholders.
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`COUNT I
`For Violations of Section 14(e) of the Exchange Act
`Against All Defendants
`Plaintiff repeats and re-alleges each and every allegation contained in the foregoing
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`40.
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`paragraphs as if fully set forth herein.
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`41.
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`Section 14(e) of the Exchange Act states, in relevant part:
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`It shall be 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[.]
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`42.
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`During the relevant period, Defendants, individually and in concert, directly or
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`indirectly, disseminated or approved the false and misleading Solicitation Statement specified
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`above, which failed to disclose material facts necessary in order to make the statements made, in
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`light of the circumstances under which they were made, not misleading, in violation of Section
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`14(e) of the Exchange Act.
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`43.
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`Each of the Individual Defendants, by virtue of their positions within the Company
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`as officers and/or directors, were aware of materially false and/or misleading and/or omitted
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`information but failed to disclose such information, in violation of Section 14(e) of the Exchange
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`Act. Defendants, by use of the mails and means and instrumentalities of interstate commerce,
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`solicited and/or permitted the use of their names to file and disseminate the Solicitation Statement
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`10
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`with respect to the Proposed Transaction.
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`44.
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`The false and misleading statements and omissions in the Solicitation Statement are
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`material in that a reasonable shareholder would consider them important in deciding whether to
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`tender their shares in connection with the Proposed Transaction.
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`45.
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`Defendants acted knowingly or with deliberate recklessness in filing or causing the
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`filing of the materially false and misleading Solicitation Statement.
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`46.
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`47.
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`By reason of the foregoing, Defendants violated Section 14(e) of the Exchange Act.
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`Because of the false and misleading statements in the Solicitation Statement,
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`Plaintiff is threatened with irreparable harm.
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`COUNT II
`For Violations of Section 14(d)(4) of the Exchange Act and Rule 14d-9 Promulgated
`Thereunder
`Against All Defendants
`Plaintiff repeats and re-alleges each and every allegation contained in the foregoing
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`48.
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`paragraphs as if fully set forth herein.
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`49. Defendants caused the Solicitation Statement to be issued with the intent to solicit
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`shareholder support for the Proposed Transaction.
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`50.
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`Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder
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`require full and complete disclosure in connection with tender offers. Specifically, Section
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`14(d)(4) states, in relevant part:
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`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.
`
`
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`51.
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`SEC Rule 14d-9(d), adopted to implement Section 14(d)(4) of the
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`Exchange Act, states, in relevant part:
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 12 of 15 PageID #: 12
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`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[.]
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`52.
`
`In accordance with SEC Rule 14d-9, Item 8 of Schedule 14D-9 requires that a
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`company:
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`Furnish 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.
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`53.
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`During the relevant period, Defendants, individually and in concert, directly or
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`indirectly, disseminated or approved the false and misleading Solicitation Statement specified
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`above, which failed to disclose material facts necessary in order to make the statements made, in
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`light of the circumstances under which they were made, not misleading, in violation of Section
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`14(d)(4) of the Exchange Act and SEC Rule 14d-9.
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`54.
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`Each of the Individual Defendants, by virtue of their positions within the Company
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`as officers and/or directors, were aware of materially false and/or misleading and/or omitted
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`information but failed to disclose such information, in violation of Section 14(d)(4) of the
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`Exchange Act and SEC Rule 14d-9. Defendants, by use of the mails and means and
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`instrumentalities of interstate commerce, solicited and/or permitted the use of their names to file
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`and disseminate the Solicitation Statement with respect to the Proposed Transaction.
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`55.
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`Defendants acted knowingly or with deliberate recklessness in filing the materially
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`false and misleading Solicitation Statement which omitted material information.
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`56.
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`The false and misleading statements and omissions in the Solicitation Statement are
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`material in that a reasonable shareholder would consider them important in deciding whether to
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`tender their shares in connection with the Proposed Transaction.
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 13 of 15 PageID #: 13
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`COUNT III
`Violations of Section 20(a) of the Exchange Act
`Against the Individual Defendants
`Plaintiff repeats and re-alleges each and every allegation contained in the foregoing
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`57.
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`paragraphs as if fully set forth herein.
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`58.
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`The Individual Defendants acted as control persons of the Company within the
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`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their senior positions
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`as officers and/or directors of the Company and participation in and/or awareness of the
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`Company’s operations and/or intimate knowledge of the false statements contained in the
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`Solicitation Statement filed with the SEC, they had the power to and did influence and control,
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`directly or indirectly, the decision-making of the Company, including the content and
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`dissemination of the false and misleading Solicitation Statement.
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`59.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Solicitation Statement and other statements alleged by Plaintiff to be misleading prior
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`to and/or shortly after these statements were issued and had the ability to prevent the issuance of
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`the statements or cause the statements to be corrected. As officers and/or directors of a publicly
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`owned company, the Individual Defendants had a duty to disseminate accurate and truthful
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`information with respect to the Solicitation Statement, and to correct promptly any public
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`statements issued by the Company which were or had become materially false or misleading.
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`60.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the operations of the Company, and, therefore, is presumed to have had the power
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`to control or influence the particular transactions giving rise to the securities violations as alleged
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`herein, and exercised the same. The Individual Defendants were provided with or had unlimited
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`access to copies of the Solicitation Statement and had the ability to prevent the issuance of the
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`statements or to cause the statements to be corrected. The Solicitation Statement at issue contains
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`13
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 14 of 15 PageID #: 14
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`the recommendation of the Individual Defendants to tender their shares pursuant to the Proposed
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`Transaction. Thus, the Individual Defendants were directly involved in the making of the
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`Solicitation Statement.
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`61.
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`In addition, as the Solicitation Statement sets forth at length, and as described
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`herein, the Individual Defendants were involved in negotiating, reviewing, and approving the
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`Proposed Transaction. The Solicitation Statement purports to describe the various issues and
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`information that they reviewed and considered—descriptions which had input from the Individual
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`Defendants.
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`62.
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`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
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`of the Exchange Act.
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`63.
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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 Sections 14(e), 14(d)(4), and Rule
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`14d-9 promulgated thereunder, by their acts and omissions as alleged herein. By virtue of their
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`positions as controlling persons, the Individual Defendants are liable pursuant to Section 20(a) of
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`the Exchange Act. As a direct and proximate result of Defendants’ conduct, the Company’s
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`shareholders will be irreparably harmed.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for judgment and relief as follows:
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`A.
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`Preliminarily and permanently enjoining Defendants and all persons acting in
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`concert with them from proceeding with, consummating, or closing the Proposed Transaction and
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`the tender offer in connection with the Proposed Transaction, unless and until Defendants disclose
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`and disseminate the material information identified above to the Company’s shareholders;
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`Case 1:22-cv-02823 Document 1 Filed 05/13/22 Page 15 of 15 PageID #: 15
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`B.
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`In the event Defendants consummate the Proposed Transaction, rescinding it and
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`setting it aside or awarding Plaintiff rescissory damages;
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`C.
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`Declaring that Defendants violated Sections 14(e), 14(d)(4), and 20(a) of the
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`Exchange Act, and Rule 14d-9 promulgated thereunder;
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`D.
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`Awarding Plaintiff reasonable costs and expenses incurred in this action, including
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`counsel fees and expenses and expert fees; and
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`E.
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`Granting such other and further relief as the Court may deem just and proper.
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`JURY TRIAL DEMANDED
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`Plaintiff hereby demands a trial by jury.
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`Dated: May 13, 2022
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` Respectfully submitted,
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`HALPER SADEH LLP
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`By: /s/ Daniel Sadeh
`Daniel Sadeh, Esq.
`Zachary Halper, Esq. (to be admitted pro hac
`vice)
`667 Madison Avenue, 5th Floor
`New York, NY 10065
`Telephone: (212) 763-0060
`Facsimile: (646) 776-2600
`Email: sadeh@halpersadeh.com
` zhalper@halpersadeh.com
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`Counsel for Plaintiff
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