Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 1 of 16
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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`Plaintiff,
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`Civil Action No.
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`COMPLAINT FOR VIOLATIONS
`OF THE FEDERAL SECURITIES
`LAWS
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`JURY TRIAL DEMANDED
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`
` MICHAEL ACHTERBERG,
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`v.
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`XILINX, INC., DENNIS SEGERS,
`VICTOR PENG, RAMAN CHITKARA,
`SAAR GILLAI, RONALD S. JANKOV,
`MARY LOUISE (ML) KRAKAUER,
`THOMAS H. LEE, JON A. OLSON, and
`ELIZABETH VANDERSLICE,
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`Defendants.
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`Plaintiff Michael Achterberg (“Plaintiff”) by and through his undersigned attorneys,
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`brings this action on behalf of himself, and alleges the following based upon personal knowledge
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`as to those allegations concerning Plaintiff and, as to all other matters, upon the investigation of
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`counsel, which includes, without limitation: (a) review and analysis of public filings made by
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`Xilinx, Inc. (“Xilinx” or the “Company”) and other related parties and non-parties with the
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`United States Securities and Exchange Commission (“SEC”); (b) review and analysis of press
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`releases and other publications disseminated by certain of the Defendants (defined below) and
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`other related non-parties; (c) review of news articles, shareholder communications, and postings
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`on the Company’s website concerning the Company’s public statements; and (d) review of other
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`publicly available information concerning Xilinx and the Defendants.
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 2 of 16
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`SUMMARY OF THE ACTION
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`1.
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`This is an action brought by Plaintiff against Xilinx and the Company’s Board of
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`Directors (the “Board” or the “Individual Defendants”) for their violations of Section 14(a) and
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`20(a) of the Securities Exchange Act of 1934, 15.U.S.C. §§ 78n(a), 78t(a), and SEC Rule 14a-9,
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`17 C.F.R. 240.14a-9, in connection with the proposed sale of the Company to Advanced Micro
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`Devices, Inc. (“AMD”) and Thrones Merger Sub Inc. (“Merger Sub”), a wholly owned
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`subsidiary of AMD (the “Proposed Transaction”).
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`2.
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`On October 27, 2020, the Company announced that it had entered into an
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`Agreement and Plan of Merger (the “Merger Agreement”) with AMD. Pursuant to the terms of
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`the Merger Agreement the Company’s shareholders will receive 1.7234 shares of AMD common
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`stock for each share of Xilinx common stock owned (the “Merger Consideration”).
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`3.
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`On December 4, 2020, in order to convince the Company’s shareholders to vote
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`in favor of the Proposed Transaction, the Board authorized the filing of a materially incomplete
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`and misleading registration statement with the SEC on Form S-4 (the “Registration Statement”),
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`in violation of Sections 14(a) and 20(a) of the Exchange Act.
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`4.
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`For these reasons, and as set forth in detail herein, Plaintiff asserts claims against
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`Xilinx and the Board for violations of Sections 14(a) and 20(a) of the Exchange Act and Rule
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`14a-9. Plaintiff seeks to enjoin Defendants from taking any steps to consummate the Proposed
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`Transaction unless and until the material information discussed below is disclosed to Xilinx
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`shareholders before the vote on the Proposed Transaction or, in the event the Proposed
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`Transaction is consummated, recover damages resulting from the Defendants’ violations of the
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`Exchange Act.
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 3 of 16
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`JURISDICTION AND VENUE
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`5.
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`This Court has subject matter jurisdiction over all claims asserted herein pursuant
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`to Section 27 of the Exchange Act, 15 U.S.C § 78aa, and 28 U.S.C. § 1331, as Plaintiff alleges
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`violations of Sections 14(a) and 20(a) of the Exchange Act.
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`6.
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`This Court has personal jurisdiction over all of the Defendants because each is
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`either a corporation that conducts business in, solicits shareholders in, and/or maintains
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`operations within, this District, or is an individual who is either present in this District for
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`jurisdictional purposes or has sufficient minimum contacts with this District so as to make the
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`exercise of jurisdiction by this Court permissible under traditional notions of fair play and
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`substantial justice.
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`7.
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`Venue is proper under 28 U.S.C. § 1391 because a substantial portion of the
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`transactions and wrongs complained of herein occurred in this District.
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`THE PARTIES
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`8.
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`9.
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`Plaintiff is, and has been at all times relevant hereto, the owner of Xilinx shares.
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`Defendant Xilinx is incorporated under the laws of Delaware and has its principal
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`executive offices located at 2100 Logic Drive, San Jose, California 95124. The Company’s
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`common stock trades on the NASDAQ Global Select Market under the symbol “XLNX.”
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`10.
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`Defendant Dennis Segers (“Segers”) is and has been a director of Xilinx at all
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`times during the relevant time period.
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`11.
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`Defendant Victor Peng (“Peng”) is and has been the Company’s Chief Executive
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`Officer and a director of Xilinx at all times during the relevant time period.
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`12.
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`Defendant Raman Chitkara (“Chitkara”) is and has been a director of Xilinx at all
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`times during the relevant time period.
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 4 of 16
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`13.
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`Defendant Saar Gillai (“Gillai”) is and has been a director of Xilinx at all times
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`during the relevant time period.
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`14.
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`Defendant Ronald S. Jankov (“Jankov”) is and has been a director of Xilinx at all
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`times during the relevant time period.
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`15.
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`Defendant Mary Louise Krakauer (“Krakauer”) is and has been a director of
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`Xilinx at all times during the relevant time period.
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`16.
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`Defendant Thomas H. Lee (“Lee”) is and has been a director of Xilinx at all times
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`during the relevant time period.
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`17.
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`Defendant Jon A. Olson (“Olson”) is and has been a director of Xilinx at all times
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`during the relevant time period.
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`18.
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`Defendant Elizabeth Vanderslice (“Vanderslice”) is and has been a director of
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`Xilinx at all times during the relevant time period.
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`19.
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`Defendants Segers, Peng, Chitkara, Gillai, Jankov, Krakauer, Lee, Olson, and
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`Vanderslice are collectively referred to herein as the “Individual Defendants.”
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`20.
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`The Individual Defendants, along with Defendant Xilinx, are collectively referred
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`to herein as “Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`Background of the Company
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`21.
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`Xilinx designs and develops programmable devices and associated technologies,
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`including integrated circuits (ICs) in the form of programmable logic devices (PLDs), including
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`programmable System on Chips (SoCs), three-dimensional ICs (3D ICs) and Adaptive Compute
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`Acceleration Platform (ACAP): a highly integrated multi-core heterogeneous compute platform;
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`software design tools to program the PLDs; software development environments and embedded
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 5 of 16
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`platforms; targeted reference designs; printed circuit boards; and intellectual property (IP), which
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`consists of Xilinx and various third-party verification and IP cores. In addition to its
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`programmable platforms, Xilinx provides design services, customer training, field engineering
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`and technical support.
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`The Company Announces the Proposed Transaction
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`22.
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`On October 27, 2020, the Company jointly issued a press release announcing the
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`Proposed Transaction. The press release stated in part:
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`SILICON VALLEY, CALIF. ― Oct. 27, 2020 ― AMD (NASDAQ: AMD)
`and Xilinx (NASDAQ: XLNX) today announced they have entered into a
`definitive agreement for AMD to acquire Xilinx in an all-stock transaction valued
`at $35 billion. The combination will create the industry’s leading high
`performance computing company, significantly expanding the breadth of AMD’s
`product portfolio and customer set across diverse growth markets where Xilinx is
`an established leader. The transaction is expected to be immediately accretive to
`AMD margins, EPS and free cash flow generation and deliver industry-leading
`growth.
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`The acquisition brings together two industry leaders with complementary product
`portfolios and customers. AMD will offer the industry’s strongest portfolio of
`high performance processor technologies, combining CPUs, GPUs, FPGAs,
`Adaptive SoCs and deep software expertise to enable leadership computing
`platforms for cloud, edge and end devices. Together, the combined company will
`capitalize on opportunities spanning some of the industry’s most important
`growth segments from the data center to gaming, PCs, communications,
`automotive, industrial, aerospace and defense.
`
` “Our acquisition of Xilinx marks the next leg in our journey to establish AMD as
`the industry’s high performance computing leader and partner of choice for the
`largest and most important technology companies in the world,” AMD President
`and CEO Dr. Lisa Su said. “This is truly a compelling combination that will
`create significant value for all stakeholders, including AMD and Xilinx
`shareholders who will benefit from the future growth and upside potential of the
`combined company. The Xilinx team is one of the strongest in the industry and
`we are thrilled to welcome them to the AMD family. By combining our world-
`class engineering teams and deep domain expertise, we will create an industry
`leader with the vision, talent and scale to define the future of high performance
`computing.”
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 6 of 16
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`“We are excited to join the AMD family. Our shared cultures of innovation,
`excellence and collaboration make this an ideal combination. Together, we will
`lead the new era of high performance and adaptive computing,” said Victor Peng,
`Xilinx president and CEO. “Our leading FPGAs, Adaptive SoCs, accelerator and
`SmartNIC solutions enable innovation from the cloud, to the edge and end
`devices. We empower our customers to deploy differentiated platforms to market
`faster, and with optimal efficiency and performance. Joining together with AMD
`will help accelerate growth in our data center business and enable us to pursue a
`broader customer base across more markets.”
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`With a combined team of 13,000 talented engineers and over $2.7 billion of
`annual[1] R&D investment, AMD will have additional talent and scale to deliver
`an even stronger set of products and domain-specific solutions.
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`Additional Transaction Details
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`Under the terms of the agreement, Xilinx stockholders will receive a fixed
`exchange ratio of 1.7234 shares of AMD common stock for each share of Xilinx
`common stock they hold at the closing of the transaction. Based on the exchange
`ratio, this represents approximately $143 per share of Xilinx common stock[2].
`Post-closing, current AMD stockholders will own approximately 74 percent of the
`combined company on a fully diluted basis, while Xilinx stockholders will own
`approximately 26 percent. The transaction is intended to qualify as a tax-free
`reorganization for U.S. federal income tax purposes.
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`AMD expects to achieve operational efficiencies of approximately $300 million
`within 18 months of closing the transaction, primarily based on synergies in costs
`of goods sold, shared infrastructure and through streamlining common areas.
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`The transaction has been unanimously approved by the AMD and Xilinx Boards
`of Directors. The acquisition is subject to approval by AMD and Xilinx
`shareholders, certain regulatory approvals and other customary closing conditions.
`The transaction is currently expected to close by the end of calendar year 2021.
`Until close, the parties remain separate, independent companies.
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`Management and Board of Directors
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`Dr. Lisa Su will lead the combined company as CEO. Xilinx President and CEO,
`Victor Peng, will join AMD as president responsible for the Xilinx business and
`strategic growth initiatives, effective upon closing of the transaction. In addition,
`at least two Xilinx directors will join the AMD Board of Directors upon closing.
`
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`Advisors
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`Credit Suisse and DBO Partners are acting as financial advisors to AMD and
`Latham & Watkins, LLC is serving as its legal advisor. Morgan Stanley is acting
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 7 of 16
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`as lead financial advisor to Xilinx. BofA Securities is also acting as a financial
`advisor and Skadden, Arps, Slate, Meagher & Flom LLP is serving as legal
`counsel.
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`FALSE AND MISLEADING STATEMENTS
`AND/OR MATERIAL OMISSIONS IN THE REGISTRATION STATEMENT
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`23.
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`On December 4, 2020, the Company authorized the filing of the Registration
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`Statement with the SEC. The Registration Statement recommends that the Company’s
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`shareholders vote in favor of the Proposed Transaction.
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`24.
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`Defendants were obligated to carefully review the Registration Statement prior to
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`its filing with the SEC and dissemination to the Company’s shareholders to ensure that it did not
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`contain any material misrepresentations or omissions. However, the Registration Statement
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`misrepresents and/or omits material information that is necessary for the Company’s
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`shareholders to make informed decisions regarding whether to vote in favor of the Proposed
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`Transaction, in violation of Sections 14(a) and 20(a) of the Exchange Act.
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`Material False and Misleading Statements or Material
`Misrepresentations or Omissions Regarding the Company’s Financial Projections
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`The Registration Statement contains projections prepared by the Company’s and
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`25.
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`AMD’s management concerning the Proposed Transaction, but fails to provide material
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`information concerning such.
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`26.
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`The SEC has repeatedly emphasized that disclosure of non-GAAP projections can
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`be inherently misleading, and has therefore heightened its scrutiny of the use of such
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`projections.1 Indeed, on May 17, 2016, the SEC’s Division of Corporation Finance released new
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`1 See, e.g., Nicolas Grabar and Sandra Flow, Non-GAAP Financial Measures: The SEC’s
`Evolving Views, Harvard Law School Forum on Corporate Governance and Financial
`Regulation (June 24, 2016), available at https://corpgov.law.harvard.edu/2016/06/24/non-gaap-
`financial-measuresthesecs evolving-views/; Gretchen Morgenson, Fantasy Math Is Helping
`Companies Spin Losses
`Into Profits, N.Y. Times, Apr. 22, 2016, available at
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 8 of 16
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`and updated Compliance and Disclosure Interpretations (“C&DIs”) on the use of non-GAAP
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`financial measures that demonstrate the SEC’s tightening policy.2 One of the new C&DIs
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`regarding forward-looking information, such as financial projections, explicitly requires
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`companies to provide any reconciling metrics that are available without unreasonable efforts.
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`27.
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`In order to make management’s projections included in the Registration Statement
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`materially complete and not misleading, Defendants must provide a reconciliation table of the
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`non-GAAP measures to the most comparable GAAP measures.
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`28.
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`Specifically, with respect to the Company’s projections, the Company must
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`disclose the line item projections for the financial metrics that were used to calculate the non-
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`GAAP measures, including: (i) Adjusted EBITDA; (ii) Adjusted EPS; and (iii) Unlevered Free
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`Cash Flow.
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`29. With respect to the AMD Projections, the Company must disclose the line item
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`projections for the financial metrics that were used to calculate the non-GAAP measures,
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`including: (i) Adjusted EBITDA; (ii) Adjusted EPS; and (iii) Unlevered Free Cash Flow.
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`30. With respect to the AMD Adjusted Xilinx Projections, the Company must
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`disclose the line item projections for the financial metrics that were used to calculate the non-
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`GAAP measures, including: (i) Adjusted EBITDA unburdened by SBC; (ii) Adjusted EBITDA
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`burdened by SBC; (iii) Adjusted EPS unburdened by SBC; (iv) Adjusted EPS burdened by SBC;
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`and (v) Unlevered Free Cash Flow.
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`http://www.nytimes.com/2016/04/24/business/fantasy-mathis-helping-companies-spin-ossesinto-
`profits.html?_r=0.
`
` Non-GAAP Financial Measures, Compliance & Disclosure Interpretations, U.S. SECURITIES
`AND
`EXCHANGE
`COMMISSION
`(May
`17,
`2017),
`at
`available
`https://www.sec.gov/divisions/corpfin/guidance/nongaapinterp.htm.
`
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`31.
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`Disclosure of the above information is vital to provide investors with the complete
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`mix of information necessary to make an informed decision when voting on the Proposed
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`Transaction. Specifically, the above information would provide shareholders with a better
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`understanding of the analyses performed by the Company’s financial advisor in support of its
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`opinion.
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`Material False and Misleading Statements or Material
`Misrepresentations or Omissions Regarding Morgan Stanley’s Financial Opinion
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`The Registration Statement contains the financial analyses and opinion of Morgan
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`32.
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`Stanley & Co. LLC (“Morgan Stanley”) concerning the Proposed Transaction, but fails to
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`provide material information concerning such.
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`33. With respect to Morgan Stanley’s Relative Discounted Cash Flow Analysis the
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`Registration Statement fails to disclose: (i) all line items underlying the stand-alone unlevered after-
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`tax free cash flows; (ii) the terminal values of both companies; (iii) the inputs and assumptions
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`underlying the terminal EBITDA multiples ranging from 11.0x to 15.0x; (iv) the inputs and
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`assumptions underlying the discount rates ranging from 8.3% to 10.3% for AMD; (v) the inputs and
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`assumptions underlying the discount rates ranging from 6.8% to 7.8% for Xilinx; and (vi) the net
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`debt of AMD and Xilinx.
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`34. With respect to Morgan Stanley’s Relative Discounted Equity Value Analysis, the
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`Registration Statement fails to disclose: (i) the line items underlying AMD and Xilnix’s earnings per
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`share utilized by Morgan Stanley for its analysis; (ii) the inputs and assumptions underlying the
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`discount rate of 9.3% for AMD; and (iii) the inputs and assumptions underlying the discount rate of
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`6.8% for Xilinx.
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 10 of 16
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`35. With respect to Morgan Stanley’s Relative Public Trading Multiples Analysis, the
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`Registration Statement fails to disclose the individual multiples and metrics for the companies
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`observed in the analyses.
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`36. With respect to Morgan Stanley’s Precedent Premia Analysis, the Registration
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`Statement fails to disclose the individual multiples and metrics for each transaction observed in
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`the analyses.
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`37. With respect to Morgan Stanley’s Relative Equity Research Analysts’ Future Price
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`Targets, the Registration Statement fails to disclose the individual price targets observed, as well as
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`the sources thereof.
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`Material False and Misleading Statements or Material
`Misrepresentations or Omissions Regarding BofA’s Financial Opinion
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`38.
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`The Registration Statement contains the financial analyses and opinion of BofA
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`Securities, Inc. (“BofA”) concerning the Proposed Transaction, but fails to provide material
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`information concerning such.
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`39. With respect to BofA’s Discounted Cash Flow Analysis for both Xilinx and
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`AMD, the Registration Statement fails to disclose: (i) the line items underlying the standalone
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`unlevered, after-tax free cash flows that Xilinx was forecasted to generate during Xilinx’s third and
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`fourth quarters of fiscal year 2021 and fiscal years 2022 through fiscal year 2032; (ii) all line items
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`underlying the standalone unlevered, after-tax free cash flows that AMD was forecasted to generate
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`during AMD’s fourth quarter of fiscal year 2020 and fiscal years 2021 through 2031; (iii) the
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`terminal values for Xilinx and AMD; (iv) the inputs and assumptions underlying the perpetuity
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`growth rates of 2.75% to 3.25%; (v) the inputs and assumptions underlying the perpetuity growth
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`rates of 3.50% to 4.00%, and (vi) the inputs and assumptions underlying the discount rates ranging
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`from 6.5% to 8.5% and from 8.50% to 10.50%.
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 11 of 16
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`40. With respect to BofA’s Selected Publicly Traded Companies Analysis for both
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`Xilinx and AMD, the Registration Statement fails to disclose the individual multiples and
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`metrics for the companies observed in the analyses.
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`41. With respect
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`to BofA’s Selected Precedent Transactions Analysis,
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`the
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`Registration Statement fails to disclose the individual multiples and metrics for each transaction
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`observed in the analyses.
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`42. When a banker’s endorsement of the fairness of a transaction is touted to
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`shareholders, the valuation methods used to arrive at that opinion as well as the key inputs and
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`range of ultimate values generated by those analyses must also be fairly disclosed. Moreover,
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`the disclosure of projected financial information is material because it provides shareholders with
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`a basis to project the future financial performance of a company and allows shareholders to
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`better understand the financial analyses performed by the Company’s financial advisor in support
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`of its fairness opinion.
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`43. Without the above described information, the Company’s shareholders are unable
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`to cast a fully informed vote on the Proposed Transactions. Accordingly, in order to provide
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`shareholders with a complete mix of information, the omitted information described above
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`should be disclosed.
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`COUNT I
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`(Against All Defendants for Violations of Section 14(a)
`of the Exchange Act and Rule 14a-9 Promulgated Thereunder)
`
`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`44.
`
`herein.
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`45.
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`Section 14(a)(1) of the Exchange Act makes it “unlawful for any person, by the
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`use of the mails or by any means or instrumentality of interstate commerce or of any facility of a
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 12 of 16
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`national securities exchange or otherwise, in contravention of such rules and regulations as the
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`Commission may prescribe as necessary or appropriate in the public interest or for the protection
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`of investors, to solicit or to permit the use of his name to solicit any proxy or consent or
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`authorization in respect of any security (other than an exempted security) registered pursuant to
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`section 78l of this title.” 15 U.S.C. § 78n(a)(1).
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`46.
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`Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange
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`Act, provides that communications with stockholders in a recommendation statement shall not
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`contain “any statement which, at the time and in the light of the circumstances under which it is
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`made, is false or misleading with respect to any material fact, or which omits to state any
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`material fact necessary in order to make the statements therein not false or misleading.” 17
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`C.F.R. § 240.14a-9.
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`47.
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`Defendants have issued the Registration Statement with the intention of soliciting
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`shareholders support for the Proposed Transaction. Each of the Defendants reviewed and
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`authorized the dissemination of the Registration Statement, which fails to provide critical
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`information regarding, among other things, the financial projections for the Company.
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`48.
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`In so doing, Defendants made untrue statements of fact and/or omitted material
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`facts necessary to make the statements made not misleading. Each of the Defendants, by virtue
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`of their roles as officers and/or directors, were aware of the omitted information but failed to
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`disclose such information, in violation of Section 14(a). The Defendants were therefore
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`negligent, as they had reasonable grounds to believe material facts existed that were misstated or
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`omitted from the Registration Statement, but nonetheless failed to obtain and disclose such
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`information to shareholders although they could have done so without extraordinary effort.
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`49.
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`The Defendants knew or were negligent in not knowing that the Registration
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 13 of 16
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`Statement is materially misleading and omits material facts that are necessary to render it not
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`misleading. The Defendants undoubtedly reviewed and relied upon the omitted information
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`identified above in connection with their decision to approve and recommend the Proposed
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`Transaction.
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`50.
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`The Defendants knew or were negligent in not knowing that the material
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`information identified above has been omitted from the Registration Statement, rendering the
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`sections of the Registration Statement identified above to be materially incomplete and
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`misleading. Indeed, the Defendants were required to be particularly attentive to the procedures
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`followed in preparing the Registration Statement and review it carefully before it was
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`disseminated, to corroborate that there are no material misstatements or omissions.
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`51.
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`The Defendants were, at the very least, negligent in preparing and reviewing the
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`Registration Statement. The preparation of a Registration Statement by corporate insiders
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`containing materially false or misleading statements or omitting a material fact constitutes
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`negligence. The Defendants were negligent in choosing to omit material information from the
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`Registration Statement or failing to notice the material omissions in the Registration Statement
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`upon reviewing it, which they were required to do carefully as the Company’s directors. Indeed,
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`the Defendants were intricately involved in the process leading up to the signing of the Merger
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`Agreement and the preparation of the Company’s financial projections.
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`52.
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`The misrepresentations and omissions in the Registration Statement are material
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`to Plaintiff, who will be deprived of his right to cast an informed vote if such misrepresentations
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`and omissions are not corrected prior to the vote on the Proposed Transaction.
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`53.
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`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s
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`equitable powers can Plaintiff be fully protected from the immediate and irreparable injury that
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 14 of 16
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`Defendants’ actions threaten to inflict.
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`COUNT II
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`(Against the Individual Defendants for
`Violations of Section 20(a) of the Exchange Act)
`
`Plaintiff incorporates each and every allegation set forth above as if fully set forth
`
`54.
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`herein.
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`55.
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`The Individual Defendants acted as controlling persons of Xilinx within the
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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 Xilinx, and participation in and/or awareness of the Company’s
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`operations and/or intimate knowledge of the incomplete and misleading statements contained in
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`the Registration Statement filed with the SEC, they had the power to influence and control and
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`did influence and control, directly or indirectly, the decision making of the Company, including
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`the content and dissemination of the various statements that Plaintiff contends are materially
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`incomplete and misleading.
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`56.
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`Each of the Individual Defendants was provided with, or had unlimited access to,
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`copies of the Registration Statement and other statements alleged by Plaintiff to be misleading
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`prior to and/or shortly after these statements were issued and had the ability to prevent the
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`issuance of the statements or cause the statements to be corrected.
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`57.
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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
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`had the power to control or influence the particular transactions giving rise to the Exchange Act
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`violations alleged herein, and exercised the same. The Registration Statement at issue contains
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`the unanimous recommendation of each of the Individual Defendants to approve the Proposed
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`Transaction. They were thus directly involved in preparing this document.
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`14
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 15 of 16
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`58.
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`In addition, as set forth in the Registration Statement sets forth at length and
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`described herein, the Individual Defendants were involved in negotiating, reviewing, and
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`approving the Merger Agreement. The Registration Statement purports to describe the various
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`issues and information that the Individual Defendants reviewed and considered. The Individual
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`Defendants participated in drafting and/or gave their input on the content of those descriptions.
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`59.
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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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`60.
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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) and Rule 14a-9 by
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`their acts and omissions as alleged herein. By virtue of their positions as controlling persons,
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`these Defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and
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`proximate result of Individual Defendants’ conduct, Plaintiff will be irreparably harmed.
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`61.
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`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s
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`equitable powers can Plaintiff be fully protected from the immediate and irreparable injury that
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`Defendants’ actions threaten to inflict.
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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;
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`B.
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`Directing the Individual Defendants to disseminate an Amendment to the
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`Registration Statement that does not contain any untrue statements of material fact and that states
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`all material facts required in it or necessary to make the statements contained therein not
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`misleading;
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`15
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`Case 1:20-cv-10715-UA Document 1 Filed 12/18/20 Page 16 of 16
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`C.
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`Directing Defendants to account to Plaintiff for all damages sustained because of
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`the wrongs complained of herein;
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`D.
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`Awarding Plaintiff the costs of this action, including reasonable allowance for
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`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 proper.
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`Plaintiff demands a trial by jury on all issues so triable.
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`JURY DEMAND
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`Dated: December 18, 2020
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`Respectfully submitted,
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`By: /s/ Joshua M. Lifshitz
`Joshua M. Lifshitz
`Email: jml@jlclasslaw.com
`LIFSHITZ LAW FIRM, P.C.
`821 Franklin Avenue, Suite 209
`Garden City, New York 11530
`Telephone: (516) 493-9780
`Facsimile: (516) 280-7376
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`Attorneys for Plaintiff
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`16
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