Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 1 of 15
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`BRYAN ANDERSON,
`
`
`Plaintiff,
`
`
`
` v.
`
`NIELSEN HOLDINGS PLC, DAVID
`KENNY, JAMES A. ATTWOOD, JR.,
`THOMAS H. CASTRO, GUERRINO DE
`LUCA, KAREN M. HOGUET, HARISH
`MANWANI, JANICE MARINELLI MAZZA,
`JONATHAN MILLER, ROBERT C. POZEN,
`DAVID RAWLINSON, NANCY TELLEM,
`JAVIER G. TERUEL, and LAUREN
`ZALAZNICK,
`
`
`
`
`
`Civil Action No.
`
`
`
`COMPLAINT FOR VIOLATIONS
`OF SECTIONS 14(a) AND 20(a) OF
`THE SECURITIES EXCHANGE
`ACT OF 1934
`
`
`
`
`JURY TRIAL DEMAND
`
`
`
`
`
`Defendants,
`
`Plaintiff Bryan Anderson (“Plaintiff”) alleges the following upon information and belief,
`
`including investigation of counsel and review of publicly available information, except as to those
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`allegations pertaining to Plaintiff, which are alleged upon personal knowledge:
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff brings this action against Nielsen Holdings plc (“Nielsen” or the
`
`“Company”) and Nielsen’s Board of Directors (the “Board” or the “Individual Defendants”) for
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`their violations of Section 14(a) and 20(a) of the Securities Exchange Act of 1934, 15.U.S.C. §§
`
`78n(a), 78t(a), and SEC Rule 14a-9, 17 C.F.R. 240.14a-9, arising out of the Board’s attempt to sell
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`the Company’s Global Connect business to Indy US Bidco, LLC and Indy Dutch Bidco B.V.,
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`affiliates of Advent International (collectively “Advent”).
`
`
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 2 of 15
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`2.
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`Defendants have violated the above-referenced Sections of the Exchange Act by
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`causing a materially incomplete and misleading definitive proxy statement (the “Proxy”) to be
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`filed with the Securities and Exchange Commission (“SEC”) on December 23, 2020. The Proxy
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`recommends that Nielsen stockholders vote in favor of a proposed transaction (the “Proposed
`
`Transaction”) whereby Nielsen’s Global Connect business is acquired by Advent. The Proposed
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`Transaction was first disclosed on November 1, 2020, when Nielsen and Advent announced that
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`they had entered into a stock purchase agreement (the “Agreement”) pursuant to which Advent
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`will acquire all the equity interests of Nielsen subsidiaries that contain the Global Connect
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`business. The deal is valued at approximately $2.7 billion and is expected to close in the second
`
`quarter of 2021.
`
`3.
`
`The Proxy is materially incomplete and contains misleading representations and
`
`information in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the Proxy
`
`contains materially incomplete and misleading information concerning the sales process, financial
`
`projections prepared by Nielsen management, as well as the financial analyses conducted by J.P.
`
`Morgan Securities LLC (“JPMorgan”), Nielsen’s financial advisor.
`
`4.
`
`For these reasons, and as set forth in detail herein, Plaintiff seeks to enjoin
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`Defendants from taking any steps to consummate the Proposed Transaction unless and until the
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`material information discussed below is disseminated to Nielsen’s stockholders. In the event the
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`Proposed Transaction is consummated without the material omissions referenced below being
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`remedied, Plaintiff seeks to recover damages resulting from the Defendants’ violations.
`
`
`
`5.
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`of Nielsen.
`
`
`
`PARTIES
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`Plaintiff is, and has been at all relevant times, the owner of shares of common stock
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`6.
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`Defendant Nielsen is a corporation organized and existing under the laws of
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`England and Wales. The Company’s principal executive offices are located at 85 Broad Street,
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`New York, New York 10004 and Nielsen House, John Smith Drive, Oxford, Oxfordshire OX4
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`2WB, United Kingdom. Nielsen common stock trades on NYSE under the ticker symbol “NLSN.”
`
`7.
`
`8.
`
`Defendant David Kenny has been CEO and a director of the Company since 2018.
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`Defendant James A. Attwood, Jr. has been a director of the Company since 2006.
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`Defendant Attwood has served as Chairperson of the Board since November 2019.
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`9.
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`Defendant Thomas H. Castro has been a director of the Company since February
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`2020.
`
`10.
`
`11.
`
`12.
`
`13.
`
`Defendant Guerrino De Luca has been a director of the Company since 2017.
`
`Defendant Karen M. Hoguet has been a director of the Company since 2010.
`
`Defendant Harish Manwani has been a director of the Company since 2015.
`
`Defendant Janice Marinelli Mazza has been a director of the Company since
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`February 2020.
`
`14.
`
`15.
`
`16.
`
`17.
`
`18.
`
`19.
`
`20.
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`Defendant Jonathan Miller has been a director of the Company since July 13, 2020.
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`Defendant Robert C. Pozen has been a director of the Company since 2010.
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`Defendant David Rawlinson has been a director of the Company since 2017.
`
`Defendant Nancy Tellem has been a director of the Company since 2019.
`
`Defendant Javier G. Teruel has been a director of the Company since 2010.
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`Defendant Lauren Zalaznick has been a director of the Company since 2016.
`
`Defendants Kenny, Attwood, Castro, De Luca, Hoguet, Manwani, Marinelli
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`Mazza, Miller, Pozen, Rawlinson, Tellem, Teruel and Zalaznick are collectively referred to herein
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`as the “Board” or “Individual Defendants.”
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`JURISDICTION AND VENUE
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`21.
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`This Court has subject matter jurisdiction pursuant to Section 27 of the Exchange
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`Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331 (federal question jurisdiction) as Plaintiff alleges
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`violations of Section 14(a) and 20(a) of the Exchange Act and SEC Rule 14a-9.
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`22.
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`Personal jurisdiction exists over each Defendant either because the Defendant
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`conducts business in or maintains operations in this District, or is an individual who is either
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`present in this District for jurisdictional purposes or has sufficient minimum contacts with this
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`District as to render the exercise of jurisdiction over Defendant by this Court permissible under
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`traditional notions of fair play and substantial justice.
`
`23.
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`Venue is proper in this District under Section 27 of the Exchange Act, 15 U.S.C. §
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`78aa, as well as under 28 U.S.C. § 1391, because: (i) a significant amount of the conduct at issue
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`took place and had an effect in this District; and (ii) Nielsen has principal executive offices located
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`in this District.
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`FURTHER SUBSTANTIVE ALLEGATIONS
`
`A. Background of the Company and the Proposed Transaction
`
`24.
`
`Nielsen, founded in 1923, is a measurement and data analytics company, collecting
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`and delivering to clients information about what and where consumers buy, read, watch and listen
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`to. The Company operates two business units: Global Connect focuses on what consumers buy,
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`while Global Media focuses on what consumers read, watch and listen to. The Global Connect
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`business brings in approximately 47% of the Company’s revenues.
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`25.
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`26.
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`On October 31, 2020, the Company entered into the Agreement with Advent.
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`According to the press release issued on November 1, 2020 announcing the
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`Proposed Transaction:
`
`Nielsen Announces Sale of Global Connect Business to Advent International for
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 5 of 15
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`$2.7 Billion
`
`11-01-2020
`
`Advent, in partnership with former TransUnion CEO Jim Peck, will accelerate
`Nielsen Global Connect’s transformation and support its continued innovation in
`consumer and market measurement.
`
`Nielsen to hold a conference call to discuss today’s announcements as well as its
`third quarter 2020 financial results at 8:00 a.m. U.S. Eastern Time (ET) on
`Monday, November 2nd, 2020.
`
`NEW YORK, and BOSTON, November 1, 2020 — Nielsen Holdings plc
`(“Nielsen”) (NYSE: NLSN) announced today that it has signed a definitive
`agreement under which affiliates of Advent International (“Advent”), one of the
`largest and most experienced global private equity investors, in partnership with
`James “Jim” Peck, former Chief Executive Officer of TransUnion, will acquire the
`Nielsen Global Connect business for $2.7 billion (subject to working capital, cash,
`debt-like items and other customary adjustments). Nielsen will also receive
`warrants in the new company exercisable in certain circumstances. Upon
`completion of the transaction, Nielsen Global Connect will be a private company
`with the flexibility to continue investing in the development and deployment of
`leading-edge measurement products and solutions. The
`transaction was
`unanimously approved by Nielsen’s Board of Directors.
`
`“This is a win for both Nielsen Global Connect and for Nielsen (RemainCo), as
`well as for our shareholders,” said David Kenny, Chief Executive Officer, Nielsen.
`“The sale of this business to Advent will deliver substantial value sooner than was
`anticipated through the planned spin-off and creates certainty for all stakeholders.
`The proceeds from the sale will allow Nielsen to significantly reduce debt, which
`will provide greater financial flexibility to execute our growth strategy and expand
`our role in the global media marketplace. At the same time, we are excited about
`this opportunity for Nielsen Global Connect and believe that moving forward as a
`private company will better position the business to accelerate its transformation
`and strengthen its market-leading position. With the support of Advent’s resources
`and expertise, we believe the new company will create and define the next century
`of consumer and market measurement. We thank the entire Nielsen Global Connect
`team for their invaluable partnership and look forward to continuing a strong
`working relationship with them in the future.”
`
`Kenny added, “All of the terrific work done by so many to pursue a spin-off will
`position both businesses to thrive as standalone companies and will allow us to
`execute a smooth transaction. We are grateful for all of this dedicated work.”
`
`“Nielsen Global Connect is the gold standard in retail measurement, with
`exceptional insights and unrivaled scale and coverage of the global CPG and retail
`markets,” said Peck. “As customers face a rapidly evolving marketplace, we
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 6 of 15
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`recognize that they have high expectations for Nielsen Global Connect to help them
`meet these new demands and to build on its existing core platform and other retail
`measurement capabilities. We intend to work with David Rawlinson and the
`talented management team to accelerate the delivery of new capabilities and to
`continue the transformation underway to build an innovative, high-performing
`culture acutely focused on delivering value to customers around the world.”
`
`“Advent is thrilled to partner with Jim in driving this next phase of growth for
`Nielsen Global Connect,” said Chris Egan, Managing Partner at Advent. “Advent
`has invested in data and information services companies for nearly three decades,
`and earlier this year we teamed up with Jim to identify a compelling business in the
`sector where we can apply our combined experience and resources to create value.
`We see tremendous potential to build on Global Connect’s cutting-edge platform,
`drawing on our global footprint and operational strength to further scale the
`business and advance its leadership across established and emerging markets.”
`
`David Rawlinson will remain CEO of Nielsen Global Connect through the close of
`the transaction and is expected to be part of the leadership team for the go-forward
`company. Upon close, Peck will be involved in the day-to-day strategic and
`operational activities of the company, which will be headquartered in Chicago, IL.
`In early 2021, the Global Connect business will be renamed NielsenIQ.
`
`Nielsen will grant Nielsen Global Connect a license to brand its products and
`services with the “Nielsen” name and other Nielsen trademarks for 20 years
`following closing. Additionally, Nielsen and Advent will enter into agreements
`pursuant to which, among other things, Nielsen and Advent will provide certain
`transitional services to each other for periods of up to 24 months following closing,
`grant each other reciprocal licenses for certain data and corresponding services
`relating to that data for periods of up to five years following closing and grant each
`other licenses to use certain patents.
`
`Background on Nielsen Global Connect and Transaction Details
`
`Nielsen Global Connect provides consumer packaged goods manufacturers and
`retailers with actionable information and a complete picture of the complex and
`changing marketplace that brands need to innovate and grow their business. The
`company offers data and builds tools that use predictive models to turn market
`observations into business decisions and winning solutions. These data and insights
`provide the essential foundation that makes markets possible in the rapidly evolving
`world of commerce.
`
`Nielsen plans to use net proceeds of the transaction primarily to reduce debt and for
`general corporate purposes. On a pro-forma basis for the transaction, Nielsen
`expects year-end 2020 net leverage to be under 4X. The transaction is subject to
`approval by Nielsen shareholders, regulatory approvals, consultation with the
`works council and other customary closing conditions; it is expected to close in the
`second quarter of 2021.
`
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`B. The Materially Incomplete and Misleading Proxy
`
`27.
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`The Individual Defendants must disclose all material information regarding the
`
`Proposed Transaction to Nielsen stockholders so that they can make a fully informed decision
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`whether to vote in favor of the Proposed Transaction.
`
`28.
`
`On December 23, 2020, Defendants filed the Proxy with the SEC. The purpose of
`
`the Proxy is, inter alia, to provide the Company’s stockholders with all material information
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`necessary for them to make an informed decision on whether to vote in favor of the Proposed
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`Transaction. However, significant and material facts were not provided to Plaintiff and the other
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`Nielsen stockholders. Without such information, Plaintiff and the Nielsen stockholders cannot
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`make a fully informed decision concerning whether to vote in favor of the Proposed Transaction.
`
`Materially Misleading Statements/Omissions Regarding the Management-
`Prepared Financial Forecasts
`
`29.
`
`The Proxy discloses management-prepared financial projections for the Company
`
`which are materially misleading. The Proxy indicates that in connection with the rendering of
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`JPMorgan’s fairness opinion, JPMorgan reviewed “certain internal financial analyses and
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`forecasted financial information prepared by Nielsen management relating to” the Global Connect
`
`business. Accordingly, the Proxy should have, but failed to, provide certain information in the
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`projections that Nielsen’s management provided to the Board and JPMorgan.
`
`30.
`
`Notably, Defendants failed to disclose the line items used to calculate Adjusted
`
`Standalone EBITDA (Post-SBC) and Free Cash Flow. The Proxy also fails to disclose who
`
`prepared the projections of unlevered free cash flows utilized by JPMorgan in its Discounted Cash
`
`Flow Analysis. And the Proxy fails to disclose the financial forecasts presented to the Board on
`
`April16, 2020 and show how they differ from the CIM Case. This omitted information is necessary
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 8 of 15
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`for Plaintiff and the Nielsen stockholders to make an informed decision on whether to vote in favor
`
`of the Proposed Transaction.
`
`Materially Incomplete and Misleading Disclosures Concerning JPMorgan’s
`Financial Analyses
`
`31. With respect to the Trading Multiples Analysis, the Proxy fails to disclose the basis
`
`for selecting a multiple reference range for FV/CY 2021E EBITDA of 5.5x to 6.0x.
`
`32. With respect to the Discounted Cash Flow Analysis, the Proxy fails to disclose the
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`unlevered free cash flows and all underlying line items, as well as the terminal values. The Proxy
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`further fails to disclose the basis for applying terminal growth rates ranging from 0.0% to 1.0%.
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`In addition, the Proxy fails to disclose the individual inputs and assumptions underlying the
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`discount rates from 8.75% to 9.75%.
`33. With respect to the Transactions Multiples Analysis, the Proxy fails to disclose the
`
`objective selection criteria for each transaction. The Proxy also fails to disclose the basis for
`
`selecting a multiple reference range for FV/LTM EBITDA of 6.5x to 9.0x.
`Materially Incomplete and Misleading Disclosures Concerning the Flawed
`Process
`
`34.
`
`The Proxy also fails to disclose material information concerning the sales process.
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`For example, the Proxy notes that 60 potential bidders were part of the strategic alternative review
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`from 2018 to 2019, of which 30 entered into non-disclosure agreements. Four potential bidders
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`were part of the strategic alternative process in 2020, and three entered into non-disclosure
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`agreements. The Proxy states that “substantially all” of the non-disclosure agreements included a
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`standstill provision. Yet the Proxy does not state how many non-disclosure agreements did not
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`include a standstill provision, the basis for those parties not being subject to a standstill provision,
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`or whether the standstill provisions were the same across the board. The Proxy further fails to
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 9 of 15
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`disclose whether any of the standstill provisions are still in place, or if any standstill provisions
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`have been waived.
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`35.
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`In January 2019, according to the Proxy, “several” parties submitted indications of
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`interest. The Proxy does not disclose how many were received and, if more than the four described,
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`the terms of those indications of interest. Between January 2019 and October 2019, Nielsen
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`negotiated terms of potential transactions and provided due diligence to those parties that had
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`submitted indications of interest. Again, the Proxy does not disclose how many parties that
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`included.
`
`36.
`
`The Board changed course in November 2019, deciding to spin off the Global
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`Connect business instead of selling the Company or the unit. On November 6, 2019, Nielsen
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`formally engaged JPMorgan as its financial advisor. The Proxy states that JPMorgan had been
`
`advising Nielsen and the Board, but the Proxy does not disclose when JPMorgan began advising
`
`the Company and the Board or why JPMorgan was not formally engaged until November 2019.
`
`37.
`
`The Proxy notes that between November 2019 and June 2020, financial sponsors
`
`and strategic parties contacted JPMorgan and the Company about a transaction involving the
`
`Global Connect business. However, the Proxy did not disclose how many financial sponsors and
`
`strategic parties made contact about a potential transaction.
`
`38.
`
`On April 30, 2020, the Board created the Finance Committee as part of an
`
`agreement with Elliott Management Corporation, a large Nielsen stockholder. The Proxy does not
`
`disclose the authority of the Finance Committee, nor the duties or responsibilities of the Finance
`
`Committee.
`
`39.
`
`JPMorgan discussed valuations and analyses with the Finance Committee and
`
`Board, yet those were not disclosed. That includes the preliminary valuation adjustments included
`
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 10 of 15
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`by Bidder D and Advent in their respective proposals as discussed at the Finance Committee on
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`September 15, 2020; the preliminary valuation adjustments included by Bidder D and Advent in
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`their respective proposals as discussed with the Finance Committee on October 5, 2020; and the
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`preliminary valuation adjustments included by Advent in its indication of interest, the forecasted
`
`financial information cases, and the illustrative preliminary standalone valuation of the Global
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`Connect business as discussed with the Board on October 8, 2020.
`
`40.
`
`Finally, the Proxy states that JPMorgan holds “less than 2%” of Nielsen’s
`
`outstanding common stock. Given that it received $20 million in fees from Nielsen in the two years
`
`prior to October 20, 2020 and $45 million in fees from Advent in the same time period, and that
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`JPMorgan would receive a total of $25 million from Nielsen just for its service as financial advisor
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`to Nielsen in relation to the Proposed Transaction, stockholders need to know exactly how much
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`Nielsen stock JPMorgan holds.
`
`41.
`
`This information is necessary to provide Plaintiff and Company stockholders a
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`complete and accurate picture of the sales process and its fairness. Without this information,
`
`stockholders were not fully informed as to the defendants’ actions, including those that may have
`
`been taken in bad faith, and cannot fairly assess the process. And without all material information,
`
`Plaintiff and the other Nielsen stockholders are unable to make a fully informed decision in
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`connection with the Proposed Transaction and face irreparable harm, warranting the injunctive
`
`relief sought herein.
`
`42.
`
`In addition, the Individual Defendants knew or recklessly disregarded that the
`
`Proxy omits the material information concerning the Proposed Transaction and contains the
`
`materially incomplete and misleading information discussed above.
`
`43.
`
`Specifically, the Individual Defendants undoubtedly reviewed the contents of the
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 11 of 15
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`Proxy before it was filed with the SEC. Indeed, as directors of the Company, they were required
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`to do so. The Individual Defendants thus knew or recklessly disregarded that the Proxy omits the
`
`material information referenced above and contains the incomplete and misleading information
`
`referenced above.
`
`44.
`
`Further, the Proxy indicates that on October 29, 2020, JPMorgan reviewed with the
`
`Board its financial analysis of the Proposed Transaction and delivered to the Board an oral opinion,
`
`which was confirmed by delivery of a written opinion dated October 31, 2020, to the effect that
`
`the Proposed Transaction was fair, from a financial point of view, to Nielsen stockholders.
`
`Accordingly, the Individual Defendants undoubtedly reviewed or were presented with the material
`
`information concerning JPMorgan’s financial analyses which has been omitted from the Proxy,
`
`and thus knew or should have known that such information has been omitted.
`
`45.
`
`Plaintiff and the other Nielsen stockholders are immediately threatened by the
`
`wrongs complained of herein and lack an adequate remedy at law. Accordingly, Plaintiff seeks
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`injunctive and other equitable relief to prevent the irreparable injury that the Plaintiff and the
`
`Company’s stockholders will continue to suffer absent judicial intervention.
`
`CLAIMS FOR RELIEF
`
`COUNT I
`
`Against All Defendants for Violations of
`Section 14(a) of the Exchange Act and Rule 14a-9
`
`46.
`
`Plaintiff incorporates each and every allegation set forth above as if fully set forth
`
`
`
`herein.
`
`47.
`
`Defendants have filed the Proxy with the SEC with the intention of soliciting
`
`Nielsen stockholder support for the Proposed Transaction. Each of the Individual Defendants
`
`reviewed and authorized the dissemination of the Proxy, which fails to provide the material
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 12 of 15
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`information referenced above.
`
`48.
`
`In so doing, Defendants made materially incomplete and misleading statements
`
`and/or omitted material information necessary to make the statements made not misleading. Each
`
`of the Individual Defendants, by virtue of their roles as officers and/or directors of Nielsen, were
`
`aware of the omitted information but failed to disclose such information, in violation of Section
`
`14(a).
`
`49.
`
`Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange
`
`Act, provides that such communications with stockholders shall not contain “any statement which,
`
`at the time and in the light of the circumstances under which it is made, is false or misleading with
`
`respect to any material fact, or which omits to state any material fact necessary in order to make
`
`the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.
`
`50.
`
`Specifically, and as detailed above, the Proxy violates Section 14(a) and Rule 14a-
`
`9 because it omits material facts concerning: (i) management’s financial projections; (ii) the value
`
`of Nielsen’s Global Connect business and the financial analyses performed by JPMorgan in
`
`support of its fairness opinion; and (iii) the sales process.
`
`51. Moreover, in the exercise of reasonable care, the Individual Defendants knew or
`
`should have known that the Proxy is materially misleading and omits material information that is
`
`necessary to render it not misleading. The Individual Defendants undoubtedly reviewed and relied
`
`upon the omitted information identified above in connection with their decision to approve and
`
`recommend the Proposed Transaction; indeed, the Proxy states that JPMorgan reviewed and
`
`discussed its financial analyses with the Board on October 29, 2020, and further states that the
`
`Board relied upon JPMorgan’s financial analyses and fairness opinion in connection with
`
`approving the Proposed Transaction. The Individual Defendants knew or should have known that
`
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 13 of 15
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`the material information identified above has been omitted from the Proxy, rendering the sections
`
`of the Proxy identified above to be materially incomplete and misleading.
`
`52.
`
`The misrepresentations and omissions in the Proxy are material to Plaintiff and the
`
`other Nielsen stockholders, who will be deprived of their right to cast an informed vote if such
`
`misrepresentations and omissions are not corrected prior to the vote on the Proposed Transaction.
`
`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s equitable powers
`
`can Plaintiff be fully protected from the immediate and irreparable injury that Defendants’ actions
`
`threaten to inflict.
`
`COUNT II
`
`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
`
`53.
`
`herein.
`
`54.
`
`The Individual Defendants acted as controlling persons of Nielsen within the
`
`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
`
`officers and/or directors of Nielsen and participation in and/or awareness of the Company’s
`
`operations and/or intimate knowledge of the incomplete and misleading statements contained in
`
`the Proxy filed with the SEC, they had the power to influence and control and did influence and
`
`control, directly or indirectly, the decision making of the Company, including the content and
`
`dissemination of the various statements that Plaintiff contends are materially incomplete and
`
`misleading.
`
`55.
`
`Each of the Individual Defendants was provided with or had unlimited access to
`
`copies of the Proxy and other statements alleged by Plaintiff to be misleading prior to the time the
`
`Proxy was filed with the SEC and had the ability to prevent the issuance of the statements or cause
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 14 of 15
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`the statements to be corrected.
`
`56.
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`In particular, each of the Individual Defendants had direct and supervisory
`
`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
`
`the power to control or influence the particular transactions giving rise to the Exchange Act
`
`violations alleged herein and exercised the same. The omitted information identified above was
`
`reviewed by the Board prior to voting on the Proposed Transaction. The Proxy at issue contains
`
`the unanimous recommendation of each of the Individual Defendants to approve the Proposed
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`Transaction. They were, thus, directly involved in the making of the Proxy.
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`57.
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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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`58.
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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, these
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`defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and proximate
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`result of Individual Defendants’ conduct, Plaintiff will be irreparably harmed.
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`RELIEF REQUESTED
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`WHEREFORE, Plaintiff demands injunctive relief in his favor and against the Defendants
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`jointly and severally, as follows:
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`A.
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`Preliminarily and permanently enjoining Defendants and their counsel, agents,
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`employees and all persons acting under, in concert with, or for them, from proceeding with,
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`consummating, or closing the Proposed Transaction, unless and until Defendants disclose the
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`material information identified above which has been omitted from the Proxy;
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`B.
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`In the event that the transaction is consummated prior to the entry of this Court’s
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`final judgment, rescinding it or awarding Plaintiff rescissory damages;
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`Case 1:21-cv-00374 Document 1 Filed 01/15/21 Page 15 of 15
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`C.
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`Directing the Defendants to account to Plaintiff for all damages suffered as a result
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`of their wrongdoing;
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`D.
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`Awarding Plaintiff the costs and disbursements of this action, including reasonable
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`attorneys’ and expert fees and expenses; and
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`E.
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`Granting such other and further equitable relief as this Court may deem just and
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`proper.
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`JURY DEMAND
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`Plaintiff demands a trial by jury.
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`Dated: January 15, 2021
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`ROWLEY LAW PLLC
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`S/ Shane T. Rowley
`Shane T. Rowley (SR-0740)
`Danielle Rowland Lindahl
`50 Main Street, Suite 1000
`White Plains, NY 10606
`Tel: (914) 400-1920
`Fax: (914) 301-3514
`Email: srowley@rowleylawpllc.com
`Email: drl@rowleylawpllc.com
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`Attorneys for Plaintiff
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