Case 1:21-cv-00940 Document 1 Filed 02/03/21 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`Plaintiff,
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`
`
`Civil Action No. ___________
`
`
`COMPLAINT FOR VIOLATIONS
`OF SECTIONS 14(a) AND 20(a) OF
`THE SECURITIES EXCHANGE
`ACT OF 1934
`
`
`
`
`JURY TRIAL DEMAND
`
`
`
`
`HAYLEY SMITH,
`
`
`
`
` v.
`
`NEOS THERAPEUTICS, INC., GERALD
`MCLAUGHLIN, BRYANT FONG, BETH
`HECHT, ALAN HELLER, JAMES
`ROBINSON, GREG ROBITAILLE, JOHN
`SCHMID, LINDA M. SZYPER, NEUTRON
`ACQUISITION SUB, INC., and AYTU
`BIOSCIENCE, INC.,
`
`
`
`
`
`
`Defendants,
`
`Plaintiff Hayley Smith (“Plaintiff”) alleges the following upon information and belief,
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`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:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff brings action against Neos Therapeutics, Inc. (“Neos” or the “Company”)
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`and its Neos’s Board of Directors (the “Board” or the “Individual Defendants”) for their violations
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`of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, 15.U.S.C. §§ 78n(a), 78t(a),
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`and SEC Rule 14a-9, 17 C.F.R. 240.14a-9, arising out of the Board’s attempt to sell the Company
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`to Aytu BioScience, Inc. through its wholly-owned subsidiary Neutron Acquisition Sub, Inc.
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`(collectively “Aytu”).
`
`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 registration statement (the “S-4”) to be filed with
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`Case 1:21-cv-00940 Document 1 Filed 02/03/21 Page 2 of 15
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`the Securities and Exchange Commission (“SEC”) on January 27, 2021. The S-4 recommends that
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`Neos stockholders vote in favor of a proposed transaction (the “Proposed Transaction”) whereby
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`Neos is acquired by Aytu. The Proposed Transaction was first disclosed on December 10, 2020,
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`when Neos and Aytu announced that they had entered into a definitive merger agreement (the
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`“Merger Agreement”) pursuant to which Neos stockholders will receive 0.1088 shares of Aytu
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`common stock for each share of Neos common stock they hold (the “Merger Consideration”). The
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`deal is valued at approximately $40.2 million and is expected to close by the second quarter of
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`2021.
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`3.
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`The S-4 is materially incomplete and contains misleading representations and
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`information in violation of Sections 14(a) and 20(a) of the Exchange Act. Specifically, the S-4
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`contains materially incomplete and misleading information concerning the sales process, financial
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`projections prepared by Neos management, as well as the financial analyses conducted by MTS
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`Securities LLC (“MTS”), Neos’s financial advisor.
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`4.
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`For these reasons, and as set forth in detail herein, Plaintiff seeks to enjoin
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`Defendants from taking any steps to consummate the Proposed Transaction, including filing an
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`amendment to the S-4 with the SEC or otherwise causing an amendment to the S-4 to be
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`disseminated to Neos’s stockholders, unless and until the material information discussed below is
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`included in any such amendment or otherwise disseminated to Neos’s stockholders. In the event
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`the 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.
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`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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`2
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`5.
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`of Neos.
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`6.
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`Defendant Neos is a corporation organized and existing under the laws of the State
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`of Delaware. The Company’s principal executive offices are located at 2940 N. Highway 360,
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`Grand Prairie, Texas 75050. Neos common stock trades on NASDAQ under the ticker symbol
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`“NEOS.”
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`7.
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`Defendant Gerald McLaughlin has been President, CEO and a director of the
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`Company since 2018.
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`8.
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`9.
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`Defendant Bryant Fong has been a director of the Company since 2009.
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`Defendant Beth Hecht has been a director of the Company since 2015.
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`10.
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`Defendant Alan Heller has been a director of the Company since 2009. Defendant
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`Heller also serves as Chairman of the Board.
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`11.
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`12.
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`13.
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`14.
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`15.
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`Defendant James Robinson has been a director of the Company since 2019.
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`Defendant Greg Robitaille has been a director of the Company since 2009.
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`Defendant John Schmid has been a director of the Company since 2015.
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`Defendant Linda M. Szyper has been a director of the Company since 2018.
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`Defendants McLaughlin, Fong, Hecht, Heller, Robinson, Robitaille, Schmid and
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`Szyper are collectively referred to herein as the “Board” or “Individual Defendants.”
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`16.
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`Defendant Aytu BioScience, Inc. is a Delaware corporation. Aytu’s principal
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`executive offices are located at 373 Inverness Parkway, Suite 206, Englewood, Colorado 80112.
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`Aytu common stock trades on NASDAQ under the ticker symbol “AYTU.”
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`17.
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`Defendant Neutron Acquisition Sub, Inc. is a Delaware corporation and is a wholly
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`owned subsidiary of Aytu BioScience, Inc.
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`JURISDICTION AND VENUE
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`18.
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`This Court has subject matter jurisdiction pursuant to Section 27 of the Exchange
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`Case 1:21-cv-00940 Document 1 Filed 02/03/21 Page 4 of 15
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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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`19.
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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.
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`20.
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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 a significant amount of the conduct at issue took
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`place and had an effect in this District.
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`FURTHER SUBSTANTIVE ALLEGATIONS
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`A. Background of the Company and the Proposed Transaction
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`21.
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`Neos develops extended release medication as orally disintegrating tablet or oral
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`suspension forms. Three of Neos’s products are approved to treat ADHD in pediatric patients. The
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`Company also sells a generic cough medicine, and is developing a product to treat chronic
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`sialorrhea.
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`22.
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`On December 10, 2020, the Company entered into the Merger Agreement with
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`Aytu.
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`23.
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`According to the press release issued on December 10, 2020 announcing the
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`Proposed Transaction:
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`Aytu BioScience and Neos Therapeutics Announce Definitive Merger
`Agreement, Creating a Combined $100M Revenue1 Specialty Pharmaceutical
`Company
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`- Merger accelerates transformation to profitability, with estimated
`annualized cost synergies of $15M beginning FY 2022
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`Case 1:21-cv-00940 Document 1 Filed 02/03/21 Page 5 of 15
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`
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`
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`- Aytu adds Neos’ established, multi-brand ADHD portfolio, enhancing
`Aytu’s footprint in pediatrics and expanding its presence in adjacent
`specialty care segments
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`- Opportunity to leverage and further enhance Neos RxConnect, a best-
`in-class patient support program, for Aytu’s product portfolio of best-
`in-class prescription therapeutics and consumer health products
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`- Companies to host joint conference call today at 8:30 am ET
`
`ENGLEWOOD, CO and GRAND PRAIRIE, TX / ACCESSWIRE / December
`10, 2020 / Aytu BioScience, Inc. (NASDAQ: AYTU), a specialty pharmaceutical
`company focused on commercializing novel products that address significant
`patient needs, and Neos Therapeutics, Inc. (NASDAQ: NEOS), a commercial-stage
`pharmaceutical company developing and manufacturing central nervous system-
`focused products, today announced that they have entered into a definitive merger
`agreement pursuant to which Neos will merge with a wholly owned subsidiary of
`Aytu in an all-stock transaction.
`
`
`Transaction Details
`Upon the effectiveness of the merger (the “Merger”), Neos stockholders will be
`entitled to receive 0.1088 shares of common stock of Aytu for each share of Neos
`common stock held, after taking into account the one-for-ten reverse split of Aytu’s
`common stock that was effected on December 8, 2020. The transaction will result
`in Neos stockholders owning approximately 30% of the fully diluted common
`shares of Aytu. The all-stock transaction is valued, on a fully diluted basis, at
`approximately $44.9 million based on the 10-day volume weighted average price
`of Aytu stock for the period ended December 9, 2020.
`
`
`The boards of directors of both companies have approved the transaction.
`
`
`Strategic Rationale and Financial Benefits of the Transaction
`
`
`The combined entity will have an increased footprint in the prescription pediatric
`market, an established, growing multi-brand ADHD portfolio addressing the $8.5
`billion ADHD market and significant combined revenue scale. For the 12-month
`period ending September 30, 2020, Neos generated $57.0 million in revenues. On
`a combined pro-forma basis for this same period, Aytu and Neos’ aggregate net
`revenue is over $100 million. In addition, this Merger facilitates operational and
`commercial synergies that can be harnessed to accelerate the path to profitability
`for the combined entity, with estimated annualized cost synergies of approximately
`$15.0 million beginning fiscal year 2022.
`
`
`“This is a truly transformative transaction, elevating the newly combined company
`to a $100 million revenue, leading specialty pharmaceutical company positioned
`for what we expect to be an accelerated path to profitability, continued revenue
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`Case 1:21-cv-00940 Document 1 Filed 02/03/21 Page 6 of 15
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`growth and further business diversification,” said Josh Disbrow, Chief Executive
`Officer of Aytu BioScience. “The combination of Neos with the Aytu business
`further increases our footprint in an attractive pediatric medicine market, following
`our acquisition of the Cerecor pediatric Rx assets late last year. This transaction is
`an excellent strategic fit with our market expansion plans and we believe creates
`strong stockholder value.”
`
`
`Mr. Disbrow continued, “This transaction increases Aytu’s addressable market,
`adding the large and growing ADHD market, with 75.1 million scripts written
`annually. Importantly, and despite the impact of COVID-19 on this market, Neos’
`ADHD product growth significantly outpaced the overall ADHD market in the third
`quarter of 2020, with Adzenys XR-ODT prescriptions growing by 9.9 percent and
`Cotempla XR-ODT prescriptions growing by 6.5 percent. Expanding into ADHD
`with Neos is the ideal embodiment of Aytu’s strategy to build a portfolio of best-
`in-class prescription therapeutics and consumer health products competing in large
`markets.”
`
`Neos’ Chief Executive Officer, Jerry McLaughlin, stated, “I firmly believe Aytu
`BioScience is the right partner to continue the exceptional work our team has done
`to build the ADHD franchise into what it is today and to continue the development
`of NT0502 for the treatment of sialorrhea. By leveraging the respective commercial
`infrastructure of Neos and Aytu, including complementary sales call points and our
`best-in-class patient support program, Neos RxConnect, we expect continued
`growth of the product portfolio. After a thorough evaluation of strategic
`alternatives, the Board of Directors of Neos believes that this merger represents the
`highest-potential value creation opportunity for Neos stockholders.”
`
`
`Additional Information
`
`
`The combined company will be led by Josh Disbrow, Chief Executive Officer of
`Aytu and will be headquartered in Englewood, Colorado. The board of the
`combined company will consist of six members designated by Aytu and two
`members designated by Neos, including Neos Chief Executive Officer and Director
`Jerry McLaughlin and Neos Director Beth Hecht.
`
`
`The Merger is currently expected to close by the second quarter of 2021, subject to
`certain approvals by both Aytu and Neos stockholders and the satisfaction of other
`customary closing conditions.
`
`
`As part of the transaction, Aytu has agreed to provide Neos with access to up to
`$5.0 million cash for working capital needs for the period prior to the closing of the
`Merger. In addition, upon closing of the Merger, $15.0 million in principal of
`Neos’s existing senior secured debt facility with affiliates of Deerfield Management
`will be repaid, and Deerfield has agreed to allow the remaining debt under the
`facility to remain outstanding with the combined company following the Merger.
`Indebtedness under Neos’s existing ABL agreement with Encina Business Credit
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`will also remain outstanding.
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`1 Based on unaudited combined pro-forma net revenues for the two companies for the twelve-month
`period ending September 30, 2020.
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`B. The Materially Incomplete and Misleading S-4
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`24.
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`The Individual Defendants must disclose all material information regarding the
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`Proposed Transaction to Neos stockholders so that they can make a fully informed decision
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`whether to vote in favor of the Proposed Transaction.
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`25.
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`On January 27, 2021, Defendants filed the S-4 with the SEC. The purpose of the S-
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`4 is, inter alia, to provide the Company’s stockholders with all material information necessary for
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`them to make an informed decision on whether to vote in favor of the Proposed Transaction.
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`However, significant and material facts were not provided to Plaintiff and the other Neos
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`stockholders. Without such information, Neos stockholders cannot make a fully informed decision
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`concerning whether to vote in favor of the Proposed Transaction.
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`Materially Misleading Statements/Omissions Regarding the Management-
`Prepared Financial Forecasts
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`26.
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`The S-4 discloses management-prepared financial projections for the Company
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`which are materially misleading. The S-4 indicates that in connection with the rendering of MTS’s
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`fairness opinion, MTS reviewed “certain internal financial analyses and forecasts of Neos prepared
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`by and provided to MTS” by Neos’s management. Accordingly, the S-4 should have, but failed to,
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`provide certain information in the projections that Neos’s management provided to the Board and
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`MTS.
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`27.
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`Notably, Defendants failed to disclose the line items used to calculate EBIT and
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`unlevered free cash flow for the Neos Management Unadjusted Neos Projections, Neos
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`Management Risk-Adjusted Neos Projections, Neos Management Unadjusted Aytu Projections,
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`Neos Management Adjusted Aytu Projections, and the Pro Forma Analysis. This omitted
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`information is necessary for Neos stockholders to make an informed decision on whether to vote
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`in favor of the Proposed Transaction.
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`Materially Incomplete and Misleading Disclosures Concerning MTS’s Financial
`Analyses
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`28. With respect to the Discounted Cash Flow Analysis, the S-4 fails to disclose the
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`basis for MTS’s calculating unlevered free cash flows from only the Neos Management Risk-
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`Adjusted Neos Projections and the Neos Management Adjusted Aytu Projections. The S-4 further
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`fails to disclose the terminal values for Neos, the inputs and assumptions underlying the selection
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`of terminal exit revenue multiples of 1.0x to 2.0x for Neos, the inputs and assumptions underlying
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`the selection of weighted average cost of capital of 15% to 19% for Neos, and Neos’s current
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`capitalization. The S-4 also fails to disclose the terminal values for Aytu, the inputs and
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`assumptions underlying the selection of terminal exit revenue multiples of 2.0x to 2.7x for Aytu,
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`the inputs and assumptions underlying the selection of weighted average cost of capital of 9% to
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`13% for Aytu, and Aytu’s current capitalization.
`29. With respect to the Pro Forma Combination Analysis, the S-4 fails to disclose the
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`inputs and assumptions underlying the selection of terminal exit revenue multiples of 1.4x to 2.3x.
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`The S-4 also fails to disclose the inputs and assumptions underlying the selection of weighted
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`average cost of capital of 9.0% to 13.0%.
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`Materially Incomplete and Misleading Disclosures Concerning the Flawed
`Process
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`30.
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`The S-4 also fails to disclose material information concerning the sales process. For
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`example, the S-4 notes that eight parties executed confidentiality agreements with Neos. Some
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`confidentiality agreements contained standstill provisions while others did not. Some standstill
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`provisions terminated upon announcement of the Proposed Transaction, and others are still in place
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`but allow confidential proposals. Only four parties are described in the S-4 (Aytu, Company A,
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`Company B and Company C), and those four executed confidentiality agreements. The S-4 does
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`not disclose whether the confidentiality agreement with Company C included a standstill
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`provision. The S-4 further fails to disclose information about the other four parties that executed
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`confidentiality agreements with Neos, details about their actions during the process, and
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`information about the standstill provisions in those confidentiality agreements.
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`31. MTS discussed with the Transaction Committee the Proposed Transaction and
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`other received proposals. Yet the S-4 does not disclose whether MTS provided financial analyses
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`to the Transaction Committee or to the Board during the process, and failed to disclose any such
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`financial analyses. For example, on October 22 and 25, 2020, MTS discussed “certain financial
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`aspects” of proposals received from Company B and Aytu, which included “preliminary
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`perspectives” on the Proposed Transaction based on preliminary forecasts. The S-4 does not
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`disclose the preliminary projections. The S-4 also does not disclose any analyses underlying the
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`discussions at this meeting. Similarly, on October 29 and 30, 2020, MTS discussed with the
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`Transaction Committee “certain financial aspects” of revised proposals from Aytu and Company
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`B, and the Transaction Committee discussed a preliminary relative valuation “with the assistance”
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`of MTS. MTS discussed with the Transaction Committee “certain financial aspects” of Aytu’s
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`November 2, 2020 proposal at a meeting on that same date. “[C]ertain financial aspects” of the
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`best and final proposals from Aytu and Company B were reviewed by MTS at the Transaction
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`Committee’s November 3, 2020 meeting. “[C]ertain financial aspects” of Aytu’s and Company
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`B’s revised proposals were discussed by MTS and the Transaction Committee on November 19,
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`2020. Any financial analyses presented to the Transaction Committee must be disclosed to Plaintiff
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`and the other Neos stockholders, to allow them to evaluate the fairness of the Merger Consideration
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`and the Proposed Transaction, itself.
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`32.
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`On December 7, 2020, the chair of the Transaction Committee informed “certain
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`other” of the Individual Defendants of the rapidly approaching Proposed Transaction. The S-4
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`does not disclose which members of the Board were informed and the basis for not informing all
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`of the Board members.
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`33.
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`This information is necessary to provide Company stockholders a complete and
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`accurate picture of the sales process and its fairness. Without this information, stockholders were
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`not fully informed as to the defendants’ actions, including those that may have been taken in bad
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`faith, and cannot fairly assess the process. And without all material information, Plaintiff and the
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`other Neos stockholders are unable to make a fully informed decision in connection with the
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`Proposed Transaction and face irreparable harm, warranting the injunctive relief sought herein.
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`34.
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`In addition, the Individual Defendants knew or recklessly disregarded that the S-4
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`omits the material information concerning the Proposed Transaction and contains the materially
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`incomplete and misleading information discussed above.
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`35.
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`Specifically, the Individual Defendants undoubtedly reviewed the contents of the
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`S-4 before it was filed with the SEC. Indeed, as directors of the Company, they were required to
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`do so. The Individual Defendants thus knew or recklessly disregarded that the S-4 omits the
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`material information referenced above and contains the incomplete and misleading information
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`referenced above.
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`36.
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`Further, the S-4 indicates that on December 9, 2020, MTS reviewed with the Board
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`its financial analysis of the Merger Consideration and delivered to the Board an oral opinion, which
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`was confirmed by delivery of a written opinion dated December 10, 2020, to the effect that the
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`Merger Consideration was fair, from a financial point of view, to Neos stockholders. Accordingly,
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`the Individual Defendants undoubtedly reviewed or were presented with the material information
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`concerning MTS’s financial analyses which has been omitted from the S-4, and thus knew or
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`should have known that such information has been omitted.
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`37.
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`Plaintiff and the other Neos stockholders are immediately threatened by the wrongs
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`complained of herein and lack an adequate remedy at law. Accordingly, Plaintiff seeks injunctive
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`and other equitable relief to prevent the irreparable injury that Plaintiff and the Company’s
`
`stockholders will continue to suffer absent judicial intervention.
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`CLAIMS FOR RELIEF
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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
`
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`38.
`
`herein.
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`39.
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`Defendants have filed the S-4 with the SEC with the intention of soliciting Neos
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`stockholder support for the Proposed Transaction. Each of the Individual Defendants reviewed and
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`authorized the dissemination of the S-4, which fails to provide the material information referenced
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`above.
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`40.
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`In so doing, Defendants made materially incomplete and misleading statements
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`and/or omitted material information necessary to make the statements made not misleading. Each
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`of the Individual Defendants, by virtue of their roles as officers and/or directors of Neos, were
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`aware of the omitted information but failed to disclose such information, in violation of Section
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`14(a).
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`41.
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`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,
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`at the time and in the light of the circumstances under which it is made, is false or misleading with
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`respect to any material fact, or which omits to state any material fact necessary in order to make
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`the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.
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`42.
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`Specifically, and as detailed above, the S-4 violates Section 14(a) and Rule 14a-9
`
`because it omits material facts concerning: (i) management’s financial projections; (ii) the value
`
`of Neos shares and the financial analyses performed by MTS in support of its fairness opinion;
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`and (iii) the sales process.
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`43. Moreover, in the exercise of reasonable care, the Individual Defendants knew or
`
`should have known that the S-4 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 S-4 states that MTS reviewed and discussed its
`
`financial analyses with the Board on December 9, 2020, and further states that the Board relied
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`upon MTS’s financial analyses and fairness opinion in connection with approving the Proposed
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`Transaction. The Individual Defendants knew or should have known that the material information
`
`identified above has been omitted from the S-4, rendering the sections of the S-4 identified above
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`to be materially incomplete and misleading.
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`44.
`
`The misrepresentations and omissions in the S-4 are material to Plaintiff and the
`
`other Neos stockholders, who will be deprived of their right to cast an informed vote if such
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`misrepresentations and omissions are not corrected prior to the vote on the Proposed Transaction.
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`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s equitable powers
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`can Plaintiff be fully protected from the immediate and irreparable injury that Defendants’ actions
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`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
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`45.
`
`herein.
`
`46.
`
`The Individual Defendants acted as controlling persons of Neos 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 Neos and participation in and/or awareness of the Company’s operations and/or
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`intimate knowledge of the incomplete and misleading statements contained in the S-4 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
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`various statements that Plaintiff contends are materially incomplete and misleading.
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`47.
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`Each of the Individual Defendants was provided with or had unlimited access to
`
`copies of the S-4 and other statements alleged by Plaintiff to be misleading prior to the time the S-
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`4 was filed with the SEC and had the ability to prevent the issuance of the statements or cause the
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`statements to be corrected.
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`48.
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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 S-4 at issue contains the
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`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 S-4.
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`49.
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`In addition, as the S-4 sets forth at length, and as described herein, the Individual
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`Case 1:21-cv-00940 Document 1 Filed 02/03/21 Page 14 of 15
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`Defendants were involved in negotiating, reviewing, and approving the Merger Agreement. The
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`S-4 purports to describe the various issues and information that the Individual Defendants
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`reviewed and considered. The Individual Defendants participated in drafting and/or gave their
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`input on the content of those descriptions.
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`50.
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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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`51.
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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 her 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 filing an amendment to
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`the S-4 with the SEC or otherwise disseminating an amendment to the S-4 to Neos stockholders
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`unless and until Defendants agree to include the material information identified above in any such
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`amendment;
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`B.
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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 S-4;
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`Case 1:21-cv-00940 Document 1 Filed 02/03/21 Page 15 of 15
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`C.
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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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`D.
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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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`E.
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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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`F.
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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: February 3, 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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