Case 1:21-cv-06456 Document 1 Filed 07/29/21 Page 1 of 14
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
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` GAYLE WEIR,
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`v.
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`Plaintiff,
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`AERPIO PHARMACEUTICALS, INC.,
`JOSEPH GARDNER, STEVEN
`PRELACK, ANUPAM DALAL, CALEY
`CASTELEIN, CHERYL COHEN, and
`PRAVIN DUGEL,
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`Defendants.
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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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`Plaintiff Gayle Weir (“Plaintiff”) by and through her undersigned attorneys, brings this
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`action on behalf of herself, and alleges the following based upon personal knowledge as to those
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`allegations concerning Plaintiff and, as to all other matters, upon the investigation of counsel,
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`which includes, without limitation: (a) review and analysis of public filings made by Aerpio
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`Pharmaceuticals, Inc. (“Aerpio” or the “Company”) and other related parties and non-parties
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`with the United States Securities and Exchange Commission (“SEC”); (b) review and analysis of
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`press releases and other publications disseminated by certain of the Defendants (defined below)
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`and other related non-parties; (c) review of news articles, shareholder communications, and
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`postings on the Company’s website concerning the Company’s public statements; and (d) review
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`of other publicly available information concerning Aerpio and the Defendants.
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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 Aerpio 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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`Case 1:21-cv-06456 Document 1 Filed 07/29/21 Page 2 of 14
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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 merger of Aerpio with Aadi Bioscience’s
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`Inc. (“Aadi”) (the “Proposed Transaction”).
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`2.
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`On May 16, 2021, the Company entered into an Agreement and Plan of Merger
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`(the “Merger Agreement”) with Aadi. Pursuant to the terms of the Merger Agreement the
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`Company’s shareholders will own approximately 14.7% of outstanding shares following the
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`closing of the merger and the concurrent closing of the PIPE financing.
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`3.
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`On July 8, 2021, in order to convince the Company’s shareholders to vote in favor
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`of the Proposed Transaction, the Board authorized the filing of a materially incomplete and
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`misleading proxy statement with the SEC (the “Proxy Statement”), in violation of Sections 14(a)
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`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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`Aerpio 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 Aerpio
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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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`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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`2
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`Case 1:21-cv-06456 Document 1 Filed 07/29/21 Page 3 of 14
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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 Aerpio shares.
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`Defendant Aerpio is incorporated under the laws of Delaware and has its principal
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`executive offices located at 9987 Carver Road, Cincinnati, Ohio 45242. The Company’s
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`common stock trades on the NASDAQ under the symbol “ARPO.”
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`10.
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`Defendant Joseph Gardner (“Gardner”) is and has been the President, Chief
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`Executive Officer (“CEO”) and a director of Aerpio at all times during the relevant time period.
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`11.
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`Defendant Steven Prelack (“Prelack”) is and has been Chairman of the Board of
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`Aerpio at all times during the relevant time period.
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`12.
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`Defendant Anupam Dalal (“Dalal”) is and has been an Aerpio director at all times
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`during the relevant time period.
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`13.
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`Defendant Caley Castelein (“Castelein”) is and has been a Aerpio director at all
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`times during the relevant time period.
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`14.
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`Defendant Cheryl Cohen (“Cohen”) is and has been a Aerpio director at all times
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`during the relevant time period.
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`3
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`Case 1:21-cv-06456 Document 1 Filed 07/29/21 Page 4 of 14
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`15.
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`Defendant Pravin Dugel (“Dugel”) is and has been a Aerpio director at all times
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`during the relevant time period.
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`16.
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`Defendants Gardner, Prelack, Dalal, Castelein, Cohen, and Dugel are collectively
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`referred to herein as the “Individual Defendants.”
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`17.
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`The Individual Defendants, along with Defendant Aerpio, are collectively referred
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`to herein as “Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`Background of the Companies
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`18.
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`Aerpio is a biopharmaceutical company focused on developing compounds that
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`activate Tie2 for indications in which Aerpio believes that activation of Tie2 may have
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`therapeutic potential. In January 2021, Aerpio announced that it had initiated a process to explore
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`and review a range of strategic alternatives focused on maximizing stockholder value from
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`Aerpio’s clinical assets and cash resources.
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`The Company Announces the Proposed Transaction
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`19.
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`On May 17, 2021, 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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`CINCINNATI and PACIFIC PALISADES, Calif., May 17, 2021 (GLOBE
`NEWSWIRE) -- Aerpio Pharmaceuticals, Inc. (“Aerpio”) (Nasdaq: ARPO), a
`biopharmaceutical company focused on developing compounds that activate
`Tie2, and Aadi Bioscience, Inc. (“Aadi”), a privately-held biopharmaceutical
`company focusing on precision therapies for genetically-defined cancers with
`alterations in mTOR pathway genes, announced their entry into a definitive
`merger agreement. Following the proposed merger, Aerpio will change its name
`to “Aadi Bioscience, Inc.” and the combined public company will focus on
`advancing Aadi’s lead product candidate, FYARROTM (sirolimus albumin-bound
`nanoparticles for injectable suspension; nab-sirolimus; ABI-009).
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`In support of the merger, Aerpio has entered into subscription agreements to raise
`$155 million in a Private Investment in Public Equity (PIPE) financing led by
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`Case 1:21-cv-06456 Document 1 Filed 07/29/21 Page 5 of 14
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`Acuta Capital Partners and KVP Capital and including Avoro Capital Advisors;
`Avoro Ventures; Venrock Healthcare Capital Partners; BVF Partners, L.P.; Vivo
`Capital; Alta Bioequities, L.P.; Rock Springs Capital; RTW Investments, LP;
`Acorn Bioventures; and Serrado Capital LLC as well as other undisclosed
`institutional investors.
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`The PIPE financing is expected to be consummated concurrently with the closing
`of the merger. Proceeds from the PIPE financing are intended to be used for
`commercialization of FYARRO in advanced malignant PEComa and a planned
`tumor-agnostic registrational
`trial
`in solid
`tumors harboring
`inactivating
`alterations in the mTOR pathway genes TSC1 and TSC2 expected to be initiated
`by the end of 2021. Aadi’s first indication, advanced malignant PEComa, is an
`ultra-rare sarcoma enriched in TSC1 and TSC2 alterations. Aadi has received
`Orphan designation, Fast Track designation and Breakthrough Therapy
`designation from the FDA for FYARRO for the treatment of patients with
`advanced malignant PEComa. Together with the cash expected from both
`companies at closing, the net proceeds of the PIPE financing are expected to fund
`the company into 2024, enabling potential approval and commercial launch in
`PEComa as well as completion of a registrational trial in tumors harboring TSC1
`or TSC2 inactivating alterations.
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`About the Proposed Transaction
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`*
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`*
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`*
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`Under the terms of the merger agreement, shareholders of Aadi will receive
`shares of newly issued Aerpio common stock. On a pro forma basis, shareholders
`of Aadi will own approximately 66.8% and shareholders of Aerpio will own
`approximately 33.2% of the combined company upon the closing of the merger,
`prior to the additional PIPE financing transaction. Following the closing of the
`concurrent PIPE financing, Aerpio shareholders will own approximately 14.7% of
`the combined company. The actual allocation is subject to adjustment based on
`Aerpio’s cash balance at the time of closing.
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`The terms of the merger agreement contemplate that a non-transferable contingent
`value right (a “CVR”) will be distributed to Aerpio shareholders as of
`immediately prior to the effective time of the merger, entitling CVR holders to
`receive net proceeds received by Aerpio, if any, associated with Aerpio’s legacy
`assets. The terms and conditions of the CVRs will be pursuant to a CVR
`Agreement Aerpio will enter into prior to the closing of the merger (the “CVR
`Agreement”).
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`The merger agreement has been approved by the boards of directors of both
`companies. The transaction is expected to close in the third quarter of 2021,
`subject to approval by Aerpio’s shareholders, the completion of the PIPE
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`Case 1:21-cv-06456 Document 1 Filed 07/29/21 Page 6 of 14
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`financing, and customary closing conditions. The PIPE financing is expected to
`close concurrently with, and is conditioned upon, the closing of the merger.
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`Additional information about the transaction will be provided in a Current Report
`on Form 8-K that will be filed by Aerpio with the Securities and Exchange
`Commission (“SEC”) and will be available at www.sec.gov.
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`Ladenburg Thalmann & Co. Inc. is acting as financial advisor to Aerpio for the
`transaction and Goodwin Procter LLP is serving as its legal counsel. Perella
`Weinberg Partners LP and Piper Sandler & Co. are acting as financial advisors to
`Aadi for the transaction and Wilson Sonsini Goodrich & Rosati, P.C. is serving as
`legal counsel to Aadi. Jefferies LLC; Cowen and Company, LLC; and Piper
`Sandler & Co. are acting as placement agents for the PIPE financing.
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`FALSE AND MISLEADING STATEMENTS
`AND/OR MATERIAL OMISSIONS IN THE PROXY STATEMENT
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`20.
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`On July 8, 2021, the Company authorized the filing of the Proxy Statement with
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`the SEC. The Proxy Statement recommends that the Company’s shareholders vote in favor of
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`the Proposed Transaction.
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`21.
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`Defendants were obligated to carefully review the Proxy Statement prior to its
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`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 Proxy 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 Proxy Statement indicates that in connection with Ladenburg Thalmann &
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`22.
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`Co. Inc.’s (“Ladenburg”) fairness opinion, Ladenburg, “Reviewed and analyzed certain internal
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`financial analyses, projections as to cost and expenses, reports, preliminary internal market
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`opportunity assumptions and other information concerning Aadi prepared by the management of
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`Aerpio and its advisors and utilized per instruction of Aerpio.”
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`23.
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`However, the Proxy Statement fails to disclose the Company’s financial
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`projections.
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`24.
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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 Ladenburg’s Financial Opinion
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`The Proxy Statement contains the financial analyses and opinion of Ladenburg
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`25.
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`concerning the Proposed Transaction, but fails to provide material information concerning such.
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`26. With respect to Ladenburg’s Discounted Cash Flow Analysis for Aadi, the Proxy
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`Statement also fails to disclose: (i) the inputs and adjustments made by Aerpio in determining the
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`assumed 28.0% corporate tax rate for purposes of calculating Aadi’s unlevered free cash flow;
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`(ii) the inputs and assumptions underlying Ladenburg’s use of the discount rate range of 12.9%
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`to 16.9% (iii) the weighted average cost of capital of the selected publicly traded companies; and
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`(iv) the inputs and assumptions underlying Ladenburg’s assumption that Aadi will have no
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`terminal value after 2035.
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`27. 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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`Material False and Misleading Statements or Material
`Misrepresentations or Omissions Regarding the Background of the Transaction
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`The Proxy Statement omits material information concerning the process
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`28.
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`conducted by the Company and the events leading up to the Proposed Transaction.
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`29.
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`Specifically, the Proxy Statement fails to disclose Adequate reasoning as to why
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`the Board agreed to a transaction in which the public stockholders of the Company, including
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`Plaintiff, would receive nothing other than to have their shares diluted in value.
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`30.
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`The Proxy Statement fails to provide adequate information regarding the
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`engagement of a Second Financial Advisor, or any other not specifically named financial
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`advisor(s), including information regarding: (i) what the specific role of the Second Financial
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`Advisor, or any other not specifically named financial advisor(s), was in the sales process; (ii)
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`the analyses performed by the Second Financial Advisor, or any other not specifically named
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`financial advisor(s), in connection with the Proposed Transaction; (iii) how much compensation
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`the Second Financial Advisor, or any other not specifically named financial advisor(s), was
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`entitled to or has already received in compensation for its services throughout the sales process;
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`(iv) the amount of compensation owed to Second Financial Advisor, or any other not specifically
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`named financial advisor(s), contingent upon the consummation for the Proposed Transaction; (v)
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`whether the Second Financial Advisor, or any other not specifically named financial advisor(s),
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`has performed past services for any parties to the Merger Agreement or their affiliates, including
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`the timing and nature of such services, and the amount of compensation received by each
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`financial advisor for providing such services; and (vi) why the engagement of additional advisors
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`was necessary given that Ladenburg was already engaged and provided a fairness opinion.
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`31.
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`The Proxy Statement fails to provide sufficient information regarding the
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`existence or nature of any non-disclosure agreement entered into between Aerpio and any
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`potentially interested third party, including Aadi, as part of the sales process, and if the terms of
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`any such agreements differed from one another.
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`32.
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`The Proxy Statement fails to provide communications regarding post-transaction
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`employment during the negotiation of the underlying transaction must be disclosed to
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`stockholders.
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`33. 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)
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`34.
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`herein.
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`35.
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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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`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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`36.
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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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`37.
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`Defendants have issued the Proxy 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 Proxy Statement, which fails to provide critical information
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`regarding, among other things, the financial projections for the Company.
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`38.
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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 Proxy Statement, but nonetheless failed to obtain and disclose such information
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`to shareholders although they could have done so without extraordinary effort.
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`39.
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`The Defendants knew or were negligent in not knowing that the Proxy Statement
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`is materially misleading and omits material facts that are necessary to render it not misleading.
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`The Defendants undoubtedly reviewed and relied upon the omitted information identified above
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`in connection with their decision to approve and recommend the Proposed Transaction.
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`40.
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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 Proxy Statement, rendering the sections
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`of the Proxy Statement identified above to be materially incomplete and misleading. Indeed, the
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`Defendants were required to be particularly attentive to the procedures followed in preparing the
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`Proxy Statement and review it carefully before it was disseminated, to corroborate that there are
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`no material misstatements or omissions.
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`41.
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`The Defendants were, at the very least, negligent in preparing and reviewing the
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`Proxy Statement. The preparation of a Proxy Statement by corporate insiders containing
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`materially false or misleading statements or omitting a material fact constitutes negligence. The
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`Defendants were negligent in choosing to omit material information from the Proxy Statement or
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`failing to notice the material omissions in the Proxy Statement upon reviewing it, which they
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`were required to do carefully as the Company’s directors. Indeed, the Defendants were
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`intricately involved in the process leading up to the signing of the Merger Agreement and the
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`preparation of the Company’s financial projections.
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`42.
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`The misrepresentations and omissions in the Proxy Statement are material to
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`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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`43.
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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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`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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`44.
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`herein.
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`45.
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`The Individual Defendants acted as controlling persons of Aerpio within the
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`Case 1:21-cv-06456 Document 1 Filed 07/29/21 Page 12 of 14
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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 Aerpio, 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 Proxy Statement filed with the SEC, they had the power to influence and control and did
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`influence and control, directly or indirectly, the decision making of the Company, including the
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`content and dissemination of the various statements that Plaintiff contends are materially
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`incomplete and misleading.
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`46.
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`Each of the Individual Defendants was provided with, or had unlimited access to,
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`copies of the Proxy Statement and other statements alleged by Plaintiff to be misleading prior to
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`and/or shortly after these statements were issued and had the ability to prevent the issuance of the
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`statements or cause the statements to be corrected.
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`47.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have
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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 Proxy Statement 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 preparing this document.
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`48.
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`In addition, as set forth in the Proxy Statement sets forth at length and described
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`herein, the Individual Defendants were involved in negotiating, reviewing, and approving the
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`Merger Agreement. The Proxy Statement purports to describe the various issues and information
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`that the Individual Defendants reviewed and considered. The Individual Defendants participated
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`in drafting and/or gave their input on the content of those descriptions.
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`49.
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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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`50.
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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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`51.
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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 Proxy
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`Statement that does not contain any untrue statements of material fact and that states all material
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`facts required in it or necessary to make the statements contained therein not misleading;
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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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`JURY DEMAND
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`Plaintiff demands a trial by jury on all issues so triable.
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`Dated: July 29, 2021
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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.
`1190 Broadway,
`Hewlett, New York 11557
`Telephone: (516) 493-9780
`Facsimile: (516) 280-7376
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`Attorneys for Plaintiff
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`14
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