Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 1 of 16
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`Civil Action No. 1:21-cv-7588
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`COMPLAINT FOR VIOLATIONS OF
`SECTIONS 14(a) AND 20(a) OF THE
`SECURITIES EXCHANGE ACT OF
`1934
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`JURY TRIAL DEMANDED
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`--------------------------------------------------------
`RYAN O’DELL,
`
`
`Plaintiff,
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`
`v.
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`SANDERSON FARMS, INC., FRED
`BANKS, JR., DAVID BARKSDALE, JOHN
`BIERBUSSE, LAMPKIN BUTTS, MIKE
`COCKRELL, TONI D. COOLEY, BEVERLY
`HOGAN, EDITH KELLY-GREEN, PHIL K.
`LIVINGSTON, SUZANNE MESTAYER,
`SONIA PEREZ, GAIL JONES PITTMAN,
`and JOE F. SANDERSON, JR.,
`
`
`Defendants.
`--------------------------------------------------------
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`Ryan O’Dell (“Plaintiff”), by and through his attorneys, alleges the following upon
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`information and belief, including investigation of counsel and review of publicly-available
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`information, except as to those allegations pertaining to Plaintiff, which are alleged upon personal
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`knowledge:
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`1.
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`This is an action brought by Plaintiff against Sanderson Farms, Inc. (“Sanderson
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`Farms or the “Company”) and the members of Sanderson Farms board of directors (the “Board”
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`or the “Individual Defendants” and collectively with the Company, the “Defendants”) for their
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`violations of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange
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`Act”), in connection with the proposed acquisition of Sanderson Farms by Cargill Meat Solutions
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`Corporation (“Cargill”) and the Continental Grain Company (“Continental Grain” and with
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`Cargill, the “Purchasing Group”) and their affiliates.
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`

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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 2 of 16
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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 Preliminary Proxy Statement on Schedule 14A
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`(the “Proxy Statement”) to be filed on September 3, 2021 with the United States Securities and
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`Exchange Commission (“SEC”) and disseminated to Company stockholders. The Proxy
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`Statement recommends that Company stockholders vote in favor of a proposed transaction
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`whereby Sycamore Merger Sub LLC (“Merger Sub”), a wholly owned subsidiary of Walnut
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`Sycamore Holdings LLC (“Parent”), will merge with and into Sanderson Farms with Sanderson
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`Farms surviving the merger and becoming an indirect wholly owned subsidiary of Parent (the
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`“Proposed Transaction”). Pursuant to the terms of the definitive agreement and plan of merger the
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`companies entered into (the “Merger Agreement”) each Sanderson Farms common share issued
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`and outstanding will be converted into the right to receive $203.00 in cash (the “Merger
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`Consideration”). Parent and Merger Sub are both affiliates of the Purchasing Group.
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`3.
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`As discussed below, Defendants have asked Sanderson Farms stockholders to
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`support the Proposed Transaction based upon the materially incomplete and misleading
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`representations and information contained in the Proxy Statement, in violation of Sections 14(a)
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`and 20(a) of the Exchange Act. Specifically, the Proxy Statement contains materially incomplete
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`and misleading information concerning the Company’s financial forecasts and financial analyses
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`conducted by the financial advisor of the Company, Centerview Partners LLC (“Centerview”) in
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`support of its fairness opinion, and relied upon by the Board in recommending the Company’s
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`stockholders vote in favor of the Proposed Transaction.
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`4.
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`It is imperative that the material information that has been omitted from the Proxy
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`Statement is disclosed to the Company’s stockholders prior to the forthcoming stockholder vote
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`so that they can properly exercise their corporate suffrage rights.
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 3 of 16
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`5.
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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 unless and until the
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`material information discussed below is disclosed to Sanderson Farms stockholders or, in the event
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`the Proposed Transaction is consummated, to recover damages resulting from the Defendants’
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`violations of the Exchange Act.
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`JURISDICTION AND VENUE
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`6.
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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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`7.
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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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`8.
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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 Plaintiff resides in this District.
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`PARTIES
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`9.
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`Plaintiff is, and has been at all relevant times, the owner of Sanderson Farms
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`common stock and has held such stock since prior to the wrongs complained of herein.
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`10.
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`Individual Defendant Fred Banks, Jr. has served as a member of the Board since
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`2007.
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`2018.
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`11.
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`Individual Defendant David Barksdale has served as a member of the Board since
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`3
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 4 of 16
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`12.
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`Individual Defendant John Bierbusse has served as a member of the Board since
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`2006.
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`13.
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`Individual Defendant Lampkin Butts has served as a member of the Board since
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`1998 and is the Company’s President.
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`14.
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`Individual Defendant Mike Cockrell has served as a member of the Board
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`since1998.
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`15.
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`Individual Defendant Toni D. Cooley has served as a member of the Board since
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`2007.
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`2004.
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`2018.
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`16.
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`Individual Defendant Beverly Hogan has served as a member of the Board since
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`17.
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`Individual Defendant Edith Kelly-Green has served as a member of the Board since
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`18.
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`Individual Defendant Phil K. Livingston has served as a member of the Board since
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`1989 and is the Lead Independent Director.
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`19.
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`Individual Defendant Suzanne Mestayer has served as a member of the Board since
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`2017.
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`2002.
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`20.
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`21.
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`Individual Defendant Sonia Perez has served as a member of the Board since 2019.
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`Individual Defendant Gail Jones Pittman has served as a member of the Board since
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`22.
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`Individual Defendant Joe F. Sanderson, Jr. has served as a member of the Board
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`since 1984 and is the Company’s Chairman and Chief Executive Officer.
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`4
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 5 of 16
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`23.
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`Defendant Sanderson Farms is incorporated in Mississippi and maintains its
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`principal offices at 127 Flynt Road, Laurel, Mississippi 39443. The Company’s common stock
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`trades on the NASDAQ Stock Exchange under the symbol “SAFM.”
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`24.
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`The defendants identified in paragraphs 10-22 are collectively referred to as the
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`“Individual Defendants” or the “Board.”
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`25.
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`The defendants identified in paragraphs 10-23 are collectively referred to as the
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`“Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`A.
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`The Proposed Transaction
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`26.
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`Sanderson Farms, an integrated poultry processing company, produces, processes,
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`markets, and distributes fresh, frozen, and prepared chicken products in the United States. The
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`Company sells ice-packed, chill-packed, bulk-packed, and frozen chicken primarily under the
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`Sanderson Farms brand name to retailers, distributors, and casual dining operators in the
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`southeastern, southwestern, northeastern, and western United States, as well as to customers who
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`resell frozen chicken into export markets. Its prepared chicken product line includes institutional
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`and consumer packaged partially cooked or marinated chicken items for distributors and food
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`service establishments. Sanderson Farms was founded in 1947 and is headquartered in Laurel,
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`Mississippi.
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`27.
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`On August 9, 2021, Sanderson Farms and the Purchasing Group jointly announced
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`that they had entered into a proposed transaction:
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`MINNEAPOLIS and NEW YORK and LAUREL, Miss., Aug. 9,
`2021 /PRNewswire/
`-- Cargill, Continental Grain Company,
`and Sanderson Farms, Inc. (NASDAQ: SAFM) announced today
`they have reached a definitive agreement for a joint venture
`between Cargill and Continental Grain
`to acquire Sanderson
`Farms for $203 per share in cash, representing a total equity value
`for Sanderson Farms of $4.53 billion. The purchase price represents
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 6 of 16
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`a 30.3% premium to Sanderson Farms' unaffected share price
`of $155.74 on June 18, 2021, the last full trading day prior to media
`speculation about the potential sale of Sanderson Farms; a 22.8%
`premium to the Sanderson Farms 30-day volume weighted average
`price ("VWAP") as of June 18, 2021, and a 15.2% premium to the
`all-time high share price as of June 18, 2021. Upon completion of
`the
`transaction, Cargill and
`Continental
`Grain
`will
`combine Sanderson Farms with Wayne Farms, a subsidiary of
`Continental Grain, to form a new, privately held poultry business.
`The combination of Sanderson Farms and Wayne Farms will create
`a best-in-class U.S. poultry company with a high-quality asset base,
`complementary operating cultures, and an
`industry-leading
`management team and workforce. The new company will be well
`positioned to enhance its service to customers across retail and food
`service and drive organic growth in an industry fueled by
`affordability and key consumer
`trends around
`the health,
`sustainability, and versatility of chicken.
`"Since my grandfather founded Sanderson Farms 75 years ago, our
`many significant achievements have been driven by our
`commitment to providing the very best chicken products in a
`profitable manner that benefits each of the constituents who
`contribute to our success. This transaction is the culmination of that
`commitment, as it delivers a significant value to our stockholders,
`reflecting the dedication of our team, and our best-in-class assets,
`quality products, efficient and sustainable operations, and respected
`brand," said Joe Sanderson, Chairman and Chief Executive Officer
`of Sanderson Farms,
`Inc. "We are proud
`to be
`joining
`with Cargill and Continental Grain and we are confident that they
`will be strong stewards of the Sanderson Farms team, brand and
`assets going
`forward. As part of
`the newly created
`company, Sanderson Farms and its new owners will remain
`committed to the employees, poultry producers, customers,
`communities, environment, and animals under our care, and to
`continuing to deliver the highest quality products and the best
`service in our industry to our customers."
`"We are very happy to partner with Cargill with whom we have had
`a decades-long
`relationship between
`two
`family-owned
`companies. Sanderson Farms' operations, best-in-class assets and
`valuable brand have underscored their success, and we have the
`highest respect for Joe Sanderson, and the business and team he has
`built as the third generation CEO," said Paul Fribourg, Chairman
`and CEO of Continental Grain. "Wayne Farms has been one of the
`most important and successful parts of Continental Grain for almost
`60 years, so bringing together two great partners with two great
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 7 of 16
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`poultry companies will ensure good things for our customers, our
`grower partners, and our employees."
`The new company will have state-of-the-art operations and will
`continue to invest in its workforce and in employee safety.
`Operations will include poultry processing plants and prepared
`foods
`plants
`across Alabama, Arkansas, Georgia, Louisiana, Mississippi, North
`Carolina, and Texas.
`"At Cargill, we are committed to nourishing the world in a safe,
`responsible and sustainable way," said David MacLennan,
`Chairman and CEO of Cargill. "Expanding our poultry offerings to
`the U.S. is a key enabler of our ability to meet customer and
`consumer demands. With these great businesses, and our strong
`partnership, we believe we will deliver a superior portfolio of
`products and services to our customers."
`its
`joint venture with
`Cargill expects
`to support
`the new
`longstanding
`relationships with
`retail
`and
`foodservice
`customers. Wayne Farms, part of Continental Grain's food,
`agriculture and commodities investment portfolio since 1965, has
`roots in the poultry industry that go back more than a century.
`PARTNERING WITH FARMERS AND COMMUNITIES
`Cargill, Continental Grain, and Sanderson Farms are committed to
`ensuring operational excellence, workplace safety, and the highest
`quality of product for the U.S. poultry industry.
`Cargill and Continental Grain have long histories of investing and
`partnering with American
`farmers and are dedicated
`to
`strengthening the food and agriculture industries for the benefit of
`consumers and growers. Their shared culture, built on the principles
`of supporting farmers and communities, complements Sanderson
`Farms' reputation as one of
`the
`industry's most respected
`operators. Sanderson Farms' strong brand, reputation, and best-in-
`class assets will remain a core part of the combined company. In
`addition, Wayne Farms' deep customer relationships across the food
`service sector complement Sanderson Farms' diverse grocery and
`retail relationships.
`TRANSACTION DETAILS
`The transaction is expected to close by the end of 2021 or early
`2022, and will be
`subject
`to
`regulatory and Sanderson
`Farms stockholder approval, and other customary closing
`conditions.
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 8 of 16
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`The acquisition consortium has committed equity and debt financing
`in place to complete the transaction.
`Wayne Farms CEO Clint Rivers will lead the combined company.
`Upon the completion of the transaction, Sanderson Farms will
`become a private company, and its shares will no longer be traded
`on NASDAQ.
`advisor
`financial
`the
`as
`BofA
`Securities acted
`to Cargill and Freshfields Bruckhaus Deringer (US) LLP acted as
`legal counsel. Gibson Dunn & Crutcher acted as tax counsel.
`Centerview Partners LLC acted as financial advisor to Sanderson
`Farms and Wachtell Lipton Rosen & Katz and Fishman Haygood
`LLP acted as legal counsel.
`Lazard acted as the financial advisor for Wayne Farms and
`Continental Grain, and Paul, Weiss, Rifkind, Wharton & Garrison
`LLP acted as legal counsel.
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`* * *
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`
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`28.
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`The Board has unanimously approved the Proposed Transaction. It is therefore
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`imperative that Sanderson Farms’ stockholders are provided with the material information that has
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`been omitted from the Proxy Statement, so that they can meaningfully assess whether or not the
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`Proposed Transaction is in their best interests prior to the forthcoming stockholder vote.
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`B.
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`The Materially Incomplete and Misleading Proxy Statement
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`29.
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`On September 3, 2021, Sanderson Farms filed the Proxy Statement with the SEC
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`in connection with the Proposed Transaction. The Proxy Statement was furnished to the
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`Company’s stockholders and solicits the stockholders to vote in favor of the Proposed Transaction.
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`The Individual Defendants were obligated to carefully review the Proxy Statement before it was
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`filed with the SEC and disseminated to the Company’s stockholders to ensure that it did not contain
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`any material misrepresentations or omissions. However, the Proxy Statement misrepresents and/or
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`omits material information that is necessary for the Company’s stockholders to make an informed
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 9 of 16
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`decision concerning whether to vote in favor of the Proposed Transaction, in violation of Sections
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`14(a) and 20(a) of the Exchange Act.
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`Omissions and/or Material Misrepresentations Concerning Sanderson Farms Financial
`Projections
`
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`The Proxy Statement fails to provide material information concerning financial
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`30.
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`projections by Sanderson Farms management and relied upon by Centerview in its analysis. The
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`Proxy Statement discloses management-prepared financial projections for the Company which are
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`materially misleading. The Proxy Statement indicates that in connection with the rendering of its
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`fairness opinion, that the Company prepared certain non-public financial forecasts (the “Company
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`Projections”) and provided them to the Board and the financial advisors with forming a view about
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`the stand-alone valuation of the Company. Accordingly, the Proxy Statement should have, but fails
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`to provide, certain information in the projections that Sanderson Farms management provided to
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`the Board and the financial advisors. Courts have uniformly stated that “projections … are
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`probably among the most highly-prized disclosures by investors. Investors can come up with their
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`own estimates of discount rates or [] market multiples. What they cannot hope to do is replicate
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`management’s inside view of the company’s prospects.” In re Netsmart Techs., Inc. S’holders
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`Litig., 924 A.2d 171, 201-203 (Del. Ch. 2007).
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`31.
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`For the Company Projections, the Proxy Statement provides values for non-GAAP
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`(Generally Accepted Accounting Principles) financial metrics: EBITDA, NOPAT, and Unlevered
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`Free Cash Flow, but fails to provide line items used to calculate these metrics and/or a
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`reconciliation of these non-GAAP metrics to their most comparable GAAP measures, in direct
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`violation of Regulation G and consequently Section 14(a).
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`32. When a company discloses non-GAAP financial measures in a Proxy Statement
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`that were relied on by a board of directors to recommend that stockholders exercise their corporate
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 10 of 16
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`suffrage rights in a particular manner, the company must, pursuant to SEC regulatory mandates,
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`also disclose all projections and information necessary to make the non-GAAP measures not
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`misleading, and must provide a reconciliation (by schedule or other clearly understandable
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`method) of the differences between the non-GAAP financial measure disclosed or released with
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`the most comparable financial measure or measures calculated and presented in accordance with
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`GAAP. 17 C.F.R. § 244.100.
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`33.
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`The SEC has noted that:
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`companies should be aware that this measure does not have a
`uniform definition and its title does not describe how it is calculated.
`Accordingly, a clear description of how this measure is calculated,
`as well as the necessary reconciliation, should accompany the
`measure where
`it
`is used. Companies should also avoid
`inappropriate or potentially misleading
`inferences about
`its
`usefulness. For example, "free cash flow" should not be used in a
`manner that inappropriately implies that the measure represents the
`residual cash flow available for discretionary expenditures, since
`many companies have mandatory debt service requirements or other
`non-discretionary expenditures that are not deducted from the
`measure.1
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`Thus, to cure the Proxy Statement and the materially misleading nature of the
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`34.
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`forecasts under SEC Rule 14a-9 as a result of the omitted information in the Proxy Statement,
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`Defendants must provide a reconciliation table of the non-GAAP measure to the most comparable
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`GAAP measure to make the non-GAAP metrics included in the Proxy Statement not misleading.
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`Omissions and/or Material Misrepresentations Concerning Centerview’s Financial Analysis
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`35. With respect to Centerview’s Selected Public Company Analysis, the Proxy
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`Statement fails to disclose: (i) the individual metrics for the companies observed by Centerview in
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`the analysis; (ii) the basis for applying a downward adjustment of 25% to the median EV/EBITDA
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`1 U.S. Securities and Exchange Commission, Non-GAAP Financial Measures, last updated April
`4, 2018, available at: https://www.sec.gov/divisions/corpfin/guidance/nongaapinterp.htm
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 11 of 16
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`multiples for the selected companies; (iii) the Company’s net cash at July 31, 2021; (iv) the number
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`of shares of Company common stock outstanding as of July 31, 2021 on a fully diluted basis.
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`36. With respect to Centerview’s Selected Transactions Analysis for the Company, the
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`Proxy Statement fails to disclose the individual metrics for the transactions observed by
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`Centerview in the analysis.
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`37. With respect to Centerview’s Discounted Cash Flow Analysis for the Company, the
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`Proxy Statement also fails to disclose: (i) the range of implied equity values for the Company; (ii)
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`the inputs and assumptions underlying the use of perpetuity growth rates of 1.0% to 2.0%; (iii) the
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`inputs and assumptions underlying the range of discount rates ranging from 7.5% to 8.5%; (iv) the
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`Company’s estimated net cash at July 31, 2021; (v) the number of shares of Company common
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`stock outstanding as of July 31, 2021 on a fully diluted basis.
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`38. With respect to Centerview’s Analyst Price Target Analysis, the Proxy also fails to
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`disclose: (i) the stock price targets for the shares of Sanderson Farms common stock; and (ii) the
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`Wall Street research analysts observed.
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`39.
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`In sum, the omission of the above-referenced information renders statements in the
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`Proxy Statement materially incomplete and misleading in contravention of the Exchange Act.
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`Absent disclosure of the foregoing material information prior to the special stockholder meeting
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`to vote on the Proposed Transaction, Plaintiff will be unable to make a fully-informed decision
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`regarding whether to vote in favor of the Proposed Transaction, and he is thus threatened with
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`irreparable harm, warranting the injunctive relief sought herein.
`
`CLAIMS FOR RELIEF
`
`COUNT I
`
`On Behalf of Plaintiff Against All Defendants for Violations of
`Section 14(a) of the Exchange Act and Rule 14a-9 and 17 C.F.R. § 244.100
`
`
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 12 of 16
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`40.
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
`
`herein.
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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 proxy communications with stockholders shall not contain “any statement
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`which, at the time and in the light of the circumstances under which it is made, is false or
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`misleading with respect to any material fact, or which omits to state any material fact necessary in
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`order to make the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.
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`42.
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`Defendants have issued the Proxy Statement with the intention of soliciting
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`stockholder support for the Proposed Transaction. Each of the Defendants reviewed and
`
`authorized the dissemination of the Proxy Statement and the use of their name in the Proxy
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`Statement, which fails to provide critical information regarding, among other things, financial
`
`analysis that were prepared by Centerview and relied upon by the Board in recommending the
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`Company’s stockholders vote in favor of the Proposed Transaction.
`
`43.
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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 Individual Defendants,
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`by virtue of their roles as officers and/or directors, were aware of the omitted information but failed
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`to disclose such information, in violation of Section 14(a). The Individual Defendants were
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`therefore negligent, as they had reasonable grounds to believe material facts existed that were
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`misstated or omitted from the Proxy Statement, but nonetheless failed to obtain and disclose such
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`information to stockholders although they could have done so without extraordinary effort.
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`44.
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`Defendants were, at the very least, negligent in preparing and reviewing the Proxy
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`Statement. The preparation of a Proxy Statement by corporate insiders containing materially false
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`or misleading statements or omitting a material fact constitutes negligence. Defendants were
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 13 of 16
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`negligent in choosing to omit material information from the Proxy Statement or failing to notice
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`the material omissions in the Proxy Statement upon reviewing it, which they were required to do
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`carefully. Indeed, Defendants were intricately involved in the process leading up to the signing of
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`the Merger Agreement and the preparation and review of strategic alternatives and the Company’s
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`financial projections.
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`45.
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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 her right to cast an informed vote if such misrepresentations and
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`omissions are not corrected prior to the vote on the Proposed Transaction. Plaintiff has no adequate
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`remedy at law. Only through the exercise of this Court’s equitable powers can Plaintiff be fully
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`protected from the immediate and irreparable injury that Defendants’ actions threaten to inflict.
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`COUNT II
`
`On Behalf of Plaintiff 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
`
`46.
`
`herein.
`
`47.
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`The Individual Defendants acted as controlling persons of Sanderson Farms within
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`the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions
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`as directors of Sanderson Farms, 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 Sanderson Farms, including
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`the content and dissemination of the various statements that Plaintiff contends are materially
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`incomplete and misleading.
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`48.
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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
`
`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.
`
`49.
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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 Sanderson Farms, 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
`
`violations alleged herein, and exercised the same. The omitted information identified above was
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`reviewed by the Board prior to voting on the Proposed Transaction. The Proxy Statement at issue
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`contains the unanimous recommendation of the Board to approve the Proposed Transaction. The
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`Individual Defendants were thus directly involved in the making of the Proxy Statement.
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`50.
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`In addition, as the Proxy Statement sets forth at length, and as described herein, the
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`Individual Defendants were involved in negotiating, reviewing, and approving the Merger
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`Agreement. The Proxy Statement purports to describe the various issues and information that the
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`Individual Defendants reviewed and considered. The Individual Defendants participated in
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`drafting and/or gave their input on the content of those descriptions.
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`51.
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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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`52.
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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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`14
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 15 of 16
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`53.
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`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s
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`equitable powers can Plaintiff be fully protected from the immediate and irreparable injury that
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`Defendants’ actions threaten to inflict.
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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 Statement;
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`B.
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`Rescinding, to the extent already implemented, the Merger Agreement or any of
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`the terms thereof, or granting Plaintiff rescissory damages;
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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: September 10, 2021
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`
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`By:
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`
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`MELWANI & CHAN LLP
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`/s Gloria Kui Melwani
`Gloria Kui Melwani (GM5661)
`1180 Avenue of Americas, 8th Fl.
`New York, NY 10036
`Telephone: (212) 382-4620
`
`15
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`Case 1:21-cv-07588 Document 1 Filed 09/10/21 Page 16 of 16
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`
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`Email: gloria@melwanichan.com
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`Attorneys for Plaintiff
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`16
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