Case 1:21-cv-08818 Document 1 Filed 10/28/21 Page 1 of 11
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`COMPLAINT FOR VIOLATION OF THE SECURITIES EXCHANGE ACT OF 1934
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`Plaintiff, by his undersigned attorneys, for this complaint against defendants, alleges upon
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`Case No. ______________
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`JURY TRIAL DEMANDED
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`JEFFREY D. JUSTICE, II,
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`Plaintiff,
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`v.
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`ADAMAS PHARMACEUTICALS INC.,
`DAVID L. MAHONEY, NEIL F.
`MCFARLANE, MICHAEL F. BIGHAM,
`MARTHA J. DEMSKI, WILLIAM
`ERICSON, JOHN MACPHEE, SPYROS
`PAPAPETROPOULOS, ANNA RICHO,
`SUPERNUS PHARMACEUTICALS, INC.,
`and SUPERNUS REEF, INC.,
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`Defendants.
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`personal knowledge with respect to himself, and upon information and belief based upon, inter
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`alia, the investigation of counsel as to all other allegations herein, as follows:
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`NATURE OF THE ACTION
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`1.
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`This action stems from a proposed transaction announced on October 11, 2021 (the
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`“Proposed Transaction”), pursuant to which Adamas Pharmaceuticals, Inc. (“Adamas” or the
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`“Company”) will be acquired by Supernus Pharmaceuticals, Inc. (“Parent”) and Supernus Reef,
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`Inc. (“Purchaser”).
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`2.
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`On October 10, 2021, Adamas’ Board of Directors (the “Board” or “Individual
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`Defendants”) caused the Company to enter into an agreement and plan of merger (the “Merger
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`Agreement”) with Parent and Purchaser. Pursuant to the terms of the Merger Agreement,
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`Purchaser commenced a tender offer (the “Tender Offer”) to purchase all of Adamas’ outstanding
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`Case 1:21-cv-08818 Document 1 Filed 10/28/21 Page 2 of 11
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`common stock for $8.10 in cash and two non-tradeable contingent value rights (“CVR”) per share.
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`The Tender Offer is set to expire on November 24, 2021.
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`3.
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`On October 26, 2021, defendants filed a Solicitation/Recommendation Statement
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`(the “Solicitation Statement”) with the United States Securities and Exchange Commission
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`(“SEC”) in connection with the Proposed Transaction.
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`4.
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`The Solicitation Statement omits material information with respect to the Proposed
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`Transaction, which renders the Solicitation Statement false and misleading. Accordingly, plaintiff
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`alleges herein that defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange
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`Act of 1934 (the “1934 Act”) in connection with the Solicitation Statement.
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`JURISDICTION AND VENUE
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`5.
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`This Court has jurisdiction over all claims asserted herein pursuant to Section 27 of
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`the 1934 Act because the claims asserted herein arise under Sections 14(e), 14(d), and 20(a) of the
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`1934 Act and Rule 14a-9.
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`6.
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`This Court has jurisdiction over defendants because each defendant is either a
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`corporation that conducts business in and maintains operations within this District, or is an
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`individual with sufficient minimum contacts with this District so as to make the exercise of
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`jurisdiction by this Court permissible under traditional notions of fair play and substantial justice.
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`7.
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`Venue is proper under 28 U.S.C. § 1391 because a portion of the transactions and
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`wrongs complained of herein occurred in this District.
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`PARTIES
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`8.
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`Plaintiff is, and has been continuously throughout all times relevant hereto, the
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`owner of Adamas common stock.
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`9.
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`Defendant Adamas is a Delaware corporation and maintains its principal executive
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`offices at 1900 Powell Street, Suite 1000, Emeryville, CA 94608. Adamas’ common stock trades
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`Case 1:21-cv-08818 Document 1 Filed 10/28/21 Page 3 of 11
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`on the NASDAQ, which is headquartered in New York, New York, under the ticker symbol
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`“ADMS.”
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`10.
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`11.
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`Company.
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`12.
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`13.
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`14.
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`15.
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`16.
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`17.
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`18.
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`Defendant David L. Mahoney is Chairman of the Board of the Company.
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`Defendant Neil F. McFarlane is Chief Executive Officer and a director of the
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`Defendant Michael F. Bigham is a director of the Company.
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`Defendant Martha J. Demski is a director of the Company.
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`Defendant William Ericson is a director of the Company.
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`Defendant John MacPhee is a director of the Company.
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`Defendant Spyros Papapetropoulos is a director of the Company.
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`Defendant Anna Richo is a director of the Company.
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`The defendants identified in paragraphs 10 through 17 are collectively referred to
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`herein as the “Individual Defendants.”
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`19.
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`20.
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`Defendant Parent is a Delaware corporation and a party to the Merger Agreement.
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`Defendant Purchaser is a Delaware corporation, a wholly-owned subsidiary of
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`Parent, and a party to the Merger Agreement.
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`SUBSTANTIVE ALLEGATIONS
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`Background of the Company and the Proposed Transaction
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`21.
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`Adamas is a company focused on growing a portfolio of therapies to address a range
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`of neurological diseases.
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`22.
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`On October 10, 2021, Adamas’ Board caused the Company to enter into the Merger
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`Agreement.
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`23.
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`Pursuant to the terms of the Merger Agreement, Purchaser commenced the Tender
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`Offer to acquire all of Adamas’ outstanding common stock for $8.10 in cash and two CVRs per
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`share.
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`24.
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`According to the press release announcing the Proposed Transaction:
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`Supernus Pharmaceuticals, Inc. (Nasdaq: SUPN) and Adamas Pharmaceuticals,
`Inc. (Nasdaq: ADMS), today announced a definitive agreement for Supernus to
`acquire Adamas through a tender offer for $8.10 per share in cash (or an aggregate
`of approximately $400 million), payable at closing plus two non-tradable
`contingent value rights (CVR) collectively worth up to $1.00 per share in cash (or
`an aggregate of approximately $50 million), for a total consideration of $9.10 per
`share in cash (or an aggregate of approximately $450 million). The first CVR, worth
`$0.50 per share, is payable upon achieving net sales of GOCOVRI® of $150
`million in any four consecutive quarters between closing and the end of 2024. The
`second CVR, worth $0.50 per share, is payable upon achieving net sales of
`GOCOVRI of $225 million in any four consecutive quarters between closing and
`the end of 2025. The transaction is expected to close in late fourth quarter 2021 or
`in early first quarter 2022. . . .
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`Terms and Financing
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`Under the terms of the agreement, Supernus will commence a tender offer to
`acquire all outstanding shares of Adamas Pharmaceuticals, Inc. for a purchase price
`of $8.10 per share in cash (or an aggregate of approximately $400 million) payable
`at closing plus two non-tradable CVRs. All cash consideration will be funded
`through existing balance sheet cash.
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`The CVR entitles Adamas stockholders to receive up to an additional $1.00 per
`share in cash (or an aggregate of approximately $50 million) payable upon
`GOCOVRI achieving certain net sales milestones within specified periods (subject
`to the terms and conditions contained in a Contingent Value Rights Agreement
`detailing the terms of the CVRs). These milestones include (i) $0.50 per share
`payable if in any four consecutive quarters between closing and the end of 2024,
`net sales of GOCOVRI achieving $150 million, and (ii) another $0.50 per share
`payable if in any four consecutive quarters between closing and the end of 2025,
`net sales of GOCOVRI achieving $225 million. There can be no assurance any
`payments will be made with respect to the CVR.
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`Approvals and Timing of Close
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`The transaction, which has been approved by the boards of directors of both
`companies, is expected to close in late fourth quarter 2021 or in early first quarter
`2022, subject to customary closing conditions, including receipt of required
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`regulatory approvals and the tender of a majority of the outstanding shares of
`Adamas' common stock. Following the successful closing of the tender offer,
`Supernus will acquire any shares of Adamas that are not tendered in the tender offer
`through a second-step merger at the same consideration as paid in the tender offer.
`. . .
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`Advisors
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`Jefferies LLC is acting as the exclusive financial advisor to Supernus. Lazard is
`acting as the exclusive financial advisor to Adamas. Saul Ewing Arnstein & Lehr
`LLP is serving as legal counsel and Grant Thornton is providing due diligence
`services to Supernus, and Cooley LLP is serving as legal counsel to Adamas.
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`The Solicitation Statement Omits Material Information, Rendering It False and Misleading
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`25.
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`Defendants filed the Solicitation Statement with the SEC in connection with the
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`Proposed Transaction.
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`26.
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`As set forth below, the Solicitation Statement omits material information with
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`respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading.
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`27.
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`First, the Solicitation Statement omits material information regarding the
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`Company’s financial projections.
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`28.
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`The Solicitation Statement fails to disclose: (i) all line items used to calculate the
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`projections; and (ii) a reconciliation of all non-GAAP to GAAP metrics.
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`29.
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`The disclosure of projected financial information is material because it provides
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`stockholders with a basis to project the future financial performance of a company, and allows
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`stockholders to better understand the financial analyses performed by the company’s financial
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`advisor in support of its fairness opinion.
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`30.
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`Second, the Solicitation Statement omits material information regarding the
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`analyses performed by the Company’s financial advisor in connection with the Proposed
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`Transaction, Lazard.
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`31. With respect to Lazard’s Discounted Cash Flow Analysis, the Solicitation
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`Statement fails to disclose: (i) the individual inputs and assumptions underlying the discount rates;
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`(ii) net cash; and (iii) the number of fully diluted Company shares outstanding.
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`32. With respect to Lazard’s Selected Precedent Transactions Analysis, the Solicitation
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`Statement fails to disclose: (i) the closing dates for the transactions; and (ii) the total values of the
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`transactions.
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`33. With respect to Lazard’s Premia Paid Analysis, the Solicitation Statement fails to
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`disclose: (i) the transactions observed in the analysis; and (ii) the premiums paid in the transactions.
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`34. With respect to Lazard’s Research Analyst Price Targets analysis, the Solicitation
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`Statement fails to disclose: (i) the price targets observed in the analysis; and (ii) the sources thereof.
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`35. 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.
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`36.
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`The omission of the above-referenced material information renders the Solicitation
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`Statement false and misleading.
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`37.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`the total mix of information available to the Company’s stockholders.
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`COUNT I
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`(Claim for Violation of Section 14(e) of the 1934 Act Against Defendants)
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`38.
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`39.
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`Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
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`Section 14(e) of the 1934 Act states, in relevant part, that:
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`It shall be unlawful for any person to make any untrue statement of a material fact
`or omit to state any material fact necessary in order to make the statements made,
`in the light of the circumstances under which they are made, not misleading . . . in
`connection with any tender offer or request or invitation for tenders[.]
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`40.
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`Defendants disseminated the misleading Solicitation Statement, which contained
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`statements that, in violation of Section 14(e) of the 1934 Act, in light of the circumstances under
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`which they were made, omitted to state material facts necessary to make the statements therein not
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`misleading.
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`41.
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`The Solicitation Statement was prepared, reviewed, and/or disseminated by
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`defendants.
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`42.
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`The Solicitation Statement misrepresented and/or omitted material facts in
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`connection with the Proposed Transaction as set forth above.
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`43.
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`By virtue of their positions within the Company and/or roles in the process and the
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`preparation of the Solicitation Statement, defendants were aware of this information and their duty
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`to disclose this information in the Solicitation Statement.
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`44.
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`The omissions in the Solicitation Statement are material in that a reasonable
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`shareholder will consider them important in deciding whether to tender their shares in connection
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`with the Proposed Transaction. In addition, a reasonable investor will view a full and accurate
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`disclosure as significantly altering the total mix of information made available.
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`45.
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`Defendants knowingly or with deliberate recklessness omitted the material
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`information identified above in the Solicitation Statement, causing statements therein to be
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`materially incomplete and misleading.
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`46.
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`47.
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`By reason of the foregoing, defendants violated Section 14(e) of the 1934 Act.
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`Because of the false and misleading statements in the Solicitation Statement,
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`plaintiff is threatened with irreparable harm.
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`48.
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`Plaintiff has no adequate remedy at law.
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`COUNT II
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`49.
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`50.
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`(Claim for Violation of 14(d) of the 1934 Act Against Defendants)
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`Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
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`Section 14(d)(4) of the 1934 Act states:
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`Any solicitation or recommendation to the holders of such a security to accept or
`reject a tender offer or request or invitation for tenders shall be made in accordance
`with such rules and regulations as the Commission may prescribe as necessary or
`appropriate in the public interest or for the protection of investors.
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`51.
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`Rule 14d-9(d) states, in relevant part:
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`Any solicitation or recommendation to holders of a class of securities referred to in
`section 14(d)(1) of the Act with respect to a tender offer for such securities shall
`include the name of the person making such solicitation or recommendation and
`the information required by Items 1 through 8 of Schedule 14D-9 (§ 240.14d-101)
`or a fair and adequate summary thereof[.]
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`Item 8 requires that directors must “furnish such additional information, if any, as may be
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`necessary to make the required statements, in light of the circumstances under which they are
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`made, not materially misleading.”
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`52.
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`The Solicitation Statement violates Section 14(d)(4) and Rule 14d-9 because it
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`omits the material facts set forth above, which renders the Solicitation Statement false and/or
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`misleading.
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`53.
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`Defendants knowingly or with deliberate recklessness omitted the material
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`information set forth above, causing statements therein to be materially incomplete and
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`misleading.
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`54.
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`The omissions in the Solicitation Statement are material to plaintiff, and he will be
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`deprived of his entitlement to make a fully informed decision with respect to the Proposed
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`Transaction if such misrepresentations and omissions are not corrected prior to the expiration of
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`the Tender Offer.
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`55.
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`Plaintiff has no adequate remedy at law.
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`COUNT III
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`(Claim for Violation of Section 20(a) of the 1934 Act
`Against the Individual Defendants, Parent, and Purchaser)
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`Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.
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`The Individual Defendants, Parent, and Purchaser acted as controlling persons of
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`56.
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`57.
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`Adamas within the meaning of Section 20(a) of the 1934 Act as alleged herein. By virtue of their
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`positions as directors of Adamas and participation in and/or awareness of the Company’s
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`operations and/or intimate knowledge of the false statements contained in the Solicitation
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`Statement filed with the SEC, they had the power to influence and control and did influence and
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`control, directly or indirectly, the decision making of the Company, including the content and
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`dissemination of the various statements that plaintiff contends are false and misleading.
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`58.
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`Each of the Individual Defendants, Parent, and Purchaser was provided with or had
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`unlimited access to copies of the Solicitation Statement alleged by plaintiff to be misleading prior
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`to and/or shortly after these statements were issued and had the ability to prevent the issuance of
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`the statements or cause them to be corrected.
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`59.
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`Each of the Individual Defendants had direct and supervisory involvement in the
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`day-to-day operations of the Company, and, therefore, is presumed to have had the power to
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`control and influence the particular transactions giving rise to the violations as alleged herein, and
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`exercised the same. The Solicitation Statement contains the unanimous recommendation of the
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`Individual Defendants to approve the Proposed Transaction. They were thus directly connected
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`with and involved in the making of the Solicitation Statement.
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`60.
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`Parent and Purchaser also had direct supervisory control over the composition of
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`the Solicitation Statement and the information disclosed therein, as well as the information that
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`was omitted and/or misrepresented in the Solicitation Statement.
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`61.
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`By virtue of the foregoing, the Individual Defendants, Parent, and Purchaser
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`violated Section 20(a) of the 1934 Act.
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`62.
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`As set forth above, the Individual Defendants, Parent, and Purchaser had the ability
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`to exercise control over and did control a person or persons who have each violated Section 14(e)
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`of the 1934 Act and Rule 14a-9, by their acts and omissions as alleged herein. By virtue of their
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`positions as controlling persons, these defendants are liable pursuant to Section 20(a) of the 1934
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`Act.
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`63.
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`As a direct and proximate result of defendants’ conduct, plaintiff is threatened with
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`irreparable harm.
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`64.
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`Plaintiff has no adequate remedy at law.
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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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`Enjoining defendants and all persons acting in concert with them from proceeding
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`with, consummating, or closing the Proposed Transaction;
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`B.
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`In the event defendants consummate the Proposed Transaction, rescinding it and
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`setting it aside or awarding rescissory damages;
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`C.
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`Directing the Individual Defendants to file a Solicitation Statement that does not
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`contain any untrue statements of material fact and that states all material facts required in it or
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`necessary to make the statements contained therein not misleading;
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`D.
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`Declaring that defendants violated Sections 14(e), 14(d), and 20(a) of the 1934 Act,
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`as well as Rule 14a-9 promulgated thereunder;
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`E.
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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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`F.
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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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`RIGRODSKY LAW, P.A.
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`/s/ Gina M. Serra
`Seth D. Rigrodsky
`Timothy J. MacFall
`Gina M. Serra
`Vincent A. Licata
`825 East Gate Boulevard, Suite 300
`Garden City, NY 11530
`(516) 683-3516
`sdr@rl-legal.com
`tjm@rl-legal.com
`gms@rl-legal.com
`vl@rl-legal.com
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`Attorneys for Plaintiff
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`Plaintiff hereby demands a trial by jury.
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`Dated: October 28, 2021
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`By:
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`11
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