Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`SHIVA STEIN,
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`Shiva Stein (“Plaintiff”), by and through her attorneys, alleges the following upon
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`Case No. 1:22-cv-3426
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`COMPLAINT FOR VIOLATIONS OF
`SECTIONS 14(e), 14(d) AND 20(a) OF
`THE SECURITIES EXCHANGE ACT
`OF 1934
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`JURY TRIAL DEMANDED
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` :
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`Plaintiff,
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`v.
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`ANTARES PHARMA, INC., LEONARD S.
`JACOB, M.D., PH.D., THOMAS J.
`GARRITY, PETER S. GREENLEAF,
`ANTON GUETH, ROBERT P. ROCHE, JR.,
`KAREN SMITH, CARMEN VOLKART, and
`ROBERT F. APPLE,
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`Defendants.
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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 Antares Pharma, Inc. (“Antares
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`Pharma or the “Company”) and the members Antares Pharma board of directors (the “Board” or
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`the “Individual Defendants” and collectively with the Company, the “Defendants”) for their
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`violations of Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 (the
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`“Exchange Act”), in connection with the proposed acquisition of Antares Pharma by affiliates of
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`Halozyme Therapeutics, Inc. (“Halozyme”).
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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 Solicitation Statement on Schedule 14D-9 (the
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`“Solicitation Statement”) to be filed on April 26, 2022 with the United States Securities and
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 2 of 17
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`Exchange Commission (“SEC”) and disseminated to Company stockholders. The Solicitation
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`Statement recommends that Company stockholders tender their shares in support of a proposed
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`transaction whereby Atlas Merger Sub, Inc. (“Merger Sub”), a wholly owned subsidiary of
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`Halozyme, will merge with and into Antares Pharma, with Antares Pharma continuing as the
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`surviving corporation and becoming a wholly-owned subsidiary of Halozyme (the “Proposed
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`Transaction”). Pursuant to the terms of the definitive agreement and plan of merger the companies
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`entered into, dated April 12, 2022 (the “Merger Agreement”), each Antares Pharma common share
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`issued and outstanding will be converted into the right to receive: $5.60 in cash (the “Merger
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`Consideration”). In accordance with the Merger Agreement, Merger Sub commenced a tender
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`offer to acquire all of Antares Pharma’s outstanding common stock and will expire on May 17,
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`2022 (the “Tender Offer”).
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`3.
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`Defendants have now asked Antares Pharma’s stockholders to support the Proposed
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`Transaction based upon the materially incomplete and misleading representations and information
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`contained in the Solicitation Statement, in violation of Sections 14(e), 14(d), and 20(a) of the
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`Exchange Act. Specifically, the Solicitation Statement contains materially incomplete and
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`misleading information concerning, among other things, (i) Antares Pharma’s financial projections
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`relied upon by the Company’s financial advisor, Jefferies LLC (“Jefferies”) in its financial
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`analyses; and (ii) the data and inputs underlying the financial valuation analyses that support the
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`fairness opinions provided by Jefferies. The failure to adequately disclose such material
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`information constitutes a violation of Sections 14(e), 14(d), and 20(a) of the Exchange Act as
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`Antares Pharma stockholders need such information in order to tender their shares in support of
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`the Proposed Transaction.
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 3 of 17
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`4.
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`It is imperative that the material information that has been omitted from the
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`Solicitation Statement is disclosed to the Company’s stockholders prior to the expiration of the
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`tender offer.
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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 Antares Pharma’s stockholders or, in the
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`event the Proposed Transaction is consummated, to recover damages resulting from the
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`Defendants’ 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 Sections 14(e), 14(d), 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 each is an
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`individual who is either present in this District for jurisdictional purposes or has sufficient
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`minimum contacts with this District as to render the exercise of jurisdiction over defendant by this
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`Court permissible under 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 the Company trades on the NASDAQ Capital
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`Market, which is headquartered 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 Antares Pharma
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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 Leonard S. Jacob, M.D., Ph.D. has served as a member of the
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`Board since January 2007 and as the Chairman of the Board since October 2008.
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 4 of 17
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`11.
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`Individual Defendant Thomas J. Garrity has served as a member of the Board since
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`October 2003.
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`12.
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`Individual Defendant Peter S. Greenleaf has served as a member of the Board since
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`December 2018.
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`Individual Defendant Anton Gueth has served as a member of the Board since 2003.
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`Individual Defendant Robert P. Roche Jr. has been a member of the Board since
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`Individual Defendant Karen Smith has served as a member of the Board since 2019.
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`Individual Defendant Carmen Volkart has served as member of the Board since
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`2013.
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`13.
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`14.
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`15.
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`16.
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`October 2021.
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`17.
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`Individual Defendant Robert F. Apple has served as a member of the Board since
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`March 2016 and is the Company’s President and Chief Executive Officer.
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`18.
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`Defendant Antares Pharma is incorporated in Delaware and maintains its principal
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`offices at 100 Princeton South, Suite 200, Ewing, NJ 08628. The Company’s common stock trades
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`on the NASDAQ Capital Market under the symbol “ATRS.”
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`19.
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`The defendants identified in paragraphs 10-17 are collectively referred to as the
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`“Individual Defendants” or the “Board.”
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`20.
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`The defendants identified in paragraphs 10-18 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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`21.
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`Antares Pharma, a specialty pharmaceutical company, focuses primarily on the
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`development and commercialization of pharmaceutical products and technologies that address
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`patient needs in targeted therapeutic areas. It develops, manufactures, and commercializes novel
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 5 of 17
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`therapeutic products using its drug delivery systems. The company's injection products include
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`XYOSTED for subcutaneous administration of testosterone replacement therapy in adult males;
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`OTREXUP a subcutaneous methotrexate injection indicated for adults with severe active
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`rheumatoid arthritis, children with active polyarticular juvenile idiopathic arthritis, and adults with
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`severe recalcitrant psoriasis; and NOCDURNA sublingual tablets indicated for the treatment of
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`nocturia due to nocturnal polyuria in adults who awaken at least two times per night to urinate. Its
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`injection products also comprise generic Epinephrine Injection USP products indicated for
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`emergency treatment of severe allergic reactions, including anaphylaxis in adults and certain
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`pediatric patients; Sumatriptan Injection USP indicated for the acute treatment of migraine
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`headaches and cluster headache in adults; and Makena subcutaneous auto-injector drug-device
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`combination product indicated to reduce the risk of preterm birth in women, as well as Teriparatide
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`injection used for the treatment of osteoporosis in postmenopausal women and men at increased
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`risk of fracture, and glucocorticoid induced osteoporosis in men and women. In addition, the
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`company develops disposable pen injectors for diabetes and osteoporosis; QuickShot auto-
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`injectors; TLANDO to treat deficiency or absence of endogenous testosterone in adult males; and
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`drug/device products for urologic oncology, immunology, and endocrinology. The company has
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`strategic alliances and partnerships with Pfizer Inc., Idorsia Pharmaceuticals Ltd, Teva
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`Pharmaceutical Industries, Ltd, and AMAG. Antares Pharma was incorporated in 1979 and is
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`headquartered in Ewing, New Jersey.
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`22.
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`On April 13, 2022, Antares Pharma announced the Proposed Transaction:
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`SAN DIEGO and EWING, N.J., April 13, 2022 /PRNewswire/ -
`- Halozyme Therapeutics, Inc. (NASDAQ: HALO) ("Halozyme")
`and Antares Pharma, Inc. (NASDAQ: ATRS) ("Antares") today
`announced that the companies have entered into a definitive
`agreement pursuant to which Halozyme will acquire Antares
`for $5.60 per share in cash. The transaction, which values Antares
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 6 of 17
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`at approximately $960 million, was unanimously approved by both
`the Halozyme and Antares Boards of Directors.
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`The transaction is expected to be immediately accretive to
`Halozyme's 2022 revenue and non-GAAP earnings and to accelerate
`top- and bottom-line growth through 2027, with multiple growth
`drivers beyond 2027. The combination of Halozyme and Antares
`will create a leading drug delivery and specialty product company.
`The Antares business consists of a best-in-class, differentiated,
`royalty revenue generating auto injector platform business that
`offers broad licensing opportunity, and a commercial business, with
`three proprietary commercial products.
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`"The addition of Antares, particularly with its best-in-class auto
`injector platform and specialty commercial business, augments
`Halozyme's strategy, further strengthens our position as a leading
`drug delivery company and extends our strategy to include specialty
`products," said Dr. Helen Torley, president and chief executive
`officer of Halozyme. "The acquisition of Antares fits well with our
`previously discussed strategic priorities and provides substantial
`financial growth potential and disruptive solutions to significantly
`improve patient experiences and outcomes for emerging and
`established therapies. Halozyme is well-positioned to leverage
`Antares' value proposition, driven by a strong balance sheet,
`established
`industry relationships and business development
`experience. We look forward to welcoming Antares' talented team
`as we embark on our next chapter of accelerating financial growth,
`maximizing patient benefit, and enhancing value."
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`Robert F. Apple, president and chief executive officer of Antares,
`commented, "We are pleased to have reached this agreement with
`Halozyme, as this transaction showcases the value of Antares' highly
`complementary business, provides our shareholders with attractive
`and certain value, and brings together industry-leading expertise and
`drug delivery platforms to accelerate growth and create new
`opportunities. As we remain committed to continuing to serve our
`partners, I would like to thank our employees for their hard work
`and dedication to this mission. We look forward to working with the
`Halozyme team to complete the transaction and deliver best-in-class
`therapies and drug delivery solutions."
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`Compelling Financial and Strategic Benefits
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 7 of 17
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`•
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`Immediate Revenue and Non-GAAP Earnings Accretion and
`Long-Term Financial Upside: The transaction is expected to be
`immediately accretive to Halozyme's 2022 revenue and non-GAAP
`earnings, supported by Antares' proprietary product revenues,
`royalty revenues and profitability. The addition of Antares is also
`expected to accelerate top- and bottom-line growth and enhance
`cash flow generation
`through 2027,
`increasing Halozyme's
`flexibility to pursue further growth drivers in the forms of new
`product and therapy launches, and partnerships.
`• Business Development to Augment Long-Term Growth,
`Consistent with Strategic Priorities: The addition of Antares'
`commercial products and existing auto
`injector capabilities
`accelerate Halozyme's strategy to drive long-term, durable revenue
`growth and value creation through focused external growth.
`Halozyme expects to build on Antares' core platform technology and
`capabilities to drive incremental, durable revenue opportunities with
`additional intellectual property protections for Antares technology
`in place beyond 2030.
`• Substantial Market Expansion Opportunity in High Revenue
`Segments: Antares' successful development and partnership of its
`technology platforms offers a widely licensable product suite that
`can be broadly applied across a spectrum of market segments
`representing multiple tens of billions of dollars1 in estimated peak
`sales. This includes the potential for conversion to both high-
`viscosity and high-volume auto injector devices, supported by
`Halozyme's extensive infrastructure and commercially validated
`ENHANZE platform technology.
`• High Growth, Durable Commercial Franchise with Proven
`Track Record: Antares' suite of FDA-approved, high quality
`commercial products and partner products utilizing the Antares auto
`injector technology have already demonstrated commercial success
`and are positioned for long-term growth. Launch of Tlando™ will
`leverage existing
`testosterone commercial
`infrastructure and
`capabilities in a growing therapeutic category, building on
`momentum created by Xyosted®'s success.
`• Two Highly Complementary Platforms, Each with Meaningful
`Pipelines: Antares' broadly applicable, differentiated auto injector
`platform is suitable for use with a broad range of medications. The
`versatility of this platform enables a highly licensable business with
`significant revenue upside. The combined entity will be able to
`leverage its deep industry expertise and existing commercial
`infrastructure in the U.S. to expand delivery capabilities and pursue
`growth opportunities within multiple small- and large-molecule
`products.
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`Transaction Terms, Financing and Time to Closing
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 8 of 17
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`Under the terms of the merger agreement, Halozyme will commence
`a cash tender offer to acquire all of the outstanding shares of Antares
`for $5.60 per share in cash. The transaction is not subject to a
`financing condition. Halozyme intends to finance the transaction
`using existing cash on hand and new sources of debt. Following
`completion of the transaction, Halozyme expects to maintain a
`strong balance sheet with less than 3.5x net debt-to-EBITDA ratio
`at the time of transaction close. Net debt-to-EBITDA ratio is
`expected to decline significantly in the quarters post transaction
`close. The closing of the tender offer will be subject to certain
`conditions, including the tender of shares representing at least a
`majority of the total number of Antares' outstanding shares of
`common stock, the expiration or termination of the HSR waiting
`period, and other customary conditions. Following the successful
`completion of the tender offer, Halozyme will acquire all remaining
`shares not tendered in the tender offer through a second-step merger
`at the same price. This transaction is expected to close in the first
`half of 2022.
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`BofA Securities and Wells Fargo Securities LLC are acting as
`financial advisors to Halozyme and Weil, Gotshal & Manges LLP
`is acting as legal advisor. Jefferies LLC is acting as financial advisor
`to Antares and Skadden, Arps, Slate, Meagher & Flom LLP is acting
`as legal advisor.
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`* * *
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`It is therefore imperative that Antares Pharma’s stockholders are provided with the
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`23.
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`material information that has been omitted from the Solicitation Statement, so that they can
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`meaningfully assess whether or not the Proposed Transaction is in their best interests.
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`B.
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`The Materially Incomplete and Misleading Solicitation Statement
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`24.
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`On April 26, 2022, Antares Pharma filed the Solicitation Statement with the SEC
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`in connection with the Proposed Transaction. The Solicitation Statement was furnished to the
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`Company’s stockholders and solicits the stockholders to tender their shares in support of the
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`Proposed Transaction. The Individual Defendants were obligated to carefully review the
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`Solicitation Statement before it was filed with the SEC and disseminated to the Company’s
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 9 of 17
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`stockholders to ensure that it did not contain any material misrepresentations or omissions.
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`However, the Solicitation Statement misrepresents and/or omits material information that is
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`necessary for the Company’s stockholders to make an informed decision concerning whether to
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`tender their shares, in violation of Sections 14(e), 14(d), and 20(a) of the Exchange Act.
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`Omissions and/or Material Misrepresentations Concerning Company Financial Projections
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`25.
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`The Solicitation Statement fails to provide material information concerning
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`financial projections by Antares Pharma management and relied upon by the financial advisors in
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`their analyses. The Solicitation Statement discloses management-prepared financial projections
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`for the Company which are materially misleading. The Solicitation Statement indicates that in
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`connection with the rendering of its fairness opinion, that the Company prepared certain non-
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`public financial forecasts (the “Projections”) and provided them to the Board and the financial
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`advisors with forming a view about the stand-alone valuation of the Company. Accordingly, the
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`Solicitation Statement should have, but fails to provide, certain information in the projections that
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`Antares Pharma management provided to the Board and the financial advisors. Courts have
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`uniformly stated that “projections … are probably among the most highly-prized disclosures by
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`investors. Investors can come up with their own estimates of discount rates or [] market multiples.
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`What they cannot hope to do is replicate management’s inside view of the company’s prospects.”
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`In re Netsmart Techs., Inc. S’holders Litig., 924 A.2d 171, 201-203 (Del. Ch. 2007).
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`26.
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`For the Projections prepared by Company management for Antares Pharma for
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`fiscal years 2022 through 2026, the Solicitation Statement provides values for non-GAAP
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`(Generally Accepted Accounting Principles) financial metrics: (a) EBIT; and (b) Unlevered Free
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`Cash Flow, but fails to disclose a reconciliation of these non-GAAP metrics to their most
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`comparable GAAP measures, in direct violation of Regulation G.
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`27. 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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`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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`28.
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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 Solicitation Statement and the materially misleading nature of the
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`29.
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`forecasts under SEC Rule 14a-9 as a result of the omitted information in the Solicitation Statement,
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`Defendants must provide a reconciliation table of the non-GAAP measures to the most comparable
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`GAAP measures to make the non-GAAP metrics included in the Solicitation Statement not
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`misleading.
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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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`30.
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`Further, the Solicitation Statement fails to disclose the risk adjustments made in
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`preparation of the Company Projections, and why no non-risk-adjusted projections were disclosed.
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`Omissions and/or Material Misrepresentations Concerning Jefferies’s Financial Analyses
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`31. With respect to Jefferies’ Selected Public Companies Analysis, The Solicitation
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`Statement fails to disclose the financial metrics and multiples for each comparable company
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`selected by Jefferies in the analysis.
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`32. With respect to Jefferies’ Selected Precedent Transactions Analysis, The
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`Solicitation Statement fails to disclose the financial metrics and multiples for each transaction
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`selected by Jefferies in the analysis.
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`33. With respect to Jefferies’ Discounted Cash Flow Analysis, the Solicitation
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`Statement fails to disclose: (i) the net operating loss carryforwards of the Company; (ii) the inputs
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`and assumptions underlying the perpetual growth rates of (10.0%) to (20.0%); (iii) the inputs and
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`assumptions underlying the use of discount rates ranging from 9.2% to 10.2%; and (iv) the implied
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`terminal value of the Company.
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`34.
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`In sum, the omission of the above-referenced information renders statements in the
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`Solicitation 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 expiration of the Tender Offer,
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`Plaintiff will be unable to make a fully-informed decision regarding whether to tender his shares,
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`and they are thus threatened with irreparable harm, warranting the injunctive relief sought herein.
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`CLAIMS FOR RELIEF
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`COUNT I
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`On Behalf of Plaintiff Against All Defendants for
`Violations of Section 14(e) of the Exchange Act
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`35.
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`herein.
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`36.
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`Section 14(e) of the Exchange Act provides that it is unlawful “for any person to
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`make any untrue statement of a material fact or omit to state any material fact necessary in order
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`to make the statements made, in the light of the circumstances under which they are made, not
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`misleading . . .” 15 U.S.C. § 78n(e).
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`37.
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`Defendants violated Section 14(e) of the Exchange Act by issuing the Solicitation
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`Statement in which they made untrue statements of material facts or failed to state all material
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`facts necessary in order to make the statements made, in the light of the circumstances under which
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`they are made, not misleading, in conjunction with the Tender Offer. Defendants knew or
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`recklessly disregarded that the Solicitation Statement failed to disclose material facts necessary in
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`order to make the statements made, in light of the circumstances under which they were made, not
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`misleading.
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`38.
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`The Solicitation Statement was prepared, reviewed and/or disseminated by
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`Defendants. It misrepresented and/or omitted material facts, including material information about
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`the consideration offered to stockholders via the Tender Offer, the intrinsic value of the Company,
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`the Company’s financial projections, and the financial advisor’s valuation analyses and resultant
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`fairness opinion.
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`39.
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`In so doing, Defendants made untrue statements of material fact and omitted
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`material information necessary to make the statements that were made not misleading in violation
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`of Section 14(e) of the Exchange Act. By virtue of their positions within the Company and/or roles
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`in the process and in the preparation of the Solicitation Statement, Defendants were aware of this
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`information and their obligation to disclose this information in the Solicitation Statement.
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 13 of 17
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`40.
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`The omissions and misleading statements in the Solicitation Statement are material
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`in that a reasonable stockholder would consider them important in deciding whether to tender their
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`shares or seek appraisal. In addition, a reasonable investor would view the information identified
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`above which has been omitted from the Solicitation Statement as altering the “total mix” of
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`information made available to stockholders.
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`41.
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`Defendants knowingly, or with deliberate recklessness, omitted the material
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`information identified above from the Solicitation Statement, causing certain statements therein to
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`be materially incomplete and therefore misleading. Indeed, while Defendants undoubtedly had
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`access to and/or reviewed the omitted material information in connection with approving the
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`Tender Offer, they allowed it to be omitted from the Solicitation Statement, rendering certain
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`portions of the Solicitation Statement materially incomplete and therefore misleading.
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`42.
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`The misrepresentations and omissions in the Solicitation Statement are material to
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`Plaintiff, and Plaintiff will be deprived of his entitlement to make a fully informed decision if such
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`misrepresentations and omissions are not corrected prior to the expiration of the Tender Offer.
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`COUNT II
` Violations of Section 14(d)(4) of the Exchange Act and
`Rule 14d-9 Promulgated Thereunder
`(Against All Defendants)
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`Plaintiff repeats and re-alleges each allegation set forth above as if fully set forth
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`43.
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`herein.
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`44.
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`Defendants have caused the Solicitation Statement to be issued with the intention
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`of soliciting stockholder support of the Tender Offer.
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`45.
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`Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder
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`require full and complete disclosure in connection with tender offers.
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`46.
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`The Solicitation Statement violates Section 14(d)(4) and Rule 14d-9 because it
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`omits material facts, including those set forth above, which render the Solicitation Statement false
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`and/or misleading.
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`47.
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`Defendants knowingly, or with deliberate recklessness, omitted the material
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`information identified above from the Solicitation Statement, causing certain statements therein to
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`be materially incomplete and therefore misleading. Indeed, while Defendants undoubtedly had
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`access to and/or reviewed the omitted material information in connection with approving the
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`Tender Offer, they allowed it to be omitted from the Solicitation Statement, rendering certain
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`portions of the Solicitation Statement materially incomplete and therefore misleading.
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`48.
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`The misrepresentations and omissions in the Solicitation Statement are material to
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`Plaintiff and Plaintiff will be deprived of his entitlement to make a fully informed decision if such
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`misrepresentations and omissions are not corrected prior to the expiration of the Tender Offer.
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`COUNT III
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`On Behalf of Plaintiff Against the Individual Defendants for Violations of Section 20(a) of
`the Exchange Act
`
`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`49.
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`herein.
`
`50.
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`The Individual Defendants acted as controlling persons of Antares Pharma 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 Antares Pharma, and participation in and/or awareness of the Company’s operations
`
`and/or intimate knowledge of the incomplete and misleading statements contained in the
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`Solicitation 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 Antares Pharma, including the
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`Case 1:22-cv-03426 Document 1 Filed 04/27/22 Page 15 of 17
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`
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`content and dissemination of the various statements that Plaintiff contends are materially
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`incomplete and misleading.
`
`51.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Solicitation Statement and other statements 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 the statements to be corrected.
`
`52.
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`In particular, each of the Individual Defendants had direct and supervisory
`
`involvement in the day-to-day operations of Antares Pharma, and, therefore, is presumed to have
`
`had the power to control or influence the particular transactions giving rise to the Exchange Act
`
`violations alleged herein, and exercised the same. The omitted information identified above was
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`reviewed by the Board prior to voting on the Proposed Transaction. The Solicitation Statement at
`
`issue contains the unanimous recommendation of the Board to approve the Proposed Transaction.
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`The Individual Defendants were thus directly involved in the making of the Solicitation Statement.
`
`53.
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`In addition, as the Solicitation Statement sets forth at length, and as described
`
`herein, the Individual Defendants were involved in negotiating, reviewing, and approving the
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`Merger Agreement. The Solicitation Statement purports to describe the various issues and
`
`information that the Individual Defendants reviewed and considered. The Individual Defendants
`
`participated in drafting and/or gave their input on the content of those descriptions.
`
`54.
`
`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
`
`of the Exchange Act.
`
`55.
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`As set forth above, the Individual Defendants had the ability to exercise control
`
`over and did control a person or persons who have each violated Section 14(d) and (e), by their
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`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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`56.
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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:
`
`A.
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`Preliminarily and permanently enjoining Defendants and their counsel, agents,
`
`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
`
`material information identified above which has been omitted from the Solicitation Statement;
`
`A.
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`Rescinding, to the extent already implemented, the Merger Agreement or any of
`
`the terms thereof, or granting Plaintiff rescissory damages;
`
`B.
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`Directing the Defendants to account to Plaintiff for all damages suffered as a result
`
`of their wrongdoing;
`
`C.
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`Awarding Plaintiff the costs and disbursements of this action, including reasonable
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`attorneys’ and expert fees and expen