`
`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 1 of 14
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`CHRISTOPHER TAYLOR,
`
`
`Plaintiff,
`
`
`
` v.
`
`BBQ HOLDINGS, INC., JEFFERY
`CRIVELLO, CHARLES E. DAVIDSON,
`PETER O. HAEG, RACHAEL MAGA, and
`BRYAN L. WOLFF,
`
`
`Defendants.
`
`
`
`Civil Action No. ___________
`
`
`COMPLAINT FOR VIOLATIONS
`OF THE SECURITIES EXCHANGE
`ACT OF 1934
`
`
`
`
`JURY TRIAL DEMAND
`
`Plaintiff Christopher Taylor (“Plaintiff”) alleges the following upon information and belief,
`
`including investigation of counsel and review of publicly available information, except as to those
`
`allegations pertaining to Plaintiff, which are alleged upon personal knowledge:
`
`NATURE OF THE ACTION
`
`1.
`
`Plaintiff brings this action against BBQ Holdings, Inc. (“BBQ Holdings” or the
`
`“Company”) and BBQ Holdings’ Board of Directors (the “Board” or the “Individual Defendants”)
`
`for their violations of Sections 14(d)(4), 14(e) and 20(a) of the Securities Exchange Act of 1934,
`
`15.U.S.C. §§ 78n(a), 78n(d)(4), 78n(e), 78t(a), and SEC Rule 14d-9, 17 C.F.R. § 240.14d-9, arising
`
`out of the Board’s attempt to sell the Company to MTY Food Group Inc. through its wholly owned
`
`subsidiary MTY Franchising USA, Inc. and its wholly owned subsidiary Grill Merger Sub, Inc.
`
`(collectively “MTY”).
`
`2.
`
`Defendants have violated the above-referenced Sections of the Exchange Act by
`
`causing a materially incomplete and misleading solicitation statement (the “14D-9”) to be filed
`
`with the Securities and Exchange Commission (“SEC”) on August 24, 2022. The 14D-9
`
`recommends that BBQ Holdings stockholders tender their shares in favor of a proposed transaction
`
`(the “Proposed Transaction”) whereby BBQ Holdings is acquired by MTY. The Proposed
`1
`
`
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 2 of 14
`
`Transaction was first disclosed on August 9, 2022, when BBQ Holdings and MTY announced that
`
`they had entered into a definitive merger agreement (the “Merger Agreement”) pursuant to which
`
`MTY will acquire all of the outstanding shares of common stock of BBQ Holdings for $17.25 per
`
`share (the “Merger Consideration”). The deal is valued at approximately $200 million and is
`
`expected to close by the fourth quarter of 2022.
`
`3.
`
`The 14D-9 is materially incomplete and contains misleading representations and
`
`information in violation of Sections 14(e) and 20(a) of the Exchange Act. Specifically, the 14D-9
`
`contains materially incomplete and misleading information concerning the financial projections
`
`prepared by BBQ Holdings management, the financial analyses conducted by Kroll, LLC,
`
`operating through its Duff & Phelps Opinion Practice (“Kroll”), BBQ Holdings’ financial advisor,
`
`potential conflicts of interest faced by Kroll and Company insiders, and the background of the
`
`Proposed Transaction.
`
`4.
`
`For these reasons, and as set forth in detail herein, Plaintiff seeks to enjoin
`
`Defendants from taking any steps to consummate the Proposed Transaction, including filing any
`
`amendment to the 14D-9, unless and until the material information discussed below is included in
`
`any such amendment or otherwise disseminated to BBQ Holdings’ stockholders. In the event the
`
`Proposed Transaction is consummated without the material omissions referenced below being
`
`remedied, Plaintiff seeks to recover damages resulting from the Defendants’ violations.
`PARTIES
`
`Plaintiff is, and has been at all relevant times, the owner of shares of common stock
`
`5.
`
`of BBQ Holdings.
`
`6.
`
`Defendant BBQ Holdings is a corporation organized and existing under the laws of
`
`the State of Minnesota. The Company’s principal executive offices are located at 12701
`
`
`
`2
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 3 of 14
`
`Whitewater Drive, Suite 100, Minnetonka, Minnesota 55343. BBQ Holdings common stock trades
`
`on the Nasdaq Global Select Market under the ticker symbol “BBQ.”
`
`7.
`
`Defendant Jeffery Crivello has been Chief Executive Officer and a director of the
`
`Company since 2017.
`
`8.
`
`9.
`
`10.
`
`11.
`
`12.
`
`Defendant Charles E. Davidson has been a director of the Company since 2020.
`
`Defendant Peter O. Haeg has been a director of the Company since 2017.
`
`Defendant Rachael Maga has been a director of the Company since 2021.
`
`Defendant Bryan L. Wolff has been a director of the Company since 2015.
`
`Nonparty MTY Food Group Inc. is a corporation established under the laws of the
`
`Canada Business Corporations Act with its principal executive offices located at 8210 Transcanada
`
`Highway, Saint-Laurent, Quebec, H4S 1M5, Canada.
`
`13.
`
`Nonparty MTY Franchising USA, Inc. is a Tennessee corporation and is a wholly
`
`owned subsidiary of MTY Food Group Inc.
`
`14.
`
`Nonparty Grill Merger Sub, Inc. is a Minnesota corporation and is a wholly owned
`
`subsidiary of MTY Franchising USA.
`
`JURISDICTION AND VENUE
`
`15.
`
`This Court has subject matter jurisdiction pursuant to Section 27 of the Exchange
`
`Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331 (federal question jurisdiction) as Plaintiff alleges
`
`violations of Section 14(e) and 20(a) of the Exchange Act.
`
`16.
`
`Personal jurisdiction exists over each Defendant either because the Defendant
`
`conducts business in or maintains operations in this District, or is an individual who is either
`
`present in this District for jurisdictional purposes or has sufficient minimum contacts with this
`
`District as to render the exercise of jurisdiction over Defendant by this Court permissible under
`
`
`
`3
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 4 of 14
`
`traditional notions of fair play and substantial justice.
`
`17.
`
`Venue is proper in this District under Section 27 of the Exchange Act, 15 U.S.C. §
`
`78aa, as well as under 28 U.S.C. § 1391, because a significant amount of the conduct at issue took
`
`place and had an effect in this District.
`
`FURTHER SUBSTANTIVE ALLEGATIONS
`
`A. Background of the Company and the Proposed Transaction
`
`18.
`
`BBQ Holdings is an international restaurant company engaged in the business of
`
`franchising, and operating casual and fast casual dining restaurants. As of August 9, 2022, BBQ
`
`Holdings had multiple brands with over 100 company-owned locations and over 200 franchised
`
`locations, including ghost kitchens operating out of the kitchen of another restaurant location or
`
`shared kitchen space.
`
`On August 8, 2022, the Company entered into the Merger Agreement with MTY.
`
`According to the press release issued on August 9, 2022 announcing the Proposed
`
`19.
`
`20.
`
`Transaction:
`
` MTY Food Group Inc. to Acquire Bbq Holdings, Inc. for $17.25 Per Share
`
`Montreal, Aug. 09, 2022 (GLOBE NEWSWIRE) -- MONTREAL, August 9th,
`2022 - MTY Food Group Inc. (“MTY” or the “Company”) (TSX:MTY) and BBQ
`Holdings, Inc. (“BBQ Holdings”) (NASDAQ:BBQ) today announced they have
`entered into a definitive merger agreement (the “Merger Agreement”) under which
`MTY would acquire all of the issued and outstanding common shares of BBQ
`Holdings for cash consideration of US$17.25 per BBQ Holdings share representing
`total transaction value of approximately US$200 million (C$257 million) (the
`“Transaction”), including BBQ Holdings’ net debt. The terms and conditions of the
`Merger Agreement were unanimously approved by the Boards of Directors of both
`companies. The Transaction is subject to customary closing conditions including
`receipt of applicable regulatory approvals. Upon completion of the Transaction,
`BBQ Holdings will become a subsidiary of MTY and the shares of BBQ Holdings
`will be de-listed from NASDAQ.
`
`BBQ Holdings is a franchisor and operator of casual and fast casual dining
`restaurants across 37 states in the U.S., Canada, and United Arab Emirates. Its
`flagship restaurant brands operate under the “Famous Dave’s”, “Village Inn”,
`4
`
`
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 5 of 14
`
`“Barrio Queen”, and “Granite City”, banners. As of August 9, 2022, BBQ Holdings
`operates over 200 franchised and over 100 corporate-owned restaurants. For the
`2022 fiscal year ending January 1, 2023, and as publicly disclosed by BBQ
`Holdings, the company is expected to generate twelve-month run-rate system sales
`and cash EBITDA between US$685M to US$725M and US$25.5M and
`US$27.5M, respectively.
`
`MTY is a leading franchisor in the North American restaurant industry. As of May
`31, 2022, its network had 6,660 locations in operation, 99% of which are
`franchised. The Company established its presence in the U.S. with the acquisition
`of Kahala Brands in July 2016 and has since continued to grow its footprint in the
`country through new restaurant openings and acquisitions. With this Transaction,
`MTY will add leading restaurant brands to its network which will reach a total of
`approximately 7,000 locations, including over 3,900 in the United States.
`
`“This transaction represents another key acquisition for MTY as we further scale
`and enhance our existing U.S. portfolio through the addition of nine unique brands.
`The transaction combines highly complementary businesses, including BBQ
`Holdings’ exciting casual and fast casual brands. BBQ Holdings’ restaurants are
`well established within each of their respective markets with a strong network of
`franchise partners, well-run corporate owned locations, and a best-in-class
`management team. We are excited about the prospects of adding BBQ Holdings’
`brands to the MTY family and we look forward to welcoming Jeff Crivello and his
`team and their franchise partners,” commented Eric Lefebvre, Chief Executive
`Officer of MTY.
`
`Jeff Crivello, Chief Executive Officer of BBQ Holdings, commented “We are
`thrilled to partner with MTY and its talented team of restaurant operators. Over the
`past four years we have significantly grown revenue and our restaurant portfolio
`while building a world-class team of entrepreneurs. We look forward to continuing
`the execution of our three pillars of growth, which we believe align very closely
`with MTY’s vision. With more than 80 brands, MTY brings vast buying power
`and a team of industry leaders who will provide additional support to our franchise
`partners. As our founder Dave Anderson says, we strive to deliver famous
`experiences with our ‘yes is the answer, what’s the question’ hospitality.”
`
`Transaction Highlights
`
`
`● Adds well-established quality brands to MTY’s portfolio of restaurants
`○ 9 new restaurant brands adding to MTY’s portfolio
`○ System sales expected to exceed C$4.8B in aggregate following the
`Transaction based on BBQ Holdings projected sales representing an
`increase of 23% compared to MTY’s current levels
`● Further expands MTY’s geographic footprint in the United States
`○ Broadens MTY’s U.S. footprint with over 3,900 locations in the
`country, representing an increase of 9% in locations
`
`
`
`5
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 6 of 14
`
`○ MTY’s system sales from the U.S. expected to increase from 58%
`to 66% of total system sales post Transaction
`● Diversifies MTY’s restaurant concepts with greater exposure to casual
`dining and fast casual dining concepts
`○ Casual dining and fast casual dining concepts expected to increase
`from 29% of current MTY system sales to 43% of MTY’s total pro
`forma system sales at transaction close
`○ BBQ Holdings’ brands bring a complementary restaurant concept
`mix while reducing the level of seasonality of the business
`● Highly talented management and employee base
`○ Seasoned management team with a strong operational track record
`and history of successful M&A
`○ Supported by a well-established organizational structure and
`experienced employee base
`● Expected to be immediately accretive to MTY’s free cash flow per share
`○ The Transaction represents a 7.5x multiple of BBQ Holdings’ mid-
`point FY2022E run-rate cash EBITDA guidance of US$26.5M
`
`
`Transaction Financing
`
`The Transaction is not subject to any financing condition and the consideration will
`be 100% funded in cash. MTY will use its cash on hand and its existing credit
`facility to fund the cash consideration and to repay BBQ Holding’s net debt
`outstanding as of the close of the Transaction.
`
`MTY’s pro forma Net Debt / EBITDA (excluding leases) expected to stand at
`approximately 2.4x upon closing, which remains within a comfortable zone
`offering good flexibility should more opportunities surface in the near future.
`
`Transaction Details
`
`Under the terms of the Merger Agreement, a subsidiary of MTY will commence a
`tender offer to purchase all of the outstanding shares of BBQ Holdings common
`stock for US$17.25 per share in cash. The tender offer is subject to customary
`conditions, including antitrust clearance and the tender of a majority of the
`outstanding shares of BBQ Holdings common stock. Following successful
`completion of the tender offer, MTY would acquire all remaining shares not
`tendered in the offer through a merger at the same price as in the tender offer.
`
`The Transaction is expected to close by Q4, 2022. There is no assurance the
`Transaction will be completed as described above or at all, or that the anticipated
`closing date will materialize. Following the close of the Transaction, the shares of
`BBQ Holdings will be de-listed from NASDAQ, BBQ Holdings will become a
`privately held subsidiary of MTY, and its restaurants will continue to be operated
`as independent brands.
`
`
`
`
`6
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 7 of 14
`
`
`Transaction Approvals & Support
`
`The Transaction has been unanimously approved by the board of directors of MTY
`and has the unanimous support of the BBQ Holdings board of directors. Certain
`key shareholders of BBQ Holdings have signed support agreements in favor of the
`Merger Agreement, representing in aggregate approximately 37% of the shares
`currently outstanding. The consummation of the Transaction is conditioned upon,
`among other things, the tender of at least 50% of BBQ Holdings fully-diluted shares
`of common stock and receipt of applicable regulatory approvals.
`
`B. The Materially Incomplete and Misleading 14D-9
`
`21.
`
`On August 24, 2022, Defendants filed the 14D-9 with the SEC. The purpose of the
`
`14D-9 is, inter alia, to provide the Company’s stockholders with all material information necessary
`
`for them to make an informed decision on whether to tender their shares in favor of the Proposed
`
`Transaction. However, significant and material facts were not provided to Plaintiff. Without such
`
`information, Plaintiff cannot make a fully informed decision concerning whether or not to tender
`
`his shares in favor of the Proposed Transaction.
`
`Materially Incomplete and Misleading Disclosures Concerning the
`Management-Prepared Financial Forecasts
`
`22.
`
`The 14D-9 discloses management-prepared financial projections for the Company
`
`which are materially misleading. The 14D-9 indicates that in connection with the rendering of
`
`Kroll’s fairness opinion, Kroll reviewed “internal documents relating to the history, current
`
`operations, and probable future outlook of the Company, including run-rate EBITDA and financial
`
`projections for the fiscal year ended January 1, 2023, provided to Kroll by management of the
`
`Company.” Accordingly, the 14D-9 should have, but failed to, provide certain information in the
`
`projections that BBQ Holdings’ management provided to the Board and Kroll.
`
`23.
`
`Notably, the 14D-9 fails to disclose material information relating to BBQ Holdings’
`
`financial forecasts, specifically the run-rate EBITDA and financial projections for the fiscal year
`
`ended January 1, 2023.
`
`
`
`7
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 8 of 14
`
`24.
`
`This omitted information is necessary for Plaintiff to make an informed decision on
`
`whether to tender his shares in favor of the Proposed Transaction.
`
`Materially Incomplete and Misleading Disclosures Concerning Kroll’s
`Financial Analyses
`
`25. With respect to the Selected Publicly Traded Companies analysis, the 14D-9 fails
`
`to disclose the objective selection criteria for each company, as well as the specific financial
`
`multiples and metrics for each company.
`
`26. With respect to the Selected Transactions and the Company Acquisitions analyses
`
`the 14D-9 fails to disclose the objective selection criteria for each transaction, as well as the
`
`financial multiples and metrics for each transaction.
`
`Materially Incomplete and Misleading Disclosures Concerning Potential
`Conflicts of Interest
`
`27.
`
`The 14D-9 fails to disclose potential conflicts of interest faced by Kroll, specifically
`
`it does not disclose what portion of Kroll’s $350,000 compensation fee was “payable upon the
`
`Company’s engagement” and how much was “payable upon Kroll informing the Company or the
`
`Board that Kroll was prepared to deliver the Opinion.”
`
`28.
`
`The 14D-9 also fails to disclose material information concerning potential conflicts
`
`of interest faced by Company insiders, specifically whether any Company management obtained
`
`or expected to obtain employment for the surviving company and if any of MTY’s proposals or
`
`indications of interest discussed whether any members of Company management would remain
`
`active in the combined company.
`
`Materially Incomplete and Misleading Disclosures Concerning the
`Background of the Proposed Transaction
`
`29.
`
`The 14D-9 fails to disclose information about confidentiality agreements entered
`
`into between the Company and parties to the sales process. The 14D-9 does not disclose the terms
`
`
`
`8
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 9 of 14
`
`of the standstill provisions, whether the standstill provisions are still in effect or have been waived,
`
`and which of the parties cannot make a superior proposal for the Company. The disclosure of the
`
`terms of any standstill provisions is crucial to Plaintiff being fully informed of whether his
`
`fiduciaries have put in place restrictive devices to foreclose a topping bid for the Company.
`
`30.
`
`This information is necessary to provide Company stockholders a complete and
`
`accurate picture of the sales process and its fairness. Without this information, stockholders were
`
`not fully informed as to the Defendants’ actions, including those that may have been taken in bad
`
`faith, and cannot fairly assess the process. And without all material information, Plaintiff is unable
`
`to make a fully informed decision in connection with the Proposed Transaction and faces
`
`irreparable harm, warranting the injunctive relief sought herein.
`
`31.
`
`In addition, the Individual Defendants knew or recklessly disregarded that the 14D-
`
`9 omits the material information concerning the Proposed Transaction and contains the materially
`
`incomplete and misleading information discussed above.
`
`32.
`
`Specifically, the Individual Defendants undoubtedly reviewed the contents of the
`
`14D-9 before it was filed with the SEC. Indeed, as directors of the Company, they were required
`
`to do so. The Individual Defendants thus knew or recklessly disregarded that the 14D-9 omits the
`
`material information referenced above and contains the incomplete and misleading information
`
`referenced above.
`
`33.
`
`Further, the 14D-9 indicates that on August 4, 2022, Kroll reviewed with the Board
`
`its financial analysis of the Merger Consideration and delivered to the Board an oral opinion, which
`
`was confirmed by delivery of a written opinion of the same date, to the effect that the Merger
`
`Consideration was fair, from a financial point of view, to BBQ Holdings stockholders.
`
`Accordingly, the Individual Defendants undoubtedly reviewed or were presented with the material
`
`
`
`9
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 10 of 14
`
`information concerning Kroll’s financial analyses which has been omitted from the 14D-9, and
`
`thus knew or should have known that such information has been omitted.
`
`34.
`
`Plaintiff is immediately threatened by the wrongs complained of herein, and lacks
`
`an adequate remedy at law. Accordingly, Plaintiff seeks injunctive and other equitable relief to
`
`prevent the irreparable injury that he will continue to suffer absent judicial intervention.
`
`CLAIMS FOR RELIEF
`
`COUNT I
`
`
`
`All Defendants for Violations of Section 14(e) of the Exchange Act and Rule 14d-9
`
`35.
`
`Plaintiff incorporates each and every allegation set forth above as if fully set forth
`
`herein.
`
`36.
`
`Defendants have filed the 14D-9 with the SEC with the intention of soliciting BBQ
`
`Holdings stockholder support for the Proposed Transaction. Each of the Individual Defendants
`
`reviewed and authorized the dissemination of the 14D-9, which fails to provide the material
`
`information referenced above.
`
`37.
`
`In so doing, Defendants made materially incomplete and misleading statements
`
`and/or omitted material information necessary to make the statements made not misleading. Each
`
`of the Individual Defendants, by virtue of their roles as officers and/or directors of BBQ Holdings,
`
`were aware of the omitted information but failed to disclose such information, in violation of
`
`Section 14(e).
`
`38.
`
`Section 14(e) of the Exchange Act provides that it is 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 light of the circumstances under which they are made, not
`
`misleading. . . .” 15 U.S.C. § 78n(e).
`
`39.
`
`Specifically, and as detailed above, the 14D-9 violates Section 14(e) and Rule 14d-
`10
`
`
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 11 of 14
`
`9 because it omits material facts concerning: (i) management’s financial projections; (ii) the value
`
`of BBQ Holdings shares and the financial analyses performed by Kroll in support of its fairness
`
`opinion; (iii) potential conflicts of interest; and (iv) the background of the Proposed Transaction.
`
`40. Moreover, in the exercise of reasonable care, the Individual Defendants knew or
`
`should have known that the 14D-9 is materially misleading and omits material information that is
`
`necessary to render it not misleading. The Individual Defendants undoubtedly reviewed and relied
`
`upon the omitted information identified above in connection with their decision to approve and
`
`recommend the Proposed Transaction; indeed, the 14D-9 states that Kroll reviewed and discussed
`
`its financial analyses with the Special Committee on August 4, 2022, and further states that the
`
`Board considered Kroll’s financial analyses and fairness opinion in connection with approving the
`
`Proposed Transaction. The Individual Defendants knew or should have known that the material
`
`information identified above has been omitted from the 14D-9, rendering the sections of the 14D-
`
`9 identified above to be materially incomplete and misleading.
`
`41.
`
`The misrepresentations and omissions in the 14D-9 are material to Plaintiff, who
`
`will be deprived of his right to make an informed decision whether to tender his shares if such
`
`misrepresentations and omissions are not corrected prior to the end of the tender offer. Plaintiff
`
`has no adequate remedy at law. Only through the exercise of this Court’s equitable powers can
`
`Plaintiff be fully protected from the immediate and irreparable injury that Defendants’ actions
`
`threaten to inflict.
`
`COUNT II
`
`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
`
`42.
`
`herein.
`
`
`
`11
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 12 of 14
`
`43.
`
`The Individual Defendants acted as controlling persons of BBQ Holdings within
`
`the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions
`
`as officers and/or directors of BBQ Holdings and participation in and/or awareness of the
`
`Company’s operations and/or intimate knowledge of the incomplete and misleading statements
`
`contained in the 14D-9 filed with the SEC, they had the power to influence and control and did
`
`influence and control, directly or indirectly, the decision making of the Company, including the
`
`content and dissemination of the various statements that Plaintiff contends are materially
`
`incomplete and misleading.
`
`44.
`
`Each of the Individual Defendants was provided with or had unlimited access to
`
`copies of the 14D-9 and other statements alleged by Plaintiff to be misleading prior to the time the
`
`14D-9 was filed with the SEC and had the ability to prevent the issuance of the statements or cause
`
`the statements to be corrected.
`
`45.
`
`In particular, each of the Individual Defendants had direct and supervisory
`
`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
`
`the power to control or influence the particular transactions giving rise to the Exchange Act
`
`violations alleged herein, and exercised the same. The omitted information identified above was
`
`reviewed by the Board prior to voting on the Proposed Transaction. The 14D-9 at issue contains
`
`the unanimous recommendation of each of the Individual Defendants to approve the Proposed
`
`Transaction. They were, thus, directly involved in the making of the 14D-9.
`
`46.
`
`In addition, as the 14D-9 sets forth at length, and as described herein, the Individual
`
`Defendants were involved in negotiating, reviewing, and approving the Merger Agreement. The
`
`14D-9 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
`
`
`
`12
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 13 of 14
`
`input on the content of those descriptions.
`
`47.
`
`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
`
`of the Exchange Act.
`
`48.
`
`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(e) and Rule 14d-9, by
`
`their acts and omissions as alleged herein. By virtue of their positions as controlling persons, these
`
`Defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and proximate
`
`result of Individual Defendants’ conduct, Plaintiff will be irreparably harmed.
`
`RELIEF REQUESTED
`
`WHEREFORE, Plaintiff demands injunctive relief in his favor and against the Defendants
`
`jointly and severally, as follows:
`
`A.
`
`Preliminarily and permanently enjoining Defendants and their counsel, agents,
`
`employees and all persons acting under, in concert with, or for them, from filing any amendment
`
`to the 14D-9 with the SEC unless and until Defendants agree to include the material information
`
`identified above in any such amendment;
`
`B.
`
`Preliminarily and permanently enjoining Defendants and their counsel, agents,
`
`employees and all persons acting under, in concert with, or for them, from proceeding with,
`
`consummating, or closing the Proposed Transaction, unless and until Defendants disclose the
`
`material information identified above which has been omitted from the 14D-9;
`
`C.
`
`In the event that the transaction is consummated prior to the entry of this Court’s
`
`final judgment, rescinding it or awarding Plaintiff rescissory damages;
`
`D.
`
`Directing the Defendants to account to Plaintiff for all damages suffered as a result
`
`of their wrongdoing;
`
`
`
`13
`
`

`

`Case 1:22-cv-07546 Document 1 Filed 09/02/22 Page 14 of 14
`
`E.
`
`Awarding Plaintiff the costs and disbursements of this action, including reasonable
`
`attorneys’ and expert fees and expenses; and
`
`F.
`
`Granting such other and further equitable relief as this Court may deem just and
`
`proper.
`
`JURY DEMAND
`
`Plaintiff demands a trial by jury.
`
`Dated: September 2, 2022
`
`
`
`
`
`
`
`
`ROWLEY LAW PLLC
`
`
`S/ Shane T. Rowley
`Shane T. Rowley (SR-0740)
`Danielle Rowland Lindahl
`50 Main Street, Suite 1000
`White Plains, NY 10606
`Tel: (914) 400-1920
`Fax: (914) 301-3514
`Email: srowley@rowleylawpllc.com
`Email: drl@rowleylawpllc.com
`
`Attorneys for Plaintiff
`
`14
`
`
`
`
`
`
`