Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`Case No. _____________
`
`
`COMPLAINT FOR VIOLATIONS
`OF THE FEDERAL SECURITIES
`LAWS
`
`
`
`JURY TRIAL DEMANDED
`
`
`ERIC SABATINI,
`
`Plaintiff,
`
`v.
`
`
`APPLIED GENETIC TECHNOLOGIES
`CORPORATION, SUSAN B. WASHER,
`WILLIAM ALISKI, YEHIA HASHAD, ED
`HURWITZ, SCOTT KOENIG, JAMES A.
`ROBINSON, JAMES ROSEN, and ANNE
`VANLENT,
`
`
`Defendants.
`
`
`
`
`Plaintiff Eric Sabatini (“Plaintiff”), by and through his undersigned counsel, for his
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`
`
`
`
`
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`complaint against defendants, alleges upon personal knowledge with respect to himself, and upon
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`information and belief based upon, inter alia, the investigation of counsel as to all other allegations
`
`herein, as follows:
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`NATURE AND SUMMARY OF THE ACTION
`
`This is a stockholder action brought by Plaintiff against Applied Genetic
`
`1.
`
`Technologies Corporation (“AGTC” or the “Company”) and the members of AGTC’s Board of
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`Directors (the “Board” or the “Individual Defendants”) for their violations of Sections 14(d)(4),
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`14(e) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§
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`78n(d)(4), 78n(e), 78t(a), and U.S. Securities and Exchange Commission (“SEC”) Rule 14d-9, 17
`
`C.F.R. §240.14d-9(d) (“Rule 14d-9”), in connection with the Board’s attempt to sell AGTC to a
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`portfolio company of Syncona Limited (“Syncona”) (the “Proposed Transaction”).
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 2 of 14
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`2.
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`On October 23, 2022, AGTC entered into an Agreement and Plan of Merger with
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`Alliance Holdco Limited (“Parent”) and Parent’s wholly owned subsidiary Alliance Acquisition
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`Sub, Inc. (“Purchaser”) (the “Merger Agreement”). Parent and Purchaser are affiliates of
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`Syncona. Under the terms of the Merger Agreement, Purchaser will acquire AGTC for (i) $0.34
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`per share in cash, plus (ii) one contingent value right per share (“CVR”) representing the right to
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`receive up to $0.73 per CVR in the aggregate contingent upon the achievement of certain
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`milestones, per share of AGTC common stock via a tender offer (the “Tender Offer”). Pursuant
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`to the Merger Agreement, Purchaser commenced the Tender Offer on October 26, 2022.
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`3.
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`On October 26, 2022, the Board authorized the filing of the materially incomplete
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`and misleading Schedule 14D-9 Solicitation/Recommendation Statement (the “Recommendation
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`Statement”) with the SEC. Specifically, the Recommendation Statement, which recommends that
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`AGTC stockholders tender their shares in the Tender Offer, contains materially incomplete and
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`misleading information concerning, among other things: (i) the financial analyses that support the
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`fairness opinion provided by the Company’s financial advisor, MTS Securities, LLC (“MTS
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`Securities”); (ii) the background of the Proposed Transaction; and (iii) MTS Securities’ and
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`Company insiders’ potential conflicts of interest.
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`4.
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`The failure to adequately disclose such material information constitutes a violation
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`of Sections 14(d), 14(e) and 20(a) of the Exchange Act as AGTC stockholders need such
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`information in order to make a fully informed decision in connection with the Tender Offer.
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`5.
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`The Tender Offer is currently scheduled to expire at 5:00 p.m. Eastern Time on
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`November 28, 2022. It is imperative that such Exchange Act violations are promptly cured to
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`enable Plaintiff and AGTC’s other shareholders to make an informed decision whether to tender
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 3 of 14
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`their shares in the Tender Offer or seek appraisal. Therefore, Plaintiff seeks to enjoin the
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`expiration of the Tender Offer unless and until such Exchange Act violations are cured.
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`JURISDICTION AND VENUE
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`6.
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`This Court has jurisdiction over the claims asserted herein for violations of Sections
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`14(d), 14(e) and 20(a) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder pursuant
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`to Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. § 1331 (federal question
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`jurisdiction).
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`7.
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`Personal jurisdiction exists over the defendants because each defendant either
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`conducts business in or maintains operations within this District, or is an individual with sufficient
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`minimum contacts with this District so as to make the exercise of jurisdiction by this Court
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`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 pursuant to 28 U.S.C. § 1391 because defendants
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`are found or are inhabitants or transact business in this District. AGTC’s common stock trades on
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`the Nasdaq Global Market, which is headquartered in this District, rendering venue in this District
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`appropriate.
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`THE PARTIES
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`9.
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`Plaintiff is, and has been at all relevant times, the owner of shares of AGTC
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`common stock.
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`10.
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`Defendant AGTC is a Delaware corporation, with its principal executive offices
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`located at 14193 NW 119th Terrace, Suite 10, Alachua, Florida 32165. AGTC’s shares trade on
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`the Nasdaq Global Market under the ticker symbol “AGTC.”
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`11.
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`Defendant Susan B. Washer has been President, Chief Executive Officer, and a
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`director of the Company at all relevant times.
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 4 of 14
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`12.
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`13.
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`14.
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`15.
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`Defendant William Aliski has been a director of the Company at all relevant times.
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`Defendant Yehia Hashad has been a director of the Company at all relevant times.
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`Defendant Ed Hurwitz has been a director of the Company at all relevant times.
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`Defendant Scott Koenig has been Chairman of the Board and a director of the
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`Company at all relevant times.
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`16.
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`Defendant James A. Robinson has been a director of the Company at all relevant
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`times.
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`17.
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`18.
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`19.
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`Defendant James Rosen has been a director of the Company at all relevant times.
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`Defendant Anne VanLent has been a director of the Company at all relevant times.
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`Defendants identified in paragraphs 11-18 are collectively referred to herein as the
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`“Board” or the “Individual Defendants.”
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`SUBSTANTIVE ALLEGATIONS
`
`Background of the Company
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`20.
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`AGTC is a clinical-stage biotechnology company that uses its proprietary gene
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`therapy platform technology to develop transformational genetic therapies for people suffering
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`from rare and debilitating diseases. The Company’s initial focus is in the field of ophthalmology,
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`where it has wholly owned clinical-stage programs in X-linked retinitis pigmentosa and
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`achromatopsia, and an optogenetics program through the Company’s collaboration with Bionic
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`Sight, Inc. AGTC’s preclinical pipeline includes a program in dry age-related macular
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`degeneration, two programs targeting central nervous system disorders, including frontotemporal
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`dementia and amyotrophic lateral sclerosis, and a program in otology through the Company’s
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`collaboration with Otonomy, Inc.
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`The Proposed Transaction
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 5 of 14
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`21.
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`On October 23, 2022, AGTC announced that it had entered into the Proposed
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`Transaction, stating, in relevant part:
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`GAINESVILLE, Fla. and CAMBRIDGE, Mass., Oct. 23, 2022 (GLOBE
`NEWSWIRE) -- Applied Genetic Technologies Corporation (Nasdaq: AGTC), a
`clinical-stage biotechnology company focused on
`the development and
`commercialization of adeno-associated virus (AAV)-based gene therapies for the
`treatment of rare and debilitating diseases with an initial focus on inherited retinal
`diseases (IRDs), today announced that it has entered into a definitive agreement
`pursuant to which a newly established portfolio company of Syncona Limited
`(LON: SYNC), a leading healthcare company focused on founding, building and
`funding global leaders in life science, will acquire AGTC, through a tender offer,
`for approximately $23.5 million ($0.34 per share) in cash at the closing of the
`transaction plus potential future aggregate cash payments of up to $50.0 million (up
`to $0.73 per share) pursuant to contingent value rights (CVRs). The board of
`directors of AGTC unanimously recommends that the shareholders of AGTC
`tender their shares in the tender offer once it is commenced.
`
`“This transaction represents an attractive upfront cash offer to shareholders at a
`premium of approximately 42% to the current share price, with the potential to
`receive future upside based on the clinical success of XLRP and other pipeline
`assets through CVRs,” said Dr. Scott Koenig, Chairman of AGTC’s board of
`directors. “Our board and leadership team evaluated all alternative options to
`progress AGTC-501. Given the state of equity and other funding markets, we see
`significant challenges in funding ongoing operations beyond 2022. We believe that
`this transaction clearly will deliver the best value to our shareholders. AGTC’s
`board of directors has unanimously approved the offer and strongly encourages
`shareholders to tender their shares.”
`
`“Our team has completed groundbreaking work for patients living with devastating
`retinal diseases,” said Sue Washer, President and Chief Executive Officer of
`AGTC. “This transaction allows continued progress in advancing an important
`therapy for XLRP patients while also maximizing immediate and potential long-
`term value to our shareholders. On closing, AGTC will be Syncona’s third company
`focused on retinal gene therapy, and we look forward to transitioning AGTC-501
`to Syncona’s experienced stewardship with the goal of advancing this differentiated
`product candidate to patients with XLRP.”
`
`“We share AGTC’s passion in developing life changing treatments for patients with
`diseases with no currently approved therapies,” said Chris Hollowood, Chief
`Investment Officer of Syncona Investment Management Limited. “Syncona has
`significant expertise in AAV gene therapy, and in particular, a strong track record
`of building retinal gene therapy businesses. We believe AGTC’s XLRP program
`has the potential to be a best-in-class product that could transform the lives of
`patients suffering with this devastating blinding condition.”
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 6 of 14
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`Under the terms of the definitive agreement, an indirect subsidiary of Syncona
`Limited will initiate a tender offer to acquire all outstanding shares of AGTC
`common stock. The upfront cash consideration in the transaction will consist of
`$0.34 per share of AGTC common stock (including common stock underlying
`restricted stock units and in-the-money stock options). AGTC equity holders will
`also receive in the transaction, for each share of AGTC common stock, one non-
`tradeable CVR. The holders of the CVRs will be entitled to receive payments of up
`to an additional $50.0 million in the aggregate upon the achievement of certain
`milestones related to transactions involving AGTC’s assets and regulatory and
`commercial milestones related to AGTC’s products. The $0.34 per share represents
`a premium of approximately 42% and the potential for up to $1.07 per share
`(inclusive of the potential CVR value) represents a premium of up to approximately
`344% over AGTC’s closing stock price on October 21, 2022.
`
`Under the terms of the definitive agreement, any shares not tendered in the tender
`offer will be acquired in a second-step merger at the same cash price as paid in the
`tender offer. The closing of the transaction is subject to customary closing
`conditions, including that the number of shares validly tendered and not validly
`withdrawn represents a majority of all shares of AGTC common stock then
`outstanding (treating as outstanding the shares underlying outstanding restricted
`stock units) plus the aggregate number of shares issuable to holders of stock options
`and warrants in respect of which AGTC has received notices of exercise prior to
`the expiration of the tender offer. Upon the closing of the transaction, the shares of
`AGTC’s common stock will no longer be listed on any public market. Subject to
`certain limited exceptions, the CVRs will be non-transferable. There can be no
`assurance that any contingent payments will be paid. Syncona plans to finance the
`upfront cash consideration in the transaction with cash on hand.
`
`The transaction was unanimously approved by AGTC’s board of directors and is
`expected to close in the fourth quarter of 2022. All of the members of AGTC’s
`board of directors and the executive officers of AGTC entered into a tender and
`support agreement with respect to all of the shares of AGTC common stock and/or
`stock options held by such persons (representing in the aggregate less than 1% of
`AGTC’s equity), pursuant to which each such person agreed, among other things,
`to vote against other proposals to acquire AGTC and, subject to certain exceptions,
`to tender such person’s AGTC shares pursuant to the tender offer.
`
`MTS Health Partners, L.P. is acting as financial advisor to AGTC in connection
`with the transaction. Foley Hoag LLP is acting as legal advisor to AGTC in
`connection with the transaction. BTIG LLC is acting as financial advisor to
`Syncona and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. is acting as legal
`advisor to Syncona in connection with the transaction.
`
`The Materially Incomplete and Misleading Recommendation Statement
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 7 of 14
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`22.
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`On October 26, 2022, the Board caused to be filed a materially incomplete and
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`misleading Recommendation Statement with the SEC. The Recommendation Statement, which
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`recommends that AGTC stockholders tender their shares in the Tender Offer, fails to disclose
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`material information to Company stockholders, or provides them with materially misleading
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`information, concerning: (i) the financial analyses that support the fairness opinion provided by
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`MTS Securities; (ii) the background of the Proposed Transaction; and (iii) MTS Securities’ and
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`Company insiders’ potential conflicts of interest.
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`Material Misrepresentations and/or Omissions Concerning MTS Securities’ Financial Analyses
`
`
`23.
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`The Recommendation Statement fails to disclose material information concerning
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`MTS Securities’ financial analyses.
`
`24. With
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`respect
`
`to MTS Securities’ Offer Price NPV Calculation,
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`the
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`Recommendation Statement fails to disclose the cost of capital for each of the selected companies
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`MTS Securities reviewed in estimating the Company’s weighted average cost of capital.
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`Material Misrepresentations and/or Omissions Concerning the Background of the Proposed
`Transaction
`
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`25.
`
`The Recommendation Statement fails to disclose material information concerning
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`the background of the Proposed Transaction.
`
`26.
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`Specifically, the Recommendation Statement fails to disclose the terms of the
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`confidential disclosure agreements the Company entered into with 16 potential counterparties,
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`including whether any contain a “don’t-ask, don’t-waive” standstill provision that is still in effect
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`and presently precluding a party from submitting a topping bid for the Company.
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`27.
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`Additionally, the Recommendation Statement fails to disclose the specific pricing
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`terms of each of the proposals the Company received from potential counterparties during the sale
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`process.
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 8 of 14
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`Material Misrepresentations and/or Omissions Concerning MTS Securities’ and Company
`Insiders’ Potential Conflicts of Interest
`
`
`28.
`
`The Recommendation Statement fails to disclose material information concerning
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`potential conflicts of interest faced by MTS Securities.
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`29.
`
`The Recommendation Statement sets forth:
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`MTS served as a financial advisor and joint book-running manager in the
`Company’s equity offering in January 2021, for which it received a fee equal to
`$1.34 million. Except as noted above, neither MTS Securities nor MTS has had a
`material relationship with, or otherwise received fees from, the Company or Parent
`or any other parties to the Merger Agreement or the CVR Agreement during the
`two years preceding the date of the MTS Opinion.
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`Recommendation Statement at 39. Yet, the Recommendation Statement fails to disclose whether
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`MTS Securities or MTS Health Partners, L.P. have performed any services for Syncona, Syncona
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`Portfolio Limited, or Syncona Investment Management Limited, or any of their affiliates, in the
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`two years preceding the date of its fairness opinion and, if so, the amount of compensation received
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`for such services.
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`30.
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`The Recommendation Statement also fails to disclose material information
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`concerning potential conflicts of interest faced by Company insiders.
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`31.
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`For example, the Recommendation Statement fails to disclose whether any of
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`Syncona’s proposals or indication of interest mentioned management retention in the combined
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`company or the purchase of or participation in the equity of the surviving corporation.
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`32.
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`In sum, the omission of the above-referenced information renders statements in the
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`“Opinion of the Company’s Financial Advisor,” “Background of the Offer and the Merger” and
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`“Arrangements Between the Company and its Executive Officers, Directors and Affiliates”
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`sections of the Recommendation Statement materially incomplete and misleading in contravention
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`of the Exchange Act. Absent disclosure of the foregoing material information prior to the
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 9 of 14
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`expiration of the Tender Offer, Plaintiff and the other stockholders of AGTC will be unable to
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`make a sufficiently informed decision in connection with the Tender Offer and are thus threatened
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`with irreparable harm warranting the injunctive relief sought herein.
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`CLAIMS FOR RELIEF
`
`COUNT I
`
`Claims Against All Defendants for Violations of Section 14(d) of the
`Exchange Act and SEC Rule 14d-9 Promulgated Thereunder
`
`Plaintiff repeats all previous allegations as if set forth in full.
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`Defendants have caused the Recommendation Statement to be issued with the
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`33.
`
`34.
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`intention of soliciting AGTC stockholders to tender their shares in the Tender Offer.
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`35.
`
`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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`36.
`
`Section 14(d)(4) of the Exchange Act states:
`
`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.
`
`37.
`
`SEC Rule 14d-9 sets forth, in relevant part:
`
`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[.]
`
`38.
`
`Item 8 of Schedule 14D-9 requires a company’s directors to “[f]urnish such
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`additional material information, if any, as may be necessary to make the required statements, in
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`light of the circumstances under which they are made, not materially misleading.”
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 10 of 14
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`39.
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`The Recommendation Statement violates Section 14(d)(4) and Rule 14d-9 because
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`it omits material facts, including those set forth above, which omission renders the
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`Recommendation Statement false and/or misleading.
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`40.
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`Defendants knowingly or with deliberate recklessness omitted the material
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`information identified above from the Recommendation Statement, causing certain statements
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`therein to be materially incomplete and therefore misleading. Indeed, while defendants
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`undoubtedly had access to and/or reviewed the omitted material information in connection with
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`approving the Proposed Transaction, they allowed it to be omitted from the Recommendation
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`Statement, rendering certain portions of the Recommendation Statement materially incomplete
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`and therefore misleading.
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`41.
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`The misrepresentations and omissions in the Recommendation Statement are
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`material to Plaintiff and the other stockholders of AGTC, who will be deprived of their right to
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`make an informed decision whether to tender their shares or seek appraisal if such
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`misrepresentations and omissions are not corrected prior to the expiration of the Tender Offer.
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`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s equitable
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`powers can Plaintiff be fully protected from the immediate and irreparable injury that defendants’
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`actions threaten to inflict.
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`COUNT II
`
`Claims Against All Defendants for Violations of Section 14(e) of the Exchange Act
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`42.
`
`43.
`
`Plaintiff repeats all previous allegations as if set forth in full.
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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 . . . in connection with any tender offer or request or invitation for tenders, or any
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 11 of 14
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`solicitation of security holders in opposition to or in favor of any such offer, request, or invitation.”
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`15 U.S.C. § 78n(e).
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`44.
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`Defendants violated Section 14(e) of the Exchange Act by issuing the
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`Recommendation Statement to AGTC stockholders in which they made untrue statements of
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`material facts or failed to state all material facts necessary in order to make the statements made,
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`in light of the circumstances under which they are made, not misleading. Specifically, the
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`Recommendation Statement misrepresented and/or omitted material facts concerning MTS
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`Securities’ financial analyses, the background of the Proposed Transaction, and MTS Securities’
`
`and Company insiders’ potential conflicts of interest.
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`45.
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`Defendants knew that Plaintiff would rely upon their statements in the
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`Recommendation Statement in determining whether to tender his shares pursuant to the Tender
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`Offer or seek appraisal.
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`46.
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`As a direct and proximate result of these defendants’ unlawful course of conduct in
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`violation of Section 14(e) of the Exchange Act, absent injunctive relief from the Court, Plaintiff
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`has sustained and will continue to sustain irreparable injury by being denied the opportunity to
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`make an informed decision in deciding whether or not to tender his shares or seek appraisal.
`
`COUNT III
`
`Claims Against the Individual Defendants for Violations
`of Section 20(a) of the Exchange Act
`
`Plaintiff repeats all previous allegations as if set forth in full.
`
`The Individual Defendants acted as controlling persons of AGTC within the
`
`47.
`
`48.
`
`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
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`officers and/or directors of AGTC, 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 Recommendation
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 12 of 14
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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 which Plaintiff contends are false and misleading.
`
`49.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Recommendation Statement and other statements alleged by Plaintiff to be
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`misleading prior to and/or shortly after these statements were issued and had the ability to prevent
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`the issuance of the statements or cause the statements to be corrected.
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`50.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
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`the power to control or influence the particular transactions giving rise to the securities violations
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`as alleged herein, and exercised the same. The Recommendation Statement 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 Recommendation Statement.
`
`51.
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`In addition, as the Recommendation Statement sets forth at length, and as described
`
`herein, the Individual Defendants were each involved in negotiating, reviewing, and approving the
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`Proposed Transaction. The Recommendation Statement purports to describe the various issues
`
`and information that they reviewed and considered—descriptions the Company directors had input
`
`into.
`
`52.
`
`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
`
`of the Exchange Act.
`
`53.
`
`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), Section 14(d) and
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`SEC Rule 14d-9, promulgated thereunder, by their acts and omissions as alleged herein. By virtue
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 13 of 14
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`of their positions as controlling persons, these defendants are liable pursuant to Section 20(a) of
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`the Exchange Act. As a direct and proximate result of defendants’ conduct, AGTC stockholders
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`will be irreparably harmed.
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`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff demands judgment and preliminary and permanent relief,
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`including injunctive relief, in his favor on behalf of AGTC, and against defendants, as follows:
`
`A.
`
`Preliminarily and permanently enjoining defendants and all persons acting in
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`concert with them from proceeding with, consummating, or closing the Proposed Transaction,
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`including the expiration of the Tender Offer, unless and until defendants disclose the material
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`information identified above which has been omitted from the Recommendation Statement;
`
`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 to Plaintiff;
`
`C.
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`Directing the Individual Defendants to file a Recommendation Statement that does
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`not contain any untrue statements of material fact;
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`D.
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`Awarding Plaintiff the costs of this action, including reasonable allowance for
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`Plaintiff’s attorneys’ and experts’ fees; and
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`E.
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`Granting such other and further relief as this Court may deem just and proper.
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`Case 1:22-cv-09529 Document 1 Filed 11/08/22 Page 14 of 14
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`JURY DEMAND
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`Plaintiff demands a trial by jury.
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`
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`Dated: November 8, 2022
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`
`
`By
`
`
`
`ACOCELLI LAW, PLLC
`
`
`/s/ Richard A. Acocelli
`Richard A. Acocelli
`33 Flying Point Road, Suite 131
`Southampton, NY 11968
`Tel: (631) 204-6187
`Email: racocelli@acocellilaw.com
`
`Attorneys for Plaintiff
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` 14
`
`