UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE TO

Tender Offer Statement under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

 

(Amendment No. 2)

 

Corium International, Inc.

(Name of Subject Company (Issuer))

 

GURNET MERGER SUB, INC.

(Offeror)

A Wholly Owned Subsidiary of

 

GURNET HOLDING COMPANY

(Parent of Offeror)

 

GURNET POINT L.P.

(Other Person)

(Names of Filing Persons)

 

Common Stock, Par Value $0.001 Per Share

(Title of Class of Securities)

 


 

21887L107

(Cusip Number of Class of Securities)

 

James Singleton

Secretary

Gurnet Holding Company

c/o Waypoint International GP LLC

55 Cambridge Parkway, Suite 401

Cambridge, MA 02142

Telephone: (617) 588-4900
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of Filing Persons)

 

Copies to:

 

Michael J. Aiello, Esq.

Eoghan P. Keenan, Esq.

Weil, Gotshal & Manges LLP

767 Fifth Avenue

New York, NY 10153

(212) 310-8000

 

CALCULATION OF FILING FEE

 

Transaction Valuation*

 

Amount of Filing Fee**

 

$ 517,303,223.15

 

$ 62,697.15

 

 


*The transaction value was determined by adding (1) the product of (a) $13.00, which is the sum of (i) the closing cash payment of $12.50 per share and (ii) $0.50 per share, which is the maximum amount payable with respect to the contingent value right and (b) the sum of (x) 36,546,444 shares of common stock, par value $0.001 per share (“ Shares ”), of Corium International, Inc. (“ Corium ”) issued and outstanding as of the close of business on October 22, 2018, (y) restricted stock units with respect to an aggregate of 165,934 Shares and (z) an aggregate number of 919,325 Shares were reserved for issuance under Corium’s 2014 Employee Stock Purchase Plan; (2) the product of (i) the difference between (x) $13.00 and (y) an exercise price of $9.26 for the outstanding Warrants to Purchase Stock, issued November 7, 2011, by Corium to Oxford Finance LLC (the “ Oxford Warrants ”) and (ii) 32,380 Shares issuable pursuant to the Oxford Warrants; and (3) the product of (a) the difference between (x) $13.00 and (y) an exercise price of $6.11 (the weighted-average exercise price of the outstanding options as of October 22, 2018) and (b) stock options representing the right to purchase an aggregate of 3,953,955 Shares.

** The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for Fiscal Year 2019, issued August 24, 2018, by multiplying the transaction value by 0.0001212.

 

x                Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing.

 

Amount Previously Paid: $ 62,697.15

 

Filing Party: Gurnet Merger Sub, Inc.; Gurnet Holding Company

 

Form or Registration No.: Schedule TO-T

 

Date Filed: October 26, 2018

 

 

o                  Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

x                Third-party tender offer subject to Rule 14d-1.

o                  Issuer tender offer subject to Rule 13e-4.

o                  Going-private transaction subject to Rule 13e-3.

o                  Amendment to Schedule 13D under Rule 13d-2.

 

Check the following box if the filing is a final amendment reporting the results of the tender offer:   o

 

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

 

o                  Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

o                  Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

 

 

 


 

This Amendment No. 2 (this “ Amendment ”) amends and supplements the Tender Offer Statement on Schedule TO (together with any subsequent amendments and supplements thereto, including Amendment No. 1 dated November 5, 2018 and this Amendment, the “ Schedule TO ”) is filed by Gurnet Merger Sub, Inc., a Delaware corporation (“ Purchaser ”) and a wholly-owned subsidiary of Gurnet Holding Company, a Delaware corporation (“ Parent ”), which is a wholly-owned subsidiary of Gurnet Point L.P., a Delaware limited partnership (“ Sponsor ”).  This Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value, $0.001 per share (the “ Shares ”), of Corium International, Inc., a Delaware corporation (the “ Company ”), at a purchase price of $12.50 per Share in cash, net of applicable withholding taxes and without interest, plus one non-transferable contingent value right for each Share, which represents the contractual right to receive $0.50 per Share in cash, net of applicable withholding taxes and without interest, following approval by the FDA of the New Drug Application for Corplex Donepezil on or prior to March 31, 2020, as described in and under the conditions set forth in the CVR Agreement (as defined in the Offer to Purchase), upon the terms and subject to the conditions set forth in the Merger Agreement (as defined below), the Offer to Purchase, the related Letter of Transmittal, and the Notice of Guaranteed Delivery, copies of which are attached hereto as Exhibits (a)(1)(A), (a)(1)(B), and (a)(1)(C) respectively.

 

All information contained in the Offer to Purchase (including Schedule I to the Offer to Purchase) and the accompanying Letter of Transmittal is hereby expressly incorporated herein by reference in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Amendment.

 

The Agreement and Plan of Merger, dated as of October 11, 2018 (as it may be amended from time to time, the “ Merger Agreement ”), by and among the Company, Parent and Purchaser, a copy of which is attached as Exhibit (d)(1) hereto, is incorporated herein by reference with respect to Items 4 and 11 of this Schedule TO.

 

Capitalized terms used but not defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO.

 

This Amendment is being filed to amend and supplement the Offer to Purchase, Items 1 through 9 and Items 11 and 12 as reflected below.

 

Items 1 through 9 and Item 11.

 

The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent each such Item incorporates by reference the information contained in the Offer to Purchase, is hereby amended and supplemented as set forth below:

 

(1)          The information under the heading “What are the most significant conditions to the Offer?” of the Summary Term Sheet in the Offer to Purchase is amended and supplemented by adding the following new paragraph at the end of the section:

 

“The Antitrust Condition has been satisfied by the expiration of the waiting period under the HSR Act with respect to the Offer effective November 9, 2018. The Offer continues to be subject to the remaining conditions set forth in this Offer to Purchase.”

 

(2)          The sixth paragraph of the Introduction of the Offer to Purchase is amended and supplemented by adding the following sentences at the end of such paragraph:

 

“The Antitrust Condition has been satisfied by the expiration of the waiting period under the HSR Act with respect to the Offer effective November 9, 2018. The Offer continues to be subject to the remaining conditions set forth in this Offer to Purchase.”

 

2


 

(3)          Section 15 — “Conditions of the Offer” of the Offer to Purchase is amended and supplemented by adding the following new paragraph after the last paragraph of Section 15:

 

“The Antitrust Condition has been satisfied by the expiration of the waiting period under the HSR Act with respect to the Offer effective November 9, 2018. The Offer continues to be subject to the remaining conditions set forth in this Offer to Purchase.”

 

(4)          The second paragraph of the subsection titled “U.S. Antitrust Compliance” in Section 16 — “Certain Legal Matters; Regulatory Approvals — Antitrust Compliance” is amended and supplemented by adding the following sentences to the end of such paragraph:

 

“On November 9, 2018, the waiting period under the HSR Act with respect to the Offer expired. Accordingly, the Antitrust Condition has been satisfied. The Offer continues to be subject to the remaining conditions set forth in this Offer to Purchase.”

 

(5)          The subsection entitled “Legal Proceedings” in Section 16 — “Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase is amended and supplemented by adding the following new paragraph after the last paragraph of that subsection:

 

“On November 5, 2018, Michael Kent, a purported stockholder of the Company, filed a putative securities class action complaint in the United States District Court for the District of Delaware against the Company, the individual members of the Company Board, Parent and Purchaser, captioned Kent v. Corium International, Inc., et. al., Case No. 1:18-01744-CFC (the “ Kent Complaint ”). On November 6, 2018, Melvyn Klein, a purported stockholder of the Company, filed a putative securities class action complaint in the United States District Court for the Northern District of California against the Company and the individual members of the Company Board, captioned Klein v. Corium International, Inc., et al., Case No. 4:18-cv-06731-PJH (the “ Klein Complaint ” and together with the Kent Complaint, the “ Complaints ”). The Kent Complaint asserts that the Company and certain of its directors violated sections 14(e), 14(d), and 20(a) of the Exchange Act by making untrue statements of material fact and omitting certain material facts related to the transactions described in the Schedule 14D-9 filed by the Company on October 26, 2018 (the “ Company 14D-9 ”). The Klein Complaint asserts that the Company, certain of its directors, Parent and Merger Sub violated sections 14(e) and 20(a) of the Exchange Act by making untrue statements of material fact and omitting certain material facts related to the transactions described in the Company 14D-9. The Complaints seek, among other things, an order enjoining defendants from consummating the transactions described in the Company 14D-9, money damages, and an award of attorneys’ and experts’ fees.

 

The foregoing description is qualified in its entirety by reference to the Kent Complaint and Klein Complaint, which are attached as Exhibit (a)(5)(C) and Exhibit (a)(5)(D) to this Schedule TO, respectively.”

 

Item 12. Exhibits.

 

Item 12 of the Schedule TO is amended and supplemented by adding the following:

 

Exhibit No.

 

Description

(a)(5)(C)

 

Class Action Complaint as filed November 5, 2018 ( Kent v. Corium International, Inc., et. al. , Case No. 1:18-cv-01744-CFC).*

(a)(5)(D)

 

Class Action Complaint as filed November 6, 2018 ( Klein v. Corium International, Inc., et. al. , Case No. 4:18-cv-06731-PJH).*

 


*                  Filed herewith.

 

3


 

SIGNATURES

 

After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Date: November 13, 2018

 

 

 

GURNET MERGER SUB, INC.

 

 

 

 

By:

/s/ James Singleton

 

 

Name: James Singleton

 

 

Title: President

 

 

 

 

 

 

 

 

GURNET HOLDING COMPANY

 

 

 

 

By:

/s/ James Singleton

 

 

Name: James Singleton

 

 

Title: Secretary

 

 

 

 

 

 

 

 

GURNET POINT L.P.

 

 

 

 

By: Waypoint International GP LLC, in its capacity as General Partner of Gurnet Point L.P.

 

 

 

By:

/s/ James Singleton

 

 

Name: James Singleton

 

 

Title: Manager

 

4


 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

(a)(1)(A)

 

Offer to Purchase, dated October 26, 2018.*

 

 

 

(a)(1)(B)

 

Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on IRS Form W-9).*

 

 

 

(a)(1)(C)

 

Notice of Guaranteed Delivery.*

 

 

 

(a)(1)(D)

 

Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

 

 

 

(a)(1)(E)

 

Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*

 

 

 

(a)(1)(F)

 

Summary Advertisement as published in the New York Times , dated October 26, 2018.*

 

 

 

(a)(5)(A)

 

Class Action Complaint as filed October 29, 2018 (Wang v. Corium International, Inc., et. al., Case No. 4:18-cv-06590-JSW).*

 

 

 

(a)(5)(B)

 

Class Action Complaint as filed November 2, 2018 (Schwartz v. Corium International, Inc., et. al., Case No. 3:18-cv-06670-LHK).*

 

 

 

(a)(5)(C)

 

Class Action Complaint as filed November 5, 2018 ( Kent v. Corium International, Inc., et. al. , Case No. 1:18-cv-01744-CFC).**

 

 

 

(a)(5)(D)

 

Class Action Complaint as filed November 6, 2018 ( Klein v. Corium International, Inc., et. al. , Case No. 4:18-cv-06731-PJH).**

 

 

 

(b)

 

Not applicable.

 

 

 

(d)(1)

 

Agreement and Plan of Merger, dated as of October 11, 2018, among Parent, Purchaser and the Company (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on October 11, 2018).*

 

 

 

(d)(2)

 

Commitment Letter between Parent and Gurnet Point, L.P. dated as of October 11, 2018.*

 

 

 

(d)(3)

 

Confidentiality Agreement between the Company and Gurnet Point Capital, LLC dated as of May 17, 2018.*

 

 

 

(d)(4)

 

Tender and Support Agreement among Parent, Purchaser and Essex Woodlands Health Ventures Fund VII, L.P dated as of October 11, 2018 (incorporated by reference to Exhibit 2.3 to the Current Report on Form 8-K filed by the Company on October 11, 2018). *

 

 

 

(d)(5)

 

Form of Contingent Value Rights Agreement between Parent and Continental Stock Transfer and Trust Company (incorporated by reference to Exhibit 2.2 to the Current Report on Form 8-K filed by the Company on October 11, 2018). *

 

 

 

(d)(6)

 

Transition Bonus Plan of the Company.*

 

 

 

(d)(7)

 

Press Release of Gurnet Point L.P., announcing the launch of the Offer, dated October 26, 2018. *

 

 

 

(g)

 

Not applicable.

 

 

 

(h)

 

Not applicable.

 


*

Previously filed

**

Filed herewith

 

5


Exhibit 99.(a)(5)(C)

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 1 of 13 PageID #: 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL KENT, Individually and On Behalf of All Others Similarly Situated, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, Case No. v. JURY TRIAL DEMANDED CORIUM INTERNATIONAL, INC., DAVID L. GREENWOOD, ERIC H. BJERKHOLT, BHASKAR CHAUDHURI, RON EASTMAN, PHYLLIS GARDNER, IVAN GERGEL, PAUL GODDARD, PETER D. STAPLE, ROBERT THOMAS, GURNET HOLDING COMPANY, and GURNET MERGER SUB, INC., CLASS ACTION Defendants. COMPLAINT FOR VIOLATION OF THE SECURITIES EXCHANGE ACT OF 1934 Plaintiff, by his undersigned attorneys, for this complaint against defendants, alleges upon personal knowledge with respect to himself, and upon information and belief based upon, inter alia, the investigation of counsel as to all other allegations herein, as follows: NATURE OF THE ACTION 1. This action stems from a proposed transaction announced on October 11, 2018 (the “Proposed Transaction”), pursuant to which Corium International, Inc. (“Corium” or the “Company”) will be acquired by affiliates of Gurnet Point Capital. 2. On October 11, 2018, Corium’s Board of Directors (the “Board” or “Individual Defendants”) caused the Company to enter into an agreement and plan of merger (the “Merger Agreement”) with Gurnet Holding Company (“Parent”) and Gurnet Merger Sub, Inc. (“Merger Sub,” and together with Parent, “Gurnet”). Pursuant to the terms of the Merger Agreement, Merger Sub commenced a tender offer (the “Tender Offer”) to acquire all of Corium’s outstanding

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 2 of 13 PageID #: 2 common stock for $12.50 per share in cash. The Tender Offer is set to expire on November 26, 2018. 3. On October26, 2018, defendants filed a Schedule 14D-9 Solicitation/Recommendation Statement (the “Solicitation Statement”) with the United States Securities and Exchange Commission (“SEC”) in connection with the Proposed Transaction. 4. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading. Accordingly, plaintiff alleges herein that defendants violated Sections 14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 (the “1934 Act”) in connection with the Solicitation Statement. JURISDICTION AND VENUE 5. This Court has jurisdiction over all claims asserted herein pursuant to Section 27 of the 1934 Act because the claims asserted herein arise under Sections 14(e), 14(d), and 20(a) of the 1934 Act and Rule 14a-9. 6. This Court has jurisdiction over defendants because each defendant is either a corporation that conducts business in and maintains operations within this District, or is an individual with sufficient minimum contacts with this District so as to make the exercise of jurisdiction by this Court permissible under traditional notions of fair play and substantial justice. 7. Venue is proper under 28 U.S.C. § 1391 because a substantial portion of the transactions and wrongs complained of herein occurred in this District. PARTIES 8. Plaintiff is, and has been continuously throughout all times relevant hereto, the owner of Corium common stock. 2

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 3 of 13 PageID #: 3 9. Defendant Corium is a Delaware corporation and maintains its principal executive offices at 235 Constitution Drive, Menlo Park, California 94025. Corium’s common stock is traded on the NasdaqGM under the ticker symbol “CORI.” Corium is a party to the Merger Agreement. 10. Defendant David L. Greenwood is Chairman of the Board of the Company. 11. Defendant Eric H. Bjerkholt is a director of the Company. 12. Defendant Bhaskar Chaudhuri is a director of the Company. 13. Defendant Ron Eastman is a director of the Company. 14. Defendant Phyllis Gardner is a director of the Company. 15. Defendant Ivan Gergel is a director of the Company. 16. Defendant Paul Goddard is a director of the Company. 17. Defendant Peter D. Staple is the President and Chief Executive Officer of the Company. 18. Defendant Robert Thomas is a director of the Company. 19. The defendants identified in paragraphs 10 through 18 are collectively referred to herein as the “Individual Defendants.” 20. Defendant Parent is a Delaware corporation and is a party to the Merger Agreement. 21. Defendant Merger Sub is a Delaware corporation, a wholly-owned subsidiary of Parent, and a party to the Merger Agreement. CLASS ACTION ALLEGATIONS 22. Plaintiff brings this action as a class action on behalf of himself and the other public stockholders of Corium (the “Class”). Excluded from the Class are defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any defendant. 3

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 4 of 13 PageID #: 4 23. This action is properly maintainable as a class action. 24. The Class is so numerous that joinder of all members is impracticable. As of October 9, 2018, there were approximately 36,517,802 shares of Corium common stock outstanding, held by hundreds, if not thousands, of individuals and entities scattered throughout the country. 25. Questions of law and fact are common to the Class, including, among others, whether defendants will irreparably harm plaintiff and the other members of the Class if defendants’ conduct complained of herein continues. 26. Plaintiff is committed to prosecuting this action and has retained competent counsel experienced in litigation of this nature. Plaintiff’s claims are typical of the claims of the other members of the Class and plaintiff has the same interests as the other members of the Class. Accordingly, plaintiff is an adequate representative of the Class and will fairly and adequately protect the interests of the Class. 27. The prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for defendants, or adjudications that would, as a practical matter, be dispositive of the interests of individual members of the Class who are not parties to the adjudications or would substantially impair or impede those non-party Class members’ ability to protect their interests. 28. Defendants have acted, or refused to act, on grounds generally applicable to the Class as a whole, and are causing injury to the entire Class. Therefore, final injunctive relief on behalf of the Class is appropriate. 4

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 5 of 13 PageID #: 5 SUBSTANTIVE ALLEGATIONS Background of the Company and the Proposed Transaction 29.Corium is a commercial-stage biopharmaceutical company focused on the development, manufacture, and commercialization of specialty pharmaceutical products that leverage the Company’s broad experience with advanced transdermal and transmucosal delivery systems. 30. Corium has multiple proprietary programs in preclinical and clinical development, focusing primarily on the treatment of neurological disorders, with lead programs in Alzheimer’s disease. 31. Corium has developed and is the sole commercial manufacturer of seven prescription drug and consumer products with partners Mayne Pharma and Procter & Gamble. 32. The Company has two proprietary transdermal platforms: Corplex™ for small molecules and MicroCor®, a biodegradable microstructure technology for small molecules and biologics, including vaccines, peptides, and proteins. 33. On October 11, 2018, Corium’s Board caused the Company to enter into the Merger Agreement with Gurnet. 34. Pursuant to the terms of the Merger Agreement, Merger Sub commenced the Tender Offer to acquire all of Corium’s outstanding common stock for $12.50 per share in cash. 35. According to the press release announcing the Proposed Transaction: Corium International, Inc. (Nasdaq: CORI), a commercial-stage biopharmaceutical company focused on the development, manufacture and commercialization of specialty transdermal products, today announced that it has entered into a definitive merger agreement under which Gurnet Point Capital (GPC), a private investment firm focused on the healthcare and life sciences sectors, will acquire Corium. The transaction is structured as a tender offer followed immediately by a merger. Corium’s board of directors has unanimously approved the transaction. 5

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 6 of 13 PageID #: 6 Under the terms of the merger agreement, GPC will pay $12.50 per share in cash upon the closing. The agreement also provides for a Contingent Value Right (CVR) of $0.50 per share that is payable based on the U.S. Food and Drug Administration’s approval of Corium’s lead product candidate, Corplex Donepezil, for the treatment of Alzheimer’s disease, prior to March 31, 2020. Including the CVR payment, the transaction is valued at up to $504 million. The total offer amount, including the CVR amount, represents a 42% premium over the 30-day volume-weighted average price of Corium’s common stock. The $12.50 per share closing amount represents a 50% premium over the closing price on October 10, 2018. Following the transaction, which is expected to close by the end of 2018, Corium will also offer to repurchase all of its $120 million in convertible notes. . . . Following completion, Corium will become a private company, wholly owned by GPC, and will no longer be subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, nor be traded on Nasdaq Global Select Market. The Company plans to maintain operations in the Menlo Park, CA and Grand Rapids, MI areas. Corium’s largest stockholder, Essex Woodlands, has entered into a support agreement to tender its shares in this transaction. The Solicitation Statement Omits Material Information, Rendering It False and Misleading 36. Defendants filed the Solicitation Statement with the SEC in connection with the Proposed Transaction. 37. The Solicitation Statement omits material information with respect to the Proposed Transaction, which renders the Solicitation Statement false and misleading. 38. First, the Solicitation Statement omits material information regarding the Company’s financial projections and the analyses performed by the Company’s financial advisor in connection with the Proposed Transaction, Guggenheim Securities (“Guggenheim”). 39. With respect to the Company’s financial projections, the Solicitation Statement fails to disclose: (i) all line items used to calculate EBIT; (ii) all line items used to calculate EBITDA; (iii) all line items used to calculate unlevered free cash flow; and (iv) a reconciliation of all non-GAAP to GAAP metrics. 6

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 7 of 13 PageID #: 7 40. With respect to Guggenheim’s Corium Financing-Adjusted Discounted Cash Flow Analyses, the Solicitation Statement fails to disclose: (i) all line items used to calculate the unlevered free cash flows used by Guggenheim in the analyses; (ii) the Company’s terminal value; (iii) the inputs and assumptions underlying the discount rates used by Guggenheim in the analyses; (iv) the net operating loss carryforwards expected to be utilized by the Company; and (v) the dilution provided and approved by the Company’s management. 41. With respect to Guggenheim’s Premiums Paid in Selected Merger and Acquisition Transactions, the Solicitation Statement fails to disclose the transactions observed by Guggenheim in the analysis as well as the premiums paid in such transactions. 42. When a banker’s endorsement of the fairness of a transaction is touted to shareholders, the valuation methods used to arrive at that opinion as well as the key inputs and range of ultimate values generated by those analyses must also be fairly disclosed. Moreover, the disclosure of projected financial information is material because it provides stockholders with a basis to project the future financial performance of a company, and allows stockholders to better understand the financial analyses performed by the company’s financial advisor in support of its fairness opinion. 43. Second, the Solicitation Statement omits material information regarding potential conflicts of interest of Guggenheim. 44. Specifically, the Solicitation Statement fails to disclose the amount of compensation Guggenheim received in connection with Corium’s follow-on offering in 2017. 45.Full disclosure of investment banker compensation and all potential conflicts is required due to the central role played by investment banks in the evaluation, exploration, selection, and implementation of strategic alternatives. 7

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 8 of 13 PageID #: 8 46. Third, the Solicitation Statement fails to disclose the terms of Locust Walk Securities, LLC’s (“Locust”) engagement. Among other things, the Solicitation Statement fails to disclose the amount of compensation Locust will receive in connection with its engagement. The Solicitation Statement also fails to disclose whether Locust has performed past services for any parties to the Merger Agreement or their affiliates, as well as the timing and nature of such services and the amount of compensation received by Locust for such services. 47. Fourth, the Solicitation Statement fails to disclose whether the Company entered into any confidentiality agreements that contained standstill and/or “don’t ask, don’t waive” provisions that are or were preventing the counterparties from submitting superior offers to acquire the Company. 48. Without this information, stockholders may have the mistaken belief that, if these potentially interested parties wished to come forward with a superior offer, they are or were permitted to do so, when in fact they are or were contractually prohibited from doing so. 49. The omission of this material information renders the Solicitation Statement false and misleading, including, inter alia, the following section of the Solicitation Statement: The Solicitation or Recommendation. 50. The above-referenced omitted information, if disclosed, would significantly alter the total mix of information available to the Company’s stockholders. COUNT I (Claim for Violation of Section 14(e) of the 1934 Act Against Defendants) 51. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein. 52. Section 14(e) of the 1934 Act states, in relevant part, that: It shall be unlawful for any person to make any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made, 8

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 9 of 13 PageID #: 9 in the light of the circumstances under which they are made, not misleading . . . in connection with any tender offer or request or invitation for tenders[.] 53. Defendants disseminated the misleading Solicitation Statement, which contained statements that, in violation of Section 14(e) of the 1934 Act, in light of the circumstances under which they were made, omitted to state material facts necessary to make the statements therein not misleading. 54. The Solicitation Statement was prepared, reviewed, and/or disseminated by defendants. 55. The Solicitation Statement misrepresented and/or omitted material facts in connection with the Proposed Transaction as set forth above. 56. By virtue of their positions within the Company and/or roles in the process and the preparation of the Solicitation Statement, defendants were aware of this information and their duty to disclose this information in the Solicitation Statement. 57. The omissions in the Solicitation Statement are material in that a reasonable shareholder will consider them important in deciding whether to tender their shares in connection with the Proposed Transaction. In addition, a reasonable investor will view a full and accurate disclosure as significantly altering the total mix of information made available. 58.Defendants knowingly or with deliberate recklessness omitted the material information identified above in the Solicitation Statement, causing statements therein to be materially incomplete and misleading. 59. By reason of the foregoing, defendants violated Section 14(e) of the 1934 Act. 60. Because of the false and misleading statements in the Solicitation Statement, plaintiff and the Class are threatened with irreparable harm. 61. Plaintiff and the Class have no adequate remedy at law. 9

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 10 of 13 PageID #: 10 COUNT II (Claim for Violation of 14(d) of the 1934 Act Against Defendants) 62. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein. 63. Section 14(d)(4) of the 1934 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. 64. Rule 14d-9(d) states, 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[.] Item 8 requires that directors must “furnish such additional information, if any, as may be necessary to make the required statements, in light of the circumstances under which they are made, not materially misleading.” 65. The Solicitation Statement violates Section 14(d)(4) and Rule 14d-9 because it omits the material facts set forth above, which renders the Solicitation Statement false and/or misleading. 66. Defendants knowingly or with deliberate recklessness omitted the material information set forth above, causing statements therein to be materially incomplete and misleading. 67. The omissions in the Solicitation Statement are material to plaintiff and the Class, and they will be deprived of their entitlement to make a fully informed decision with respect to the Proposed Transaction if such misrepresentations and omissions are not corrected prior to the expiration of the tender offer. 10

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 11 of 13 PageID #: 11 68. Plaintiff and the Class have no adequate remedy at law. COUNT III (Claim for Violation of Section 20(a) of the 1934 Act Against the Individual Defendants and Gurnet) 69. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein. 70. The Individual Defendants and Gurnet acted as controlling persons of Corium within the meaning of Section 20(a) of the 1934 Act as alleged herein. By virtue of their positions as directors of Corium and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the false statements contained in the Solicitation Statement 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 false and misleading. 71. Each of the Individual Defendants and Gurnet was provided with or had unlimited access to copies of the Solicitation Statement alleged by plaintiff to be misleading prior to and/or shortly after these statements were issued and had the ability to prevent the issuance of the statements or cause them to be corrected. 72. 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 and influence the particular transactions giving rise to the violations as alleged herein, and exercised the same. The Solicitation Statement contains the unanimous recommendation of the Individual Defendants to approve the Proposed Transaction. They were thus directly connected with and involved in the making of the Solicitation Statement. 73. Gurnet also had direct supervisory control over the composition of the Solicitation Statement and the information disclosed therein, as well as the information that was omitted and/or 11

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 12 of 13 PageID #: 12 misrepresented in the Solicitation Statement. 74. By virtue of the foregoing, the Individual Defendants and Gurnet violated Section 20(a) of the 1934 Act. 75. As set forth above, the Individual Defendants and Gurnet had the ability to exercise control over and did control a person or persons who have each violated Section 14(e) of the 1934 Act and Rule 14a-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 1934 Act. 76. As a direct and proximate result of defendants’ conduct, plaintiff and the Class are threatened with irreparable harm. 77. Plaintiff and the Class have no adequate remedy at law. PRAYER FOR RELIEF WHEREFORE, plaintiff prays for judgment and relief as follows: A. Enjoining defendants and all persons acting in concert with them from proceeding with, consummating, or closing the Proposed Transaction; B. In the event defendants consummate the Proposed Transaction, rescinding it and setting it aside or awarding rescissory damages; C. Directing the Individual Defendants to file a Solicitation Statement that does not contain any untrue statements of material fact and that states all material facts required in it or necessary to make the statements contained therein not misleading; D. Declaring that defendants violated Sections 14(e), 14(d), and 20(a) of the 1934 Act, as well as Rule 14a-9 promulgated thereunder; E. Awarding plaintiff the costs of this action, including reasonable allowance for plaintiff’s attorneys’ and experts’ fees; and 12

 

Case 1:18-cv-01744-UNA Document 1 Filed 11/05/18 Page 13 of 13 PageID #: 13 F. Granting such other and further relief as this Court may deem just and proper. JURY DEMAND Plaintiff hereby demands a trial by jury. Dated: November 5, 2018 RIGRODSKY & LONG, P.A. By: /s/ Gina M. Serra Brian D. Long (#4347) Gina M. Serra (#5387) 300 Delaware Avenue, Suite 1220 Wilmington, DE 19801 Telephone: (302) 295-5310 Facsimile: (302) 654-7530 Email: bdl@rl-legal.com Email: gms@rl-legal.com OF COUNSEL: RM LAW, P.C. Richard A. Maniskas 1055 Westlakes Drive, Suite 300 Berwyn, PA 19312 Telephone: (484) 324-6800 Facsimile: (484) 631-1305 Email: rm@maniskas.com Attorneys for Plaintiff 13

 

Exhibit 99.1(a)(5)(D)

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 1 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TOSTRUD LAW GROUP, P.C. JON A. TOSTRUD 1925 Century Park East. Suite 2100 Los Angeles, CA 90067 Telephone: (310) 278-2600 Facsimile: (310) 278-2640 Email: jtostrud@tostrudlaw.com GAINEY McKENNA & EGLESTON THOMAS J. MCKENNA 440 Park Avenue South, 5th Floor New York, New York 10016 Telephone: (212) 983-1300 Facsimile: (212) 983-0383 Email: tjmckenna@gme-law.com Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Case No.: 18-6731 CLASS ACTION COMPLAINT FOR VIOLATION OF SECTIONS 14(e) AND 20(a) OF THE SECURITIES EXCHANGE ACT OF 1934 L. GREENWOOD, RONALD W. JURY TRIAL DEMANDED MELVYN KLEIN, Individually and on Behalf of All Others Similarly Situated, Plaintiff, v. CORIUM INTERNATIONAL, INC., PHYLLIS I. GARDNER, M.D., DAVID EASTMAN, PAUL GODDARD, PH. D, IVAN P. GERGEL, M.D., PETER D. STAPLE, ERIC H. BJERKHOLT, BHASKAR CHAUDHURI, PH.D, and ROBERT W. THOMAS, Defendants.

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 2 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Melvyn Klein (“Plaintiff”), by his undersigned attorneys, alleges the following on information and belief, except as to the allegations specifically pertaining to Plaintiff, which are based on personal knowledge. NATURE AND SUMMARY OF THE ACTION 1. Plaintiff brings this action on behalf of himself and the public shareholders of Corium International, Inc. (“Corium” or the “Company”) against the Company and its Board of Directors (the “Board”) for violations of Sections 14(e) and 20(a) of the Securities Exchange Act of 1934 (“Exchange Act”), §§ 78n(e) and 78t(a) in connection with the proposed acquisition of Corium by certain affiliates of Gurnet Point Capital (“GPC”). 2. On October 11, 2018, the Corium announced that it had entered into an agreement and plan of merger (the “Merger Agreement”) with GPC. GPC is offering to purchase any and all of the outstanding shares of Corium common stock (the “Transaction”) for $12.50 in cash and one Contingent Value Right of $0.50 (“CVR”) per share (the “Merger Consideration”). 3. The Transaction commenced October 26, 2018, and the Company concurrently filed a Recommendation Statement on Schedule 14D-9 (the “14D-9”) with the SEC, recommending that the Company’s shareholders tender their shares for the Transaction price. The Transaction is set to expire on November 26, 2018. 4. Plaintiff alleges that the 14D-9 is materially false and/or misleading because, inter alia, it fails to disclose certain material internal financial information about the Company, relied on by the Individual Defendants to recommend the Transaction and by the Company’s financial advisor, Guggenheim Securities, LLC (“Guggenheim”) to render an opinion that the Transaction is fair to Corium shareholders, which omissions render the 14D-9 incomplete and/or misleading. JURISDICTION AND VENUE 5. This Court has jurisdiction over the claims asserted herein for violations of Sections 14(e) and 20(a) of the Exchange Act. The Court has subject 1

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 3 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 matter jurisdiction pursuant to § 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. § 1331 (federal question jurisdiction). 6. This Court has jurisdiction over Defendants because each defendant is either a corporation that conducts business in and maintains operations within this District or is an individual with sufficient minimum contacts with this District so as to make the exercise of jurisdiction by this Court permissible under traditional notions of fair play and substantial justice. 7. Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Plaintiff’s claims arose in this District, where a substantial portion of the actionable conduct took place, where most of the documents are electronically stored, and where the evidence exists. Corium is headquartered in this District. THE PARTIES 8. Plaintiff Melvyn Klein is, and has been at all times relevant hereto, a stockholder of Corium. See attached certification. 9. Defendant Corium is a Delaware corporation with its principal executive offices located at 235 Constitution Drive, Menlo Park, California 94025. 10. Defendant Phyllis I. Gardner, M.D. (“Gardner”) has been a director of the Company since 2014. 11. Defendant David L. Greenwood (“Greenwood”) has been a director of the Company since 2010 and has served as Chairman since 2014. 12. Defendant Ivan P. Gergel, M.D. (“Gergel”) has been a director of the Company since 2014. 13. Defendant Ronald W. Eastman (“Eastman”) has been a director of the Company since 2007. 14. Defendant Paul Goddard, Ph. D. (“Goddard”) has been a director of the Company since 2014. 15. Defendant Peter D. Staple (“Staple”) has served as President, Chief Executive Officer, and a director of the Company since 2008. 2

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 4 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16. Defendant Eric H. Bjerkholt (“Bjerkholt”) has been a director of the Company since 2015. 17. Defendant Bhaskar Chaudhuri, Ph. D. (“Chaudhuri”) has been a director of the Company since 2010. 18. Defendant Robert W. Thomas (“Thomas”) has been a director of the Company since 2007. 19. TheIndividualDefendantsreferencedinparagraphs10-18are collectively referred to herein as the “Individual Defendants” and/or the “Board.” CLASS ACTION ALLEGATIONS 20. Plaintiff brings his claim as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of all persons and entities that own Corium common stock (the “Class”). Excluded from the Class are Defendants and their affiliates, immediate families, legal representatives, heirs, successors or assigns and any entity in which defendants have or had a controlling interest. 21. Plaintiff’s claim is properly maintainable as a class action under Rule 23 of the Federal Rules of Civil Procedure. 22. The Class is so numerous that joinder of all members is impracticable. While the exact number of Class members is unknown to Plaintiff at this time and can only be ascertained through discovery, Plaintiff believes that there are thousands of members in the Class. 23. As of October 22, 2018, there were approximately 36,546,444 shares of Company common stock issued and outstanding. All members of the Class may be identified from records maintained by Corium or its transfer agent and may be notified of the pendency of this action by mail, using forms of notice similar to that customarily used in securities class actions. 24. Questions of law and fact are common to the Class and predominate over questions affecting any individual Class member, including, among inter alia: 3

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 5 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) Is the Class entitled to injunctive relief or damages as a result of Defendants’ wrongful conduct; (b) WhetherDefendantshavedisclosedandwilldiscloseall material facts about the Transaction to stockholders; (c) Have the Individual Defendants breached their fiduciary duties of loyalty and/or care with respect to Plaintiff and the other members of the Class in connection with the Transaction; and (e)Whether Plaintiff and the other members of the Class would be irreparably harmed were the transactions complained of herein consummated. 25. Plaintiff will fairly and adequately protect the interests of the Class and has no interests contrary to or in conflict with those of the Class that Plaintiff seeks to represent. Plaintiff has retained competent counsel experienced in litigation of this nature. 26. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy.Plaintiff knows of no difficulty to be encountered in the management of this action that would preclude its maintenance as a class action. 27. Defendants have acted on grounds generally applicable to the Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole. SUBSTANTIVE ALLEGATIONS The Transaction 28. The Merger Consideration is inadequate in light of the Company’s recent announcements regarding Corplex Donepezil. 29. For example, in August 2018, the Company reported that it remains on track to file a New Drug Application with the FDA in the first quarter of 2019. Moreover, two U.S. patents were issued this year, which “establish the foundation 4

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 6 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of a strong IP portfolio for the transdermal delivery of donepezil and extend patent coverage of the product to at least July 2037.” See www.sec.gov/Archives/edgar/data/1594337/000155837018006893/ex-99d1.htm. 30. In short, Corium is well-positioned for financial growth. Thus, the Transaction does not adequately compensate the Company’s shareholders. The Company’s Financial Forecasts 31.The Company’s 14D-9 provides values for non-Generally Accepted AccountingPrinciples(“GAAP”)financialmeasures,EBIT,EBITDA,and Unlevered Free Cash Flow (“UFCF”). 32. However, the Company’s 14D-9 does not provide the line items used in its respective calculation or a reconciliation to their respective most comparable GAAP measures. 33. The SEC has emphasized that disclosure of non-GAAP forecasts can be inherently misleading and has therefore heightened its scrutiny of the use of such forecasts. The SEC’s Division of Corporation Finance released a new and updated Compliance and Disclosure Interpretation (“C&DIs”) on the use of non-GAAP financial measures to clarify the extremely narrow and limited circumstances, known as the business combination exemption, where Regulation G would not apply. 34. The Company must disclose the line item forecasts for the financial metrics that were used to calculate the aforementioned non-GAAP measures. Such forecasts are necessary to make the non-GAAP forecasts included in the 14D-9 not misleading. 35. The Company’s 14D-9 provides an incomplete and materially misleading understanding of the Company’s future financial prospects and the inputs and assumptions for which those prospects are based. Guggenheim’s Financial Analysis 5

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 7 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 36. The 14D-9 discloses certain financial projections for years 2019-2037, which were developed by the Company’s senior management, relied upon the Board in recommending the Transaction, and used by Guggenheim in rendering its fairness opinions. Id. at 44. 37. With respect to the Corium Financing-Adjusted Discounted Cash Flow Analysis, the Company’s 14D-9 discloses that it “preformed stand-alone financing-adjusted discounted cash flow analysis of Corium based on Corium’s after-tax unlevered free cash flows (“UFCF”), which Guggenheim generated using the management projections. 38. However, the Company’s 14D-9 fails to disclose: (a) the definition of UFCF; (b) a reconciliation of UFCF to its most comparable GAAP compliant financial measure; or (c) line items used in its calculation. 39. The Company’s 14D-9 also fails to disclose the projected terminal values for the Company and the inputs and assumptions underlying the range of discount rates ranging from 12.50% to 14.80% for the specialty pharmaceutical portion of the Company’s business and 12.00% to 13.60% for the contract manufacturing portion of the Company’s business, which the 14D-9 states was based on Guggenheim’s estimate of Corium’s weighted average cost of capital for each business portion. 40. With respect to the Premiums Paid in Selected Merger and Acquisition Transactions, the Company’s 14D-9 fails to disclose the individual multiples and financial metrics for each transaction selected by Guggenheim. CLAIMS FOR RELIEF COUNT I Class Claims Against All Defendants for Violations of Section 14(e) of the Securities Exchange Act 6

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 8 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 41. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein. 42. 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 the circumstances under which they are made, not misleading . . . .” 78n(e). light of the 15 U.S.C. § 43. As discussed above, Corium filed and delivered the 14D-9 to its shareholders, which Defendants knew contained, or recklessly disregarded, material omissions and misstatements described herein. 44. Defendants violated § 14(e) of the Exchange Act by issuing the 14D-9 in which they made untrue statements of material facts or failed to state all material facts necessary in order to make the statements made, in the light of the circumstances under which they are made, not misleading, in conjunction with the Transaction. Defendants knew or recklessly disregarded that the 14D-9 failed to disclose material facts necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. 45. The 14D-9 was prepared, reviewed and/ordisseminated by Defendants. It misrepresented and/or omitted material facts, including material information about the consideration offered to stockholders via the Transaction, the intrinsic value of the Company, the Company’s financial projections, and the financial advisor’s valuation analyses and resultant fairness opinion. 46. In so doing, Defendants made untrue statements of material fact and omitted material information necessary to make the statements that were made not misleading in violation of § 14(e) of the Exchange Act. By virtue of their positions within the Company and/or roles in the process and in the preparation of the 14D-9, Defendants were aware of this information and their obligation to disclose this information in the 14D-9. 7

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 9 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 47. The omissions and misleading statements in the 14D-9 are material in that a reasonable stockholder would consider them important in deciding whether to tender their shares or seek appraisal. In addition, a reasonable investor would view the information identified above, which has been omitted from the 14D-9 as altering the “total mix” of information made available to stockholders. 48. Defendants knowingly, or with deliberate recklessness, omitted the material information identified above from the 14D-9, causing certain statements therein to be materially incomplete and therefore misleading. Indeed, while Defendants undoubtedly had access to and/or reviewed the omitted material information in connection with approving the Transaction, they allowed it to be omitted from the 14D-9, rendering certain portions of incomplete and therefore misleading. 49.The misrepresentations and omissions in the Plaintiff,andPlaintiffandCoriumshareholderswill the 14D-9 materially 14D-9 are material to bedeprivedoftheir entitlement to make a fully informed decision if such misrepresentations and omissions are not corrected prior to the expiration of the Transaction. COUNT I I Class Claims Against the Individual Defendants for Violation of Section 20(a) of the Exchange Act 50. forth herein. Plaintiff repeats and re-alleges the preceding allegations as if fully set 51.The Individual Defendants acted as controlling persons of Corium within the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as officers or directors of Corium and participation in or awareness of the Company’s operations or intimate knowledge of the false statements contained in the Registration Statement filed with the SEC, they had the power to influence and control and did influence and control, directly or indirectly, 8

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the decision-making of the Company, including the content and dissemination of the various statements which Plaintiff contends are false and misleading. 52. 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 or shortly after these statements were issued and had the ability to prevent the issuance of the statements or cause the statements to be corrected. 53. 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 securities violations as alleged herein and exercised the same. The 14D-9 at issue contains the unanimous recommendation of each of the Individual Defendants to approve the Transaction. They were, thus, directly involved in the making of this document. 54. In addition, as the 14D-9 sets forth at length, and as described herein, the Individual Defendants were each involved in negotiating, reviewing, and approving the Transaction. The 14D-9 purports to describe the various issues and information that they reviewed and considered —descriptions which had input from the Individual Defendants 55. By virtue of the foregoing, the Individual Defendants have violated Section 20(a) of the Exchange Act. 56. Plaintiff and the Class have no adequate remedy at law. Only through the exercise of this Court’s equitable powers can Plaintiff and the Class be fully protected from the immediate and irreparable injury that Defendants’ actions threaten to inflict. PRAYER FOR RELIEF WHEREFORE, Plaintiff demands judgment against defendants jointly and severally, as follows: 9

 

Case 3:18-cv-06731 Document 1 Filed 11/06/18 Page 11 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (A) declaring this action to be a class action and certifying Plaintiff as the Class representative and his counsel as Class counsel; (B) (C) (D) declaring that the 14D-9 is materially false or misleading; enjoining, preliminarily and permanently, the Transaction; in the event that the Transaction is consummated before the entry of this Court’s final judgment, rescinding it or awarding Plaintiff and the Class rescissory damages; (E) directing that Defendants account to Plaintiff and the other members of the Class for all damages caused by them and account for all profits and any special benefits obtained as a result of their breaches of their fiduciary duties. (F) awarding Plaintiff the costs of this action, including a reasonable allowance for the fees and expenses of Plaintiff’s attorneys and experts; and (G) granting Plaintiff and the other members of the Class such further relief as the Court deems just and proper. JURY DEMAND Plaintiff demands a trial by jury. Dated: November 6, 2018 TOSTRUD LAW GROUP, P.C. By: /s/ Jon A. Tostrud Jon A. Tostrud 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 278-2600 Facsimile: (310) 278-2640 Email: jtostrud@tostrudlaw.com Thomas J. McKenna GAINEY McKENNA & EGLESTON 440 Park Avenue South, 5th Floor New York, NY 10016 Telephone: (212) 983-1300 Facsimile: (212) 983-0383 Email: tjmckenna@gme-law.com Attorneys for Plaintiff 10