Between January 4, 2021 and January 12, 2021, an additional six complaints were filed in federal district court by purported stockholders of Prevail: (i) Stephen Bushansky v. Prevail Therapeutics Inc., et al., Case No. 1:21-cv-00040 (S.D.N.Y.) (the “Bushansky Complaint”); (ii) Lisa Rosenberg v. Prevail Therapeutics Inc., et al., Case No. 1:21-cv-00066 (S.D.N.Y.) (the “Rosenberg Complaint”); (iii) Marc Waterman v. Prevail Therapeutics Inc., et al., Case No. 1:21-cv-00085 (S.D.N.Y.) (the “Waterman Complaint”); (iv) Judith Latner v. Prevail Therapeutics Inc., et al., Case No. 1:21-cv-00110 (E.D.N.Y.) (the “Latner Complaint”); (v) Charles Williams v. Prevail Therapeutics Inc., et al., Case No. 1:21-cv-00234 (S.D.N.Y.) (the “Williams Complaint”); and (vi) James Parshall v. Prevail Therapeutics Inc., et al., Case No. 2:21-cv-00137 (E.D. Pa.) (the “Parshall Complaint”) (together, the Bushansky Complaint, the Rosenberg Complaint, the Waterman Complaint, the Latner Complaint, the Williams Complaint, and the Parshall Complaint are referred to as the “Federal Court Actions”). Each of the Federal Court Actions names Prevail and the Prevail Board as defendants, and the Waterman Complaint and Williams Complaint also name Lilly and Purchaser as defendants. The Rosenberg Complaint asserts claims under Sections 14(d) and 14(e) of the Exchange Act, The Bushansky Complaint, Waterman Complaint, the Latner Complaint and the Parshall Complaint assert claims under Sections 14(d), 14(e) and (20)(a) of the Exchange Act, and the Williams Complaint asserts claims under Sections 14(e) and 20(a) of the Exchange Act. The Federal Court Actions allege that defendants omitted certain material facts related to the transaction from the Schedule 14D-9 filed by Prevail. The Federal Court Actions seek, among other things, to enjoin the defendants from proceeding with, consummating, or closing the transaction, rescissory damages should the transaction not be enjoined, and an award of attorneys’ and experts’ fees.
Lilly believes that the claims asserted in the Karson Complaint and the Federal Court Actions (referred to collectively as the “Actions”) are without merit and denies the allegations in each of those Actions. However, in order to alleviate the costs, risks and uncertainties inherent in litigation and to provide additional information to its stockholders, Prevail has provided certain additional disclosures in its Amendment No. 2 to Schedule 14D-9 (the “Supplemental Disclosures”). The Supplemental Disclosures should be read in conjunction with this Schedule TO, which should be read in its entirety. The Supplemental Disclosures should not be regarded as an indication that any of Prevail, Lilly, Purchaser or their respective affiliates, officers, directors or other representatives, or any recipient of this information, considered or now considers the information contained in the Supplemental Disclosures to be material. Rather, Lilly believes that all material information was disclosed, and denies that any additional disclosures are or were required under any applicable federal or state law, rule or regulation. To the extent that the information in the Supplemental Disclosures differs from information contained in this Schedule TO, the information in the Supplemental Disclosures supersedes such information contained in this Schedule TO.
Additional lawsuits may be filed against Prevail, the Prevail Board, Lilly, and Purchaser in connection with the Merger Agreement, the Schedule TO and the Schedule14D-9. If such additional complaints are filed, absent new or different allegations that are material, Lilly and Purchaser will not necessarily announce such additional complaints.”
