(Against All Defendants for Violations of Section 14(a) of the Exchange Act and   Rule 14a-9 Promulgated Thereunder)   (Against All Defendants for Violations of Section 14(a) of the Exchange Act and   17 C.F.R. § 244.100 Promulgated Thereunder)   (Against the Individual Defendants for Violations   of Section 20(a) of the Exchange Act)   22.  Plaintiff brings this class action pursuant to Fed. R. Civ. P. 23 on behalf of himself  and the other public shareholders of Progenics (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.   24.  Progenics is an oncology company focused on the development and  commercialization of targeted medicines and artificial intelligence to find, fight and follow cancer.  The Company’s pipeline includes therapeutic agents designed to precisely target cancer and  prostate-specific membrane antigen targeted imaging agents for prostate cancer.   26.  Progenics is well-positioned for financial growth and the Merger Consideration  fails to adequately compensate the Company’s shareholders. It is imperative that Defendants  disclose the material information they have omitted from the S-4/A, discussed in detail below, so  that the Company’s shareholders can properly assess the fairness of the Merger Consideration for  themselves and make an informed decision concerning whether or not to vote in favor of the  Proposed Transaction.   27.  If the false and/or misleading S-4/A is not remedied and the Proposed Transaction  is consummated, Defendants will directly and proximately have caused damages and actual  economic loss (i.e. the difference between the value to be received as a result of the Proposed  Transaction and the true value of their shares prior to the merger), in an amount to be determined  at trial, to Plaintiff and the Class.  II.  The Materially Incomplete and Misleading S-4/A    29.  During the negotiation of the of the Original Merger Agreement, Velan Capital L.P.  (“Velan”) was involved in a proxy fight that would lead to the removal of the majority of the  Company’s original board of directors and replacement with Velan nominated directors. On  November 19, 2019, after the Velan directors were elected to the Board, the Board began  interviewing potential financial advisors seeking to replace Jefferies LLC (“Jefferies”). S-4/A 118.  The S-4/A fails to explain why the Board replaced Jefferies even though Jefferies already issued a  fairness opinion and was paid for its work.   30.  When Jefferies was advising the original board of directors on the Original Merger  Agreement, Jefferies performed a small market check where it contacted five potential strategic  acquirors. Id. at 99. From the Background of the Merger, it does not appear that BofA conducted  its own market check or contact any potential non-strategic acquirors. The S-4/A fails to explain  why BofA did not conduct its own market check, or even inquire into the market check performed  by Jefferies.   31.  The Company has already paid Jefferies $2.25 million for its services, and  according to the S-4, will pay Jefferies $6.95 million upon the completion of the merger. S-4 137.  The S-4/A is silent as to whether Jefferies will be paid the remaining $6.95 million.   33.  A company’s financial forecasts are material information a board relies on to  determine whether to approve a merger transaction and recommend that shareholders vote to  approve the transaction.  Here, the S-4/A discloses “Progenics management prepared and provided  certain projections regarding Progenics’ future operations for fiscal years 2020 through 2033, on  a stand-alone basis, assuming Progenics would continue as an independent company, without  giving effect to the completion of the merger, to the Progenics Board in connection with its  evaluation of the merger, and to BofA, its financial advisor, in connection with its financial  analyses[.]” S-4/A 157.    35.  When soliciting proxies from shareholders, a company must furnish the  information found in Schedule 14A (codified as 17 C.F.R. § 240.14a-101).  Item 14 of Schedule  14A sets forth the information a company must disclose when soliciting proxies regarding mergers  and acquisitions.  In regard to financial information, companies are required to disclose “financial  information required by Article 11 of Regulation S-X[,]” which includes Item 10 of Regulation S- K.  See Item 14(7)(b)(11) of 17 C.F.R. § 240.14a-101.     36.  Under Item 10 of Regulation S-K, companies are encouraged to disclose  “management’s projections of future economic performance that have a reasonable basis and are  presented in an appropriate format.”  17 C.F.R. § 229.10(b).  Although the SEC recognizes the  usefulness of disclosing projected financial metrics, the SEC cautions companies to “take care to  assure that the choice of items projected is not susceptible of misleading inferences through  selective projection of only favorable items.”  17 C.F.R. § 229.10(b)(2).     38.  Here, Progenics’ shareholders would clearly find complete and non-misleading  financial projections material in deciding how to vote, considering that the Board specifically  relied on the financial forecasts “[i]n reaching its decision to approve, and declare advisable, the  merger agreement and to recommend that Progenics stockholders adopt the merger agreement[.]”   68.  Plaintiff incorporates each and every allegation set forth above as if fully set forth  herein.   70.  As set forth above, the S-4/A omits information required by SEC Regulation G, 17  C.F.R. § 244.100, which independently violates Section 14(a).  SEC Regulation G, among other  things, requires an issuer that chooses to disclose a non-GAAP measure to provide a presentation  of the “most directly comparable” GAAP measure and a reconciliation “by schedule or other  clearly understandable method” of the non-GAAP measure to the “most comparable” GAAP  measure.  17 C.F.R. § 244.100(a).    71.  The failure to reconcile the non-GAAP financial measures included in the S-4/A  violates Regulation G and constitutes a violation of Section 14(a).   72.  As a direct and proximate result of the dissemination of the false and/or misleading  S-4/A Defendants used to recommend that shareholders approve the Proposed Transaction,  Plaintiff and the Class will suffer damages and actual economic losses (i.e. the difference between  the value they will receive as a result of the Proposed Transaction and the true value of their shares  prior to the merger) in an amount to be determined at trial and are entitled to such equitable relief  as the Court deems appropriate, including rescissory damages.   73.  Plaintiff incorporates each and every allegation set forth above as if fully set forth  herein.   75.  Regulation G similarly prohibits the solicitation of shareholder votes by “mak[ing]  public a non-GAAP financial measure that, taken together with the information accompanying that  measure . . . contains an untrue statement of a material fact or omits to state a material fact  necessary in order to make the presentation of the non-GAAP financial measure . . . not  misleading.”  17 C.F.R. § 244.100(b) (emphasis added).     76.  Defendants have issued the S-4/A with the intention of soliciting shareholder  support for the Proposed Transaction.  Each of the Defendants reviewed and authorized the  dissemination of the S-4/A, which fails to provide critical information regarding, amongst other  things, the financial projections for the Company.    77.  In so doing, Defendants made untrue statements of fact and/or omitted material  facts necessary to make the statements made not misleading.  Each of the Individual Defendants,  by virtue of their roles as directors and/or officers, were aware of the omitted information but failed  to disclose such information, in violation of Section 14(a).  The Individual Defendants were  therefore negligent, as they had reasonable grounds to believe material facts existed that were  misstated or omitted from the S-4/A but nonetheless failed to obtain and disclose such information  to shareholders although they could have done so without extraordinary effort.    79.  The Individual Defendants knew or were negligent in not knowing that the material  information identified above has been omitted from the S-4/A, rendering the sections of the S-4/A  identified above to be materially incomplete and misleading.     80.  The Individual Defendants were, at the very least, negligent in preparing and  reviewing the S-4/A.  The preparation of a registration statement by corporate insiders containing  materially false or misleading statements or omitting a material fact constitutes negligence.  The  Individual Defendants were negligent in choosing to omit material information from the S-4/A or  failing to notice the material omissions in the S-4/A upon reviewing it, which they were required  to do carefully as the Company’s directors.  Indeed, the Individual Defendants were intricately  involved in the process leading up to the signing of the Merger Agreement and the preparation of  the Company’s financial projections.     81.  Progenics is also deemed negligent as a result of the Individual Defendants’  negligence in preparing and reviewing the S-4/A.   82.  The misrepresentations and omissions in the S-4/A are material to Plaintiff and the  Class, who will be deprived of their right to cast an informed vote if such misrepresentations and  omissions are not corrected prior to the vote on the Proposed Transaction.   84.  Plaintiff incorporates each and every allegation set forth above as if fully set forth  herein.   85.  The Individual Defendants acted as controlling persons of Progenics within the  meaning of Section 20(a) of the Exchange Act as alleged herein.  By virtue of their positions as  directors and/or officers of Progenics, and participation in and/or awareness of the Company’s  operations and/or intimate knowledge of the incomplete and misleading statements contained in  the S-4/A filed with the SEC, they had the power to influence and control and did influence and  control, directly or indirectly, the decision making of the Company, including the content and  dissemination of the various statements that Plaintiff contends are materially incomplete and  misleading.   86.  Each of the Individual Defendants was provided with or had unlimited access to  copies of the S-4/A and other statements 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 the statements to be corrected.   87.  In particular, each of the Individual Defendants had direct and supervisory  involvement in the day-to-day operations of the Company and, therefore, is presumed to have had  the power to control or influence the particular transactions giving rise to the Exchange Act  violations alleged herein and exercised the same. The S-4/A at issue contains the unanimous  recommendation of each of the Individual Defendants to approve the Proposed Transaction.  They  were thus directly involved in preparing the S-4/A.   89.  By virtue of the foregoing, the Individual Defendants have violated Section 20(a)  of the Exchange Act.   90.  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(a) 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 Exchange Act.  As a direct and proximate  result of Individual Defendants’ conduct, Plaintiff and the Class will be irreparably harmed.  I.  The Proposed Transaction   