(Against All Defendants for Violations of Section 14(a) of the Exchange Act and   Rule 14a-9 Promulgated Thereunder)   (Against the Individual Defendants for Violations   of Section 20(a) of the Exchange Act)   (Against All Defendants for Violations of Section 14(a) of the Exchange Act and   17 C.F.R. § 244.100 Promulgated Thereunder)   1.pdf.  See also The Spectranetics Corp., SEC Staff Comment Letter 1 (July 18, 2017) (“Item 4.  The Solicitation or Recommendation Certain Spectranetics Forecasts, page 39 . . . [P]rovide the  reconciliation  required  under  Rule  100(a)  of  Regulation  23.  Plaintiff brings this class action pursuant to Fed. R. Civ. P. 23 on behalf of himself  and the other public shareholders of Willis Towers (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.   25.  Willis Towers is a global advisory, broking and solutions company that serves  clients in more than 140 countries. The Company designs and delivers solutions that manage risk,  optimize benefits, cultivate talent and expand the power of capital to protect and strengthen  institutions and individuals.    27.  Willis Towers 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 Proxy, 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.   28.  If the false and/or misleading Proxy 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 Proxy    30.  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 Proxy discloses that “[t]he WTW Standalone Projections were  prepared for internal use and to assist WTW’s financial advisor, Goldman Sachs, with its financial  analyses and opinion and the WTW Board with its consideration and evaluation of the transaction.  The WTW Standalone Projections were also shared with Aon.” Proxy 107.   31.  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.     32.  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).     34.  Here, Willis Towers’ 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 in reaching its decision to, among other things, approve the Merger  Agreement and the transactions contemplated by it. Proxy 84.   35.  As discussed further below, the non-GAAP financial projections used do not  provide Willis Towers’ shareholders with a materially complete understanding of the assumptions  and key factors considered in developing the financial projections, which assumptions, factors and  other inputs the Board reviewed.  The Financial Projections Relied on by the Board   36.  The Proxy discloses that “[t]he WTW Standalone Projections were prepared for  internal use and to assist WTW’s financial advisor, Goldman Sachs, with its financial analyses and  opinion and the WTW Board with its consideration and evaluation of the transaction. The WTW  Standalone Projections were also shared with Aon.” Id. at 107.   38.  The Proxy defines Adjusted EBITDA as “net income adjusted for provision for  income taxes, interest expense, depreciation and amortization, restructuring costs, transaction and  integration expenses, (gain)/loss on disposal of operations and non-recurring items that, in the  judgement of WTW management, significantly affect the period-over-period assessment of  operating results.”  Id. at 108 n.1. Nevertheless, the Proxy fails to reconcile Adjusted EBITDA to  its most comparable GAAP measure or disclose the line items used to calculate Adjusted EBITDA,  rendering the Proxy materially false and/or misleading.  Id. at 108.   40.  The Proxy defines Unlevered Free Cash Flow as “(i) Adjusted EBITDA minus (ii)  cash taxes, capital expenditures, increases in net working capital, and other non-recurring cash  income/(expense).” Id. at 108 n.4. Nevertheless, the Proxy fails to reconcile Unlevered Free Cash  Flow to its most comparable GAAP measure or disclose the line items used to calculate Unlevered  Free Cash Flow, rendering the Proxy materially false and/or misleading.  Id. at 108.   41.  The Proxy defines Levered Free Cash Flow as “(i) Unlevered Free Cash Flow  minus (ii) tax-affected interest expense.” Id. at 108 n.5. Nevertheless, the Proxy fails to reconcile  Levered Free Cash Flow to its most comparable GAAP measure or disclose the line items used to  calculate Levered Free Cash Flow, rendering the Proxy materially false and/or misleading.  Id. at  108.   43.  Thus, the Proxy’s disclosure of these non-GAAP financial forecasts 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 upon.  It is clear that those  inputs and assumptions were in fact forecasted and utilized in calculating the non-GAAP measures  disclosed and relied on by the Board to recommend the Proposed Transaction in violation of  Section 14(a) of the Exchange Act.   44.  The non-GAAP financial projections disclosed on page 108 of the Proxy violate  Section 14(a) of the Exchange Act because: (i) the use of such forecasted non-GAAP financial  measures alone violates SEC Regulation G as a result of Defendants’ failure to reconcile those  non-GAAP measures to their closest GAAP equivalent or otherwise disclose the specific financial  assumptions and inputs used to calculate the non-GAAP measures; and (ii) they violate SEC  Regulation 14a-9 because they are materially misleading as without any correlation with their  GAAP equivalent financial metrics, shareholders are unable to discern the veracity of the financial  projections.   45.  As such, this information must be disclosed in order to cure the materially  misleading disclosures regarding both the financial projections developed by the Company as well  as the projections relied upon by the Company’s financial advisors.  The Financial Projections Violate Regulation G   47.  Defendants must comply with Regulation G.  More specifically, the company must  disclose the most directly comparable GAAP financial measure and a reconciliation (by schedule  or other clearly understandable method) of the differences between the non-GAAP financial  measure disclosed or released with the most comparable financial measure or measures calculated  and presented in accordance with GAAP.  17 C.F.R. § 244.100.  This is because the SEC believes  “this reconciliation will help investors . . . to better evaluate the non-GAAP financial measures  . . . . [and] more accurately evaluate companies’ securities and, in turn, result in a more accurate  pricing of securities.”4   50.  Compliance with Regulation G is mandatory under Section 14(a), and non- compliance constitutes a violation of Section 14(a).  Thus, in order to bring the Proxy into  compliance with Regulation G, Defendants must provide a reconciliation of the non-GAAP  financial measures to their respective most comparable GAAP financial measures.  The Financial Projections are Materially Misleading and Violate SEC Rule 14a-9   51.  In addition to the Proxy’s violation of Regulation G, the lack of reconciliation or,  at the very least, the line items utilized in calculating the non-GAAP measures render the financial  forecasts disclosed materially misleading as shareholders are unable to understand the differences  between the non-GAAP financial measures and their respective most comparable GAAP financial  measures. Nor can shareholders compare the Company’s financial prospects with similarly  situated companies.   52.  Such projections are necessary to make the non-GAAP projections included in the  Proxy not misleading for the reasons discussed above.  9   Available at https://www.sec.gov/Archives/edgar/data/1266719/000114420411046281/  filename1.htm.  See also Actel Corporation, SEC Staff Comment Letter 2 (Oct. 13, 2010)  (“Opinion of Actel’s Financial Advisor, page 24 . . . This section includes non-GAAP financial  measures.  Please revise to provide the disclosure required by Rule 100 of Regulation G.”),  available at https://www.sec.gov/Archives/edgar/data/907687/000000000010060087/filename   72.  Plaintiff incorporates each and every allegation set forth above as if fully set forth  herein.   74.  As set forth above, the Proxy 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).    75.  The failure to reconcile the non-GAAP financial measures included in the Proxy  violates Regulation G and constitutes a violation of Section 14(a).   76.  As a direct and proximate result of the dissemination of the false and/or misleading  Proxy 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.   77.  Plaintiff incorporates each and every allegation set forth above as if fully set forth  herein.   79.  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).     80.  Defendants have issued the Proxy with the intention of soliciting shareholder  support for the Proposed Transaction.  Each of the Defendants reviewed and authorized the  dissemination of the Proxy, which fails to provide critical information regarding, amongst other  things, the financial projections for the Company.    81.  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 Proxy but nonetheless failed to obtain and disclose such information  to shareholders although they could have done so without extraordinary effort.    83.  The Individual Defendants knew or were negligent in not knowing that the material  information identified above has been omitted from the Proxy, rendering the sections of the Proxy  identified above to be materially incomplete and misleading.     84.  The Individual Defendants were, at the very least, negligent in preparing and  reviewing the Proxy.  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 Proxy or  failing to notice the material omissions in the Proxy 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.     85.  Willis Towers is also deemed negligent as a result of the Individual Defendants’  negligence in preparing and reviewing the Proxy.   86.  The misrepresentations and omissions in the Proxy 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.   88.  Plaintiff incorporates each and every allegation set forth above as if fully set forth  herein.   89.  The Individual Defendants acted as controlling persons of Willis Towers 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 Willis Towers, and participation in and/or awareness of the Company’s  operations and/or intimate knowledge of the incomplete and misleading statements contained in  the Proxy 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.   90.  Each of the Individual Defendants was provided with or had unlimited access to  copies of the Proxy 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.   92.  In addition, as the Proxy sets forth at length, and as described herein, the Individual  Defendants were involved in negotiating, reviewing, and approving the Merger Agreement.  The  Proxy purports to describe the various issues and information that the Individual Defendants  reviewed and considered.  The Individual Defendants participated in drafting and/or gave their  input on the content of those descriptions.   93.  By virtue of the foregoing, the Individual Defendants have violated Section 20(a)  of the Exchange Act.   94.  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   