AEterna Zentaris Inc. (USA) (AEZS) to Take Legal Action Against Former CEO and Former General Counsel
AEterna Zentaris Inc. (USA) (NASDAQ:AEZS) announced today that it has filed a claim against the Company’s former CEO David Dodd and its former General Counsel Philip Theodore (the “Defendants”) with the Ontario Superior Court of Justice, Commercial List (the “Claim”) for actions that the company says involve breaches of fiduciary duties and unauthorized disclosure of confidential and highly proprietary information.
As detailed in the 15-page claim, the Board of Directors (the “Board”) uncovered what it believes to be a conspiracy between Mr. Dodd and Mr. Theodore, while still employed by Aeterna, to take control of Aeterna and acquire the U.S. rights to the Company’s major asset, MacrilenTM. To accomplish these goals, they joined forces with a self-styled shareholder activist, Graeme Roustan, who made various demands for board representation. Mr. Dodd’s and Mr. Theodore’s egregious breaches of confidence and fiduciary duties to the Company came to light as part of the investigation surrounding the dismissal of Mr. Dodd for cause in July of this year.
Carolyn Egbert, Chair of the board of directors (the “Board”) commented on the Claim:
“We are dismayed and appalled at the actions of Mr. Dodd and Mr. Theodore and we are acting quickly and decisively to protect the interests of our employees and shareholders. In our Claim, we ask the Court to prevent Mr. Dodd and Mr. Theodore from using or conveying the Company’s confidential information, including to seize control of the Board through a proxy contest. We refuse to allow Mr. Dodd or Mr. Theodore to disrupt the Company’s focused effort in bringing Macrilen to market and maximizing value for all of our stakeholders.
The Board would also like to recognize the considerable efforts of our new CEO Michael Ward in acting quickly to stabilize the management of the Company, and ensuring that we do not lose momentum at a critical and exciting time in our Company’s history.”
The Claim alleges, that among other things:
- The Defendants breached fiduciary duties owed to the Company.
- In or prior to June 2017 the Defendants conspired to devise a secret plan known as “Project Rescue” that outlined a path for Mr. Dodd and Mr. Theodore to acquire the U.S. rights to MacrilenTM from Aeterna either through a Corporation named RiversEdge BioVentures, LLC, which is wholly-owned by Mr. Dodd, or another newly incorporated Corporation.
- In or about July 2017, while they were still employed by Aeterna, the Defendants began to develop a second secret plan, which they called “Project Rescue – Version 2”. Under the second plan, the Defendants engaged the assistance of an activist shareholder named Graeme Roustan to mount a proxy contest for control of the board of directors of the Company (the “Board”). Mr. Roustan controls a currently undisclosed holding of Aeterna shares.
- On July 7, 2017, Mr. Roustan sent a letter to the Board advising, among other things, that he desired a seat on the Board. The Board’s Strategic Review Committee took charge of communication with Mr. Roustan.
- The Defendants had full knowledge that the Board was communicating with Mr. Roustan, and Mr. Dodd expressed his objection to being excluded from those communications. However, the Defendants never disclosed their involvement with Mr. Roustan or their plans to take over the Board and acquire the U.S. rights to MacrilenTM. Their plans were only uncovered through an investigation following the termination of Mr. Dodd as CEO. Among other things, the Board discovered a document created by Mr. Theodore entitled “Outline of Proposed Agreement with Graeme Roustan”, which detailed some of the particulars of how Messrs. Roustan, Theodore, and Dodd intended to mount the proxy contest.
- On July 20, 2017, Aeterna terminated Mr. Dodd’s employment as CEO for cause, including for his repeated refusal to implement express directives of the Board.
- Following the revelation of the plan to mount a proxy contest after Mr. Dodd’s termination, it was uncovered through further investigation that, during and after Mr. Theodore’s employment, he disclosed and made unauthorized use of highly proprietary and confidential information, including, among other things, providing others with privileged information that Mr. Theodore had received in his capacity as the Company’s General Counsel.
- Mr. Theodore’s employment was terminated on July 28, 2017.
- Following Mr. Dodd’s and Mr. Theodore’s terminations, they failed to comply with the Company’s requests for the return of confidential information.
Aeterna has sought among other things:
- An injunction to prevent the Defendants from continuing to use Aeterna’s confidential and proprietary information without authorization.
- An injunction to prevent the Defendants from mounting a tainted proxy contest that will be premised upon the breaches of fiduciary and statutory duties and breaches of confidence alleged in the Claim.
Shares of Aeterna Zentaris are currently trading at $1.84, up $0.22 or 13.57%. AEZS has a 1-year high of $5.59 and a 1-year low of $0.78. The stock’s 50-day moving average is $1.38 and its 200-day moving average is $2.12.
On the ratings front, AEZS has been the subject of a number of recent research reports. In a report issued on July 24, Maxim analyst Jason Kolbert reiterated a Buy rating on AEZS, with a price target of $4.00, which implies an upside of 150% from current levels. On July 5, H.C. Wainwright’s Swayampakula Ramakanth reiterated a Buy rating on the stock and has a price target of $3.00.
According to TipRanks.com, which ranks over 7,500 financial analysts and bloggers to gauge the performance of their past recommendations, Jason Kolbert and Swayampakula Ramakanth have a yearly average loss of -14.1% and -11.2% respectively. Kolbert has a success rate of 31% and is ranked #4576 out of 4625 analysts, while Ramakanth has a success rate of 30% and is ranked #4542.
Æterna Zentaris, Inc. operates as a specialty biopharmaceutical company that is engaged in developing and commercializing novel treatments in oncology, endocrinology and women’s health. The company’s pipeline encompasses compounds at all stages of development, from drug discovery through to marketed products. It focuses on the development of Perifosine, Cetrotide, Ozarelix, AEZS-108 and AEZS-130.