NOTICE OF (I) PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT (II) SETTLEMENT FAIRNESS HEARING; AND (III) MOTION FOR AN AWARD OF ATTORNEYS’ FEES AND LITIGATION EXPENSES
A Federal Court authorized this Notice. This is not a solicitation from a lawyer.
NOTICE OF PENDENCY OF CLASS ACTION: Please be advised that your rights may be affected by the above-captioned securities class action (the “Action”) pending in the United States District Court for the District of New
Jersey (the “Court”) if, during the period from August 30, 2011 through November 6, 2014, both dates inclusive (the “Class Period”), you purchased Aeterna Zentaris, Inc. (“Aeterna” or the “Company”) securities on a U.S.
Exchange or in a U.S. transaction and did not sell such securities prior to November 6, 2014.1
NOTICE OF SETTLEMENT: Please also be advised that the Court-appointed Lead Plaintiffs Gregory Vizirgianakis, Phong Thomas Dinh, and Jamshid Khodavandi (“Lead Plaintiffs”), on behalf of themselves and the Class (as
defined in paragraph 28 of the Notice), have reached a proposed settlement of the Action for $6,500,000 in cash that, if approved, will resolve all claims in the Action (the “Settlement”).
PLEASE READ THE NOTICE CAREFULLY. The Notice explains important rights you may have, including the possible receipt of a payment from the Settlement. If you are a member of the Class, your
legal rights will be affected whether or not you act.
If you have any questions about the Notice, the proposed Settlement, or your eligibility to participate in the Settlement, please DO NOT contact the Court, the Office of the Clerk of the Court, Defendants, or their counsel. All questions should be directed to Lead Counsel or the Claims Administrator (see paragraph 95 of the Notice).
1. Description of the Action and the Class: This Notice relates to a proposed Settlement of claims in a pending securities class action brought by investors alleging, among other things, that Defendants Aeterna, Juergen Engel, David Dodd, Paul Blake, and Nicholas Pelliccione (collectively, “Defendants,” and together with Plaintiffs, the “Parties”) violated the federal securities laws by making false and/or misleading statements regarding a diagnostic drug developed by Aeterna, typically referred to as Macimorelin or AEZS-130 during the Class Period. A more detailed description of the Action is set forth in paragraphs 11-27 of the Notice. As noted below, Defendants have denied and continue to deny all claims and allegations of wrongdoing asserted against them in the Action. The proposed Settlement, if approved by the Court, will settle claims of the Class, as defined in paragraph 28 of the Notice.
2. Statement of the Class’s Recovery: Subject to Court approval, Lead Plaintiffs, on behalf of themselves and the Class, have agreed to settle the Action in exchange for $6,500,000 in cash (the “Settlement Amount”) to be deposited into an escrow account. The Net Settlement Fund (i.e., the Settlement Amount plus any and all interest earned thereon (the “Settlement Fund”) less (i) any Taxes; (ii) any Notice and Administration Costs; (iii) any Litigation Expenses awarded by the Court; (iv) any attorneys’ fees awarded by the Court; and (v) any other costs or fees approved by the Court) will be distributed in accordance with a plan of allocation that is approved by the Court. The proposed plan of allocation (the “Plan of Allocation”) is set forth in paragraphs 56-77 of the Notice. The Plan of Allocation will determine how the Net Settlement Fund shall be allocated among members of the Class.
3. Estimate of Average Amount of Recovery Per Share: Based on Lead Plaintiffs’ damages expert’s estimate of the number of shares of publicly-traded Aeterna common stock purchased during the Class Period that may have been affected by the alleged conduct at issue in the Action, and assuming that all Class Members elect to participate in the Settlement, the estimated average recovery (before the deduction of any Court-approved fees, expenses, and costs as described herein) is $0.112 per affected share of Aeterna common stock. Class Members should note, however, that the foregoing average recovery per share is only an estimate. Some Class Members may recover more or less than this estimated amount depending on, among other factors, when and at what prices they purchased or sold their Aeterna securities, and the total number and value of valid Proof of Claim and Release forms (“Claim Forms”) submitted. Distributions to Class Members will be made based on the Plan of Allocation set forth herein (see paragraphs 56-77 of the Notice) or such other plan of allocation as may be ordered by the Court.
4. Average Amount of Damages Per Share: The Parties do not agree on the average amount of damages per share that would be recoverable if Lead Plaintiffs were to prevail in the Action. Among other things, Defendants do not agree with the assertion that they violated the federal securities laws or that any damages were suffered by any members of the Class as a result of their conduct.
5. Attorneys’ Fees and Expenses Sought: Plaintiffs’ Counsel have been prosecuting the Action on a wholly contingent basis since its inception in 2014, have not received any payment of attorneys’ fees for their representation of the Class, and have advanced the funds to pay expenses necessarily incurred to prosecute this Action. Court-appointed Lead Counsel, The Rosen Law Firm and Glancy Prongay & Murray LLP, will apply to the Court for an award of attorneys’ fees for all Plaintiffs’ Counsel in an amount not to exceed 33⅓% of the Settlement Fund. In addition, Lead Counsel will apply for payment of Litigation Expenses paid or incurred in
connection with the institution, prosecution, and resolution of the Action in an amount not to exceed $825,000, which may include an application for reimbursement of the reasonable costs and expenses incurred by Lead
Plaintiffs directly related to their representation of the Class, pursuant to the Private Securities Litigation Reform Act of 1995 (“PSLRA”). Any fees and expenses awarded by the Court will be paid from the Settlement Fund.
Class Members are not personally liable for any such fees or expenses. The estimated average cost for such fees and expense, if the Court approves Lead Counsel’s fee and expense application, is $0.0513 per affected share of
Aeterna common stock. This does not include Notice and Administration Costs, which are expected to range from $250,000 to $350,000 and are paid from the Settlement Fund.2
6. Identification of Attorneys’ Representative: Lead Plaintiffs and the Class are represented by Laurence Rosen, Esq. of The Rosen Law Firm, One Gateway Center, Suite 2600, Newark, NJ 07102, (973) 313-1887, firstname.lastname@example.org and Kara M. Wolke, Esq. of Glancy Prongay & Murray LLP, 1925 Century Park East, Suite 2100, Los Angeles, CA 90067, (888) 773-9224, email@example.com.
7. Reasons for the Settlement: Lead Plaintiffs’ principal reason for entering into the Settlement is the substantial and certain cash benefit for the Class without the risk or the delays inherent in further litigation.
Moreover, the substantial cash benefit provided under the Settlement must be considered against the significant risk that a smaller recovery—or indeed no recovery at all—might be achieved after contested motions, a trial ofthe Action, and the likely appeals that would follow a trial. This process could be expected to last several years. Defendants, who deny that they have committed any act or omission giving rise to liability under the federal securities laws and any other alleged wrongdoing, are entering into the Settlement solely to eliminate the uncertainty, burden, and expense of further protracted litigation.
1All capitalized terms used in this Notice that are not otherwise defined herein shall have the meanings ascribed to them in the Stipulation and Agreement of Settlement, dated July 22, 2020 (the “Stipulation”), which is available at www.aeternasecuritieslitigation.com.
2These costs are paid to the Claims Administrator to disseminate notice of the Settlement, process claims, issue settlement payments, and provide other necessary administrative services. Lead Counsel selected Strategic Claims Services to serve as the Claims Administrator following a competitive bidding process.
YOUR LEGAL RIGHTS AND OPTIONS IN THE SETTLEMENT:
SUBMIT A CLAIM FORM POSTMARKED NO LATER THAN JANUARY 26, 2021.
This is the only way to be eligible to receive a payment from the Settlement Fund. If you are a Class Member and you remain in the Class, you will be bound by the Settlement as approved by the Court and you will give up any Released Plaintiffs’ Claims (defined in paragraph 38 of the Notice) that you have against Defendants and the other Defendants’ Releasees (defined in paragraph 39 of the Notice), so it is in your interest to submit a Claim Form.
EXCLUDE YOURSELF FROM THE CLASS BY SUBMITTING A WRITTEN REQUEST FOR EXCLUSION SO THAT IT IS RECEIVED NO LATER THAN JANUARY 26, 2021.
If you exclude yourself from the Class, you will not be eligible to receive any payment from the Settlement Fund. This is the only option that allows you ever to be part of any other lawsuit against any of the Defendants or the other Defendants’ Releasees concerning the Released Plaintiffs’ Claims.
OBJECT TO THE SETTLEMENT BY SUBMITTING A WRITTEN OBJECTION SO THAT IT IS RECEIVED NO LATER THAN JANUARY 26, 2021.
If you do not like the proposed Settlement, the proposed Plan of Allocation, or the request for an award of attorneys’ fees and Litigation Expenses, you may write to the Court and explain why you do not like them. You cannot object to the Settlement, the Plan of Allocation, or the fee and expense request unless you are a Class Member and do not exclude yourself from the Class.
ATTEND A TELEPHONIC HEARING ON FEBRUARY 16, 2021 AT 11:00 A.M., AND FILE A NOTICE OF INTENTION TO APPEAR SO THAT IT IS RECEIVED NO LATER THAN JANUARY 26, 2021.
Filing a written objection and notice of intention to appear by January 26, 2021, allows you to speak in Court, at the discretion of the Court, about the fairness of the proposed Settlement, the Plan of Allocation, and/or the request for attorneys’ fees and Litigation Expenses. If you submit a written objection, you may (but do not have to) attend the hearing and, at the discretion of the Court, speak to the Court about your objection.
If you are a member of the Class and you do not submit a valid Claim Form, you will not be eligible to receive any payment from the Settlement Fund. You will, however, remain a member of the Class, which means that you give up your right to sue about the claims that are resolved by the Settlement and you will be bound by any judgments or orders entered by the Court in the Action.