SC 14D9/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

SCHEDULE 14D-9

SOLICITATION/RECOMMENDATION

STATEMENT UNDER SECTION 14(d)(4) OF THE

SECURITIES EXCHANGE ACT OF 1934

(AMENDMENT NO. 1)

HP INC.

(Name of Subject Company)

HP INC.

(Name of Persons Filing Statement)

Common Stock, $0.01 par value per share

(Title of Class of Securities)

40434L105

(CUSIP Number of Class of Securities)

Kim Rivera, Esq. President, Strategy and Business Management, Chief Legal Officer and Secretary HP Inc. Ruairidh Ross Global Head of Strategic Legal Matters & Assistant Corporate Secretary HP Inc.

1501 Page Mill Road

Palo Alto, California 94304

Telephone:  (650) 857-1501

(Name, address, and telephone number of persons authorized to receive notices and

communications on behalf of the person filing statement)

Copies to:

Steven A. Cohen, Esq.

Jenna E. Levine, Esq.

Wachtell, Lipton, Rosen & Katz

51 West 52nd Street

New York, New York 10019

(212) 403-1000

☐ Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

This Amendment No. 1 to Schedule 14D-9 amends and supplements the Solicitation/Recommendation Statement on Schedule 14D-9 (as amended from time to time, the “Statement”) originally filed by HP Inc., a Delaware corporation (“HP”), with the Securities and Exchange Commission on March 5, 2020, relating to the unsolicited offer by XHC Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Xerox Holdings Corporation (“Xerox”), a New York corporation, to exchange any and all of the issued and outstanding shares of HP’s Common Stock, par value $0.01 per share (“HP Common Stock”), for, at the election of the holder, $18.40 in cash and 0.149 shares of Xerox Common Stock, par value $1.00 per share (“Xerox Common Stock”) (together with the $18.40 in cash, the “Standard Offer Consideration”), an amount in cash equal to the equivalent market value of the Standard Offer Consideration (based on the average of the closing prices of Xerox Common Stock as quoted on the New York Stock Exchange (the “NYSE”) on each of the five NYSE trading days ending on the 10th business day preceding 5:00 p.m., New York City time, on April 21, 2020 (such time, as it may be extended, the “Expiration Date”)), or a number of shares of Xerox Common Stock having a value equal to the equivalent market value of the Standard Offer Consideration (based on the average of the closing prices of Xerox Common Stock as quoted on the NYSE on each of the five NYSE trading days ending on the 10th business day preceding the Expiration Date), subject to proration, as disclosed in the Prospectus/Offer to Exchange dated March 2, 2020 and the related Letter of Transmittal.  Except as specifically noted herein, the information set forth in the Statement remains unchanged.

Item 3. Past Contacts, Transactions, Negotiations and Agreements

Item 3 of the Statement is hereby amended as follows:

The paragraph entitled “Shares of HP Common Stock Held by the Directors and Executive Officers of HP” under the caption “Consideration Payable Pursuant to the Offer” is amended and restated as follows:

If the directors and executive officers of HP were to tender any shares of HP Common Stock they own pursuant to the Offer and such shares were accepted for exchange by Xerox, they would receive shares of Xerox Common Stock and cash on the same terms and conditions as the other HP stockholders.  As of March 13, 2020, the directors and executive officers of HP had beneficial ownership of an aggregate of 4,285,710 shares of HP Common Stock, which amount is composed of an aggregate of 2,372,700 shares of HP Common Stock, vested options to purchase 1,731,494 shares of HP Common Stock in the aggregate and vested RSUs in respect of an aggregate of 181,516 shares of HP Common Stock.  If the directors and executive officers of HP were to tender all such shares of HP Common Stock (including shares of HP Common Stock acquired upon the exercise of all such options and the settlement of all such RSUs) for exchange pursuant to the Offer and those shares of HP Common Stock were accepted in exchange for the Standard Offer Consideration by Xerox, the directors and executive officers of HP would receive an aggregate of approximately 638,571 shares of Xerox Common Stock and $78,857,064 of cash.  To the knowledge of HP, none of the directors or executive officers of HP currently intend to tender any shares of HP Common Stock held of record or beneficially owned by such person for exchange pursuant to the Offer.

Item 4. The Solicitation or Recommendation

Item 4 of the Statement is hereby amended and supplemented as follows:

The following is hereby added after the first sentence of the fourth paragraph under the caption “Background of the Offer”:

Based on publicly reported information, HP believed that Mr. Icahn was the beneficial owner of approximately 10.6% of Xerox’s outstanding common stock at such time.

The following is hereby added to the end of the sixth paragraph under the caption “Background of the Offer”:

These questions related to topics including synergy calculations, Xerox’s “Project Own It” restructuring initiative, Xerox’s intellectual property, Xerox’s plans for its financing subsidiary, regulatory matters, Xerox’s joint venture with Fujifilm Holdings and the litigation between Xerox and Fujifilm, and the impact of a potential transaction on Xerox’s critical contracts.

The third sentence of the eleventh paragraph under the caption “Background of the Offer” is hereby amended and restated as follows:

Notably, questions raised by HP about the current trajectory of the Xerox business (including but not limited to questions raised in response to the review of the materials presented by Xerox and as part of the discussion relating to the goals and results of Project Own It, which HP management believed were important in order to properly contextualize and understand trends in Xerox’s business and its publicly reported financial results) were deferred and not addressed.

The thirteenth paragraph under the caption “Background of the Offer” is hereby amended and restated as follows:

On October 1, 2019, a few high-level executives from Xerox and HP participated in a video conference. Prior to the meeting, HP had shared a list of questions with Xerox and identified them as topics that HP would like to address at the meeting. The questions related to topics including Xerox’s business mix, financial performance, strategy and trajectory, Xerox’s joint venture with Fujifilm Holdings and the litigation between Xerox and Fujifilm, and compliance matters. At the meeting, the representatives of Xerox pressed the representatives of HP as to why HP required due diligence in order to make an offer to acquire Xerox. The representatives of Xerox then provided limited information with respect to plans for Xerox’s ownership interest in its joint venture with Fuji, synergies and certain other topics. Again, notably, questions raised by HP about the fundamental health and trajectory of Xerox’s business were deferred and not addressed.

The third sentence of the twentieth paragraph under the caption “Background of the Offer” is hereby amended and restated as follows:

The HP Board further considered that there remained significant unanswered questions relating to: (1) potential value creation that could arise from a combination of Xerox and HP, given the lack of access to substantive information that would be required to evaluate the quantum of synergies that a deal might create; (2) the future business trajectory of Xerox, given the recent deterioration in Xerox’s business; (3) Xerox’s ability to finance a deal with investment grade notes, given Xerox’s current non-investment grade ratings from all three major rating agencies (Ba1 with negative outlook from Moody’s, BB+ with negative outlook from S&P, and BB from Fitch); and (4) the potential impact of outsized debt levels on the combined company’s stock.

The thirty-eighth paragraph under the caption “Background of the Offer” is hereby amended and restated as follows:

On February 20, 2020, given Xerox’s announcement that it intended to commence a tender offer to acquire all of the outstanding shares of HP Common Stock, HP adopted and announced a limited shareholder rights plan that expires on February 20, 2021, and declared a dividend of one preferred share purchase right for each outstanding share of HP Common Stock to stockholders of record on March 2, 2020.

The following paragraphs are hereby added immediately after the thirty-eighth paragraph under the caption “Background of the Offer”:

In the event that a person or group acquires beneficial ownership of 20% or more of HP’s then outstanding common stock, subject to certain exceptions, each right would entitle its holder (other than such person or members of such group) to purchase additional shares of HP Common Stock at a substantial discount to the public market price.  In addition, at any time after a person or group acquires 20% or more of HP’s outstanding common stock (unless such person or group acquires 50% or more), the HP Board may exchange one share of HP Common Stock for each outstanding right (other than rights owned by such person or group, which would have become void).  The shareholder rights plan could make it more difficult for a third party to acquire HP or a large block of HP Common Stock without the approval of the Board.

HP adopted the shareholder rights plan because the HP Board believed that it would be essential that HP shareholders have sufficient time and full information when considering any tender offer that Xerox may commence. Following the commencement of the Offer by Xerox on March 2, 2020, the HP Board reaffirmed the shareholder rights plan and the maintenance of the rights to contribute to the preservation of HP’s long-term value for its stockholders, including in light of the commencement of the Offer.

The following is hereby added to the end of the fortieth paragraph under the caption “Background of the Offer”:

Such meeting was held on March 10, 2020 in New York. See “Item 7. Purposes of the Transaction and Plans or Proposals” for more information concerning these matters.

The last paragraph under the caption “Background of the Offer” is hereby deleted.

The following is hereby added (i) immediately before the last sentence in the first paragraph under the caption “Solicitation/Recommendation,” (ii) to the end of the first paragraph under the caption “Reasons for Recommendation,” and (iii) to the end of the last paragraph under the caption “Reasons for Recommendation”:

The HP Board’s recommendation is being made on behalf of HP.

Under the caption “Reasons for Recommendation,” the footnote 3 is hereby amended and supplemented by adding the following immediately before the last sentence of the footnote:

In addition, HP’s estimate of potential cost synergies is further subject to the assumptions that Xerox’s standalone cost reduction plan, referred to by Xerox as “Project Own It,” will not materially impair Xerox’s operations or require increased future spending to provide necessary investments, and that Xerox will substantially maintain its current revenue trajectory and margin profile.  Any further deterioration of Xerox’s financial performance could significantly impact the ability to realize these projected synergies.  HP’s ability to estimate these synergies is further limited by the absence of detailed due diligence information regarding Xerox and its operations available to HP except for information available in Xerox’s public filings.

Item 8. Additional Information

Item 8 of the Statement is hereby amended and supplemented as follows:

The following sentence is hereby added to the end of the paragraph under the caption “Second-Step Merger”:

Notwithstanding the foregoing, according to the Offer to Exchange, the Offer is conditioned upon the HP Board having taken steps to ensure that the Second-Step Merger can be completed in the short-form manner permitted by Section 251(h) of the DGCL, and in the event that Xerox completes the Second-Step Merger in reliance on Section 251(h) of the DGCL and complies with all of the applicable requirements of such statute, and applicable Delaware case law, the standard of review described above may not be applicable to the Second-Step Merger.

The following paragraph is hereby added immediately before the heading “Cautionary Statement on Forward-Looking Statements” under a new heading “Certain Litigation”:

On March 18, 2020, a suit was filed in the Delaware Court of Chancery by a purported stockholder of HP in connection with the Offer.  The action, captioned Gould v. Alvarez et. al. (Case No. 2020-0209), alleges that HP’s directors violated their fiduciary duties to HP stockholders by omitting from this Statement allegedly material information concerning the financial projections and analyses relied upon by HP’s financial advisors for purposes of their inadequacy opinions.  The complaint seeks, among other things, disclosure of the allegedly omitted information.  While it is not possible to predict the outcome of litigation matters with certainty, HP believes that the claims raised in the complaint are without merit.  The foregoing description is qualified in its entirety by reference to the complaint, which is filed as an exhibit to this Statement and incorporated herein by reference.

Item 9.  Exhibits

Item 9 of the Statement is hereby amended and supplemented by adding the following exhibit:

		Incorporated by Reference to Filings Indicated
Exhibit Number	Exhibit Description	Form	File No.	Exhibit	Filing Date	Filed Herewith
(a)(6)	Complaint filed by James R. Gould, Jr., individually and on behalf of all others similarly situated, in the Delaware Court of Chancery on March 18, 2020					X

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: March 23, 2020
	HP INC.
	By:	/s/ Ruairidh Ross

Name:	Ruairidh Ross
Title:	Global Head of Strategic Legal Matters & Assistant Corporate Secretary

EX-99.A6

Exhibit (a)(6)

EFiled: Mar 18 2020 06:28PM EDT Transaction ID 64835631  Case No. 2020-0209-  

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JAMES R. GOULD, JR., on behalf of himself and all other similarly situated stockholders of HP INC.,
Plaintiff, v.	C.A. No.: 2020-__________ -_________
AIDA ALVAREZ, SHUMEET BANERJI, ROBERT R. BENNETT, CHIP BERGH, STACY BROWN- PHILPOT, STEPHANIE A. BURNS, MARY ANNE CITRINO, RICHARD L. CLEMMER, ENRIQUE LORES, YOKY MATSUOKA, STACEY MOBLEY, SUBRA SURESH, and DION J. WEISLER,
Defendants.

VERIFIED CLASS ACTION COMPLAINT

Plaintiff James R. Gould, Jr. (“Plaintiff”), on behalf of himself and all other similarly situated stockholders of HP Inc. (“HP” or the “Company”), brings the following Verified Class Action Complaint (the “Complaint”) against the members of the board of directors of HP (the “HP Board” or “Board”) for breaching their fiduciary duties. The allegations in the Complaint are based on the knowledge of Plaintiff as to himself, and on information and belief, including the investigation of counsel and review of publicly available information as to all other matters.

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INTRODUCTION

1.         Xerox Holdings Corporation (“Xerox”) has launched a hostile tender offer to acquire HP (the “Tender Offer”). Expressly relying on inadequacy opinions from Goldman Sachs & Co. LLC (“Goldman Sachs”) and Guggenheim Securities, LLC (“Guggenheim”) (the “Inadequacy Opinions”), the HP Board is recommending that HP stockholders reject the Tender Offer.

2.          HP stockholders face a critical decision: whether to tender to voice their support for the meaningful premium they can realize through the Tender Offer, or to accept the Board’s recommendation that they will ultimately do better by rejecting the Tender Offer.

3.         In breach of their fiduciary duties, however, the Board has declined to provide the requisite “fair summary” of the analysis underlying the Inadequacy Opinions on which the Board’s recommendation rests. The Board’s paternalistic “trust us” approach is currently depriving HP stockholders of their fundamental right to make an informed decision whether to support the Tender Offer.

4.          Whether the stockholders are ever allowed to actually tender to Xerox or will be stopped by the poison pill the HP Board has employed is an issue for another day.

5.          Through this action, Plaintiff seeks judgment on the pleadings and an order requiring the Director Defendants to disclose a full and fair summary of the analysis underlying the Inadequacy Opinions.

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THE PARTIES

6.            Plaintiff is a stockholder of HP and has owned HP common stock at all material times alleged in this Complaint.

7.          Non-party HP is a global provider of personal computing and other access devices, imaging and printing products, and related technologies, solutions and services. HP is incorporated in Delaware, and has its principal headquarters in Palo Alto, California. The Company’s common stock is listed on the New York Stock Exchange under the ticker symbol “HPQ.”

8.            Defendant Aida Alvarez has served as a member of the HP Board since 2016. 

9.            Defendant Shumeet Banerji has served as a member of the HP Board since 2011.

10.          Defendant Robert R. Bennett has served as a member of the HP Board since 2013.

11.          Defendant Chip Bergh has served as a member of the HP Board since 2015 and as Board Chair since July 2017.

12.          Defendant Stacy Brown-Philpot has served as a member of the HP Board since 2015.

13.          Defendant Stephanie A. Burns has served as a member of the HP Board since 2015.

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14.          Defendant Mary Anne Citrino has served as a member of the HP Board since 2015.

15.          Defendant Richard L. Clemmer has served as a member of the HP Board since February 2020.

16.          Defendant Enrique Lores has served as the Company’s President and Chief Executive officer and as a member of the Board since November 2019.

17.          Defendant Yoky Matsuoka has served as a member of the HP Board since 2019.

18.          Defendant Stacey Mobley has served as a member of the HP Board since 2015.

19.          Defendant Subra Suresh has served as a member of the HP Board since 2015.

20.          Defendant Dion J. Weisler (“Weisler”)¹ has served as a member of the HP Board since 2015.

21.          The defendants listed in paragraphs 8 through 20 above are collectively referred to herein as the “Board” or the “Director Defendants.”

¹ Weisler will not stand for reelection to the Board at the Company’s 2020 annual meeting of stockholders.

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SUBSTANTIVE ALLEGATIONS

I. After Its Acquisition Overtures Are Rebuffed, Xerox Launches a Hostile Tender Offer for HP

22.         After months of discussions regarding a potential business combination, on November 5, 2019, Xerox offered to acquire HP for consideration comprised of $17.00 in cash and 0.137 shares of Xerox common stock per share of HP common stock (the “November Proposal”).

23.         On November 13, 2019, the HP Board determined that the November Proposal “significantly undervalued HP relative to the Company’s standalone plan and options to deploy its strong balance sheet to generate shareholder value, and that rejecting the November Proposal was in the best interests of HP’s shareholders.” On November 17, 2019, the HP Board sent a letter to Xerox stating, among other things, that:

Our Board of Directors has reviewed and considered your unsolicited proposal dated November 5, 2019 at a meeting with our financial and legal advisors and has unanimously concluded that it significantly undervalues HP and is not in the best interests of HP shareholders. In reaching this determination, the Board also considered the highly conditional and uncertain nature of the proposal, including the potential impact of outsized debt levels on the combined company’s stock.

 

24.          On November 26, 2019, Xerox sent a letter to HP stating that Xerox planned to engage directly with HP stockholders to solicit their support for the November Proposal.

25.          On January 23, 2020, Xerox submitted to HP a notice of the nomination of 11 directors and four alternate director nominees for election to the HP Board at HP’s 2020 annual meeting of stockholders.

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26.         On February 10, 2020, Xerox announced its intention to launch a tender offer for all of HP’s outstanding shares of common stock at a nominal price of $24.00 per share, to be comprised of $18.40 in cash plus 0.149 Xerox shares for each HP share (the “Revised Proposal”).

27.          On February 20, 2020, HP adopted a shareholder rights plan expiring in one year, exercisable if a person or group of beneficial ownership acquires 20% or more of HP’s common stock, subject to certain exceptions (the “poison pill”).

28.          Under Delaware law, a target board can reasonably use a poison pill to provide stockholders sufficient time to process the information needed to make an informed decision regarding a tender offer. Where—as here—the Board itself is the reason why stockholders lack necessary information about the tender offer, indefinite application of such a poison pill is improper.

29.          On March 2, 2020, Xerox commenced the Tender Offer to acquire all outstanding shares of HP common stock for consideration comprised of $18.40 in cash and 0.149 shares of Xerox common stock.

30.          The Tender Offer is currently set to expire at 5:00 p.m., New York City time, on April 21, 2020.

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II. The HP Board Expressly Relies on Inadequacy Opinions from Its Financial Advisors in Recommending Stockholders Reject the Tender Offer But Fails to Disclose or Summarize the Underlying Analyses

31.          On March 5, 2020, HP filed its Schedule 14D-9 solicitation/recommendation statement (the “14D-9”) with the U.S. Securities and Exchange Commission, recommending that HP stockholders reject Xerox’s Tender Offer. Of particular importance here, the 14D-9 states:

After careful consideration, including review of the terms and conditions of the Offer in consultation with HP’s independent outside financial and legal advisors, the HP Board determined that the Offer is not in the best interests of HP’s stockholders. Accordingly, for the reasons described in more detail below, the HP Board unanimously recommends that HP stockholders reject the Offer and NOT tender any of their shares of HP Common Stock to Xerox pursuant to the Offer. Please see “— Reasons for Recommendation” below for further detail. 

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32.          According to the 14D-9, “[i]n reaching [its] conclusion and making its recommendation to reject the Offer, the HP Board consulted with its independent financial and legal advisors and management and took into account numerous factors, including but not limited to the following”:

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The HP Board has received an inadequacy opinion from each of Goldman Sachs & Co. LLC (“Goldman Sachs”) and Guggenheim Securities, LLC (“Guggenheim Securities”).

The HP Board considered the fact that on March 3, 2020, Goldman Sachs rendered an oral opinion to the HP Board, subsequently confirmed in writing, to the effect that, as of March 3, 2020, and based on and subject to the matters considered, the procedures followed, the assumptions made and various limitations of and qualifications to the review undertaken set forth in its written opinion, the consideration proposed to be paid to the holders (other than Xerox and any of its affiliates) of shares of HP Common Stock pursuant to the Offer was inadequate from a financial point of view to such holders, and Guggenheim Securities rendered an oral opinion to the HP Board, subsequently confirmed in writing, to the effect that, as of March 3, 2020, and based on and subject to the matters considered, the procedures followed, the assumptions made and various limitations of and qualifications to the review undertaken set forth in its written opinion, the consideration payable pursuant to the Offer was inadequate, from a financial point of view, to the holders of shares of HP Common Stock (other than Xerox, Purchaser and their affiliates). The full text of the written opinion of each of Goldman Sachs, dated March 3, 2020, and Guggenheim Securities, dated March 3, 2020, which sets forth the matters considered, the procedures followed, the assumptions made and various limitations of and qualifications to the review undertaken in connection with each such opinion, is attached as Annex B and Annex C, respectively, to this Statement. Each of Goldman Sachs and Guggenheim Securities provided their respective opinions for the information and assistance of the HP Board in connection with its consideration of the Offer. The respective opinions of Goldman Sachs and Guggenheim Securities are not advice or a recommendation as to whether any holder of shares of HP Common Stock should tender its shares of HP Common Stock in connection with the Offer or otherwise how to act in connection with the Offer or any other matter.

33.          While copies of Goldman and Guggenheim’s bare-bones inadequacy opinions are attached to the 14D-9,2 the 14D-9 provides no disclosure regarding any of the financial analysis performed by Goldman and Guggenheim underlying the opinions.

34.          Both opinions were based on review of HP management forecasts for the Company and for Xerox extending to late 2024. These forecasts are never disclosed in the 14D-9.

² Copies of the Inadequacy Opinions are attached hereto as Exhibits A and B. A copy of the complete 14D-9 is attached hereto as Exhibit C.

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35.          Both opinions also completely failed to specify and summarize the financial reviews and analyses that the respective bankers conducted, the material inputs used for these analyses, and the data points thereby generated.

36.          A reasonable HP stockholder would unquestionably find the analysis underlying the Inadequacy Opinions to be material in connection with assessing the fairness of the Tender Offer. The materiality of the analysis underlying the Inadequacy Opinions is underscored by the fact that the HP Board admittedly relied on the analysis in making its (self-interested) recommendation to HP stockholders.

III. Xerox Temporarily Pauses, But Keeps Open, The Tender Offer

37. On March 13, 2020, Xerox issued a press release stating that:

In light of the escalating COVID-19 pandemic, Xerox needs to prioritize the health and safety of its employees, customers, partners and affiliates over and above all other considerations, including its proposal to acquire HP. As we closely monitor reports from government and healthcare leaders across the globe and work with colleagues in the business community to minimize the spread and impact of the virus, we believe it is prudent to postpone releases of additional presentations, interviews with media and meetings with HP shareholders so we can focus our time and resources on protecting Xerox’s various stakeholders from the pandemic. (Emphasis added)

38.          In other words, Xerox is postponing its Tender Offer-related roadshow, but the Tender Offer remains live and public disclosure of a fair summary of the Inadequacy Opinions remains critical to HP stockholders’ tender decision.

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39.          On or about March 16, 2020, substantial Xerox and HP stockholder Carl Icahn confirmed that Xerox was not abandoning the Tender Offer. Specifically, Icahn stated that “you shouldn’t take much from [Xerox’s March 13 announcement]. [Xerox is] saying that with the coronavirus they don’t want to go on a road show now to visit people around the country to talk about this deal, when everyone understands this deal anyways. This is a great deal.”

CLASS ACTION ALLEGATIONS

40.          Plaintiff brings this action pursuant to Rule 23 of the Rules of the Court of Chancery, individually and on behalf of all other holders of HP common stock (except Defendants herein and any persons, firm, trust, corporation or other entity related to or affiliated with them and their successors in interest) who are or will be threatened with injury arising from Defendants’ wrongful actions, as more fully described herein (the “Class”).

41. This action is properly maintainable as a class action.

42. The Class is so numerous that joinder of all members is impracticable.

There are hundreds, if not thousands, of HP stockholders who are scattered throughout the United States and likely the world. As of January 31, 2020, 1,433,345,730 shares of HP common stock were issued and outstanding.

43. There are questions of law and fact common to the Class, including, inter alia, whether:

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a. The Director Defendants breached their fiduciary duties by failing to disclose all material information necessary to allow HP stockholders to make an informed decision whether to tender into the Tender Offer;

b. Plaintiff and the other members of the Class are being— and will continue to be—injured by the wrongful conduct alleged herein and, if so, what is the proper remedy and/or measure of damages; and

c. Plaintiff and the other members of the Class will be damaged irreparably by the Director Defendants’ conduct.

44.        Plaintiff is committed to prosecuting the action and has retained competent counsel experienced in litigation of this nature. Plaintiff’s claims are typical of the claims of the other members of the Class, and Plaintiff has the same interests as the other members of the Class. Plaintiff is an adequate representative of the Class.

45.        The prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications with respect to individual members of the Class. Such inconsistent or varying adjudications that would establish incompatible standards of conduct for Defendants and/or with respect to individual members of the Class would as a practical matter be disjunctive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

46.        The Director Defendants have acted, or refused to act, on grounds generally applicable to, and causing injury to, the Class. Preliminary and final injunctive relief on behalf of the Class, as a whole, is therefore appropriate.

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47. Plaintiff and the Class have no adequate remedy at law.

COUNT I

DIRECT CLAIM FOR BREACH OF FIDUCIARY DUTY

AGAINST THE DIRECTOR DEFENDANTS

48.          Plaintiff repeats and realleges each and every allegation above as if set forth in full herein.

49.          The Director Defendants, as HP directors and/or officers, owe the Class the utmost fiduciary duties of due care, good faith, candor, disclosure and loyalty.

50.         The Director Defendants breached their fiduciary duties by failing to provide the legally required fair summary of material information underlying and the financial analyses supporting the Inadequacy Opinions on which the Board expressly relied in support of their recommendation that HP stockholders not tender their shares into the Tender Offer.

51.          Because the Directors omitted from the 14D-9a fair summary and other information material to stockholders’ choice whether to tender, they have breached their fiduciary duties.

52.          As a result of the Director Defendants’ breaches of fiduciary duty, the Class will be harmed.

53. Plaintiff and the Class have no adequate remedy at law.

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RELIEF REQUESTED

WHEREFORE, Plaintiff demands judgment as follows:

a. Ordering the Director Defendants to disclose a full and fair summary of the analysis underlying the Inadequacy Opinions;

b. Finding the Director Defendants liable for breaching their fiduciary duties owed to the Class;

c. Certifying the proposed Class;

d. Awarding Plaintiff and the other members of the Class permanent injunctive relief;

e. Awarding Plaintiff and the other members of the Class pre-judgment and post-judgment interest, as well as their reasonable attorneys’ and experts’ witness fees and other costs and expenses; and

f. Awarding such other and further relief as is just and equitable.

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Dated: March 18, 2020

OF COUNSEL:	BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP Mark Lebovitch Jacqueline Y. Ma 1251 Avenue of the Americas New York, NY 10020 (212) 554-1400	/s/ Gregory V. Varallo           Gregory V. Varallo (Bar No. 2242) 500 Delaware Avenue, Suite 901 Wilmington, DE 19801 (302) 364-3601 Counsel for Plaintiff
FRIEDMAN OSTER & TEJTEL PLLC Jeremy S. Friedman David F.E. Tejtel 493 Bedford Center Road, Suite 2D Bedford Hills, NY 10507 (888) 529-1108
KASKELA LAW LLC D. Seamus Kaskela 18 Campus Boulevard, Suite 100 Newtown Square, PA 19073 (484) 258-1585
LAW OFFICE OF ALFRED G. YATES, JR. Alfred G. Yates, Jr. 300 Mt. Lebanon Boulevard Suite 206B Pittsburgh, Pennsylvania 15234 (412) 391-5164
Counsel for Plaintiff

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