Case 1:21-cv-02076-DG-JRC Document 1 Filed 04/16/21 Page 1 of 14 PageID #: 1
`
`Daniel Sadeh, Esq.
`HALPER SADEH LLP
`667 Madison Avenue, 5th Floor
`New York, NY 10065
`Telephone: (212) 763-0060
`Facsimile: (646) 776-2600
`Email: sadeh@halpersadeh.com
`
`Counsel for Plaintiff
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`
`
`Case No:
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`JURY TRIAL DEMANDED
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`
`
`MARK LADIN,
`
`Plaintiff,
`
`v.
`
`BOINGO WIRELESS, INC., LANCE
`ROSENZWEIG, MAURY AUSTIN, ROY
`H. CHESTNUTT, MICHELE V.
`CHOKA, CHUCK DAVIS, MIKE
`FINLEY, DAVID HAGAN, TERRELL
`JONES, and KATHY MISUNAS,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`COMPLAINT FOR VIOLATIONS OF THE FEDERAL SECURITIES LAWS
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`Plaintiff Mark Ladin (“Plaintiff”), by Plaintiff’s undersigned attorneys, for Plaintiff’s
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`complaint against Defendants (defined below), alleges the following based upon personal
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`knowledge as to Plaintiff and Plaintiff’s own acts, and upon information and belief as to all other
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`matters, based upon, inter alia, the investigation conducted by and through Plaintiff’s attorneys.
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`NATURE OF THE ACTION
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`1.
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`This is an action against Boingo Wireless, Inc. (“Boingo” or the “Company”) and
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`its Board of Directors (the “Board” or the “Individual Defendants”) for their violations of Sections
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`14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(a)
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`and 78t(a), and Rule 14a-9 promulgated thereunder by the SEC, 17 C.F.R. § 240.14a-9, in
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`connection with the proposed acquisition (the “Proposed Transaction”) of Boingo by White Sands
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`Parent, Inc. (“Parent”) and White Sands Bidco, Inc. (“Merger Sub”). Parent and Merger Sub were
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`formed by an affiliate of the private equity investment firm Digital Colony Partners II, LP
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`(“Digital Colony”).
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`JURISDICTION AND VENUE
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`2.
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`The claims asserted herein arise under and pursuant to Sections 14(a) and 20(a) of
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`the Exchange Act (15 U.S.C. §§ 78n(a) and 78t(a)) and Rule 14a-9 promulgated thereunder by the
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`SEC (17 C.F.R. § 240.14a-9).
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`3.
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`This Court has jurisdiction over the subject matter of this action pursuant to 28
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`U.S.C. § 1331, and Section 27 of the Exchange Act, 15 U.S.C. § 78aa.
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`4.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and Section 27 of
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`the Exchange Act (15 U.S.C. § 78aa(c)) as a substantial portion of the transactions and wrongs
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`complained of herein had an effect in this District, the alleged misstatements entered and the
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`subsequent damages occurred in this District, and the Company maintains offices in New York
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`City.
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`5.
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`In connection with the acts, conduct and other wrongs alleged in this complaint,
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`Defendants, directly or indirectly, used the means and instrumentalities of interstate commerce,
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`including but not limited to, the United States mails, interstate telephone communications and the
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`facilities of the national securities exchange.
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`PARTIES
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`6.
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`Plaintiff is, and has been at all relevant times hereto, an owner of Boingo common
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`stock.
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`7.
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`Defendant Boingo, together with its subsidiaries, provides wireless connectivity
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`solutions for smartphones, tablets, laptops, wearables, and other wireless-enabled consumer
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`devices worldwide. The Company is incorporated in Delaware and maintains offices in New
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`York, NY. The Company’s common stock trades on the NASDAQ under the ticker symbol,
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`“WIFI.”
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`8.
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`Defendant Lance Rosenzweig (“Rosenzweig”) is Chairman of the Board of the
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`Company.
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`9.
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`10.
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`11.
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`12.
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`13.
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`Company.
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`14.
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`15.
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`16.
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`17.
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`Defendant Maury Austin (“Austin”) is a director of the Company.
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`Defendant Roy H. Chestnutt (“Chestnutt”) is a director of the Company.
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`Defendant Michele V. Choka (“Choka”) is a director of the Company.
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`Defendant Chuck Davis (“Davis”) is a director of the Company.
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`Defendant Mike Finley (“Finley”) is Chief Executive Officer and a director of the
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`Defendant David Hagan (“Hagan”) is a director of the Company.
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`Defendant Terrell Jones (“Jones”) is a director of the Company.
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`Defendant Kathy Misunas (“Misunas”) is a director of the Company.
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`Defendants Rosenzweig, Austin, Chestnutt, Choka, Davis, Finley, Hagan, Jones,
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`and Misunas are collectively referred to herein as the “Individual Defendants.”
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`18.
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`Defendants Boingo and the Individual Defendants are collectively referred to
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`herein as the “Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`A. The Proposed Transaction
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`19.
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`On March 1, 2021, Boingo announced that it had entered into a definitive
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`agreement and plan of merger to be acquired by an affiliate of Digital Colony. Under the terms of
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`the agreement, Digital Colony will acquire all the outstanding shares of Boingo common stock for
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`$14.00 per share in cash. The press release announcing the Proposed Transaction states, in
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`pertinent part:
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`Boingo Wireless to be Acquired by Digital Colony
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`Boingo Shareholders to Receive $14.00 per share in Cash Transaction Valued at
`Approximately $854 Million
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`Leading Digital Infrastructure Investment Firm, Digital Colony, Uniquely
`Positioned to Continue Investing in Boingo’s Diverse Network
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`Boingo to Become a Privately Held Company Upon Completion of Transaction
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`
`March 01, 2021 09:00 AM Eastern Standard Time
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`LOS ANGELES--(BUSINESS WIRE)--Boingo Wireless, Inc. (“Boingo” or “the
`Company”) (NASDAQ: WIFI), the leading distributed antenna system (“DAS”)
`and Wi-Fi provider that serves carriers, consumers, property owners and advertisers
`worldwide, announced today that it has entered into a definitive agreement and plan
`of merger to be acquired by an affiliate of Digital Colony Management, LLC
`(“Digital Colony”). Upon completion of the transaction, Boingo will transition
`from a public company to a privately held company.
`
`Under the terms of the agreement, which has been unanimously approved by
`Boingo’s Board of Directors, Digital Colony will acquire all the outstanding shares
`of Boingo common stock for $14.00 per share in cash through a merger, in a
`transaction valued at approximately $854 million, including the assumption of $199
`million of Boingo’s net debt obligations. The acquisition price represents a 23%
`premium to Boingo’s closing price of $11.40 on February 26, 2021.
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`“We are pleased to have reached this agreement with Digital Colony, which will
`deliver significant and immediate value to Boingo’s stockholders and concludes a
`robust strategic review process undertaken by Boingo over the past year,” said Mike
`Finley, Chief Executive Officer of Boingo Wireless. “We believe Digital Colony’s
`expertise owning and operating digital infrastructure businesses, combined with its
`relationships, resources and access to long-term, private capital markets, will
`provide greater flexibility for Boingo to continue advancing its business strategy.”
`Warren Roll, Managing Director of Digital Colony, added, “Boingo is a leader in
`indoor wireless infrastructure, operating networks that serve a large and growing
`addressable market. We look forward to working with the experienced Boingo team
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`as they continue to develop and deploy reliable networks serving their diverse set
`of high-quality customers.”
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`The transaction, which is subject to the receipt of Boingo shareholder approval,
`regulatory approvals and other customary closing conditions, is expected to close
`in the second quarter of 2021.
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`TAP Advisors is serving as exclusive financial advisor and provided a fairness
`opinion to Boingo’s Board of Directors in connection with the transaction and
`Gunderson Dettmer is serving as legal counsel. Credit Suisse is acting as lead
`financial advisor and Truist Securities Inc. is acting as co-financial advisor to
`Digital Colony in connection with the transaction. Debt financing for the
`transaction is being led by Truist Securities Inc. along with Joint Lead Arrangers
`and Joint Bookrunners TD Securities and CIT. Simpson Thacher is serving as legal
`advisor to Digital Colony.
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`For further information regarding all terms and conditions contained in the
`definitive agreement, please see the Form 8-K the Company will file with the SEC
`in connection with this transaction.
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`Full Year 2020 Financial Results
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`In connection with the proposed transaction, Boingo has canceled its conference
`call to discuss the Company’s full year 2020 results, previously scheduled for
`March 1, 2021 at 4:30 PM Eastern Time. The Company expects to file its Annual
`Report on Form 10-K for the year ended December 31, 2020 on March 1, 2021.
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`About Boingo Wireless
`
`Boingo Wireless, Inc. (NASDAQ: WIFI) helps the world stay connected. Our vast
`footprint of DAS, Wi-Fi and small cells reaches more than a billion people
`annually, making Boingo one of the largest providers of indoor wireless networks.
`You’ll find Boingo connecting people and things at airports, stadiums, military
`bases, convention centers, multifamily communities, and commercial properties.
`To learn more about the Boingo story, visit www.boingo.com.
`
`About Digital Colony
`
`Digital Colony is a leading digital infrastructure investment firm with over US$30
`billion in assets under management. Launched in 2017 by Digital Bridge and
`Colony Capital, Digital Colony brings together Digital Bridge’s industry,
`operational and investment expertise, and Colony Capital’s (NYSE: CLNY) global
`operating platform and capital markets access. Digital Colony is a leading investor,
`owner and operator enabling the next generation of mobile and internet connectivity
`through investments in mission-critical infrastructure around the globe. The firm is
`headquartered in Boca Raton with offices in New York, Los Angeles, London and
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`Singapore, and has over 90 investment and operating professionals. For more
`information, please visit www.digitalcolony.com.
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`20.
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`On April 9, 2021, the Company filed a Schedule 14A Preliminary Proxy Statement
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`under Section 14(a) of the Exchange Act (the “Proxy Statement”) with the SEC in connection with
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`the Proposed Transaction.
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`B. The Proxy Statement Contains Materially False and Misleading Statements and
`Omissions
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`21.
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`The Proxy Statement, which recommends that Boingo shareholders vote in favor
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`of the Proposed Transaction, omits and/or misrepresents material information concerning: (i)
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`Boingo’s financial projections; (ii) the financial analyses performed by Boingo’s financial advisor,
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`TAP Advisors, LLC (“TAP Advisors”), in connection with its fairness opinion; and (iii) the sales
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`process leading up to the Proposed Transaction.
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`22.
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`The omission of the material information (referenced below) renders the following
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`sections of the Proxy Statement false and misleading, among others: (i) Background of the Merger;
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`(ii) Recommendation of the Board of Directors and Reasons for the Merger; (iii) Opinion of
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`Boingo’s Financial Advisor; and (iv) Certain Financial Projections.
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`23.
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`Unless and until the material misstatements and omissions (referenced below) are
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`remedied before the anticipated shareholder vote on the Proposed Transaction, Boingo
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`shareholders will be forced to make a voting decision on the Proposed Transaction without full
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`disclosure of all material information. In the event the Proposed Transaction is consummated,
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`Plaintiff may seek to recover damages resulting from Defendants’ misconduct.
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`1. Material Omissions Concerning Boingo’s Financial Projections
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`24.
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`The Proxy Statement omits material information concerning Boingo’s financial
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`projections.
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`25. With respect to the Fairness Financials, the Proxy Statement fails to disclose: (1)
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`all line items underlying (i) Revenue, (ii) Adjusted EBITDA, (iii) Cash EBITDA, and (iv)
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`Company Cash Flow; (2) the Company’s net income projections; and (3) a reconciliation of all
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`non-GAAP to GAAP metrics.
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`26.
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`The disclosure of this information is material because it would provide the
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`Company’s shareholders with a basis to project the future financial performance of the Company
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`and would allow shareholders to better understand the financial analyses performed by the
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`Company’s financial advisor in support of its fairness opinion. Shareholders cannot hope to
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`replicate management’s inside view of the future prospects of the Company. Without such
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`information, which is uniquely possessed by Defendant(s) and the Company’s financial advisor,
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`the Company’s shareholders are unable to determine how much weight, if any, to place on the
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`Company’s financial advisor’s fairness opinion in determining whether to vote for or against the
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`Proposed Transaction.
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`27. When a company discloses non-GAAP financial metrics in a Proxy Statement that
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`were relied upon by its board of directors in recommending that shareholders exercise their
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`corporate suffrage rights in a particular manner, the company must also disclose, pursuant to SEC
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`Regulation G, all projections and information necessary to make the non-GAAP metrics not
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`misleading, and must provide a reconciliation (by schedule or other clearly understandable
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`method) of the differences between the non-GAAP financial metrics disclosed or released with the
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`most comparable financial metrics calculated and presented in accordance with GAAP. 17 C.F.R.
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`§ 244.100.1
`
`
`1 Mary Jo White, Keynote Address, International Corporate Governance Network Annual
`Conference: Focusing the Lens of Disclosure to Set the Path Forward on Board Diversity, Non-
`GAAP, and Sustainability (June 27, 2016), https://www.sec.gov/news/speech/chair-white-icgn-
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`28.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`the total mix of information available to the Company’s shareholders.
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`2. Material Omissions Concerning TAP Advisors’ Analyses
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`29.
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`In connection with the Proposed Transaction, the Proxy Statement omits material
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`information concerning analyses performed by TAP Advisors.
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`30.
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`The Proxy Statement fails to disclose the following concerning TAP Advisors’
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`“Discounted Cash Flow Analyses”: (1) the after-tax unlevered free cash flows for Boingo, and all
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`underlying line items; (2) the terminal/continuing value of the Company; and (3) the individual
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`inputs and assumptions underlying the (i) discount rate range of 10.0%-12.0%, of 9.0%-11.0%, of
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`10.5%-12.5%, and of 12.5%-14.5%, and (ii) perpetual growth rates of 2.0%-3.0%.
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`31.
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`The Proxy Statement fails to disclose the following concerning TAP Advisors’
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`“Leveraged Buyout Analysis”: (1) a 2030 exit strategy; and (2) the individual inputs and
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`assumptions underlying (i) an 11.0% WACC, and (ii) a 2.0%-3.0% TGR.
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`32. With respect to TAP Advisors’ “Boingo Wall Street Equity Research Analyst Stock
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`Price Targets,” the Proxy Statement fails to disclose: (1) the individual price targets observed by
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`TAP Advisors in its analysis; and (2) the sources thereof.
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`33. With respect to TAP Advisors’ “Premiums Paid in Selected Merger and
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`Acquisition Transactions,” the Proxy Statement fails to disclose each transaction and the premiums
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`paid therein.
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`speech.html (footnotes omitted) (last visited Apr. 16, 2021) (“And last month, the staff issued
`guidance addressing a number of troublesome practices which can make non-GAAP disclosures
`misleading: the lack of equal or greater prominence for GAAP measures; exclusion of normal,
`recurring cash operating expenses; individually tailored non-GAAP revenues; lack of consistency;
`cherry-picking; and the use of cash per share data. I strongly urge companies to carefully consider
`this guidance and revisit their approach to non-GAAP disclosures.”).
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`34.
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`The valuation methods, underlying assumptions, and key inputs used by
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`TAP Advisors in rendering its purported fairness opinion must be fairly disclosed to Boingo
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`shareholders. The description of TAP Advisors’ fairness opinion and analyses, however, fails to
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`include key inputs and assumptions underlying those analyses. Without the information described
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`above, Boingo shareholders are unable to fully understand TAP Advisors’ fairness opinion and
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`analyses, and are thus unable to determine how much weight, if any, to place on them in
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`determining whether to vote for or against the Proposed Transaction. This omitted information, if
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`disclosed, would significantly alter the total mix of information available to the Company’s
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`shareholders.
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`3. Material Omissions Concerning the Sales Process Leading up to the Proposed
`Transaction
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`35.
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`The Proxy Statement omits material information concerning the sales process
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`leading up to the Proposed Transaction.
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`36.
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`The Proxy Statement provides that Boingo entered into non-disclosure agreements
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`with multiple potential buyers during the sales process leading up to the Proposed Transaction,
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`stating in pertinent part:
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`From 2016 until May 2017, Boingo and TAP Advisors had discussions with
`a multitude of potential bidders, including having preliminary discussions with
`more than 25 third parties, [and] entering into non-disclosure agreements with
`more than 15 third parties[.]
`
`
`Beginning in late October 2019 until February 2021, in connection with the
`strategic process that eventually resulted in the entry into the Merger Agreement,
`Boingo and TAP Advisors had discussions with a multitude of potential bidders,
`including having preliminary discussions with 37 third parties, [and] entering into
`non-disclosure agreements with more than 30 third parties
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`37.
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`The Proxy Statement, however, fails to disclose the terms of Boingo’s non-
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`disclosure agreements, including whether such agreements contained standstill provisions with
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`“don’t ask, don’t waive” (DADW) provisions (including their time of enforcement) that would
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`preclude interested parties from making superior offers for the Company.
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`38. Without this information, Boingo shareholders may have the mistaken belief that
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`potential suitors are or were permitted to submit superior proposals for the Company, when in fact
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`they are or were contractually prohibited from doing so. This information is material because a
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`reasonable Boingo shareholder would want to know, prior to voting for or against the Proposed
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`Transaction, whether other potential buyers are or were foreclosed from submitting a superior
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`proposal.
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`39.
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`The above-referenced omitted information, if disclosed, would significantly alter
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`the total mix of information available to the Company’s shareholders.
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`COUNT I
`For Violations of Section 14(a) and Rule 14a-9 Promulgated Thereunder
`Against All Defendants
`Plaintiff repeats and realleges each and every allegation contained above as if fully
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`40.
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`set forth herein.
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`41.
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`During the relevant period, Defendants, individually and in concert, directly or
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`indirectly, disseminated or approved the false and misleading Proxy Statement specified above,
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`which failed to disclose material facts necessary in order to make the statements made, in light of
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`the circumstances under which they were made, not misleading, in violation of Section 14(a) of
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`the Exchange Act and Rule 14a-9 promulgated thereunder by the SEC.
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`42.
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`Each of the Individual Defendants, by virtue of his/her positions within the
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`Company as officers and/or directors, were aware of the omitted information but failed to disclose
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`such information, in violation of Section 14(a) of the Exchange Act. Defendants, by use of the
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`mails and means and instrumentalities of interstate commerce, solicited and/or permitted the use
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`of their names to file and disseminate the Proxy Statement with respect to the Proposed
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`Transaction. The Defendants were, at minimum, negligent in filing the materially false and
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`misleading Proxy Statement.
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`43.
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`The false and misleading statements and omissions in the Proxy Statement are
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`material in that a reasonable shareholder would consider them important in deciding how to vote
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`on the Proposed Transaction.
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`44.
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`By reason of the foregoing, Defendants have violated Section 14(a) of the Exchange
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`Act and Rule 14a-9 promulgated thereunder.
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`45.
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`Because of the false and misleading statements and omissions in the Proxy
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`Statement, Plaintiff is threatened with irreparable harm.
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`COUNT II
`Violations of Section 20(a) of the Exchange Act
`Against the Individual Defendants
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`Plaintiff repeats and realleges each and every allegation contained in the foregoing
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`46.
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`paragraphs as if fully set forth herein.
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`47.
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`The Individual Defendants acted as control persons of the Company within the
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`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their senior positions
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`as officers and/or directors of the Company and participation in and/or awareness of the
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`Company’s operations and/or intimate knowledge of the false statements contained in the Proxy
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`Statement filed with the SEC, they had the power to and did influence and control, directly or
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`indirectly, the decision-making of the Company, including the content and dissemination of the
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`false and misleading Proxy Statement.
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`48.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Proxy Statement and other statements alleged by Plaintiff to be misleading prior to
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`and/or shortly after these statements were issued and had the ability to prevent the issuance of the
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`statements or cause the statements to be corrected. As officers and/or directors of a publicly owned
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`company, the Individual Defendants had a duty to disseminate accurate and truthful information
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`with respect to the Proxy Statement, and to correct promptly any public statements issued by the
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`Company which were or had become materially false or misleading.
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`49.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the operations of the Company, and, therefore, is presumed to have had the power
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`to control or influence the particular transactions giving rise to the securities violations as alleged
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`herein, and exercised the same. The Individual Defendants were provided with or had unlimited
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`access to copies of the Proxy Statement and had the ability to prevent the issuance of the statements
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`or to cause the statements to be corrected. The Proxy Statement at issue contains the unanimous
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`recommendation of the Individual Defendants to approve the Proposed Transaction. Thus, the
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`Individual Defendants were directly involved in the making of the Proxy Statement.
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`50.
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`In addition, as the Proxy Statement sets forth at length, and as described herein, the
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`Individual Defendants were involved in negotiating, reviewing, and approving the Proposed
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`Transaction. The Proxy Statement purports to describe the various issues and information that they
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`reviewed and considered—descriptions which had input from the Individual Defendants.
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`51.
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`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
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`of the Exchange Act.
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`52.
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`As set forth above, the Individual Defendants had the ability to exercise control
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`over and did control a person or persons who have each violated Section 14(a) and Rule 14a-9
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`promulgated thereunder, by their acts and omissions as alleged herein. By virtue of their positions
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`as controlling persons, the Individual Defendants are liable pursuant to Section 20(a) of the
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`Exchange Act. As a direct and proximate result of Defendants’ conduct, the Company’s
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`shareholders will be irreparably harmed.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for judgment and relief as follows:
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`A.
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`Preliminarily and permanently enjoining Defendants and all persons acting in
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`concert with them from proceeding with, consummating, or closing the Proposed Transaction and
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`any vote on the Proposed Transaction, unless and until Defendants disclose and disseminate the
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`material information identified above to Company shareholders;
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`B.
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`In the event Defendants consummate the Proposed Transaction, rescinding it and
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`setting it aside or awarding rescissory damages;
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`C.
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`Declaring that Defendants violated Sections 14(a) and 20(a) of the Exchange Act,
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`and Rule 14a-9 promulgated thereunder;
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`D.
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`Awarding Plaintiff reasonable costs and expenses incurred in this action, including
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`counsel fees and expert fees; and
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`E.
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`Granting such other and further relief as the Court may deem just and proper.
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`JURY TRIAL DEMANDED
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`Plaintiff hereby demands a trial by jury.
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`Dated: April 16, 2021
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`
`
`
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` Respectfully submitted,
`
`
`
`
`
`
`
`HALPER SADEH LLP
`
`By: /s/ Daniel Sadeh
`Daniel Sadeh, Esq.
`Zachary Halper, Esq. (to be admitted pro hac
`vice)
`667 Madison Avenue, 5th Floor
`New York, NY 10065
`Telephone: (212) 763-0060
`Facsimile: (646) 776-2600
`Email: sadeh@halpersadeh.com
` zhalper@halpersadeh.com
`
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`Counsel for Plaintiff
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