Case 1:21-cv-00089 Document 1 Filed 01/05/21 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Case No.:
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`JURY TRIAL DEMANDED
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`
`COMPLAINT FOR VIOLATIONS OF
`FEDERAL SECURITIES LAWS
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`
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`PREMLATA VAZIRANI,
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` Plaintiff,
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` v.
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`SLACK TECHNOLOGIES, INC., ANDREW
`BRACCIA, STEWART BUTTERFIELD,
`EDITH COOPER, SARAH FRIAR, SHEILA
`JORDAN, MIKE MCNAMARA, JOHN
`O’FARRELL, and GRAHAM SMITH,
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` Defendants.
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`
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`Plaintiff, by her undersigned attorneys, for this complaint against defendants, alleges
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`upon personal knowledge with respect to herself, and upon information and belief based upon,
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`inter alia, the investigation of counsel as to all other allegations herein, as follows:
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`BACKGROUND
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`1.
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`This action concerns a proposed
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`transaction (“Proposed Transaction”)
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`announced on December 1, 2020, pursuant to which Slack Technologies, Inc. (“Slack” or the
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`“Company”) will merge with Salesforce.com, Inc. (“Salesforce”).
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`2.
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`On December 1, 2020, Slack’s Board of Directors (the “Board” or “Individual
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`Defendants”) caused the Company to enter into an agreement and plan of merger and
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`reorganization (the “Merger Agreement”). Pursuant to the terms of the Merger Agreement, each
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`share of Slack’s common stock will be converted into approximately 0.0776 shares of Salesforce
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`common stock and the right to receive $26.79 in cash (the “Merger Consideration”).
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`3.
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`On December 23, 2020, in order to convince Slack’s shareholders to vote in favor
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`of the Proposed Transaction, Defendants filed a materially incomplete and misleading
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`Case 1:21-cv-00089 Document 1 Filed 01/05/21 Page 2 of 14
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`preliminary S-4 Registration Statement (the “Registration Statement”) with the United States
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`Securities and Exchange Commission (“SEC”).
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`4.
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`The Registration Statement omits material information with respect to the
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`Proposed Transaction, which renders the Registration Statement false and misleading.
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`Accordingly, Plaintiff alleges herein that defendants violated Sections 14(a) and 20(a) of the
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`Securities Exchange Act of 1934 (the “1934 Act”) in connection with the Registration Statement.
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`5.
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`In addition, a special meeting of Slack stockholders will be held to vote on the
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`Proposed Transaction (the “Stockholder Vote”). It is therefore imperative that the material
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`information that has been omitted from the Registration Statement is disclosed prior to the
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`Stockholder Vote so Slack stockholders can properly exercise their corporate voting rights and
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`make an informed decision on whether to vote in favor of the merger.
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`JURISDICTION & VENUE
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`6.
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`This Court has jurisdiction over the claims asserted herein pursuant to Section
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`27 of the 1934 Act and 28 U.S.C. §1331 because the claims asserted herein arise under Sections
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`14(a) and 20(a) of the 1934 Act and Rule 14a-9.
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`7.
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`This Court has jurisdiction over Defendants because each defendant is either a
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`corporation that conducts business in this District, or is an individual with sufficient minimum
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`contacts with this District so as to make the exercise of jurisdiction by this Court permissible
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`under traditional notions of fair play and substantial justice.
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`8.
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`Venue is proper in this District under Section 27 of the Exchange Act, 15 U.S.C.
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`§ 78aa, as well as under 28 U.S.C. § 1391, because, among other things: (a) the conduct at issue
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`will have an effect in this District; (b) a substantial portion of the transactions and wrongs
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`complained of herein, occurred in this District; and (c) certain Defendants have received
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`Case 1:21-cv-00089 Document 1 Filed 01/05/21 Page 3 of 14
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`substantial compensation in this District by doing business here and engaging in numerous
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`activities that had an effect in this District. Additionally, the Company’s common stock trades
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`on the NASDAQ, which is headquartered in this District.
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`THE PARTIES
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`9.
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`Plaintiff is, and has been continuously throughout all times relevant hereto, a
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`Slack shareholder.
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`10.
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`Defendant Slack is a Delaware corporation and a party to the Merger Agreement.
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`Slack shares are traded on the NASDAQ under the ticker symbol “WORK.”
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`11.
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`12.
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`13.
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`14.
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`15.
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`16.
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`17.
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`18.
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`Defendant Andrew Braccia is a director of the Company
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`Defendant Stewart Butterfield is Chairman of the Board of the Company.
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`Defendant Edith Cooper is a director of the Company.
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`Defendant Sarah Friar is a director of the Company.
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`Defendant Sheila Jordan is a director of the Company.
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`Defendant Mike McNamara is a director of the Company.
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`Defendant John O’ Farrell is a director of the Company.
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`Defendant Graham Smith is a director of the Company.
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`FACTS
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`19.
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`Slack operates an occupational technology software platform that joins people,
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`applications, and data and markets its offering under a software-as-a-service model. The software
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`platform offers a team communication tool that consists of a set of open documented application
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`programming interface (APIs), developer tools, and an App Directory that lists apps that have met
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`the guidelines.
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`20.
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`Salesforce is a provider of business software, distributed through the cloud, with a
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`concentration on customer relationship management (CRM). Salesforce focuses on cloud, mobile,
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`social, Internet of Things (IoT) and artificial intelligence technologies. Salesforce’s service
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`offerings are constructed and integrated with supplementary platforms and enterprise applications.
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`Salesforce supplies its service offerings via Internet browsers and on mobile devices.
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`21.
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`On December 1, 2020, Slack’s Board caused the Company to enter into the Merger
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`Agreement.
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`22.
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`At the Effective Time (as defined in the Merger Agreement), and as a result of the
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`Merger:
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`each share of Company Common Stock issued and outstanding immediately prior
`to the First Effective Time (other than any Dissenting Shares, Cancelled Shares or
`shares covered by Company Restricted Share Awards) shall be converted into (A)
`0.0776 (the “Exchange Ratio”) fully paid and nonassessable shares of Parent
`Common Stock, subject to Section 2.5 with respect to fractional shares (the “Stock
`Consideration”), and (B) the right to receive $26.79 in cash, without interest (the
`“Cash Consideration” and, together with the Stock Consideration, the “Merger
`Consideration”).
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`23.
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`The Merger Consideration is unfair because, among other things, the intrinsic
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`value of the Company is in excess of the amount the Company’s stockholders will receive in
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`connection with the Proposed Transaction.
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`24.
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`It is therefore imperative that the Company shareholders receive the material
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`information that Defendants have omitted from the Registration Statement so that they can
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`meaningfully assess whether the Proposed Transaction is in their best interests prior to the vote.
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`25.
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`Section 5.3 of the Merger Agreement has a “no solicitation” clause that prevents
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`Slack from soliciting alternative proposals and constraints its ability to negotiate with potential
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`buyers:
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`Section 5.3 No Solicitation by the Company.
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`(a) From and after the date hereof until the earlier of the First Effective Time
`or the date, if any, on which this Agreement is validly terminated pursuant
`to Section 8.1, the Company agrees that it shall not, and shall cause the Company
`Subsidiaries, and its and their respective officers and directors not to, and shall use
`its reasonable best efforts to cause its and the Company Subsidiaries’ other
`Representatives to not, directly or indirectly: (i) solicit, initiate or knowingly
`encourage or facilitate (including by way of providing information or taking any
`other action) any inquiry, proposal or offer, or the making, submission or
`announcement of any inquiry, proposal or offer which constitutes or would
`reasonably be expected to lead to an Acquisition Proposal; (ii) participate in any
`negotiations regarding, or furnish to any person any information relating to the
`Company or any Company Subsidiary in connection with an actual or potential
`Acquisition Proposal; (iii) adopt, approve, endorse or recommend, or propose to
`adopt, approve, endorse or recommend, any Acquisition Proposal; (iv) withdraw,
`change, amend, modify or qualify, or otherwise propose to withdraw, change,
`amend, modify or qualify, in a manner adverse to Parent, the Company Board
`Recommendation, or resolve or agree to take any such action; (v) if an Acquisition
`Proposal has been publicly disclosed, fail to publicly recommend against any such
`Acquisition Proposal within ten (10)-Business Days after the public disclosure of
`such Acquisition Proposal (or subsequently withdraw, change, amend, modify or
`qualify, in a manner adverse to Parent, such rejection of such Acquisition Proposal)
`and reaffirm the Company Board Recommendation within such ten (10) Business
`Day period (or, if earlier, by the second (2nd) Business Day prior to the Company
`Stockholders Meeting); (vi) fail to include the Company Board Recommendation in
`the Proxy Statement/Prospectus; (vii) approve, or authorize, or cause or permit the
`Company or any Company Subsidiary to enter into, any merger agreement,
`acquisition agreement, reorganization agreement, letter of intent, memorandum of
`understanding, agreement in principle, option agreement, joint venture agreement,
`partnership agreement or similar agreement or document with respect to, or any
`other agreement or commitment providing for, any Acquisition Proposal (other than
`an Acceptable Confidentiality Agreement entered into in accordance with
`this Section 5.3) (a “Company Acquisition Agreement”); (viii) call or convene a
`meeting of the Company Stockholders to consider a proposal that would reasonably
`be expected to materially impair, prevent or delay the consummation of the
`Transactions or (ix) resolve or agree to do any of the foregoing (any act described
`in clauses (iii), (iv), (v), (vi), (vii), (viii) and/or (ix) (to the extent related to the
`foregoing clauses (iii), (iv), (v), (vi), (vii) or (viii)),a“Change
`of
`Recommendation”). The Company shall, and shall cause the Company Subsidiaries
`and its and their respective officer and directors to, and shall use its reasonable best
`efforts to cause its and the Company Subsidiaries’ other Representatives to,
`immediately cease any and all solicitation, encouragement, discussions or
`negotiations with any persons (or provision of any information to any persons) with
`respect to any inquiry, proposal or offer that constitutes, or would reasonably be
`expected to lead to, an Acquisition Proposal. Promptly after the date hereof (and in
`any event within two (2) Business Days following the date hereof), the Company
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`shall (A) request in writing that each person that has heretofore executed a
`confidentiality agreement in connection with its consideration of an Acquisition
`Proposal or potential Acquisition Proposal promptly destroy or return to the
`Company all nonpublic information heretofore furnished by the Company or any of
`its Representatives to such person or any of its Representatives in accordance with
`the terms of such confidentiality agreement and (B) terminate access to any physical
`or electronic data rooms relating to a possible Acquisition Proposal by such person
`and its Representatives. The Company shall enforce, and not waive, terminate or
`modify without Parent’s prior written consent, any confidentiality, standstill or
`similar provision in any confidentiality, standstill or other agreement; provided that,
`if the Company Board of Directors determines in good faith after consultation with
`the Company’s outside legal counsel that the failure to waive a particular standstill
`provision would be reasonably likely to violate the directors’ fiduciary duties under
`applicable Law, the Company may, with prior written notice to Parent, waive such
`standstill solely to the extent necessary to permit the applicable person (if it has not
`been solicited in violation of this Section 5.3) to make, on a confidential basis to the
`Company Board of Directors, an Acquisition Proposal, conditioned upon such
`person agreeing to disclosure of such Acquisition Proposal to Parent, in each case
`as contemplated by this Section 5.3. For purposes of this Section 5.3, the term
`“person” means any Person or “group,” as defined in Section 13(d) of the Exchange
`Act, other than, with respect to the Company, Parent or any Parent Subsidiary or any
`of their Representatives. Notwithstanding the limitations set forth in Section 5.3(a),
`if the Company receives, prior to the Company Stockholder Approval being
`obtained, a bona fide written Acquisition Proposal that did not result from a breach
`of this Section 5.3, the Company and the Company Subsidiaries and the Company’s
`Representatives may contact the Person or any of its Representatives who has made
`such Acquisition Proposal solely to clarify (and not to negotiate or engage in any
`discussions regarding or relating to) the material terms and conditions of such
`Acquisition Proposal so that the Company may inform itself about such Acquisition
`Proposal. For the avoidance of doubt, any violation of the restrictions set forth in
`this Section 5.3 by (x) a Company Subsidiary, (y) a director or officer of the
`Company or any Company Subsidiary or (z) any other Representatives acting on
`behalf of the Company or any Company Subsidiary shall be a breach of
`this Section 5.3 by the Company.
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`26.
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`In addition, Section 8.2 of the Merger Agreement requires Slack to pay up to a
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`$900,000,000 “termination fee” in the event this agreement is terminated by Slack’s and
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`improperly constrains the Company from obtaining a superior offer. Such a termination fee is
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`excessive and unduly restrictive to Slack’s ability to consider other offers.
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`27.
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`Defendants filed the Registration Statement with the SEC in connection with the
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`Proposed Transaction.
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`28.
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`As alleged herein, the Registration Statement omits material information with
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`respect to the Proposed Transaction, which renders the Registration Statement false and
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`misleading.
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`29.
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`First, the Registration Statement omits material information regarding Slack’s and
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`Salesforce’s financial projections.
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`30.
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`With respect to Slack’s Initial Three-Year Plan financial projections, the
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`Registration Statement fails to disclose all line items used to calculate Non-GAAP Gross Profit
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`and Non-GAAP Operating Income (Loss). The Registration Statement also fails to disclose a
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`reconciliation of all non-GAAP to GAAP metrics.
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`31.
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`With respect to Slack’s Updated Three-Year Plan and Related Extrapolations
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`financial projections, the Registration Statement fails to disclose all line items used to calculate
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`Non-GAAP Gross Profit, Non-GAAP Operating Income (Loss), Unlevered Free Cash Flow,
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`and Unlevered Free Cash Flow Less Stock-Based Compensation. The Registration Statement also
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`fails to disclose a reconciliation of all non-GAAP to GAAP metrics.
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`32.
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`33.
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`The Registration Statement omits entirely Salesforce’s financial projections.
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`The disclosure of projected financial information is material information
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`necessary for stockholders to gain an understanding of the basis for any projections as to the future
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`financial performance of the combined company. In addition, this information is material and
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`necessary for stockholders to understand the financial analyses performed by the companies’
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`financial advisors rendered in support of any fairness opinion.
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`34.
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`Second, the Registration Statement omits material information regarding the
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`analyses performed by the Company’s financial advisors Qatalyst Partners LP (“Qatalyst”) and
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`Goldman Sachs & Co. LLC (“Goldman”).
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`35.
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`With respect to Qatalyst’s Illustrative Discounted Cash Flow Analysis, the
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`Registration Statement fails to disclose: (i) all items used to calculate unlevered free cash flows;
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`(ii) the individual inputs and assumptions underlying the discount rates of 8.25% to 9.75%; (iii)
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`the terminal values for Slack; (iv) Qatalyst’s basis for applying by a range of fully diluted
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`enterprise value to next-12-month’s estimated UFCF multiples of 30.0x to 45.0x; (v) the cash and
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`cash equivalents of Slack as of October 31, 2020; (vi) the number of fully diluted shares of Slack
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`common stock outstanding; and (vii) the face value of Slack’s outstanding convertible debt as of
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`October 31, 2020. This information must be disclosed to make the Registration Statement not
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`materially misleading to Slack stockholders and provide stockholders with full and relevant
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`information in considering how to vote.
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`36.
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`With respect to Goldman’s Implied Premia and Multiples Analysis, the
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`Registration Statement fails to disclose: (i) the number of fully diluted shares of Slack common
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`stock outstanding; and (ii) the Slack’s net debt. This information must be disclosed to make the
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`Registration Statement not materially misleading to Slack stockholders and provide stockholders
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`with full and relevant information in considering how to vote.
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`37.
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`With respect to Goldman’s Illustrative Discounted Cash Flow Analysis, the
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`Registration Statement fails to disclose: (i) all line items used to calculate unlevered free cash flow
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`less stock-based compensation; (ii) the individual inputs and assumptions underlying the discount
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`rates of 6.5% to 9.5%; (iii) the terminal values for Slack; (iv) Goldman’s basis for applying an
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`illustrative range of terminal year multiples of 25.0x to 35.0x and perpetuity growth rates ranging
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`from 2.3% to 6.3%; (v) the number of fully diluted outstanding shares of Slack common stock;
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`and (vi) the net debt and net operating losses used in the analysis. This information must be
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`disclosed to make the Registration Statement not materially misleading to Slack stockholders and
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`provide stockholders with full and relevant information in considering how to vote.
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`38.
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`With respect to Goldman’s Illustrative Present Value of Future Share Price
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`Analysis, the Registration Statement fails to disclose: (i) Goldman’s basis for applying enterprise
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`value to NTM revenue multiples of 16.0x to 20.0x and (ii) the individual inputs and assumptions
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`underlying the discount rate of 8.0%. This information must be disclosed to make the Registration
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`Statement not materially misleading to Slack stockholders and provide stockholders with full and
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`relevant information in considering how to vote.
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`39.
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`With respect to Goldman’s Premia Analysis, the Registration Statement fails to
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`disclose the premiums paid in the transactions observed in the analysis. This information must be
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`disclosed to make the Registration Statement not materially misleading to Slack stockholders and
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`provide stockholders with full and relevant information in considering how to vote.
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`40.
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`With respect to Goldman’s Selected Companies Analysis, the Registration
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`Statement fails to disclose the individual multiples and metrics for the companies observed in the
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`analysis. This information must be disclosed to make the Registration Statement not materially
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`misleading to Slack stockholders and provide stockholders with full and relevant information in
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`considering how to vote.
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`41.
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`The omission of the above-referenced material information renders the
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`Registration Statement false and misleading.
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`42.
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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 stockholders.
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`CLAIMS FOR RELIEF
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`COUNT I
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`(AGAINST ALL DEFENDANTS FOR VIOLATIONS OF SECTION 14(a) OF THE
`EXCHANGE ACT AND RULE 14a-9 PROMULGATED THEREUNDER)
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`43.
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`herein.
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`44.
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`Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange
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`Act, requires that proxy communications with stockholders shall not contain “any statement which,
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`at the time and in the light of the circumstances under which it is made, is false or misleading with
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`respect to any material fact, or which omits to state any material fact necessary in order to make
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`the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.
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`45.
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`Defendants issued the Registration Statement with the intention of soliciting
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`stockholder support for the Proposed Transaction. Each of the Defendants reviewed and authorized
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`the dissemination of the Registration Statement and the use of their name in the Registration
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`Statement, which fails to provide critical information regarding, among other things, the financial
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`projections that were prepared by the Company and relied upon by the Board in recommending
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`the Company’s stockholders vote in favor of the Proposed Transaction.
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`46.
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`In so doing, Defendants made untrue statements of fact and/or omitted material
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`facts necessary to make the statements made not misleading. By virtue of their roles as officers
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`and/or directors, each of the Individual Defendants were aware of the omitted information but
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`failed to disclose such information, in violation of Section 14(a). The Individual Defendants were
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`therefore negligent, as they had reasonable grounds to believe material facts existed that were
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`misstated or omitted from the Registration Statement, but nonetheless failed to obtain and disclose
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`such information to stockholders as required.
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`47.
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`The preparation of a Registration Statement by corporate insiders containing
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`materially false or misleading statements or omitting a material fact constitutes negligence.
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`Defendants were negligent in preparing and reviewing the Registration Statement. Defendants
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`were also negligent in choosing to omit material information from the Registration Statement or
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`failing to notice the material omissions in the Registration Statement upon reviewing it, which they
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`were required to do carefully.
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`48.
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`The misrepresentations and omissions in the Registration Statement are material
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`to Plaintiff, who will be deprived of his right to cast an informed vote if such misrepresentations
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`and omissions are not corrected prior to the vote on the Proposed Transaction. Plaintiff has no
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`adequate remedy at law.
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`COUNT II
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`(AGAINST THE INDIVIDUAL DEFENDANTS FOR VIOLATIONS OF
`SECTION 20(a) OF THE EXCHANGE ACT)
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`49.
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`herein.
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`50.
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`The Individual Defendants acted as controlling persons of the Company within
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`the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions
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`as directors of the Company, and participation in and/or awareness of the Company’s operations
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`and/or intimate knowledge of the incomplete and misleading statements contained in the
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`Registration Statement filed with the SEC, they had the power to influence and control and did
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`influence and control, directly or indirectly, the decision making of the Company, including the
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`content and dissemination of the various statements that Plaintiff contends are materially
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`incomplete and misleading.
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`51.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Registration Statement and other statements alleged by Plaintiff to be misleading
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`prior to and/or shortly after these statements were issued and had the ability to prevent the issuance
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`of the statements or cause the statements to be corrected.
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`52.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
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`the power to control or influence the particular transactions giving rise to the Exchange Act
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`violations alleged herein, and exercised the same. The omitted information identified above was
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`reviewed by the Board prior to voting on the Proposed Transaction. The Registration Statement at
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`issue contains the unanimous recommendation of the Board to approve the Proposed Transaction.
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`The Individual Defendants were thus directly involved in the making of the Registration
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`Statement.
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`53.
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`In addition, as the Registration Statement sets forth at length, and as described
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`herein, the Individual Defendants were involved in negotiating, reviewing, and approving the
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`Merger Agreement. The Registration Statement purports to describe the various issues and
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`information that the Individual Defendants reviewed and considered. The Individual Defendants
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`participated in drafting and/or gave their input on the content of those descriptions.
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`54.
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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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`55.
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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, by
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`their acts and omissions as alleged herein. By virtue of their positions as controlling persons, these
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`Case 1:21-cv-00089 Document 1 Filed 01/05/21 Page 13 of 14
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`defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and proximate
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`result of Individual Defendants’ conduct, Plaintiff will be irreparably harmed.
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`56.
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`Plaintiff has no adequate remedy at law.
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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;
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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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`Directing the Individual Defendants to disseminate a Registration Statement that
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`does not contain any untrue statements of material fact and that states all material facts required
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`in it or necessary to make the statements contained therein not misleading;
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`D.
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`Declaring that defendants violated Sections 14(a) and/or 20(a) of the 1934 Act,
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`as well as Rule 14a-9 promulgated thereunder;
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`E.
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`Awarding Plaintiff the costs of this action, including reasonable allowance for
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`Plaintiff’s attorneys’ and experts’ fees; and
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`F.
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`Granting such other and further relief as this Court may deem just and proper.
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`JURY DEMAND
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`Plaintiff hereby requests a trial by jury on all issues so triable.
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`Dated: January 5, 2021
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`MOORE KUEHN, PLLC
`/s/Justin Kuehn
`
`Justin A. Kuehn
`Fletcher W. Moore
`30 Wall Street, 8th floor
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`Case 1:21-cv-00089 Document 1 Filed 01/05/21 Page 14 of 14
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`New York, New York 10005
`Tel: (212) 709-8245
`jkuehn@moorekuehn.com
`fmoore@moorekuehn.com
`Attorneys for Plaintiff
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