Case 1:21-cv-02107 Document 1 Filed 03/11/21 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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` STEPHANIE HAMMOND,
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`Plaintiff,
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`Civil Action No.
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`COMPLAINT FOR VIOLATIONS
`OF THE FEDERAL SECURITIES
`LAWS
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`JURY TRIAL DEMANDED
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`SYNACOR, INC., KEVIN M. RENDINO,
`HIMESH BHISE, LISA DONOHUE,
`MARWAN FAWAZ, ANDREW KAU, and
`MICHAEL MONTGOMERY,
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`Defendants.
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`Plaintiff Stephanie Hammond (“Plaintiff”) by and through her undersigned attorneys,
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`brings this action on behalf of herself and alleges the following based upon personal knowledge
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`as to those allegations concerning Plaintiff and, as to all other matters, upon the investigation of
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`counsel, which includes, without limitation: (a) review and analysis of public filings made by
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`Synacor, Inc. (“Synacor” or the “Company”) and other related parties and non-parties with the
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`United States Securities and Exchange Commission (“SEC”); (b) review and analysis of press
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`releases and other publications disseminated by certain of the Defendants (defined below) and
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`other related non-parties; (c) review of news articles, shareholder communications, and postings
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`on Synacor’s website concerning the Company’s public statements; and (d) review of other
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`publicly available information concerning Synacor and the Defendants.
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`NATURE OF THE ACTION
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`1.
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`Plaintiff brings this action against the Company and members of the Company’s
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`Board of Directors (the “Board” or the “Individual Defendants”) for violations of Sections
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`Case 1:21-cv-02107 Document 1 Filed 03/11/21 Page 2 of 14
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`14(d)(4), 14(e) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15
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`U.S.C. §§ 78n(d)(4), 78n(e), 78t(a), and SEC Rule 14d-9, 17 C.F.R. §240.14d-9(d) (“Rule 14d-
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`9”), in connection with the proposed acquisition of the Company via tender offer by CLP SY
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`Holding, LLC through its wholly-owned subsidiary SY Merger Sub Corporation (“Merger Sub”
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`and together with CLP Holding, LLC, “Centre Lane”) (the “Proposed Transaction”).
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`2.
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`On February 11, 2021, Synacor entered into a definitive agreement and plan of
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`merger with Centre Lane (the “Merger Agreement”), pursuant to which Centre Lane commenced
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`an all cash tender offer (the “Tender Offer”) to purchase all outstanding shares it doesn’t own of
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`Synacor’s common stock for $2.20 per share. The Tender Offer will expire at 12:00 midnight,
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`New York City time, on March 30, 2021, the twentieth (20th) business day following the
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`commencement of the Tender Offer, unless extended.
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`3.
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`On March 3, 2021, the Company filed an incomplete and materially misleading
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`recommendation statement with the SEC (the “Recommendation Statement”) on Form 14D9 in
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`connection with the Proposed Transaction.
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`4.
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`Accordingly, the failure to adequately disclose such material information
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`constitutes a violation of Sections 14(d), 14(e) and 20(a) of the Exchange Act as Synacor
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`stockholders need such information in order to make a fully informed decision whether to tender
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`their shares in support of the Proposed Transaction.
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`5.
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`As set forth more fully herein, Plaintiff seeks to enjoin Defendants from
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`proceeding with the Proposed Transaction.
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`Case 1:21-cv-02107 Document 1 Filed 03/11/21 Page 3 of 14
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`JURISDICTION AND VENUE
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`6.
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`This Court has subject matter jurisdiction pursuant to Section 27 of the Exchange
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`Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331 as Plaintiff alleges violations of Sections 14(d)(4),
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`14(e) and 20(a) of the Exchange Act
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`7.
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`This Court has personal jurisdiction over all of the Defendants because each is
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`either a corporation that conducts business in, solicits shareholders in, and/or maintains
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`operations within, this District, or is an individual who is either present in this District for
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`jurisdictional purposes or has sufficient minimum contacts with this District so as to make the
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`exercise of jurisdiction by this Court permissible under traditional notions of fair play and
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`substantial justice.
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`8.
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`Venue is proper under 28 U.S.C. § 1391 because a substantial portion of the
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`transactions and wrongs complained of herein occurred in this District. In addition, the
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`Company’s common stock trades 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 has been the owner of the common stock of Synacor since prior to the
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`transaction herein complained of and continuously to date.
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`10.
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`Defendant Synacor is a Delaware corporation with its principal executive offices
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`located at 40 La Riviere Drive, Suite 300, Buffalo, NY 14202. The Company’s stock trades on
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`the NASDAQ under the ticker “SYNC.”
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`11.
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`Defendant Kevin M. Rendino (“Rendino”) is and has been a director of Synacor
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`at all times during the relevant time period.
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`12.
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`Defendant Himesh Bhise (“Bhise”) is and has been the Chief Executive Officer
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`and a director of Synacor at all times during the relevant time period.
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`Case 1:21-cv-02107 Document 1 Filed 03/11/21 Page 4 of 14
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`13.
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`Defendant Lisa Donohue (“Donohue”) is and has been a director of Synacor at all
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`times during the relevant time period.
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`14.
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`Defendant Marwan Fawaz (“Fawaz”) is and has been a director of Synacor at all
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`times during the relevant time period.
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`15.
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`Defendant Andrew Kau (“Kau”) is and has been a director of Synacor at all times
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`during the relevant time period.
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`16.
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`Defendant Michael Montgomery (“Mongomery”) is and has been a director of
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`Synacor at all times during the relevant time period.
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`17.
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`Defendants Rendino, Bhise, Donohue, Fawaz. Kau, and Montgomery are
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`collectively referred to herein as the “Individual Defendants.”
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`18.
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`Defendant Synacor, along with the Individual Defendants, are collectively
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`referred to herein as “Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`Background of the Company
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`19.
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`Synacor is a cloud-based software and services company serving global video,
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`internet and communications providers, device manufacturers, governments and enterprises. The
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`Company strives to enable its customers to better engage with their consumers. Its customers use
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`Synacor’s technology platforms and services to scale their businesses and extend their subscriber
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`relationships.
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`The Company Announces the Proposed Transaction
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`20.
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`On February 11, 2021, Synacor and Centre Lane issued a press release
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`announcing that the Company had entered an agreement in connection with the Proposed
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`Transaction. The press release stated, in pertinent part:
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`Case 1:21-cv-02107 Document 1 Filed 03/11/21 Page 5 of 14
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`BUFFALO, N.Y.--(BUSINESS WIRE)-- Synacor, Inc. (Nasdaq: SYNC), a
`leading provider of cloud-based Collaboration and Identity Management software
`and services serving global enterprises, video, internet and communications
`providers, and governments, today announced that it has entered into a definitive
`agreement and plan of merger with an affiliate of Centre Lane Partners, LLC, a
`New York-based private investment firm, to be acquired in an all-cash transaction
`that values Synacor at approximately $92 million.
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`Under the terms of the agreement, Centre Lane will commence a tender offer to
`acquire all of the outstanding common shares of Synacor for $2.20 in cash per
`share. This represents a 29% premium to the 60-day volume weighted average
`stock price as of February 10, 2021. Synacor’s Board of Directors has
`unanimously approved the agreement.
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`Himesh Bhise, Chief Executive Officer of Synacor, commented, “Partnering with
`Centre Lane, a firm with $2 billion of capital under management and an
`established track record of helping software companies scale, provides our
`stockholders with compelling value while benefiting our customers and
`employees. Our Board of Directors has thoroughly and carefully considered our
`alternatives and believes the Centre Lane proposal is the best path forward for the
`company. The Synacor team looks forward to working with Centre Lane to scale
`the business and deepen our value proposition to customers.”
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`“We are thrilled to support the continued growth and evolution of Synacor,” said
`Kenneth Lau, Managing Director of Centre Lane. “Himesh and his team have
`transformed Synacor into a world-class Enterprise SaaS company, while
`absorbing the costs and navigating the requirements of being publicly traded. We
`look forward to combining our expertise and capital resources with Synacor’s
`talented team to further enhance its Identity, Collaboration and Advertising
`products, expand its customer pipeline and scale the business.”
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`Under the terms of the agreement, Centre Lane will commence a tender offer to
`acquire all issued and outstanding shares of Synacor common stock for $2.20 per
`share in cash. The transaction is subject to customary closing conditions and
`regulatory approvals, including the tender of a majority of the issued and
`outstanding shares of Synacor common stock. Centre Lane has committed capital
`to complete the transaction and receipt of financing by Centre Lane is not a
`condition to closing. Centre Lane has also entered into tender and support
`agreements with certain stockholders represented on the Synacor Board, under
`which they have committed to tender all of their Synacor shares in the tender
`offer, which represent approximately 18% of Synacor’s issued and outstanding
`shares.
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`Following completion of the tender offer, Centre Lane will acquire all remaining
`shares of Synacor at the same price of $2.20 per share in cash through a second-
`step merger. The closing of the transaction is expected to take place during or
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`prior to the second quarter of 2021. Following completion of the transaction,
`Synacor’s common stock will be delisted from the Nasdaq Stock Market and
`deregistered under the Securities Exchange Act of 1934, as amended.
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`Canaccord Genuity is serving as financial advisor and Gunderson Dettmer is
`serving as legal advisor to Synacor. Thompson Hine LLP is serving as legal
`counsel to Centre Lane.
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`Additional details about the agreement will be contained in a Current Report on 8-
`K to be filed by Synacor with the U.S. Securities and Exchange Commission (the
`“SEC”).
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`FALSE AND MISLEADING STATEMENTS
`AND/OR MATERIAL OMISSIONS IN THE RECOMMENDATION STATEMENT
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`21.
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`On March 3, 2021, the Company authorized the filing of the Recommendation
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`Statement with the SEC. The Recommendation Statement recommends that the Company’s
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`stockholders tender their shares in favor of the Proposed Transaction.
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`22.
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`Defendants were obligated to carefully review the Recommendation Statement
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`prior to its filing with the SEC and dissemination to the Company’s shareholders to ensure that it
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`did not contain any material misrepresentations or omissions. However, the Recommendation
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`Statement misrepresents and/or omits material information that is necessary for the Company’s
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`shareholders to make informed decisions concerning whether to tender their shares in favor of
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`the Proposed Transaction.
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`Material False and Misleading Statements or Material
`Misrepresentations or Omissions Regarding Managements Projections
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`23.
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`The Recommendation Statement contains financial projections prepared by senior
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`members of Synacor’s management in connection with the Proposed Transaction, but fails to
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`provide material information concerning such.
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`24.
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`The SEC has repeatedly emphasized that disclosure of non-GAAP projections can
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`be inherently misleading, and has therefore heightened its scrutiny of the use of such
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`projections.1 Indeed, on May 17, 2016, the SEC’s Division of Corporation Finance released new
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`and updated Compliance and Disclosure Interpretations (“C&DIs”) on the use of non-GAAP
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`financial measures that demonstrate the SEC’s tightening policy.2 One of the new C&DIs
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`regarding forward-looking information, such as financial projections, explicitly requires
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`companies to provide any reconciling metrics that are available without unreasonable efforts.
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`25.
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`In order
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`to make management’s financial projections
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`included
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`in
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`the
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`Recommendation Statement materially complete and not misleading, Defendants must provide a
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`reconciliation table of the non-GAAP measures to the most comparable GAAP measures.
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`26.
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`Specifically, with respect to all of the Company’s applicable projections, the
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`Company must disclose the line item projections for the financial metrics that were used to
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`calculate the non-GAAP measures, including: (i) Adjusted EBITDA; and (ii) Unlevered Free
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`Cash Flow.
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`27.
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`Disclosure of the above information is vital to provide investors with the complete
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`mix of information necessary to make an informed decision when deciding whether to tender
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`their shares in support of the Proposed Transaction. Specifically, the above information would
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`provide shareholders with a better understanding of the analyses performed by the Company’s
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`financial advisor in support of its opinion.
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`1 See, e.g., Nicolas Grabar and Sandra Flow, Non-GAAP Financial Measures: The SEC’s
`Evolving Views, Harvard Law School Forum on Corporate Governance and Financial
`Regulation (June 24, 2016), available at https://corpgov.law.harvard.edu/2016/06/24/non-gaap-
`financial-measuresthesecs evolving-views/; Gretchen Morgenson, Fantasy Math Is Helping
`Companies Spin Losses
`Into Profits, N.Y. Times, Apr. 22, 2016, available at
`http://www.nytimes.com/2016/04/24/business/fantasy-mathis-helping-companies-spin-ossesinto-
`profits.html?_r=0.
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` Non-GAAP Financial Measures, Compliance & Disclosure Interpretations, U.S. SECURITIES
`AND
`EXCHANGE
`COMMISSION
`(May
`17,
`2017),
`at
`available
`https://www.sec.gov/divisions/corpfin/guidance/nongaapinterp.htm.
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` 2
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`Material False and Misleading Statements or Material
`Misrepresentations or Omissions Regarding Canaccord’s Opinion Statement
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`The Recommendation Statement contains the financial analyses and opinion of
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`28.
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`Canaccord Genuity (“Canaccord”) concerning the Proposed Transaction but fails to provide
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`material information concerning information such.
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`29. With respect
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`to Canaccord’s Selected Precedent Transaction Analysis,
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`the
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`Recommendation Statement fails to disclose the individual multiples and metrics for each of the
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`transactions observed in the analysis.
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`30. With
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`respect
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`to Canaccord’s Discounted Cash Flow Analysis,
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`the
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`Recommendation Statement fails to disclose: (i) the terminal values in the year 2024 for the
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`Company; (ii) the inputs and assumptions underlying Canaccord’s use of the perpetual growth
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`rate range of 1.0% to 3.0%; (iii) the inputs and assumptions underlying Canaccord’s use of the
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`discount rate range of 13.0% to 15.0%; (iv) Synacor’s weighted average cost of capital; and (v)
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`the number of fully-diluted shares outstanding for Synacor.
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`31. When a banker’s endorsement of the fairness of a transaction is touted to
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`shareholders, the valuation methods used to arrive at that opinion as well as the key inputs and
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`range of ultimate values generated by those analyses must also be fairly disclosed. Moreover,
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`the disclosure of projected financial information is material because it provides stockholders with
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`a basis to project the future financial performance of a company and allows stockholders to
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`better understand the financial analyses performed by the company’s financial advisor in support
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`of its fairness opinion.
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`32. Without the above described information, the Company’s shareholders are not
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`fully informed with respect to the Proposed Transaction. Accordingly, in order to provide
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`shareholders with a complete mix of information, the omitted information described above
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`should be disclosed.
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`Material False and Misleading Statements or Material
`Misrepresentations or Omissions Regarding the Sales Process
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`The Recommendation Statement contains information concerning the process
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`33.
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`leading up to the Proposed Transaction, but fails to include material information concerning
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`such.
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`34.
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`Specifically, the Recommendation Statement fails to disclose: (i) how much
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`money was paid, or is currently owed, by the Company to any previous financial advisors or to
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`Canaccord for engagements regarding previous potential strategic transactions during the sales
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`process; (ii) whether any interested parties entered into any “don’t ask, don’t waive” (“DADW”)
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`provisions that would prevent the potential suitor from making a topping bid for the Company.
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`35.
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`This information is material to shareholders in deciding whether to tender their
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`shares in favor of the Proposed Transaction, as it would show whether or not a superior offer for
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`the Company was available.
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`COUNT I
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`(Against All Defendants for Violations of Section 14(d)
`of the Exchange Act and Rule 14d-9 Promulgated Thereunder)
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`36.
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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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`37.
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`Section 14(d)(4) of the Exchange Act and Rule 14d-9 promulgated thereunder
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`makes it a requirement to make full and complete disclosure in connection with tender offers.
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`38.
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`As discussed herein, the Recommendation Statement, while soliciting shareholder
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`support for the Proposed Transaction, misrepresent and/or omit material facts concerning the
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`Proposed Transaction.
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`39.
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`Defendants prepared, reviewed, filed and disseminated the false and misleading
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`Recommendation Statement to Synacor shareholders. In doing so, Defendants knew or recklessly
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`disregarded that the Recommendation Statement failed to disclose material facts necessary in
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`order to make the statements made, in light of the circumstances under which they were made,
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`not misleading.
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`40.
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`The omissions and incomplete and misleading statements in the Recommendation
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`Statement are material in that a reasonable shareholder would consider them important in
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`deciding whether to tender their shares in favor of the Proposed Transaction. In addition, a
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`reasonable investor would view such information as altering the “total mix” of information made
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`available to shareholders.
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`41.
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`By virtue of their positions within the Company and/or roles in the process and in
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`the preparation of the Recommendation Statement, Defendants were undoubtedly aware of this
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`information and had previously reviewed it, including participating in the Proposed Transaction
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`negotiation and sales process and reviewing Synacor’s financial advisor’s complete financial
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`analyses purportedly summarized in the Recommendation Statement.
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`42.
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`The Individual Defendants undoubtedly reviewed and relied upon the omitted
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`information identified above in connection with their decision to approve and recommend the
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`Proposed Transaction.
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`43.
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`Synacor is deemed negligent as a result of the Individual Defendants’ negligence
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`in preparing and reviewing the Recommendation Statement.
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`44.
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`Defendants knew that Plaintiff would rely upon the Recommendation Statement
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`in determining whether to tender their shares in favor of the Proposed Transaction.
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`45.
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`As a direct and proximate result of Defendants’ unlawful course of conduct in
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`violation of Section 14(d)(4) of the Exchange Act and Rule 14d-9 promulgated thereunder,
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`absent injunctive relief from the Court, Plaintiff will suffer irreparable injury by being denied the
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`opportunity to make an informed decision as to whether to tender their shares in favor of the
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`Proposed Transaction.
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`46.
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`Plaintiff has no adequate remedy at law.
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`COUNT II
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`(Against All Defendants for Violation
`Of Section 14(e) of the Exchange Act)
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`47.
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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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`48.
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`Defendants violated Section 14(e) of the Exchange Act by issuing the
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`Recommendation Statement in which they made false statements of material fact or failed to
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`state all material facts that would be necessary to make the statements made, in light of the
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`circumstances, not misleading, or engaged in deceptive or manipulative acts or practices, in
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`connection with the Proposed Transaction.
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`49.
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`Defendants knew that Plaintiff and the Company’s shareholders would rely upon
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`their statements made in the Recommendation Statement in determining whether to tender shares
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`in favor of the Proposed Transaction.
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`50.
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`As a direct and proximate result of Defendants’ unlawful course of conduct in
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`violation of Section 14(e) of the Exchange Act, absent injunctive relief from the Court, Plaintiff
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`will suffer irreparable injury by being denied the opportunity to make an informed decision as to
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`whether to tender their shares in favor of the Proposed Transaction.
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`COUNT III
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`(Against the Individual Defendants for
`Violations of Section 20(a) of the Exchange Act)
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`51.
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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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`52.
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`The Individual Defendants acted as controlling persons of Synacor within the
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`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
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`officers and/or directors of Synacor, and participation in and/or awareness of the Company’s
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`operations and/or intimate knowledge of the false statements contained in the Recommendation
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`Statement filed with the SEC, they had the power to influence and control and did influence and
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`control, directly or indirectly, the decision-making of the Company, including the content and
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`dissemination of the various statements which Plaintiff contends are false and misleading.
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`53.
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`Each of the Individual Defendants were provided with or had unlimited access to
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`copies of the Recommendation Statement and other statements alleged by Plaintiff to be
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`misleading prior to and/or shortly after these statements were issued and had the ability to
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`prevent the issuance of the statements or cause the statements to be corrected.
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`54.
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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
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`had the power to control or influence the particular transactions giving rise to the securities
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`violations alleged herein, and exercised the same. The Recommendation Statement contain the
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`unanimous recommendation of each of the Individual Defendants to approve the Proposed
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`Transaction. They were thus directly connected with and involved in the making of the
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`Recommendation Statement.
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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(e) of the Exchange
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`Act, by their acts and omissions as alleged herein. By virtue of their positions as controlling
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`persons and the acts described herein, the Individual Defendants are liable pursuant to Section
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`20(a) of the Exchange Act.
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`56.
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`As a direct and proximate result of Individual Defendants’ conduct, Plaintiff will
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`be irreparably harmed.
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`57.
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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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`Directing the Individual Defendants to disseminate an Amendment to the
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`Recommendation Statement that does not contain any untrue statements of material fact and that
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`states all material facts required in it or necessary to make the statements contained therein not
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`misleading;
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`C.
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`Directing Defendants to account to Plaintiff for the damages sustained because of
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`the wrongs complained of herein;
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`D.
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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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`E.
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`Granting such other and further relief as this Court may deem just and proper.
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`Case 1:21-cv-02107 Document 1 Filed 03/11/21 Page 14 of 14
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`DEMAND FOR TRIAL BY JURY
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`Plaintiff hereby demands a trial by jury.
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`Dated: March 11, 2021
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`Respectfully submitted,
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`By: /s/ Joshua M. Lifshitz
`Joshua M. Lifshitz
`Email: jml@jlclasslaw.com
`LIFSHITZ LAW FIRM, P.C.
`1190 Broadway
`Hewlett, New York 11557
`Telephone: (516) 493-9780
`Facsimile: (516) 280-7376
`
`Attorneys for Plaintiff
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`14
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