William Richard Kruse v. Synapse Wireless, Inc.

• Court: Court of Chancery of Delaware
• Decided: July 14, 2020
• Docket: C.A. No. 12392-VCS
• Status: Published

Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

WILLIAM RICHARD KRUSE, ) individually and as TRUSTEE for THE ) VIVIAN CALVERT KRUSE LIVING ) TRUST and THE WILLIAM ) RICHARD KRUSE LIVING TRUST, ) ) Petitioners, ) ) v. ) C.A. No. 12392-VCS ) SYNAPSE WIRELESS, INC., ) ) Respondent. )

MEMORANDUM OPINION

Date Submitted: April 22, 2020 Date Decided: July 14, 2020

Evan O. Williford, Esquire of The Williford Firm LLC, Wilmington, Delaware, Attorney for Petitioner.

Richard P. Rollo, Esquire of Richards, Layton & Finger, P.A., Wilmington, Delaware and Michael D. Mulvaney, Esquire, J. Ethan McDaniel, Esquire and James C. Lester, Esquire of Maynard, Cooper & Gale P.C., Birmingham, Alabama, Attorneys for Respondent.

SLIGHTS, Vice Chancellor To follow is the Court’s fair value appraisal of Respondent, Synapse Wireless,

Inc. (“Synapse” or the “Company”), per 8 Del. C. § 262. Synapse is an internet of

things (or “IoT”) company that sells hardware and software to industrial clients.1

The IoT industry has experienced tremendous growth in recent years, particularly

within the industrial machinery space. Sensing that Synapse was well positioned to

take advantage of this market opportunity, McWane Inc. (“McWane”), a large,

traditional manufacturer, gained control of Synapse through a merger in 2012

(the “2012 Merger”).

In contrast to McWane’s high hopes, Synapse did not grow as expected

following the 2012 Merger. It repeatedly missed its management’s financial targets,

usually by wide margins. As Synapse hemorrhaged cash, McWane propped up its

subsidiary through loans and equity purchases at the price set by the 2012 Merger.

In 2016, McWane decided to buyout the remaining minority shareholders and make

Synapse a wholly owned subsidiary (the “2016 Merger”). In connection with that

transaction, McWane offered the remaining Synapse stockholders $0.42899 per

1 The Internet of Things “refers to a network comprised of physical objects capable of gathering and sharing electronic information. The Internet of Things includes a wide variety of smart devices, from industrial machines that transmit data about the production process to sensors that track information about the human body.” Will Keaton, The Internet of Things (IoT), INVESTOPEDIA (Feb. 9, 2020) https://www.investopedia.com/terms/i/internet-things.asp (last visited July 6, 2020).

1 share, and all but one Synapse stockholder accepted. That one stockholder,

Petitioner, William Richard Kruse (“Kruse”), seeks appraisal of his Synapse stock

under 8 Del. C. § 262.

While Delaware courts typically look for market-based evidence of fair value

in appraisal proceedings, there is no contemporaneous market evidence available

here with respect to the 2016 Merger. It is undisputed that there was no market-

check or competitive sales process for Synapse leading up to that transaction.

Instead, a controlling shareholder of a private company bought out the minority

stockholders at a price set by a previously bargained-for settlement agreement. With

neither party arguing this Court should defer to the deal price, Kruse and Synapse

both have relied on expert witnesses to value Kruse’s Synapse shares.

The experts used similar valuation techniques: each presented valuations

based on discounted cash flow (“DCF”) models, comparable transactions and

McWane’s prior purchases of Synapse’s stock (the only market-based evidence

presented). And, in doing so, the experts materially agreed on several important

inputs in their valuation models. Nevertheless, as has become standard fare for

appraisal litigation,2 the experts reached monumentally different valuations. Kruse’s

2 See, e.g., Golden Telecom, Inc. v. Global GT LP, 11 A.3d 214, 218 (Del. 2010) (“[I]t is difficult for . . . Vice Chancellors to assess wildly divergent expert opinions regarding value.”); In re Appraisal of Jarden Corp., 2019 WL 3244085, at *1 (Del. Ch. July 19, 2019) (observing that well credentialed experts were “miles apart”); Gonsalves v. Straight Arrow Publ’rs, Inc., 1996 WL 696936, at *1 (Del. Ch. Nov. 27, 1996) (“Gonsalves I”), 2 expert opined that each Synapse share was worth $4.1876 at the time of the 2016

Merger. Synapse’s expert declined to give a single valuation, but his summary

values ranged from $0.06 to $0.11 per share.

When dueling experts proffer wildly divergent valuations, the resulting trial

dynamic presents difficult and, frankly, frustrating challenges for the judicial

appraiser. This case presents another, more fundamental challenge; after carefully

reviewing the evidence, it is difficult to discern any wholly reliable indicators of

Synapse’s fair value. There is no reliable market evidence, the comparable

transactions analyses both experts utilized—a dicey valuation method in the best of

circumstances—have significant flaws and the management projections relied upon

by both experts in their DCF valuations are difficult to reconcile with Synapse’s

operative reality.

In the typical litigation context, the lack of fully reliable evidence might lead

the factfinder to conclude that neither party carried their burden of proof and neither

party, therefore, is entitled to a verdict. But “no” is not an answer in the unique

world of statutory appraisal litigation. If the parties fall short in their respective

burdens, the court must still reach an answer—a fair value appraisal must still be

rev’d, 701 A.2d 357 (Del. 1997) (“Gonsalves II”) (stating it is “rather a typical appraisal trial” when experts advance “absurdly differing values”).

3 provided.3 In this case, one expert credibly made the best of less than perfect data

to reach a proportionately reliable conclusion, while the other did not. In such

circumstances, this court is free to adopt, in part or in whole, the more credible

valuation. 4 This is especially so when the court is satisfied that it can do no better

on its own.

After carefully reviewing the evidence, I find that Synapse has marshalled

sufficient evidence to carry its burden of proving a reliable appraisal of Synapse’s

fair value as of the 2016 Merger. Accordingly, with two minor adjustments, I adopt

one of the discounted cash flow valuations proffered by Synapse and appraise the

fair value of Synapse’s equity as of the 2016 Merger at $20,347,822, or $0.228 per

share. Kruse’s 582,216 shares, therefore, are appraised at a fair value of

$133,015.09.

3 M.G. Bancorporation, Inc. v. LeBeau, 737 A.2d 513, 526 (Del. 1999). 4 See id.; Cede & Co. v. Technicolor, Inc., 884 A.2d 26, 35–36 (Del. 2005) (“Cede III”) (“It is often the case in statutory appraisal proceedings that a valuation dispute becomes a battle of experts. This is evidenced by the fact that the Court of Chancery is frequently presented with conflicting expert testimony. The Court of Chancery, as the finder of fact in an appraisal case, enjoys the unique opportunity to examine the record and assess the demeanor and credibility of witnesses. Thus, the Court of Chancery is the sole judge of the credibility of live witness testimony. This Court will accept the Court of Chancery's factual determinations if they turn on a question of credibility and the acceptance or rejection of particular pieces of testimony. A factual finding made by the Court of Chancery based on a weighing of expert opinion may be overturned only if arbitrary or lacking evidential support.”) (quotations omitted).

4 I. BACKGROUND

The following facts were proven by a preponderance of the evidence after a three-

day trial.5

A. Parties and Relevant Non-Parties

Respondent, Synapse, is a Delaware corporation that manufactures products

in the “Internet of Things” and “Smart Manufacturing” spaces.6 Synapse has several

business lines. In its “Core” or “Legacy Core” business, the Company provides

customers a small hardware module with an operating system, a radio and the ability

to accept instructions in the Python programming language, allowing customers to

build and connect their own applications for the technology.7 The “Lighting”

business sells special purpose controls for LED lighting, and configuring networks

for those controls.8 Synapse’s “Smart Manufacturing” business provides products

as services to manufacturing companies, which allows Synapse to obtain recurring

revenue by offering continuing configuration and computing services.9

5 I cite to the trial record as “Tr.__ (name)”, the Joint Pre-Trial Stipulation and Order as “PTO ¶ __”, the joint trial exhibits as “JX__” and Depositions as “(Name) Dep.__.” 6 JX 305 (“Myers Dep.”) 29:22–30:10. 7 Myers Dep. 25:9–27:25. 8 Myers Dep. 28:1–29:13. 9 Myers Dep. 30:3–31:13.

5 Non-party, McWane, is a major national manufacturer of products including

“cast iron, drainpipe fittings, couplings, ductile pipe, fire hydrants, underground

valves, fittings like the bends and Ts that connect the water underground, [and]

propane tanks, like [] gas grill tanks.”10 McWane is a private company and remains

under the control of its founders, the McWane family. 11

Petitioner, William Richard Kruse, is a former aerospace engineer who has

invested in numerous startup companies, both as an individual and through the

Huntsville Angel Network, an investor group.12 Kruse first invested in Synapse in

2009 after the company pitched the Huntsville Angel Network, and he invested

additional money in 2009 and 2010 through his IRA, his trust and his wife’s trust.13

Kruse, individually, and as trustee for the Vivian Calvert Kruse Living Trust and the

William Richard Kruse Living Trust, held 582,216 shares of Synapse before the

2016 Merger.14

10 JX 301 (“Page Dep.”) 18:15–19:7. 11 Tr. 22:21–22:2 (Page); Tr. 61:15–22 (Page). 12 Tr. 128:1–131:4 (Kruse). 13 Tr. 133:4–134:3 (Kruse). 14 PTO ¶ 7.

6 B. The 2012 Merger

On May 23, 2012, Synapse entered into an Agreement and Plan of

Reorganization with McWane. 15 The Agreement and Plan of Reorganization

contained two key parts: the 2012 Merger between Synapse and McWane, which

gave McWane a controlling stake in Synapse, and a Stockholders Agreement

(the “2012 Stockholders Agreement”) between Synapse, McWane, the designated

stockholder representative and consenting Synapse stockholders. 16

In the 2012 Merger, McWane acquired Synapse stock at a per-share price of

$4.997, implying an enterprise value of $109 million.17 The 2012 Merger

Agreement contains certain Company representations, warranties and covenants,

and an agreement to indemnify the purchasers against losses arising out of or

connected to breaches of those representations, warranties and covenants.18

The parties established an $8 million escrow account as partial security for the

15 JX 52 (the “2012 Merger Agreement”). 16 PTO ¶¶ 3–4. 17 Id. Synapse effectuated a 3:1 stock split on September 30, 2014, implying a pre-merger price per share of $1.667. PTO ¶ 6. 18 2012 Merger Agreement §§ 3.1–3.28, 8.2(a).

7 sellers’ indemnification obligations.19 Moro Lanier, III was named as the

Stockholder Representative. 20

The 2012 Stockholders Agreement contains a provision giving the minority

stockholders the right, beginning in 2016, to demand that McWane purchase their

outstanding Synapse stock based on Synapse’s then-current valuation—subject to a

valuation floor of $76.3 million.21 That agreement also gave McWane the right,

beginning in 2018, to require the remaining minority stockholders to sell their

Synapse stock to McWane. 22 Important here, the agreement further provided

McWane with the right, expiring in 2016, to purchase any newly issued Synapse

shares at a price per-share based on the 2012 Merger.23 As discussed below,

McWane would go on to exercise this option on numerous occasions.

19 2012 Merger Agreement § 8.4, 6. 20 2012 Merger Agreement § 8.6. Kruse has criticized the selection of Mr. Lanier as stockholder representative, suggesting that his relationship with Ruffner Page, McWane’s President, made Mr. Lanier an inappropriate choice to represent Synapse stockholders. See, e.g., Pet’r’s Post-Trial Opening Br. (“Post-Trial OB”) 8–9, 58. After reviewing the evidence of the Page/Lanier relationship, I find the argument unpersuasive. 21 PTO ¶ 10. 22 Id. 23 PTO ¶ 11.

8 C. Synapse Continuously Misses its Revenue Targets

In the years following the 2012 Merger, Synapse repeatedly missed its

revenue targets, at times by wide margins. For instance, Synapse’s 2013 revenue

target was $11.78 million;24 its actual 2013 revenue was $2.154 million. 25 Synapse’s

2014 revenue target was $7.1 million; 26 its actual 2014 revenue was $3.025 million.27

Synapse’s 2015 revenue target was $10.14 million; 28 its actual 2015 revenue was

$2.33 million. 29 Synapse’s 2016 revenue target was $11.91 million; 30 its actual 2016

revenue was $3.96 million. 31 And so it went; suffice it to say, Synapse’s

management were not proficient forecasters. Indeed, in 2015, Synapse missed its

revenue projections for every month, even when accounting for monthly downward

revisions. 32 The chart below illustrates the forecast misses:

24 JX 76 at 2. 25 Id. 26 JX 98 at 2. 27 Id. 28 JX 197 at 14. 29 Id. 30 JX 277 at 13. 31 Id. 32 Tr. 179:4–180:11 (Reinhardt); JX 197 at 22.

9 33

Synapse’s disappointing post-2012 Merger performance stands in stark

contrast to the financial projections used to calculate the 2012 Merger price.

As depicted in the chart below, before that merger, Synapse’s projected revenues

were $43.6 million for 2013, $106.18 million for 2014, $196.43 million for 2015,

and $324.11 million for 2016. 34 Cumulatively, Synapse’s actual revenues missed

these projections by hundreds of millions of dollars.35

33 Respondent’s Demonstrative 2. 34 JX 25 at 7. 35 Compare id. with JX 76 at 2; JX 98 at 2; JX 197 at 14; JX 277 at 13.

10 36

Synapse developed six distinct business lines after the 2012 Merger, but by 2015, it

had already shut down three of them. 37

Kruse waves away this dismal history and makes much of Synapse’s 2016

business plan. He argues it represented a turning point for the Company that “put it

on an accelerated path to success,” using this argument to justify a higher valuation.38

According to Kruse, the shuttering of business units meant, “Synapse was retooled

to be a more profitable vertical business.”39 This supposed “retooling,” however,

36 Respondent’s Demonstrative 1. 37 JX 170 at 5; JX 303 (“Reinhardt Dep.”) 217:4–13. 38 Petitioner’s Pre-Trial Opening Br. 9. 39 Id.

11 did nothing to improve Synapse’s fortunes. The Company’s revenue was only

$5.7 million in 2017 and $7.5 million in 2018, orders of magnitude lower than the

lofty revenue projections used to justify the 2012 Merger price. 40

D. McWane Provides Synapse with Additional Funds

With Synapse repeatedly missing its revenue targets and being miles away

from profitability, the Company relied on McWane to finance its operations.41

To fund its subsidiary, McWane purchased newly-issued Synapse stock eight times

after the 2012 Merger, eventually acquiring over ten million newly issued Synapse

shares at the contractually mandated pre-split price of $4.997 per share.42

The majority of these shares were purchased in one block in January 2014, when

McWane paid $31 million for 6,203,660 shares of Synapse.43 In addition to new

stock issuances, McWane also acquired nearly a million existing shares from

Synapse stockholders at the contractually pre-determined price.44

40 Tr. 196:19–21 (Reinhardt); Tr. 123:3–9 (Page). While these post-merger numbers cannot impact my appraisal of Synapse’s fair value as of the 2016 Merger, they are useful to keep in mind when assessing the fanciful nature of Synapse’s management’s financial targets. 41 Tr. 186:10–192:15 (Reinhardt). 42 JX 256. 43 Tr. 186:21–23 (Reinhardt). 44 JX 256. This excludes purchases associated with the 2016 Merger and Lanier Settlement Agreement, both discussed later.

12 Shortly after the January 2014 equity purchase, Synapse loaned the entire

$31 million back to McWane. 45 This transaction structure allowed McWane to fund

Synapse’s operations while keeping Synapse on a short leash—each month Synapse

requested McWane repay a portion of the $31 million according to the Company’s

current financial needs, and each month McWane repaid the requested amount.46

Importantly, by purchasing the shares up front, McWane increased its ownership

interest in Synapse beyond 80%. This permitted McWane to consolidate Synapse’s

and McWane’s federal tax returns, allowing it to employ Synapse’s prior tax losses

fully for its own benefit.47

The parties dispute what happened next. The $31 million was paid back and

spent by November or December of 2014, after which McWane began to loan money

(the “Disputed Money”) to Synapse directly. 48 The first loan occurred on

December 3, 2014, for $870,000.49 By January 11, 2016, the balance on the loan

45 Tr. 187:13–188:1 (Reinhardt). 46 Tr. 187:16–188:4 (Reinhardt). 47 Tr. 371:22–372:22 (Petty). These tax benefits would eventually exceed the $31 million McWane paid for these shares. Tr. 373:3–11. 48 Tr. 188:9–21 (Reinhardt). 49 JX 349 (“Sweet Opening Report”) 15.

13 totaled $29,343,000.50 The loan carried a rock-bottom interest rate of 1.16%, and

while Synapse appears to have made some interest payments, it never generated

enough free cash to pay back principal on the loan. 51

The parties dispute whether this money was truly a loan from McWane to

Synapse, or was, instead, a capital contribution.52 Synapse and McWane describe

the money as a loan, support that characterization with loan documentation and

identify “interest payable” and “intercompany notes payable” attributable to the loan

on Synapse’s balance sheet.53 Kruse responds that Synapse never made any

principal payments, McWane intended to forgive the loan and, therefore, the

Disputed Money should be treated as contributed capital.54

After reviewing the evidence, I am satisfied the Disputed Money is debt.

Synapse’s executives credibly testified to that fact, and the Company was able to

support this claim with contemporaneous, original loan documentation.55 Although

Synapse had not repaid any principle as of the 2016 Merger, Synapse did appear to

50 Sweet Opening Report 15–16; see JX 197 at 11 (noting a $27,747,500 balance on December 31, 2015). 51 Tr. 810:5–16 (Noe); Tr. 389:4–15 (Petty). Sweet Opening Report 15–16. 52 See Sweet Opening Report 16; JX 358 (“Noe Rebuttal Report”) ¶ 14. 53 Noe Rebuttal Report ¶¶ 14, 14 n.1; JX 197 at 11; JX 217; JX 252. 54 Sweet Opening Report 15–16; JX 207. 55 Tr. 182:13–22 (Reinhardt); Tr. 183:11–16 (Reinhardt); JX 197 at 11; JX 217; JX 252.

14 have made interest payments and McWane has never forgiven this debt.56 I address

the implications of this finding below.

E. The Lanier Action

On December 13, 2013, McWane filed a claim certificate related to the 2012

Merger in which it alleged it had suffered losses due to Sellers’ breaches and

misrepresentations exceeding the $8 million escrow account.57 The parties

commenced negotiations to resolve the claim, but were unable to do so.58

On March 31, 2014, McWane filed a complaint in this court (the “Lanier Action”)

to recover its purported losses.59

The Lanier Action focused on alleged “channel stuffing,” a practice in which

a company intentionally sells more inventory to retailers and distributors than it

expects those intermediaries will ultimately sell to consumers. 60 This practice allows

56 Tr. 188:22–190:9 (Reinhardt). 57 PTO ¶ 12. 58 JX 421 (the “Lanier Action”) 6. 59 Id. 60 See generally, Tracy Byrnes, Too Many Thin Mints: Spotting the Practice of ‘Channel Stuffing’, WALL ST. J. (Feb. 7, 2002) https://www.wsj.com/articles/SB1013117089572671360; Tr. 263:3–8 (Foster).

15 a company to recognize revenue earlier than it otherwise would. 61 Channel stuffing

often requires the company to extend discounts or other incentives to the

intermediaries, lowering the ultimate price the company receives for its products.62

Additionally, intermediaries typically have the right to return unsold inventory,

potentially rendering the sales boost illusory. 63 Channel stuffing is only possible

when a company uses a “sales-in” method of revenue recognition (which allows the

seller to recognize revenue when the product goes to a distributor), rather than a

“sales-through” method (which requires the seller to wait to recognize revenue until

the distributor sells to the ultimate consumer). 64

The complaint in the Lanier Action alleges, “Synapse improperly recognized

revenue from sales to distributors prior to the time of the Merger, resulting in inflated

and misstated revenue numbers.” 65 The parties spent considerable time at trial

presenting evidence related to purported channel stuffing before the 2012 Merger

and the propriety of Synapse’s revenue recognition and accounting methods.

61 There may be legitimate reasons for a company to recognize revenue in an earlier sales period. The practice is illegitimate, however, when used to create a misleading impression of current sales. See id. 62 Id. 63 Tr. 396:24–398:2 (Petty). 64 Tr. 392:23–395:6 (Petty). 65 Lanier Action 12.

16 The parties settled the Lanier Action in December 2015, prior to the court’s

verdict. According to the settlement documents (collectively, the “Lanier Settlement

Agreement”), McWane received the following: (1) $4.65 million from the escrow

account; (2) a reduction in the price of McWane’s call option to a post-split price of

$0.42899 per share; and (3) an acceleration of McWane’s call option to make it

immediately exercisable.66 After the Lanier Settlement Agreement was executed,

McWane exercised its accelerated call option, giving it beneficial ownership of

99.346% of the outstanding Synapse stock. 67 Kruse was the only stockholder who

refused to sell his shares pursuant to this agreement.68

F. The 2016 Merger

On February 2, 2016, Synapse and McWane effectuated a squeeze-out

merger, and offered Kruse the Lanier Settlement price of $0.42899 per share for his

stock. 69 Instead of accepting the 2016 Merger price, Kruse brought this action for

appraisal.

66 JX 199 (the “Lanier Settlement Agreement”). 67 PTO ¶ 16. 68 PTO ¶ 18. 69 PTO ¶ 19.

17 G. The Experts

Both Kruse and Synapse retained experts who opined on the fair value of

Synapse as of the 2016 Merger. Kruse retained Athen Sweet (“Sweet”), whose

reports I will refer to as the “Sweet Opening Report” and the “Sweet Rebuttal

Report.”70 Synapse retained Christopher Noe (“Noe”), whose reports I will refer to

as the “Noe Opening Report” and the “Noe Rebuttal Report.”71

Sweet applied three valuation techniques to reach his fair value conclusion.

First, he performed a “Prior Company Transactions” analysis that yielded an

enterprise value for Synapse of $386,622,000.72 Next, he performed a DCF analysis,

resulting in an enterprise value of $331,973,000.73 Finally, he performed a

70 Athen Sweet is the founder and CEO of Innovatus IQ, LLC, a merger and acquisition advisory firm. Sweet Opening Report Appx. A. He previously worked as a Certified Public Accountant at Faulk & Winkler, LLC, an accounting firm. Id. Mr. Sweet received his B.S. in Accounting and M.B.A. from Southeastern Louisiana University, where he currently serves as Professional Chairman of the school’s Accounting Advisory Committee. Id. 71 Christopher Noe, Ph.D is a Senior Lecturer at the Massachusetts Institute of Technology’s Sloan School of Management, where he teaches classes on accounting, financial statement analysis and valuation. JX 319 (“Noe Opening Report”) ¶ 1; Noe Opening Report Ex. 1. He previously worked as a consultant at Charles River Associates, an economics, finance and business consulting firm, and as an Assistant Professor at Harvard Business School. Id. Dr. Noe received his Ph.D in Accounting and his M.S. in Applied Economics from the William E. Simon Graduate School of Business Administration at the University of Rochester and his B.A. in Economics from Emory University. Id. 72 Sweet Opening Report 17; Tr. 582:18–583:16 (Sweet). 73 Sweet Opening Report 17; Tr. 595:8–596:2 (Sweet).

18 “Guideline Transactions (Private)” analysis (or “Comparable Transactions”

analysis), which reached an enterprise value of $190,356,000.74 Ultimately, and for

reasons not entirely clear, Sweet relied 75% on his Prior Company Transactions

analysis, 25% on his Discounted Cash Flow analysis, and 0% on his Comparable

Transactions analysis, to land on a final valuation of $372,960,000, and a per-share

fair value of $4.1876. 75

Noe utilized the same three valuation techniques as Sweet, but reached very

different conclusions. He first performed DCF valuations utilizing two different sets

of assumptions, leading to enterprise values in one model of $48.9 million or $0.24

per share,76 and in the other model a value of negative $3.4 million or $0 per share.77

Noe then employed a “Comparable Transactions” analysis, which resulted in a value

of $0.01 per share.78 Last, Noe performed a Prior Company Transactions analysis

that produced a value of $0.19 per share.79 Ultimately, Noe declined to provide a

single valuation for Synapse stock. Instead, he offered two possibilities. If the 2012

74 Sweet Opening Report 17; Tr. 632:6–20 (Sweet). 75 Sweet Opening Report 17. 76 Noe Opening Report ¶ 13; Tr. 763:18–764:1 (Noe). 77 Noe Opening Report ¶ 16; Tr. 770:19–777:7 (Noe). 78 Noe Opening Report ¶ 21; Tr. 779:5–783:9 (Noe). 79 Noe Opening Report ¶ 24.

19 Merger price was unreliable, he applied equal weight to his DCF and Comparable

Transactions analyses to reach a fair value share price of $0.06. 80 If the 2012 Merger

was a reliable indication of value, he weighed all three of his techniques equally and

valued Synapse at $0.11 per share. 81

H. Procedural History

Kruse filed this action on May 31, 2016.82 This Court held a three-day trial

from February 11, 2019 to February 13, 2019, and post-trial oral argument was held

on September 19, 2019. After reassignment of this case to me, 83 I certified my

familiarity with the case and trial evidence (including a video recording of the trial

testimony) under Court of Chancery Rule 63 on April 16, 2020, and deemed the

matter submitted for decision on April 20, 2020. 84

II. ANALYSIS

Kruse seeks appraisal of his Synapse shares under 8 Del. C. § 262. That

statute entitles shareholders who satisfy certain form and manner requirements to

“an appraisal by the Court of Chancery of the fair value of the stockholder’s shares

80 Noe Opening Report ¶ 25; Tr. 738:7–15 (Noe). 81 Id. 82 JX 246. 83 D.I. 170. 84 D.I. 176.

20 of stock . . . .” 85 The parties do not dispute that Kruse continuously held shares or

that he has properly perfected his appraisal rights under Section 262. Instead, as

usual, the dispute centers on the proper determination of Synapse’s fair value.

A. The Statutory Appraisal Remedy

“An action seeking appraisal is intended to provide shareholders who dissent

from a merger, on the basis of the inadequacy of the offering price, with a judicial

determination of the fair value of their shares.”86 “‘The underlying assumption in

an appraisal valuation is that the dissenting shareholders would be willing to

maintain their investment position had the merger not occurred.’ Accordingly, the

corporation must be valued as a going concern based upon the ‘operative reality’ of

the company as of the time of the merger.” 87 “[T]he purpose of an appraisal is . . .

to make sure that [shareholders] receive fair compensation for their shares in the

sense that it reflects what they deserve to receive based on what would fairly be

given to them in an arm’s-length transaction.” 88 “Since every company is different,

85 8 Del. C. § 262. 86 Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1142 (Del. 1989). 87 M.G. Bancorporation, 737 A.2d at 525 (quoting Cede & Co. v. Technicolor, Inc., 684 A.2d 289, 298 (Del. 1996) (“Cede II”)). 88 DFC Global Corp. v. Muirfield Value P’rs, L.P., 172 A.3d 346, 370–71 (Del. 2017).

21 and every merger is different, the appraisal endeavor is by design, a flexible

process.”89

The Appraisal Statute is a “[b]roth of many cooks and opaque of intent.”90

In this spirit, the statute eschews specific guidance in favor of a more cryptic

mandate that this court consider “all relevant factors” as it determines the fair value

of a dissenting stockholder’s shares. 91 As I undertake my independent appraisal of

Synapse, I may consider “proof of value by any techniques or methods which are

generally considered acceptable in the financial community and otherwise

admissible in court. . . .” 92 Because “corporate finance is not law,” expert witnesses

often play the lead role in sponsoring competing appraisals to the court.93

89 In re Appraisal of Jarden Corp., 2019 WL 3244085, at *23 (Del. Ch. July 19, 2019) (quotations omitted), aff’d sub nom. 2020 WL 3885166 (Del. July 9, 2020). 90 In re AOL Inc., 2018 WL 1037450, at *1 (Del. Ch. Feb. 23, 2018). 91 8 Del. C. § 262(h). “Relevant factors” do not include value deriving from the transaction itself. “The court should exclude ‘any synergies or other value expected from the merger giving rise to the appraisal proceeding.’ ‘[O]nce the total standalone value is determined, the court awards each petitioning stockholder his pro rata portion of this total . . . plus interest.’” Verition P’rs Master Fund Ltd. v. Aruba Networks, Inc., 2018 WL 922139, at *23 (Del. Ch. Feb. 15, 2018) (rev’d on different grounds, 2019 WL 1614026 (Del. Apr. 16, 2019)) (quoting Global GT LP v. Golden Telecom, Inc., 993 A.2d 497, 507 (Del. Ch. 2010) (aff’d, 11 A.3d 214 (Del. 2010)). 92 Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983). See also Laidler v. Hesco Bastion Envtl., Inc., 2014 WL 1877536, at *6 (Del. Ch. May 12, 2014) (discussing the parties’ competing burdens of proof and the court’s obligation independently to appraise the target company). 93 In re Jarden, 2019 WL 3244085, at *1.

22 When it comes to evaluating expert testimony, appraisal cases are no different

from any other adversarial proceeding. The court’s fact-finding role allows it to

consider reliable and credible expert testimony and to reject unreliable or incredible

expert testimony. 94 In this regard, the court “has the discretion to select one of the

parties’ valuation models as its general framework or to fashion its own.”95 And,

“although not required to do so, it is entirely proper for the Court of Chancery to

adopt any one expert’s model, methodology, and mathematical calculations, in toto,

if that valuation is supported by credible evidence and withstands a critical judicial

analysis on the record.” 96

As mentioned, Kruse and Synapse’s expert witnesses both relied on three

valuation techniques. The first technique links the value of Synapse to the price

McWane paid for Synapse shares in prior transactions. I refer to this approach as

the Prior Company Transactions model. The second is a Comparable Transactions

analysis, which looks to other transactions within a similar timeframe, industry and

company size, and uses financial metrics from those transactions to estimate

Synapse’s value. The third technique is a DCF, which builds a valuation from the

94 M.G. Bancorporation, 737 A.2d at 526. 95 Id. at 525–26. 96 Id. at 526.

23 ground up using projections of future cash flows, and then discounting those

projections to present value. I address each approach in turn.

B. Market Evidence of Fair Value

Both experts performed valuations based on McWane’s previous purchases of

Synapse stock, though they differ on how much weight to give these valuations in

the final determination of Synapse’s fair value. As these purchases, and in particular

the 2012 Merger, are the transactions most likely to provide the Court with market-

based evidence of Synapse’s value, they must be examined first. 97

Recent decisions of our Supreme Court have emphasized the important role

market evidence plays in valuing a company. 98 Vice Chancellor Glasscock

concisely summarized this focus noting, “[w]here [] transaction price represents an

unhindered, informed, and competitive market valuation,” and the “terms of the

transaction are not structurally prohibitive or unduly limiting to [] market

participation,” then “the trial judge must give particular and serious consideration to

transaction price as evidence of fair value.” 99 While the cases emphasizing the

97 See Dell, Inc. v. Magnetar Global Event Driven Master Fund Ltd., 177 A.3d 1, 35 (Del. 2017) (holding that the price of transactions occurring in an efficient market are to be given “heavy weight” in appraisal cases). 98 See id.; DFC, 172 A.3d at 366. 99 In re AOL, 2018 WL 1037450, at *1 (citations omitted); see also DFC, 172 A.3d at 367 (holding “the most reliable evidence of value is that produced by a competitive market, so long as interested buyers are given a fair opportunity to price and bid on the something in question”); Aruba, 2019 WL 1614026, at *5 (“DFC and Dell recognized that when a public 24 importance of market evidence focus on the transaction that caused a dissenting

shareholder to sue for appraisal, purchases of company stock predating the event

triggering appraisal could potentially provide market evidence of fair value if those

transactions were “Dell Compliant.” 100

1. McWane’s Stock Purchases and the 2016 Merger

Kruse argues that McWane’s purchases of Synapse stock preceding the 2016

Merger provide important insight into Synapse’s fair value because McWane

voluntarily bought Synapse stock with full information about the Company’s

struggling business prospects. 101 Synapse disagrees, arguing McWane made these

purchases at a contractually mandated price to provide Synapse with desperately

needed capital. 102 Stock purchases in such circumstances, Synapse argues, provide

little to no reliable evidence of Synapse’s value.

Neither McWane’s series of stock purchases after the 2012 Merger nor the

2016 Merger occurred in a competitive market. These purchases involved no robust

market check, and each occurred in the absence of unhindered, informed and

company with a deep trading market is sold at a substantial premium to the preannouncement price, after a process in which interested buyers all had a fair and viable opportunity to bid, the deal price is a strong indicator of fair value. . . .”). 100 In re AOL, 2018 WL 1037450, at *1. 101 Post-Trial OB 31. 102 Tr. 374:5–22 (Petty).

25 competitive market conditions. 103 Information was not widely disseminated to other

potential buyers, and there is no evidence other willing purchasers of Synapse stock

existed, let alone bid for the stock. 104 In each of these transactions, McWane was

the dominant controlling stockholder making purchases at a price set not by market

conditions or independent appraisers, but by a years-old contract. 105 And, the largest

of these capital investments—the $31 million January 2014 purchase—was

motivated, in large part, by McWane’s desire to keep Synapse afloat and to increase

its ownership of Synapse over the 80% threshold so that it could reap the attendant

tax benefits.106 As such, I do not find these purchases to be reliable or relevant

indicators of Synapse’s fair value.

2. The 2012 Merger

While the 2012 Merger was an arm’s-length transaction between a willing

buyer and seller, I likewise find it is not probative of Synapse’s value as of the 2016

Merger. 107 The 2012 Merger was nearly four-years-old at the time of the 2016

103 Tr. 366:20–369:19 (Petty). 104 See Tr. 368:11–16 (Petty); Tr. 369:14–19 (Petty); Tr. 387:1–7 (Petty). 105 JX 61 at 1. 106 Tr. 371:22–373:16 (Petty); JX 443 at 2. The tax savings from this transaction eventually exceeded the $31 million paid for the shares. Tr. 373:3–11 (Petty). 107 See DFC, 172 A.3d at 370–71 (noting the purpose of appraisal is to give a shareholder the price they would fairly receive in an arms-length transaction).

26 Merger. It was, in a word, stale as of the 2016 Merger. Moreover, Synapse faced

dramatically different prospects in 2016 than it did in 2012. 108 In the years since the

2012 Merger, the Company had demonstrated a serial inability to meet even

conservative financial targets. 109 Of particular consequence, its 2015 revenue was

nearly 84 times lower than the projection used to calculate the 2012 Merger price—

a miss of nearly $200 million. 110

The parties argued at great length about whether the 2012 Merger involved

fraud. 111 That issue was front and center in the Lanier Action, but that case is not

before me. Instead, I am tasked with deciding whether the 2012 Merger is evidence

of Synapse’s value as of the 2016 Merger. After reviewing the evidence and

arguments of counsel, I am satisfied that the 2012 Merger was either the product of

Synapse’s officers’ misleading inflation of the company’s value, or the product of

McWane’s failure to perform adequate due diligence regarding Synapse’s revenue

recognition model. In either instance, McWane did not understand the company it

108 See Respondent’s Demonstrative 1. 109 See, e.g., supra Section I.C; Tr. 183:17–186:9 (Reinhardt). 110 JX 25 at 7; JX 197 at 14. 111 See, e.g., Post-Trial OB 31, 41; Respondent’s Post-Trial Answering Br. (“Post-Trial AB”) 47–59.

27 was buying in 2012, limiting the probative value of the 2012 Merger price in my

appraisal of the Company’s fair value as of the 2016 Merger.112

**********

The experts’ determinations of fair value using Prior Company Transaction

methods rest on an assumption that the prior transactions bear some relevance to

Synapse’s fair value in 2016. Because I am not persuaded that this connection is

factually supported, I reject the experts’ Prior Company Transaction analyses as

unreliable and, therefore, irrelevant.

3. Pre-litigation Valuations

The parties dispute the relevance of several valuations carried out by Stout

Risius Ross (“SRR”), an investment bank, before the appraisal litigation began.113

While SRR valued Synapse numerous times over a period of a year, 114 its final June

2015 valuation concluded that Synapse was worth only $0.02 per share. 115 Kruse

112 See Dell, 177 A.3d at 25 (“A market is more likely efficient, or semi-strong efficient . . . if information about the company is widely available and easily disseminated to the market. In such circumstances, a company’s stock price reflects the judgments of many stockholders about the company’s future prospects, based on public filings, industry information, and research conducted by equity analysts. In these circumstances, a mass of investors quickly digests all publicly available information about a company, and in trading the company’s stock, recalibrates its price to reflect the market’s adjusted, consensus valuation of the company.”) (quotation omitted). 113 See, e.g., JX 107; JX 122; JX 123; JX 132; JX 229; JX 259. 114 Id. 115 JX 229.

28 argues that SRR’s work should not be trusted because it was pressured by a potential

client, McWane, to produce a valuation favorable to McWane. 116 Synapse responds

that SRR was never beholden to McWane, and that Synapse’s management’s

reliance upon the SRR valuations in 2015 to deem stock options worthless is a strong

indication they believed those valuations to be accurate.117

While Kruse asks me to disregard these valuations because SRR’s valuation

teams were biased, I do not need to reach that issue. No SRR employee testified at

trial, and therefore the sponsors of those valuations were not subject to the “crucible

of cross-examination,” a key tool in the assessment of evidence during the

deliberations of any factfinder, including the appraisal factfinder.118 Accordingly, I

do not rely on the SRR valuations in appraising the fair value of Synapse.119

C. Comparable Transactions Analyses

Both Sweet and Noe utilize a Comparable Transaction analyses in valuing

Synapse.120 “It [is] well within the [Court’s] discretion to view [a] comparable

116 Post-Trial OB 10–12. 117 Post-Trial AB 10. 118 In re Jarden, 2019 WL 3244085, at *1 (quoting Gilbert v. M.P.M. Enters., Inc., 1998 WL 229439, at *3 (Del. Ch. Apr. 24, 1998)). 119 This does not mean, however, that these valuations are of no aid to me in determining Synapse’s fair value. SRR’s valuations can function as something of a “sanity check” comparison point if my final valuation is miles from theirs. 120 Noe Opening Report ¶¶ 19–21; Sweet Opening Report 12–14.

29 companies analysis as providing relevant insights into [the company’s] value based

on inferences from how the market value[s] companies in the same industry, facing

most of the same risks.” 121 It is important to keep in mind, however, that the financial

ratios utilized in a comparables analyses “can vary widely even within the same

industry.” 122 One prominent valuation treatise, therefore, advises that comparables

analyses are a “cautious” enterprise and not as useful in determining a company’s

value as a DCF analysis.123

Sweet ultimately assigned no weight to his Comparable Transactions analysis,

noting “[t]he difficulty associated with identifying truly comparable private

transactions is great and should not be understated.”124 This fundamental

shortcoming did not stop him from completing the analysis, however. To find

comparable transactions, he searched the PitchBook database for transactions that

meet the following criteria: (1) the company operates in the IoT industry; (2) the

121 DFC, 172 A.3d at 387. 122 JX 425 (Richard A. Brealey, Stewart C. Myers and Franklin Allen, Principles of Corporate Finance 81 (McGraw-Hill Irwin, 12th ed. 2017) [hereinafter Brealey Myers & Allen]). 123 See id. (Noting that to understand why comparables analyses can fluctuate widely “we need to look more carefully at what determines a stock’s market value. We start by connecting stock prices to the cash flows that stockholders receive from the company in the form of cash dividends. This will lead us to a discounted cash flow (DCF) model of stock prices.”). 124 Sweet Opening Report 13; Tr. 634:15–635:10 (Sweet).

30 transaction occurred no more than 6 years before the 2016 Merger; (3) the company

generates revenue; (4) the company is not profitable; (5) the company operates in

the United States; (6) the company has revenue no more than twice Synapse’s

revenue; and (7) there exists sufficient revenue data.125 These search parameters

yielded seven transactions, of which five did not involve transfers of control, leading

him to apply a control premium to those five. 126 He then weighted the revenue

multiples for these transactions based on how similar in size the companies were to

Synapse—with weights ranging from 1.69 to 85.53—and calculated a weighted

revenue multiple of 66.26. 127 Applying this weighted revenue multiple to Synapse’s

revenue, Sweet valued the Company at $190,356,000.128

Noe approaches the problem in a similar manner but, unsurprisingly, utilizes

a different set of comparable transactions. Noe looked to the Capital IQ database

for “transactions between January 1, 2012 and December 31, 2016 involving U.S.

targets where the business description of the target or buyer contains keywords

‘internet of things,’ ‘IoT,’ ‘machine to machine,’ or ‘M2M,’” and selected only those

125 Sweet Opening Report 12–13; Tr. 632:21–633:14 (Sweet). 126 Sweet Opening Report 13. 127 Id. 128 Id.; Tr. 633:15–17 (Sweet).

31 transactions with sufficient data to construct a revenue multiple.129 He then excluded

transactions involving companies that he considered to be only tangentially related

to the IoT industry. 130 This left him with 15 transactions, which valued the firms at

a median of 2.4x revenue and a mean of 2.53x revenue. 131 Applying a 2.47x revenue

multiplier—the midpoint between the median and mean—to Synapse’s historical

revenue, and then adding Synapse’s cash on hand, Noe reached a firm value of

$6.6 million, implying negative equity value. 132 Nonetheless, he concluded that the

equity had value as an option, and valued the equity at $0.01 per share using the

Black-Scholes option pricing formula. 133

This dramatic difference between the experts neatly captures the perils of the

comparable transactions method. The two experts largely agree on Synapse’s

revenue baseline and that a revenue multiplier should be used to calculate enterprise

value, and neither uses facially unreasonable methods in selecting that revenue

129 Noe Opening Report ¶ 19; Tr. 779:8–780:16 (Noe). 130 Id.; Tr. 780:7–16 (Noe). 131 Id.; Tr. 781:10–782:5 (Noe). 132 Noe Opening Report ¶ 20; Tr. 782:6–783:9 (Noe). Noe operated under the assumption the Disputed Money is debt. Id. 133 Noe Opening Report ¶¶ 20–21; Tr. 782:21–783:9 (Noe).

32 multiplier. 134 Nonetheless, Sweet selected a revenue multiplier nearly 27 times

larger than Noe’s, and the experts reach valuations nearly $200 million apart. 135

As is typical, both experts had much to say about the other’s analysis. Sweet

points out that some of the companies in Noe’s model had vastly more revenue than

Synapse—including companies with annual revenues of $370 million, $340 million

and $258 million.136 He argues these inclusions skew Noe’s results because,

“as companies grow in size, the revenue multiple is less and less reliable.” 137 Sweet

also notes that Noe incorporated profitable companies in his comparable set, and that

profitable companies are often valued based on earnings multiples rather than

revenue multiples.138

Noe argues that Sweet’s seven comparable transactions set included two

inappropriate entries: one included as a result of a data error,139 and one transaction

134 See Sweet Opening Report Ex. 5 (applying a revenue multiple to a baseline of $2,460,210); Noe Opening Report Ex. 5 (applying a revenue multiple to a revenue of $2,335,466). 135 Id. 136 Tr. 683:9–18 (Sweet); Noe Opening Report at Ex. 4. 137 Tr. 683:9–10 (Sweet). 138 Tr. 684:16–23 (Sweet). 139 Sweet’s model included a company, Newport Media, listed as having $0.043 million in revenue. JX 343. Newport Media actually had revenue of $43 million in the year before its acquisition. Noe Rebuttal Report ¶ 20; Tr. 790:10–791:8 (Noe). Correcting this error 33 where the target’s value derived from its possession of user data, not its potential in

the IoT space. 140 Additionally, he finds Sweet’s use of the 2012 Merger as a

comparable transaction to be inappropriate. 141 After adjusting Sweet’s findings to

remove these transactions, and correct what he saw as other, less consequential

errors, 142 Noe’s Rebuttal Report argues that Sweet’s model should find a value of

$0.01 per-share.143

I reject both the Sweet and Noe Comparable Transactions analyses. The

parties bear the burden of establishing that their respective Comparable Transactions

analyses are reliable and probative of the fair value of Synapse. 144 Neither did so.

Each expert was able to make well-considered, convincing objections to the other’s

model that were not effectively rebutted.145 Accordingly, I find these models are not

probative of Synapse’s fair value.

results in that transaction having a revenue multiple of 3.95x, not the 3,953x used by Sweet. Id. 140 Noe Rebuttal Report ¶¶ 19–23; Tr. 791:9–792:4 (Noe). 141 Noe Rebuttal Report ¶ 23. 142 Noe Rebuttal Report ¶ 22–23 (removing value of Synapse’s NOLs from the model and changing the cash on hand figure). 143 Noe Rebuttal Report ¶¶ 20–23; Tr. 793:11–15 (Noe). 144 In re Jarden, 2019 WL 3244085, at *33. 145 See Noe Rebuttal Report ¶¶ 19–23; Sweet Rebuttal Report 4–6. Sweet, to his credit, gave his Comparable Transactions Analysis no weight.

34 D. Discounted Cash Flow

I turn next to the parties’ competing DCF models. Our Supreme Court has

noted that a DCF is “widely considered the best tool for valuing companies when

there is no credible market information and no market check. . . .” 146 The Supreme

Court has also recognized the reality, however, that “DCF valuations involve many

inputs—all subject to disagreement by well-compensated and highly credentialed

experts—and even slight differences in these inputs can produce large valuation

gaps.”147 With these limitations in mind, I don my waders and begin the trek into

the DCF marsh.

A DCF requires three primary inputs: (1) a projection of future cash flows;

(2) a terminal value; and (3) a discount rate.148 The company’s available cash is then

added to this calculation and its debt subtracted to arrive at a final enterprise value.149

In reviewing these inputs, I will discuss where the parties’ experts disagreed and,

146 Dell, 177 A.3d at 38; see also In re Petsmart, Inc., 2017 WL 2303599, at *23 (Del. Ch. May 26, 2017) (Noting that, “DCF is considered by many to be the ‘gold standard’ of valuation tools . . . .”). 147 Dell, 177 A.3d at 38. Stated more colorfully by an expert in a prior case, “garbage in, garbage out.” In re Petsmart, 2017 WL 2303599, at *22. 148 JX 329 (Robert W. Holthausen & Mark E. Zmijewski, Corporate Valuation: Theory, Evidence, and Practice 182 (first ed. 2013) [hereinafter Holthausen & Zmijewski]); Noe Opening Report ¶¶ 7–9. 149 Id.

35 when appropriate, determine if either expert has credibly offered a reliable input that

this Court should adopt in its own appraisal. 150

1. Free Cash Flows

The first ingredient in a DCF model is a company’s future profits. 151 One

common measure of profits, utilized by both experts in this case, is free cash flows.

“Free cash flows can be thought of as the cash generated by a company’s net

operating assets before any payments are made to debtholders in the form of interest

and/or principal to shareholders in the form of dividends.”152 They include several

inputs, including: Earnings Before Interest, Taxes, Depreciation, and Amortization

(“EBITDA”); capital expenditures (“CAPEX”)—the money a company spends on

maintaining and upgrading its capital stock—and changes in working capital and

150 M.G. Bancorporation, 737 A.2d at 526 (noting, “it is entirely proper for the [court] to adopt any one expert’s model, methodology, and mathematical calculations, in toto, if that valuation is supported by credible evidence and withstands a critical judicial analysis on the record.”). 151 Brealey Myers & Allen 84. 152 Noe Opening Report ¶ 9. While free cash flows are not accepted under the Generally Accepted Accounting Principles (“GAAP”), they are routinely used in DCF models accepted by this Court. See generally Merion Capital, L.P. v 3M Cogent, Inc., 2013 WL 3793896, at *12–15 (Del. Ch. July 8, 2013) (calculating free cash flows); Blueblade Capital Opportunities LLC v. Norcraft Cos., Inc., 2018 WL 3602940, at *36–39 (Del. Ch. July 27, 2018) (same).

36 taxes.153 Here, both experts assume Synapse would have no future tax liabilities.154

Thus, taxes require no treatment separate from free cash flows.

For the most part, Noe and Sweet agree on projections of free cash flows for

2016 through 2020—although Noe’s are marginally higher—and both base their

numbers on Synapse’s management’s projections.155 I acknowledge I have some

reservations about relying on Synapse’s management’s projections given the

Company’s serial inability to meet its financial targets.156 But, both experts rely on

management projections in their analyses, and no alternate projections were offered

for my consideration. 157 With little dispute between the parties’ proffered

153 Noe Opening Report Ex. 3A; Brealey Myers & Allen 84. 154 Although Sweet and Noe originally treated the net operating losses differently, with Sweet counting the present value of the net operating losses separately from profits, Sweet revised his analysis in that regard. See Tr. 629:9–631:24 (Sweet). Both experts now agree not to account for taxes, although they get there through different methods. I have adopted Noe’s more straightforward method of not counting taxes at all, rather than Sweet’s method of adding the value of the previous losses back by valuing net operating losses. 155 Tr. 807:10–13 (Noe). Sweet used the Synapse 2016 Plan and supplemented it with an Excel projection file, both prepared by Synapse management before this litigation. Tr. 603:14–24 (Sweet); Sweet Opening Report 14. Noe used a different set of projections, also prepared by Synapse management. Noe Opening Report ¶ 8. While Kruse attacks Noe’s use of projections he claims are “incorrect,” looking to the projections used by both experts confirms they do not contain any material differences. Tr. 640:6–9 (Sweet); Compare JX 178 at 5 (used by Noe) with JX 188 at 2; JX 193 (relied on by Sweet). 156 See Respondent’s Demonstratives 1–2. 157 Sweet Opening Report 14; Noe Opening Report ¶ 15. If there were other financial projections in the record that more closely reflected the operative reality of the Company, I may well have relied on them.

37 projections, at least for this period, I adopt Noe’s free cash flow projections for

2016–2020 for the simple reason that I find his overall DCF analysis more credible.

In accepting Noe’s free cash flow estimates, I also necessarily adopt the inputs he

used when calculating the free cash flows for this period.

Noe and Sweet differ considerably on projections of free cash flows from

2021 to 2024, although they rely on substantially similar revenue estimates. 158 These

differences are the product of very different estimates of the Company’s profit

margins.159 It is necessary, therefore, first to analyze the experts’ profit margin

projections in order better to understand their differing free cash flow projections for

this period.160

Profit margin is a measure of the difference between the cost of producing a

good and the price at which that good is ultimately sold, expressed as a percentage.161

In his Opening Report, Noe uses EBITDA profit margins from forecasts developed

by Synapse management through 2020, and then assumes the profit margin will stay

constant into the future at 12.3%—the 2020 management projection. 162 Noe then

158 Compare Noe Opening Report at 17 with JX 345 (“Sweet DCF”) at 1. 159 Tr. 748:21–749:4 (Noe). 160 See Post-Trial OB 44–47; Post-Trial AB 28–32. 161 See Tr. 602:20–603:13 (Sweet). 162 Tr. 749:7–16 (Noe).

38 compares this assumed EBITDA margin with the margins of other companies in the

IoT industry. 163 His search revealed that these companies have a median EBITDA

margin of 5.3%, with profitable companies having a median of 14.2%, supporting

his 12.3% assumption. 164

Sweet likewise uses management projections for profit margins through

2020. 165 For projecting profit margins for 2020–24, Sweet relies on a data set from

Aswath Damodaran, a highly-regarded finance professor at NYU, which shows an

industry weighted average profit margin of 24%. 166 To state the experts’

disagreement succinctly, Noe assumes profit margins will be static after 2020, while

Sweet assumes they will continue to increase dramatically into the terminal period.

Sweet justifies this assumption by arguing that cost of sales will remain at 49% of

total revenue, the same as in management’s 2020 projections, and operating

expenses will increase 5% annually from 2021 to 2024. 167 Meanwhile, he projects

depreciation and amortization will stay at the 2020 level.168

163 Tr. 750:9–751:15 (Noe). 164 Id. 165 Sweet DCF at 1; Tr. 596:7–599:11 (Sweet). 166 Tr. 616:9–617:10 (Sweet); 674:1–12; 751:6–753:5 (Noe). 167 Sweet Opening Report 15. 168 Id.

39 After carefully considering the competing approaches, I find that Noe has

utilized the more credible projections of profit margins. Noe’s method of estimating

a 12.3% margin is facially reasonable, and he backed this assumption with a

comparison to the median profit margin of other companies in the IoT industry.169

Although this estimate is almost certainly too optimistic given Synapse’s dismal

historic performance, Noe’s projection at least partially accounts for these past

failures by projecting Synapse’s profit margin to be slightly lower than other

profitable companies in the industry. 170

Sweet, by contrast, refers to a proprietary dataset generated for the tech

industry as a whole, including firms that are not remotely comparable to Synapse.171

Sweet initially argued these companies are a solid comparison for Synapse because

their net incomes were similar to projections of Synapse’s net income for the period

2020–24. 172 On cross-examination, however, it was revealed that Sweet had made

a fundamental error. He had mistakenly assumed the income numbers in the

169 Tr. 749:21-751:5 (Noe); Noe Rebuttal Report ¶ 18. 170 Noe Opening Report ¶ 18; Tr. 750:22–751:5 (Noe). 171 Tr. 751:11–753:14 (Noe). While I am entirely confident that the dataset is reliable, I have no confidence that it has been reliably applied to this case. See Tr. 752:14–19 (Noe) (“The Damodaran database doesn't allow you to calculate different metrics, means, medians, because the individual company data is not provided because of licensing agreements. So he only provides these industry aggregates.”). 172 Tr. 621:17–622:22 (Sweet).

40 Damodaran database were measured in “millions,” when, in fact, they were

measured in “billions,” making the companies he was comparing to Synapse much

larger than he believed. 173

With Sweet’s error revealed, Kruse attempted to pivot and argue that because

larger companies do not necessarily have the highest profit margins, the error was

harmless.174 Noe demonstrated, however, that in Damodaran’s database the largest

companies in Synapse’s industry did, in fact, have the highest profit margins.175

Because that database uses a “weighted average,” not a median, these large

companies with high profit margins skew the numbers higher. 176

Kruse’s disagreement with Noe’s calculated 12.3% profit margin, by contrast,

amounts to little more than “it is too low.”177 In particular, Kruse criticizes Noe for

173 Tr. 713:23–718:6 (Sweet). 174 Tr. 799:15–24 (Noe). (“Q: Do the largest companies always have the highest EBITDA margins? A: No, that need not always be the case. For this particular industry at this particular time, it was the case. But it need not be the case. Q: In fact, it is possible that many large companies may have EBITDA margins lower than the average? A: That is possible. Not in this case, but it is possible.”). 175 Id.; Tr. 753:17–22 (Noe) (“Q: And so what’s the significance of those large players when we’re talking about Synapse? A: Well, those are the largest companies in the industry, and, therefore, they’re going to have the largest effect on this industry aggregate metric. And it turns out, for this industry at this time period, that those large companies were also some of the most profitable companies.”). 176 Tr. 752:8–10 (Noe). 177 Petitioner’s Post-Trial Reply Brief 20 n.15 (“Synapse concedes Noe’s EBITDA margin is lower than the median margin for profitable companies in those industries.”).

41 assuming Synapse’s profit margin would flatten out after 2020 despite growing the

previous years. 178 In doing so, Kruse does not identify any academic literature that

suggests Noe’s assumptions are incorrect or disfavored. 179 Indeed, Kruse’s breezy

assertion that Noe’s 12.3% profit margin is too pessimistic is hard to square with the

undisputed fact that Synapse’s management’s financial projections, as a matter of

course, wildly overestimate the Company’s future earnings.180

As Sweet’s method includes an error that appears artificially to inflate his

proffered profit margin, and Kruse is unable to mount any persuasive criticism of

Noe’s methodology, I find Noe’s more conservative methods to be credible and most

reliable. Thus, I adopt a 12.3% profit margin going forward.

As noted, the experts used materially similar revenue estimates in their

projections of Synapse’s free cash flows for 2021–24.181 The differences in the

178 Tr. 643:21–644:5 (Sweet); JX 371 (“Sweet Rebuttal Report”) 2; Post-Trial OB 45 (“Noe’s sharp year-to-year swing contrasts unfavorably to Sweet’s reasonable and gradual decline . . . .”). 179 Sweet relies heavily on Professor Everett Rogers’ book Diffusion of Innovations to support his growth trajectory of free cash flows (and therefore profit margins) and to argue against Noe’s leveling off. Sweet Rebuttal Report 4. As was made clear at trial, however, Diffusion of Innovations discusses revenue growth, not free cash flow growth. Tr. 747:16– 748:20 (Noe). It is, therefore, irrelevant here as both Sweet and Noe’s revenue projections do not contain material differences. Compare JX 178 at 5 (used by Noe) with JX 188 at 2; JX 193 (relied on by Sweet). 180 See Respondent’s Demonstratives 1–2. 181 Compare JX 178 at 5 (used by Noe) with JX 188 at 2; JX 193 (relied on by Sweet).

42 experts’ free cash flow projections for this period emanate from their competing

profit margin estimates. 182 In line with his profit margin estimates, Sweet generates

his free cash flow projections for 2020–24 by reference to Synapse’s projected 2019

growth rate. 183 Management’s projected 2019 revenue growth rate was 48%, and

Sweet projects this will drop to a projected 2020 growth rate of 38%. 184 Continuing

this trend, Sweet projects a 28% growth rate in 2021 and an 18% growth rate in

2022, followed by a 13% growth rate in 2023, an 8% growth rate in 2024, and a 3%

terminal growth rate.185 He then uses his profit margin calculation—subtracting out

Synapse’s capital expenditures and additions to working capital—to estimate

Synapse’s free cash flows for this period.186 By contrast, consistent with his profit

margin estimates, Noe projects that Synapse’s free cash flows would rise 20% per

182 For a company with no taxes, FCF = EBITDA-CAPEX-Working Capital Investment. Noe Opening Report Ex. 3A. Noe did not include estimates for CAPEX and Working Capital Investments in his DCF. Id. Sweet, however, did include these numbers. As his estimates for 2021–24 hew closely to the estimates Noe used for the 2016–2020 period, it is reasonable to infer that their wildly different FCF estimates result from differences in calculated profit margins. See Sweet DCF; Noe Opening Report Ex. 3A. Noe confirmed at trial that the experts’ different FCF estimates resulted from their different estimations of Synapse’s profit margins. Tr. 748:21–749:4 (Noe). 183 Sweet Opening Report 14; Tr. 616:11–617:1 (Sweet). 184 Sweet Opening Report 14. 185 Sweet Opening Report 14–15. 186 Sweet DCF.

43 year through 2025 based on a report about future growth prospects in the industry,

and then used a 3.1% terminal growth rate.187

Sweet’s free cash flow projections for the disputed period are as follows:

Year 2021 2022 2023 2024 FCF 188 18,455,394 29,521,774 38,372,499 44,223,998

And, Noe’s projections for the disputed period are as follows:

Year 2021 2022 2023 2024 FCF 189 8,956,673 10,748,008 12,897,610 15,477,131

Because I have adopted Noe’s projected profit margin, I also adopt his projected free

cash flows for 2021–24.190

2. Discount rates

Discount rates are the second crucial ingredient of a DCF analysis.191

Discount rates reflect the common-sense notion that a dollar tomorrow is not as

187 Noe Opening Report ¶ 10 (citing an April 2016 report by IHS Markit about projected IoT growth rates from 2021 to 2025 as an industry); Noe Opening Report Ex. 3A. Tr. 643:5–15 (Sweet). As discussed below, Noe only projected free cash flows through 2024 before making his terminal value calculation. 188 Sweet DCF (“AMS-7 DCF” tab). 189 Noe Opening Report Ex. 3A. 190 I again express hesitancy in accepting any calculations based on management’s projections. Given the lack of credible alternate indications of value in this case, however, I find using a DCF, even based on these questionable projections, to be the most (and, here, only) reliable indicator of Synapse’s value. 191 Brealey Myers & Allen 83–84.

44 valuable as a dollar today. 192 Accordingly, a discount rate is applied to each future

cash flow to determine that cash flow’s present value.193 The applied discount rate

reflects a combination of factors and can be calculated several different ways. Both

experts here relied on the well-accepted weighted average cost of capital (“WACC”)

methodology in calculating Synapse’s discount rate.194 WACC is the “cost of capital

(discount rate) determined by the weighted average, at market value, of the cost of

all financing sources in the business enterprise’s capital structure.” 195

Noe used two different models to calculate Synapse’s WACC. His first model

calculates a WACC of 12 percent; the second calculates a WACC of 40 percent.196

For the first model, Noe looked to cost of capital estimates from Duff & Phelps 2015

Valuation Handbook—a common source for valuation experts—in industries that he

found to be related to the IoT. 197 He identified four comparable industries, which,

combined with Duff & Phelps’ eight estimation methods, gave him 32 estimates of

192 JX 357 at 3, 7. 193 Noe Opening Report ¶ 7. 194 Noe Opening Report ¶ 12: Sweet Opening Report 5. 195 JX 357 at 9. 196 Noe Opening Report ¶¶ 13, 16; Tr. 757:1–2 (Noe); Tr. 770:20–771:2 (Noe). Both experts adopted a half-year convention for their discounting, a convention I adopt as well. Sweet DCF n.6; Noe Opening Report Ex. 3A n.8. 197 Noe Opening Report ¶ 12; Tr. 742:13–20 (Noe).

45 Synapse’s WACC. 198 He averaged the 32 to arrive at a 12% estimate of Synapse’s

WACC. 199 In his second model, Noe added a premium based on a startup company’s

risk of complete failure. 200 He used a 40% discount rate between 2016 and 2020 in

this model, which he described as “the low end of the discount rate range applied to

first-stage ventures by venture capitalists, to incorporate the probability of

failure.” 201

Sweet used the Capital Asset Pricing Model (“CAPM”) to calculate Synapse’s

equity cost of capital. 202 Because Sweet assumes that Synapse’s capital structure

includes no debt, its equity cost of capital in his model is equal to its WACC.203

CAPM is “a model in which the cost of capital for any stock or portfolio of stocks

equals a risk-free [interest] rate plus a risk premium that is proportionate to the

systematic risk of the stock or portfolio.”204 Estimating a company’s cost of equity

capital using the CAPM requires estimates of three main inputs: the risk-free interest

198 Noe Opening Report ¶ 12. 199 Id. (citing 2015 Valuation Handbook – Industry Cost of Capital (Duff & Phelps, 2015)). 200 Noe Opening Report ¶ 16: Tr. 770:17–772:1 (Noe). 201 Noe Opening Report ¶ 16. Noe then used a 12% discount rate after this first four years. Id. 202 Sweet Opening Report 15; Tr. 652:19–23 (Sweet). 203 Sweet DCF at 1; Tr. 652:19–653:16 (Sweet). 204 JX 357 at 2.

46 rate, the company’s beta, and the market risk premium. 205 Sweet found a risk free

rate based on the 20-year US Treasury Bond yield of 2.68%; an equity risk premium

of 6.03%; a full information beta multiplier of 1.01; and a size premium of 5.4%.206

Thus, he finds an equity cost of capital, WACC, and discount rate of (2.68% +

6.03%) * 1.01 + 5.4% = 14.2%.207

After carefully considering the evidence, I give no weight to Noe’s

“probability of failure” WACC model. While Noe was able to point to academic

studies backing use of a company specific risk adjustment, Synapse was not able

convincingly to argue that its actual risk of failure justifies this adjustment.208

McWane—a mature, profitable company—had demonstrated a persistent

willingness to provide seemingly unlimited capital financing to Synapse.209

Accepting Noe’s risk adjustment would require this Court to assume, in essence, that

McWane would abandon this practice and let its subsidiary fail. I decline to do so.

205 JX 399 (Shannon P. Pratt, Cost of Capital 76 (John Wiley & Sons, Inc., 2nd ed. 2002) [hereinafter Pratt]). More sophisticated models, like the one used by Sweet, also include “size effect and specific risk” inputs. Id.; JX 346 at 1. 206 JX 346 at 1. 207 Id. 208 Noe Opening Report ¶ 16; Tr. 770:17–773:19 (Noe). 209 See JX 256; JX 346.

47 I also decline to adopt Sweet’s WACC calculation. As I have found that the

Disputed Money is debt, I cannot accept Sweet’s WACC model that assumes

Synapse’s capital structure is 100% equity, and accordingly does not include a cost

of debt. 210

As noted, Noe relied on industry estimates to peg Synapse’s WACC at 12%.

Kruse argues this was in error because, assuming, as Noe does, the Disputed Money

is debt, the industry estimates Noe relied on do not properly value the unique benefit

McWane provided Synapse by loaning it money at a rock bottom interest rate.211

Synapse responds by invoking Modigliani and Miller’s theory that altering a firm’s

capital structure by substituting cheaper debt for more expensive equity does not

reduce its WACC because investors will react by treating that firm’s equity as

increasingly risky. 212

The difficulty with Kruse’s position is that his expert did not provide a

calculation of what Synapse’s WACC would be if the Company’s capital structure

included debt; Sweet simply criticized Noe’s choice without providing an

210 JX 346. As Sweet’s calculated WACC is higher than Noe’s, this choice is favorable to Kruse, resulting in a higher valuation. 211 Tr. 623:11–19 (Sweet); Tr. 646:23–647:14 (Sweet); Post-Trial OB 52. Presumably, the typical IoT firm does not receive such heavily subsidized loans. 212 Tr. 765:3–766:22 (Noe); Post-Trial AB 36. See generally JX 397.

48 alternative. 213 Consequently, even assuming Noe’s choice not to account for

Synapse’s low cost of debt was improper (an assumption I do not make), I have no

“corrected” WACC calculation to consider as an alternative.

While I could attempt this calculation sua sponte, such an exercise would be

of questionable reliability. Given that Synapse has no warrants, no preferred stock

and an assumed 0% tax rate, rWACC = rE * (VE/VF) + rD * (VD/VF). 214 While rD

is known (1.16%), and rE could be calculated using the information the experts have

provided, solving VE/VF and VD/VF—the capital structure ratio of equity and

debt—would be far more difficult. 215 Solving for these ratios would require

estimating the market value of both the debt and equity. 216 And there are serious

problems with attempting to undertake these estimates. First, as Noe admits, the

interest rate paid by Synapse on its debt is dramatically below the rate it would be

able to secure in a market loan.217 Given that the typical early-stage, unprofitable

213 See Sweet DCF; Sweet Rebuttal Report 3; Tr. 647:10–14 (Sweet). 214 Pratt at 46. Where rWACC is the weighted average cost of capital, rE is the cost of equity capital, (VE/VF) is the capital structure ratio of equity (meaning the percentage of the company’s capital structure that is equity), rD is the cost of debt, and (VD/VF) is the capital structure ratio of debt (meaning the percentage of the company’s capital structure that is debt). 215 Id. This is, in no small part, because neither expert provided this calculation in their reports or in their trial testimony. 216 Id. at 48–49. 217 Tr. 743:15–744:10 (Noe).

49 company like Synapse would be required to pay a far higher interest rate than 1.16%

on any market loan, calculating the debt’s market value is especially tricky—it might

well be close to zero. 218 Second, estimating the market value of Synapse’s equity as

a step in valuing Kruse’s shares would involve an obviously recursive process. And,

even assuming both these exercises could be undertaken, the iterative method

utilized in estimating the value of a closely held company’s equity involves a healthy

dose of guesswork. 219

Accordingly, I accept Noe’s 12% calculation based on industry estimates.

Utilizing industry estimates of WACC when, for the reasons discussed above, a

company specific number is difficult to calculate is a well-accepted method in the

valuation profession.220 While it is possible this method does not properly value the

extremely cheap debt that Synapse has access to, given the problems with the other

proffered estimates, I am convinced Noe’s methods result in the most reliable

calculation of Synapse’s WACC.

218 Tr. 744:5–10 (Noe); Tr. 646:8–647:14 (Sweet). 219 Pratt at 48–52. 220 Tr. 742:13–743:7 (Noe); Noe Opening Report ¶ 12.

50 3. Terminal value

In a DCF analysis, future cash flows are only projected out for a certain period

of time—five years in this instance.221 Rather than continuing to forecast annual

cash flows after this period, valuation experts typically calculate a firm’s terminal

value as an estimation of its cash flows into perpetuity. 222 Two common methods

for computing a firm’s terminal value are the perpetual growth model (commonly

referred to as the Gordon Growth model) and an exit multiples method (which

assumes a sale of the company). 223 This terminal value is then discounted to a

present value. 224 As a company’s terminal value can account for a large percentage

of its value in a DCF (it is nearly 100% of Synapse’s value in Sweet’s DCF and

100% of the value in Noe’s), understanding the experts’ disagreements on this point

is essential.225

221 JX 330 (Paul Asquith & Lawrence A. Weiss, Lessons in Corporate Finance 348 (John Wiley & Sons, Inc.) [hereinafter Asquith & Weiss]); Noe Opening Report Ex. 3A; Sweet DCF. 222 Asquith & Weiss 348. 223 Id.; Tr. 605:20–606:13 (Sweet). 224 Brealey Myers & Allen 83. 225 Sweet DCF at 1; Noe Rebuttal Report ¶ 13. Without the terminal value in Noe’s calculation, Synapse has a negative equity value of over $30 million.

51 Both Noe and Sweet estimate free cash flows through 2024, then project those

numbers into perpetuity to calculate a terminal value. 226 Noe calculates his terminal

value using the Gordon Growth model.227 This is a standard and accepted method

of measuring terminal value; it assumes that the company’s free cash flows will grow

at a constant rate in perpetuity. 228 Noe’s model uses a perpetual growth rate of 3.1%,

in line with the long-term growth rate of the United States economy. 229 Again, this

is a standard and accepted choice of a growth rate for a terminal value.230 This

method results in a terminal value of $206,680,424, with a present value of

$79,639,499. 231

Sweet calculates a terminal value using a different, but also well-accepted,

method—the exit multiple model. 232 An exit multiple calculates a company’s

terminal value as some multiple of future earnings, in this case as a multiple of

226 Noe Opening Report ¶ 10; Noe Opening Report Ex. 3A; Sweet Opening Report 14; Sweet DCF. 227 Noe Opening Report ¶ 10; Tr. 741:6–9 (Noe). 228 Tr. 754:17–755:2 (Noe); Asquith & Weiss 348. 229 Noe Opening Report 10; Tr. 741:6–9 (Noe). 230 Asquith & Weiss 350. 231 Noe Opening Report Ex. 3A. 232 Sweet DCF; Asquith & Weiss 348.

52 Synapse’s projected EBITDA. 233 Sweet derived this multiple by examining the sales

of companies similar to Synapse and calculating the sale price as a multiple of the

target company’s EBITDA. 234 This method resulted in an exit multiple of 21.9x.235

Applying this multiple to his projection of Synapse’s 2024 EBITDA results in a

terminal value of $1,074,777,895, with a present value of $305,491,909. 236

While neither of the terminal valuation methods utilized by the experts is, in

a vacuum, superior to the other, Noe credibly points out that Sweet’s terminal value

calculation suffers from a serious flaw. 237 Although Sweet calculated his terminal

valuation based on an EBITDA multiple, Noe was able to demonstrate that implicit

in this calculation is an assumption Synapse will grow into perpetuity at a 10%

growth rate—far beyond the conventional limit of the long-term GDP growth rate.238

This is a highly questionable assumption because, although a company can be

expected to grow at least at the rate of inflation, “[i]t is theoretically impossible for

233 Tr. 755:15–20 (Noe); Tr. 656:16–657:13 (Sweet); Sweet DCF. 234 JX 342. 235 Tr. 609:1–2 (Sweet). Although Noe did not calculate an exit multiple, his model implies a 7.5x EBITDA multiple. Tr. 755:6–11 (Noe). 236 Sweet DCF. 237 Noe Rebuttal Report ¶ 13; Tr. 759:4–760:8 (Noe). 238 See Noe Rebuttal Report Ex. 2. Sweet acknowledged that Noe’s calculation was correct at trial. Tr. 718:12–719:3 (Sweet).

53 the sustainable perpetual growth rate for a company to significantly exceed the

growth rate in the economy. Anything over a 6–7% perpetual growth rate should be

questioned carefully.” 239

Sweet defends this choice on two grounds. First, he argues that a sale is in

tune with Synapse’s management’s strategy, and therefore an exit multiple is the

superior method to provide a terminal value in this case.240 Second, he maintains

that his model’s assumption of a long-term growth rate of 10% is justified by

historical nominal stock market returns “in the 11 ½ percent range.” 241

Neither justification is persuasive. Even assuming that an exit multiple better

reflects Synapse’s management’s strategy, 242 any future suitor would be well aware

of the impossibility of permanent 10% growth given the Company’s abysmal track

239 Pratt 113; see Asquith & Weiss 350 (“Growth rates many times faster than the overall economy usually occur only for a short period, when a firm is starting and is either increasing market share at the expense of its competitors or creating a new industry.”). 240 Tr. 657:1–13 (Sweet). 241 Tr. 671:4–7 (Sweet). 242 As Noe credibly explained at trial, because both methods seek to calculate the same thing, there should not be company specific reasons for applying one or the other. See Tr. 762:24–763:12 (Noe) (“Both the Gordon Growth methodology for estimating terminal value, as well as using a[n exit multiple], be it EBITDA or some other measure of financial performance, are both reasonable approaches to estimating terminal value. They are not context specific. So one would not apply a multiple just because you’re envisioning an exit strategy that would involve the sale of the company. Both methodologies are doing the same thing, which is capitalizing those future cash flows beyond the terminal date into a terminal value. And, therefore, they should provide you with consistent answers.”).

54 record, and would refuse to pay a purchase price that was based on such fantastical

assumptions.243 As to Sweet’s second point, nominal stock market returns are simply

not a relevant metric in a model, such as a DCF, that seeks to value a specific

company. As Noe made clear at trial, “the stock returns of companies in the stock

market reflect the returns of companies, some of which might be in a terminal growth

phase, but many others of which will be in [a] high growth phase[,]” making any

comparison between these returns and Synapse’s terminal growth rate

inappropriate.244 Because I find Noe’s calculation of Synapse’s terminal value to

be more credible, and have no basis in the credible evidence to alter it, I adopt it

wholesale.245

243 Pratt 113; Asquith & Weiss 350. 244 Tr. 761:14–20 (Noe). 245 M.G. Bancorporation, 737 A.2d at 526. Although Kruse never criticized Noe’s actual terminal value calculation—instead focusing his fire on Noe’s decision to utilize a Gordon Growth model—I discovered something puzzling in Noe’s calculation when reviewing the evidence. Noe discusses calculating FCFs for a five year period following Synapse’s management’s projections using an industry-wide 20% growth rate. See Noe Opening Report ¶ 10. His DCF, however, only projects out for four years before calculating a terminal value. See Noe Opening Report Ex. 3A. In calculating his terminal value, Noe also appears to deviate from the well-accepted perpetual growth formula. When using a perpetual growth model, a company’s terminal value = (FCFt * (1+g)) / (r-g), where FCFt equals the last year of calculated free cash flows, g equals the chosen growth rate and r equals the applicable discount rate. Pratt 25. For Noe’s chosen numbers, this should have resulted in ($15,477,131 * (1+.031) / (.12-.031)), equaling a terminal value of $179,291,265, with a net present value of $68,423,603. See Noe Opening Report Ex. 3A, attached workbook. This is not what Noe did, however. His terminal value formula, instead, was (FCFt * (1+i) / (r-g)), where i is the projected growth rate for the IoT industry from 2021–25—which he used to calculate FCFs from 2021–24. Thus, his calculation was ($15,477,131 * (1+.20) / (.12-.031)) resulting in a terminal value of $208,680,424, with a 55 4. Cash available

Sweet makes an adjustment to Synapse’s value based on cash available of

$915,375,246 but Noe argues that this is budgeted and not actual cash. Accordingly,

he adopts a cash value of $828,280.247 The issue was not vetted at trial. Because

Sweet’s number is indeed a projection, and Noe’s is a reported number, I adopt

$828,280 as Synapse’s cash available for valuation purposes.248

5. Debt

The experts dispute how much debt Synapse carried on the date of the 2016

Merger. Noe lists the debt as $27.7 million as of December 2015, and Sweet lists it

as $29.343 million as of January 11, 2016. 249 Neither expert provided a debt figure

net present value of $79,636,499. Id. This is a long way of saying that I have found Noe’s actual calculation (as opposed to his methodology) difficult to follow. Unfortunately, the nuts and bolts of the calculation were not discussed at trial or in Sweet’s Rebuttal Report. Corporate finance is not law, and my expertise is not in valuation. It is entirely possible that I am mistaken in my analysis and Noe’s calculation was wholly appropriate. Given that this aspect of Noe’s calculation was not addressed during this litigation, and it is substantially more favorable to Kruse than my calculated alternative, I hesitate to fiddle with the final calculation now. Instead, with these reservations noted, I adopt Noe’s calculation as fact. 246 Sweet DCF. 247 Noe Rebuttal Report 8 n.19. 248 For reasons that were not discussed at trial, Noe did not add this cash available in his calculation of Synapse’s value. 249 Noe Opening Report ¶ 13; Sweet Opening Report 16. As discussed, Sweet treats this amount as contributed capital, not debt, in his DCF.

56 for the date that really matters—the date of the 2016 Merger. Although it would be

possible to estimate the value of the debt as of the 2016 Merger using an approximate

growth rate, given the imprecision of that exercise, I elect to use the calculated debt

value most temporally proximate to the 2016 Merger ($29.343 million).

6. The DCF Valuation

For the reasons stated above, I am satisfied that Noe has offered the most

reliable appraisal of Synapse’s fair value in one of his two DCF valuations. While

not perfect, Noe’s DCF valuation is far more credible than any of the valuations

proffered by Sweet, and far superior to any valuation I might endeavor to undertake

on my own.

III. CONCLUSION

For the foregoing reasons, I find that the fair value of Synapse’s equity as of

February 2, 2016, was $20,347,822, or $0.228 per share.250 The legal rate of interest,

compounded quarterly, shall accrue on Kruse’s appraisal award from the date of the

2016 Merger’s closing to the date of payment. The parties shall confer and submit

an implementing order and final judgment within ten days.

250 The precise calculation is attached as Appendix A.

57 APPENDIX A

Year 2016 2017 2018 2019 2020 Free Cash Flow $ (24,656,891) $ (22,046,813) $ (13,455,789) $ (6,826,545) $ 7,463,894 Present Value Factor 0.9449 0.8437 0.7533 0.6726 0.6005 NPV $ (23,298,572) $ (18,600,250) $(10,135,942) $ (4,591,323) $ 4,482,129

Terminal 2021 2022 2023 2024 Terminal (Court) $ 8,956,673 $ 10,748,008 $ 12,897,610 $ 15,477,131 $208,680,424 $ 179,291,265 0.5362 0.4787 0.4274 0.3816 $ 4,802,281 $ 5,145,302 $ 5,512,823 $ 5,906,596 $ 79,639,499 $ 68,423,603

Noe Court Firm Value $ 48,862,542 $ 48,862,542 Cash available $ - $ 828,280 Debt $ 27,747,500 $ 29,343,000 Equity value $ 21,943,322 $ 20,347,822

Shares outstanding 89,063,787 89,063,787 Per share equity value $ 0.246 $ 0.228

Number of Kruse shares 582,216 582,216 Value of Kruse shares $ 143,444.98 $ 133,015.09

Court's Alteration