SC TO-T/A

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE TO

TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)

OF THE SECURITIES EXCHANGE ACT OF 1934

Amendment No. 2

SIZMEK INC.

(Name of Subject Company (Issuer))

SOLOMON MERGER SUBSIDIARY, INC.

SOLOMON HOLDING, LLC

(Name of Filing Persons (Offerors))

VECTOR SOLOMON HOLDINGS (CAYMAN), LTD.

VECTOR CAPITAL IV, L.P.

VECTOR CAPITAL IV INTERNATIONAL, L.P.

VECTOR ENTREPRENEUR FUND III, L.P.

(Name of Filing Persons (Others))

COMMON STOCK, PAR VALUE $0.001 PER SHARE

(Title of Class of Securities)

83013P105

(CUSIP Number of Class of Securities)

Alex Beregovsky

Solomon Holding, LLC

c/o Vector Capital Management, L.P.

One Market Street

Steuart Tower, 23rd Floor

San Francisco, California 94104

(415) 293-5000

(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)

Copies to:

Jeffrey B. Golden

Joshua M. Zachariah

Kirkland & Ellis LLP

555 California Street

Suite 2700

San Francisco, CA 94104

(415) 439-1400

CALCULATION OF FILING FEE

Transaction Valuation(1)	Amount of Filing Fee(2)
$121,610,311	$12,247

(1) Calculated solely for purposes of determining the filing fee. The calculation assumes the purchase of 29,140,035 shares of voting common stock, par value $0.001 per share, at an offer price of $3.90 per share. The transaction value also includes 2,042,096 shares issuable upon settlement of time or performance based restricted stock units multiplied by the offer price of $3.90 per share. The calculation assumes that the 560,056 outstanding stock options will be cancelled without payment to the holders because the exercise price with respect to such stock options exceeds the offer price. The calculation of the filing fee is based on information provided by Sizmek Inc. as of August 3, 2016.

(2) The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2016, issued August 27, 2015, by multiplying the transaction value by 0.0001007.

x  Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing.

Amount Previously Paid: $12,247	Filing Party: Solomon Merger Subsidiary, Inc.
Form of Registration No.: Schedule TO	Date Filed: August 29, 2016

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

Check the appropriate boxes below to designate any transactions to which the statement relates:

x  Third-party tender offer subject to Rule 14d-1.

¨  Issuer tender offer subject to Rule 13e-4.

¨  Going-private transaction subject to Rule 13e-3.

¨  Amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer. ¨

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

¨  Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

¨  Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

This Amendment No. 2 (this “Amendment”) to the Tender Offer Statement on Schedule TO (together with this Amendment and any other amendments and supplements thereto, the “Schedule TO”) is being filed by (i) Solomon Holding, LLC, a Delaware limited liability company (“Parent”), (ii) Solomon Merger Subsidiary, Inc., a Delaware corporation and a wholly–owned subsidiary of Parent (“Purchaser”), (iii) Vector Solomon Holdings (Cayman), Ltd., a Cayman Islands limited liability exempted company, an affiliate of each of Parent and Purchaser (“Holdings”), (iv) Vector Capital IV, L.P., a Delaware limited partnership, an affiliate of each of Parent and Purchaser (“VC IV”), (v) Vector Capital IV International, L.P., a Cayman Islands limited partnership, an affiliate of each of Parent and Purchaser (“Vector International”) and (vi) Vector Entrepreneur Fund III, L.P., a Delaware limited partnership, an affiliate of each of Parent and Purchaser (“VEF III”). This Schedule TO relates to the tender offer for all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Sizmek Inc., a Delaware corporation (the “Company”), at a price of $3.90 per Share, net to the seller in cash without interest and less any applicable withholding taxes, if any, upon the terms and conditions set forth in the offer to purchase dated August 29, 2016 (the “Offer to Purchase”), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”), a copy of which is attached as Exhibit (a)(1)(B), which, together with any amendments or supplements, collectively constitute the “Offer.”

Except as otherwise indicated in this Amendment, the information set forth in the Schedule TO remains unchanged. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.

All the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 in this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.

Item 11. Additional Information.

The disclosure set forth in the Offer to Purchase under Section 16 “Certain Legal Matters; Regulatory Approvals” is hereby amended and supplemented by replacing the fourth paragraph of the subsection titled “Stockholder Litigation” with the following paragraphs:

On September 7, 2016, a fourth putative class action captioned Joel Ellis v. Sizmek Inc. et al, Case No. 12726-VCMR, was filed in Chancery Court against the Company, Parent, Purchaser and certain directors of the Company including John R. Harris, Neil H. Nguyen, Scott K. Ginsburg, Adam Klein, Cecil H. Moore and Stephen Recht (the “Ellis Action”). The complaint generally alleges that the directors breached their duty by agreeing to sell the Company for inadequate consideration, and by utilizing deal protection measures that discouraged competing bids, and by failing to adequately disclose all material information in connection with soliciting stockholders to tender their shares with the Offer. The complaint further alleges that the Parent and Purchaser aided and abetted these alleged breaches. The complaint seeks injunctive relief, including to enjoin the Merger, rescission or rescissory damages in the event the Offer or Merger are consummated, and an award of attorneys’ and other fees and costs, in addition to other relief. On September 12, 2016, the complaint captioned Penza v. John R. Harris, et al., (Sizmek Inc.), Case No. 12718-VCMR and the Ellis Action were consolidated and captioned In re Sizmek Inc. Stockholders Litigation, C.A. No. 12718-VCMR (the “Delaware Actions”). On September 12, 2016, a telephonic hearing was held in the Delaware Actions, Vice Chancellor Tamika R. Montgomery-Reeves presiding, on Plaintiffs’ Motion for Expedited Proceedings. Vice Chancellor Montgomery-Reeves granted in part, and denied in part Plaintiffs’ Motion for Expedited Proceedings, and set a hearing on Plaintiffs’ Motion for Preliminary Injunction for September 20, 2016.

Following expedited discovery, the Company agreed to make certain additional disclosures related to the proposed transaction with Vector Capital, which are contained in Amendment No. 2 to the Schedule 14D-9. The Company agreed to make the additional disclosures contained in such amendment, without admitting in any way that such disclosures are material or otherwise required by law. As a result of such additional disclosures, the plaintiffs in the Delaware Actions withdrew their Motion for Preliminary Injunction and the hearing scheduled for September 20, 2016 was taken off calendar.

Plaintiffs also moved to consolidate the complaints captioned MSS 12-09 Trust v. Sizmek Inc. et al., Case No. CC-16-04043-D and William Deltac v. Sizmek Inc. et al., Case No. CC-16-04241-D, in the County Court of Dallas County, Texas.

On September 15, 2016, a fifth putative class action captioned Joseph Burns v. John R. Harris, et al., Case No. 1:16-cv-01073, was filed in federal court in the U.S. District Court for the Western District of Texas, against the Company, Parent, Purchaser, Alex Meruelo, The Alex Meruelo Living Trust, Meruelo Investment Partners Llc., and certain directors of the Company including John R. Harris, Neil H. Nguyen, Xavier A. Gutierrez, Scott K. Ginsburg, Adam Klein, Cecil H., Moore and Stephen Recht (the “Burns Action”). The complaint generally alleges that the Company and its Board made false or misleading statements in connection with the Schedule 14D-9, that Parent and Purchaser made false or misleading statements in

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connection with the Schedule TO filed by Parent and Purchaser on August 29, 2016, and that Meruelo and the Meruelo entities (together “Meruelo”) made false or misleading statements in the Schedule 14D-9 filed by Meruelo on August 11, 2016. The complaint also alleges the directors breached their duty in approving the recommendation statement of the Schedule 14D-9. The complaint seeks injunctive relief, including to enjoin the Merger, rescission or rescissory damages in the event the Offer or Merger are consummated, and an award of attorneys’ and other fees and costs, in addition to other relief.

Each of the Company, Parent and Purchaser believes that the plaintiffs’ allegations lack merit and will vigorously contest them. The foregoing descriptions are qualified in their entirety by reference to the complaints which are filed as Exhibit (a)(5)(A), Exhibit (a)(5)(B), Exhibit (a)(5)(C), Exhibit (a)(5)(D) and Exhibit (a)(5)(E).

Item 12. Exhibits.

Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:

Exhibit No.	Description
(a)(5)(D)	Class Action Complaint dated September 7, 2016 (Joel Ellis v. Sizmek Inc., et al., Case No. 12726-VCMR).
(a)(5)(E)	Class Action Complaint dated September 15, 2016 (Joseph Burns v. John R. Harris, et al., Case No. 1:16-cv-01073).

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SIGNATURE

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

SOLOMON MERGER SUBSIDIARY, INC.
By	/s/ Alex Beregovsky
Name:	Alex Beregovsky
Title:	President
Date:	September 19, 2016
SOLOMON HOLDING, LLC
By	/s/ Alex Beregovsky
Name:	Alex Beregovsky
Title:	President
Date:	September 19, 2016
VECTOR SOLOMON HOLDINGS (CAYMAN), LTD.
By	/s/ David Baylor
Name:	David Baylor
Title:	Chief Operating Officer
Date:	September 19, 2016
VECTOR CAPITAL IV, L.P.
By	Vector Capital Partners IV, L.P.
Its:	General Partner
By	Vector Capital, Ltd.
Its:	General Partner
By	/s/ David Baylor
Name:	David Baylor
Title:	Director
Date:	September 19, 2016
By	Vector Capital, L.L.C.
Its:	General Partner
By	/s/ David Baylor
Name:	David Baylor
Title:	Chief Operating Officer
Date:	September 19, 2016

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VECTOR CAPITAL IV INTERNATIONAL, L.P.
By	Vector Capital Partners IV, L.P.
Its:	General Partner
By	Vector Capital, Ltd.
Its:	General Partner
By	/s/ David Baylor
Name:	David Baylor
Title:	Director
Date:	September 19, 2016
By	Vector Capital, L.L.C.
Its:	General Partner
By	/s/ David Baylor
Name:	David Baylor
Title:	Chief Operating Officer
Date:	September 19, 2016
VECTOR ENTREPRENEUR FUND III, L.P.
By	Vector Capital Partners III, L.P.
Its:	General Partner
By	Vector Capital, Ltd.
Its:	General Partner
By	/s/ David Baylor
Name:	David Baylor
Title:	Director
Date:	September 19, 2016
By	Vector Capital, L.L.C.
Its:	General Partner
By	/s/ David Baylor
Name:	David Baylor
Title:	Chief Operating Officer
Date:	September 19, 2016

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EXHIBIT INDEX

Exhibit No.	Description
(a)(1)(A)	Offer to Purchase, dated August 29, 2016.*
(a)(1)(B)	Letter of Transmittal.*
(a)(1)(C)	Notice of Guaranteed Delivery.*
(a)(1)(D)	Letter from the Information Agent to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
(a)(1)(E)	Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.*
(a)(1)(F)	Press Release issued by the Company on August 3, 2016 (incorporated by reference to Exhibit 99.5 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on August 3, 2016).*
(a)(1)(G)	Summary Advertisement as published in the New York Times on August 29, 2016.*
(a)(1)(H)	Joint Press Release issued by the Company, Holdings, VC IV, Vector International and VEF III on August 29, 2016.*
(a)(5)(A)	Class Action Complaint dated August 11, 2016 (MSS 12-09 Trust v. Sizmek Inc., et al).*
(a)(5)(B)	Class Action Complaint dated August 24, 2016 (William Deltac v. Sizmek Inc., et al).*
(a)(5)(C)	Class Action Complaint dated September 2, 2016 (Steven Penza v. John R. Harris, et al., (Sizmek Inc.), Case No. 12718-VCMR).*
(a)(5)(D)	Class Action Complaint dated September 7, 2016 (Joel Ellis v. Sizmek Inc., et al., Case No. 12726-VCMR).
(a)(5)(E)	Class Action Complaint dated September 15, 2016 (Joseph Burns v. John R. Harris, et al., (Sizmek Inc.) Case No. 1:16-cv-01073).
(b)	None.
(d)(1)	Agreement and Plan of Merger, dated as of August 3, 2016, by and among the Company, Purchaser and Parent (incorporated by reference to Exhibit 2.1 to the Amendment No. 1 to Current Report on Form 8-K/A filed by the Company with the Securities and Exchange Commission on August 9, 2016).*
(d)(2)	Confidentiality Agreement, dated March 23, 2016, between the Company and Vector Capital Management, L.P.*
(d)(3)	Limited Guarantee, dated as of August 3, 2016, by VC IV in favor of the Company (incorporated by reference to Exhibit 99.1 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on August 3, 2016).*
(d)(4)	Equity Commitment Letter, dated as of August 3, 2016, from VC IV to Parent.*
(d)(5)	Tender and Voting Agreement, dated as of August 3, 2016, by and among the Company, Parent, Purchaser and Moon Doggie Family Partnership L.P. (incorporated by reference to Exhibit 99.4 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on August 3, 2016).*
(d)(6)	Tender and Voting Agreement, dated as of August 3, 2016, by and among Parent, Purchaser and Scott K. Ginsburg (incorporated by reference to Exhibit 99.3 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on August 3, 2016).*

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(d)(7)	Tender and Voting Agreement, dated as of August 3, 2016, by and among Parent, Purchaser and Neil H. Nguyen (incorporated by reference to Exhibit 99.2 to Current Report on Form 8-K of the Company filed with the Securities and Exchange Commission on August 3, 2016).*
(g)	None.
(h)	None.

* Previously filed.

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EX-99.(A)(5)(D)

Exhibit (a)(5)(D)

EFiled: Sep 07 2016 03:57PM EDT Transaction ID 59527018 Case No. 12726-

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JOEL ELLIS,	)
	)
Plaintiff,	)
	)
v.	)
	)
SIZMEK INC., JOHN R. HARRIS,	)	Civil Action No.
NEIL H. NGUYEN, SCOTT K.	)
GINSBURG, ADAM KLEIN, CECIL	)
H. MOORE, STEPHEN RECHT,	)
VECTOR CAPITAL, SOLOMON	)
HOLDING, LLC, and SOLOMON	)
MERGER SUBSIDIARY, INC.,	)
	)
Defendants.	)
	)

VERIFIED CLASS ACTION COMPLAINT

Plaintiff Joel Ellis (“Plaintiff”) alleges the following on information and belief, except as to the allegations specifically pertaining to Plaintiff, which are based on personal knowledge.

NATURE OF THE ACTION

1. This is a class action brought on behalf of the public stockholders of Sizmek Inc. (“Sizmek” or the “Company”) against Sizmek’s Board of Directors (the “Board”), arising out of a proposed transaction announced on August 3, 2016 (the “Proposed Transaction”), pursuant to which Sizmek will be acquired by Vector Capital (“Vector”) through Solomon Holding LLC (“Parent”) and its wholly owned subsidiary, Solomon Merger Subsidiary (“Merger Sub”) (Vector, Parent, and Merger Sub will often be referred to herein collectively as “Vector”) for grossly inadequate consideration and in breach of the Individual Defendants’ (as defined below) fiduciary duties.

2. On August 3, 2016, the Board caused Sizmek to enter into an agreement and plan of merger (the “Merger Agreement”) with Vector. Pursuant to the terms of the Merger Agreement, Vector commenced a tender offer to acquire a majority of Sizmek’s outstanding common stock (the “Tender Offer”) for $3.90 per share in cash, totaling approximately $113.6 million (the “Tender Price”), and, if successful, Sizmek will merge with Vector through Merger Sub (the “Proposed Transaction” or “Merger”).

3. The Proposed Transaction is governed by Section 251(h) of the General Corporation Law of the State of Delaware, with no stockholder vote required to consummate the Merger if a majority of Sizmek’s outstanding common stock is tendered. The Tender Offer will expire at midnight on September 26, 2016.

4. The Tender Price is grossly inadequate and substantially undervalues Sizmek, whereby it: (1) represents a significant discount to Sizmek’s 52-week high closing price of $7.67 per share prior to the Proposed Transaction; (2) is below the Company’s book value of $4.00 per share; and (3) represents a 0.4x Enterprise Value/LTM EBITDA multiple, which is significantly below the median of 1.8x for deals in the same SIC (Standard Industrial Classification).

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5. As evidence of the fact that the Tender Price is grossly inadequate, on August 4, 2016, the day after the Proposed Transaction was announced, Alex Meruelo (“Meruelo”), the managing member and principal of Meruelo Group and its investment affiliate, Meruelo Investment Partners (collectively, “Meruelo Group”), Sizmek’s largest stockholder and owner of 13.8% of Sizmek’s common stock, sent a letter to the Board (which was appended as an exhibit to a Schedule 13D filed with the Securities and Exchange Commission (“SEC”)), expressing his “strong opposition” to the Proposed Transaction. In the letter (the “Meruelo Letter”), Meruelo explained that he would “not be tendering [his] shares” because he “firmly believe[s] that the [P]roposed [T]ransaction does not maximize the value of the Company for all shareholders.”

6. On August 11, 2016, Meruelo issued a press release, appended as an exhibit to a Schedule 14D-9 filed with the SEC, “strongly urg[ing] Sizmek Inc. shareholders to NOT tender shares into [the] upcoming offer.” The press release further stated, in pertinent part:

[Meruelo does] not believe that the Vector transaction maximizes value for all shareholders. Among other things, [Meruelo] believe[s] the transaction does not fully reflect the strategic value of Sizmek’s position as a foundational asset within the advertising technology sector and, furthermore, does not account for the Company’s most recent earnings outperformance.

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[Meruelo] not only oppose[s] the transaction, but also strongly encourage[s] other shareholders to oppose the transaction and accordingly to inform the Company and its Board of Directors that they will NOT be tendering their shares in the first step tender offer to be launched by an affiliate of Vector Capital.

[Meruelo] believe[s] that Sizmek shareholders deserve better than what the Vector transaction would deliver and are optimistic that, given the substantial size of [Meruelo’s] share position and with opposition from other holders, the announced Vector Capital transaction will not succeed.

7. Importantly, current Sizmek Board member Xavier Gutierrez—whose principal occupation was as the president and chief investment officer of Meruelo—voted against the Merger Agreement. According to the Schedule 14D-9 that Defendants caused to be filed with the SEC on August 29, 2016 (the “Recommendation Statement”) to induce stockholders to tender their shares, Mr. Gutierrez voted against the Merger Agreement because he believed that the Tender Price “undervalued the Company’s prospects over the long term.”

8. Nevertheless, Defendants engaged a conflicted financial advisor, J.P. Morgan Securities LLC (“J.P. Morgan”), which the Board incentivized to sell the Company now, rather than remain a standalone company to maximize its long-term value based on its bright future prospects. Indeed, if the Proposed Transaction is consummated, J.P. Morgan stands to receive $2 million, or two-thirds of its total compensation for advising the Company.

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9. As detailed herein, the Merger Agreement contains deal protection devices that benefit Vector at the expense of Sizmek’s stockholders by making it highly unlikely that any competing offer to acquire the Company will emerge. Furthermore, the Recommendation Statement omits material information that deprives Sizmek stockholders of the ability to make informed decisions about whether to tender their shares.

10. Based on the Board’s breach of fiduciary duties, Plaintiff and all other Sizmek stockholders stand to suffer irreparable harm. Accordingly, Plaintiff seeks to enjoin the Proposed Transaction or, alternatively, rescission or rescissory damages in the event the Merger is consummated.

PARTIES

11. Plaintiff is, and has been at all relevant times, the owner of 10,900 shares of Sizmek common stock.

12. Sizmek is a Delaware corporation and maintains its principal executive offices at 500 West 5th Street, Suite 900, Austin, Texas 78701. Sizmek is a digital advertising company. Its common stock is traded on the NASDAQ under the ticker symbol “SZMK.” As of August 12, 2016, there were 29,148,055 shares of Company common stock outstanding.

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13. Defendant Niel H. Nguyen (“Nguyen”) is the Company’s Chief Executive Officer (“CEO”) and President, and has served as a director of the Company since 2009.

14. Defendant Scott K. Ginsburg (“Ginsburg”) is the Company’s Executive Chairman, and has served as a director of the Company since 2013.

15. Defendant John H. Harris (“Harris”) is the Chairman of the Board, and has served as a director of the Company since 2013.

16. Defendant Adam Klein (“Klein”) has served as a director of the Company since 2014.

17. Defendant Cecil H. Moore, Jr. (“Moore”) has served as a director of the Company since 2014.

18. Defendant Stephen E. Recht (“Recht”) has served as a director of the Company since 2014.

19. Defendants Nguyen, Ginsburg, Harris, Klein, Moore, and Recht are collectively referred to as the “Individual Defendants.”

20. Defendant Vector is a San Francisco-based private equity firm specializing in investments in establishing technology businesses.

21. Parent is a Delaware limited liability company, wholly owned by Vector.

22. Merger Sub is a Delaware corporation, wholly owned by Parent.

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23. The Individual Defendants, together with Sizmek, and Vector (which includes Parent and Merger Sub, as defined above) are collectively referred to as “Defendants.”

CLASS ACTION ALLEGATIONS

24. Plaintiff brings this action as a class action, pursuant to Court of Chancery Rule 23, on behalf of himself and the other public stockholders of Sizmek (the “Class”). Excluded from the Class are Defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any Defendant.

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

26. The Class is so numerous that joinder of all members is impracticable. As of August 12, 2016, there were 29,148,055 shares of Company common stock outstanding, held by hundreds, if not thousands, of individuals and entities scattered throughout the country.

27. Questions of law and fact are common to the Class, including, among others: (i) whether Defendants have breached their fiduciary duties owed to Plaintiff and the Class and/or aided and abetted such breaches; and (ii) whether Defendants will irreparably harm Plaintiff and the other members of the Class if Defendants’ conduct complained of herein continues.

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28. Plaintiff has committed to prosecuting this action and has retained competent counsel experienced in litigation of this nature. Plaintiff’s claims are typical of the claims of the other members of the Class and Plaintiff has the same interests as the other members of the Class. Accordingly, Plaintiff is adequate representatives of the Class and will fairly and adequately protect the interests of the Class.

29. The prosecution of separate actions by individual members of the Class would create the risk of inconsistent or varying adjudications with respect to individual members of the Class, which would (i) establish incompatible standards of conduct for Defendants, or (ii) as a practical matter, be dispositive of the interests of the other members not parties to the adjudications, or substantially impair or impede their ability to protect their interests.

30. Defendants have acted, or refused to act, on grounds generally applicable to the Class as a whole, and are causing injury to the entire Class. Therefore, final injunctive relief on behalf of the Class is appropriate.

SUBSTANTIVE ALLEGATIONS

31. According to the Company’s Form 10-K for the year ended December 31, 2015, Sizmek “is a leading open ad management company” that derives its revenues principally from “services rendered to online advertising.” The Company operates in more than 70 countries.

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32. Prior to February 7, 2014, Sizmek operated as an online segment of Digital Generation, Inc. (“DG”), a leading global television and online advertising management and distribution business. Sizmek was formed in late 2013 to operate as the online segment of DG. Following an agreement by DG to sell its television and radio distribution network, Sizmek was spun off from DG on February 4, 2014 and Sizmek stock commenced trading on the NASDAQ on February 7, 2014.

33. At that time, Sizmek received a $78.5 million contribution of cash and non-cash net assets related to the sale of DG’s TV business. The amount was comprised of $37.7 million of cash and $40.8 million of non-cash net assets (the latter of which was almost fully collected or realized by the end of 2014).

34. During the past several years, the Company has consistently reported increasing core business revenues and has remained free of long-term debt with significant cash and cash equivalents, even as it has engaged in several acquisitions that have added to its future revenue stream and projected growth prospects. The Proposed Transaction will deny Class members their right to share proportionately and equitably in the true value of the Company’s valuable and profitable business, as well as future growth in profits and earnings.

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35. On February 19, 2015, Sizmek announced (in a press release appended to a Form 8-K filed with the SEC) its financial results for the fourth quarter and full year 2014. Revenues for the fourth quarter increased 3%, to $48.9 million, compared to Q4 2013. Core products revenues grew 24% for the fourth quarter, and comprised 77% of quarterly business, as “[k]ey strategic areas within [the Company’s] core business saw high growth” from the fourth quarter of 2013. Specifically, mobile revenues grew 62%, in-stream video revenues increased 51%, and data driven products grew 73%.

36. Cash and cash equivalents increased from $22.6 million to $90.7 million year-over-year. The Company also reported that it had no long-term debt and repurchased $2.0 million of its shares during the fourth quarter under its approved $15 million repurchase plan (which was increased to $30 million on March 3, 2015, at the direct request of Meruelo). The average daily closing price per Sizmek share during that quarter was $6.00 per share.

37. In the Q4 2014 earnings press release, Defendant Nguyen stated:

We ended an important year for Sizmek posting a solid quarter, with our core products growing 24% and now representing over three quarters of the Company’s total revenues. At the same time pro forma adjusted EBITDA grew significantly even as we invested to increase our platform functionality and expand our product suite. Our focus going into 2015 is to continue executing against our product vision of an independent omni-channel technology platform, which will include expansion into programmatic, mobile and video offerings to fully align with the industry growth trends. I continue to be excited about our positioning and opportunity. (Emphasis added.)

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38. On May 14, 2015, Sizmek announced (in a press release appended to a Form 8-K filed with the SEC) its financial results for the first quarter ended March 31, 2015. When adjusting for the effect of changes in foreign currency (constant currency basis), revenues increased 2%, to $39.0 million, compared to Q1 2014. Core products revenues “saw high growth” of 15% for the first quarter on a constant currency basis, comprising 79% of quarterly business. Specifically, mobile revenues grew 103%, in-stream video revenues increased 10%, and data driven products grew 32%.

39. The Company remained free of long-term debt with over $80 million in cash and cash equivalents (it committed $9.5 million of cash to acquire StrikeAD, a mobile DSP provider). It also repurchased $4.5 million of its shares during the first quarter under its approved $30 million repurchase plan. The average daily closing price per Sizmek share during that quarter was $7.00 per share.

40. In the Q1 2015 earnings press release, Defendant Nguyen stated:

We made solid progress in the first quarter toward achieving many of our full year objectives, including migrating over 70 beta clients to our new MDX platform, completing the restructuring of our sales organization, and building out our programmatic platform, which we accelerated with today’s definitive agreement to acquire StrikeAd. All of this was accomplished while exceeding our Adjusted EBITDA goals for the quarter. While the revenue impact of foreign currency largely masked the strength of the quarter, we added a number of new multi-national clients that are providing good momentum for the second half of the year. We are on track to meet our 2015 financial outlook, and are pleased with our continued progress in building the largest independent open ad management platform. (Emphasis added.)

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41. On August 12, 2015, Sizmek announced (in a press release appended to a Form 8-K filed with the SEC) its financial results for the second quarter ended June 30, 2015. Core products revenues “saw high growth” of 8% (on a constant currency basis), comprising 81% of quarterly business. Specifically, mobile revenues grew 99%, data driven products grew 17%, and in-stream video revenues increased 8% (but would have grown over 30% with exception of a single client shifting budgets).

42. The Company remained free of long-term debt with $66.9 million in cash and cash equivalents (even with a significant impact due to the StrikeAd acquisition).

43. In the Q2 2015 earnings press release, Defendant Nguyen stated:

Looking toward to the balance of the year, we are gaining traction from the capital investments made in our technology platform, with a number of large global customer wins validating our value proposition. In addition the formal launch of our Data Hub and continued enhancements to our mobile programmatic platform will further distinguish Sizmek from the rest of the solutions in market. We believe pairing our leading global ad management platform with a robust mobile programmatic offering will drive growth in the second half of 2015 and beyond. (Emphasis added.)

44. On November 12, 2015, Sizmek announced (in a press release appended to a Form 8-K filed with the SEC) its financial results for the third quarter ended September 30, 2015. On a constant currency basis, revenues increased 8%, to $42.7 million, compared to Q3 2014. Core products revenues

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grew 30% for the third quarter on a constant currency basis, comprising 90% of quarterly business. Specifically, mobile revenues grew 303%, in-stream video revenues increased 17%, and NAM product revenues grew 20% for the nine months ending September 30, 2015 when compared to the same period in 2014.

45. The Company remained free of long-term debt with over $64 million in cash and cash equivalents (it committed $20.0 million of cash to acquire the dynamic creative solutions business from Cofactor, which allowed Sizmek to become the preferred ad management platform vendor to the Cofactor business unit).

46. In the Q3 2015 earnings press release, Defendant Nguyen stated:

We made progress in growing our global customer base, while increasing our programmatic revenues and expanding our product suite. However, our investments this year into our new platform MDX NXT and the recently acquired mobile DSP is putting pressure on EBITDA. Yet, these capital investments are necessary as Sizmek continues to transform its platform and product offerings to establish itself as the leading independent advertising technology platform. As global advertisers seek an alternative to the publisher owned technology solutions, Sizmek’s open ad management platform is gaining traction. (Emphasis added.)

47. On November 17, 2015, Sizmek announced that it was planning to increase its share repurchases under its $30 million share repurchase program.

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48. On February 11, 2016, Sizmek announced (in a press release appended to a Form 8-K filed with the SEC) its financial results for the fourth quarter and full year 2015. On a constant currency basis, revenues increased 18%, to $57.8 million, compared to Q4 2015. Core products revenues grew 47% for the fourth quarter on a constant currency basis, comprising 96% of quarterly business. Specifically, mobile revenues grew 488%, and NAM revenues, which represented 60% of total revenue in the fourth quarter, grew 29%.

49. The Company remained free of long-term debt with $42.0 million in cash and cash equivalents.

50. In the Q4 2015 earnings press release, Defendant Nguyen stated:

Our continued focus on our mobile suite, data driven products and programmatic channels helped us end the year on a positive note, reflecting that our investments are aligned with the growth trends in digital advertising. We finished 2015 making good progress on the integration and development of both PointRoll and StrikeAd and will focus our efforts on ensuring these and other investments provide growth while returning Sizmek to cash generation and increased profitability. (Emphasis added.)

51. On May 10, 2016, Sizmek announced (in a press release appended to a Form 8-K filed with the SEC) its financial results for the first quarter ended March 31, 2016. Revenues increased 10%, to $40.5 million, compared to Q1 2015. Core products revenues grew 32% for the first quarter, comprising over 95% of quarterly business. Specifically, mobile revenues grew 395%, data driven product revenues grew 32%, in stream video revenues grew 23%, and programmatic revenues grew 58% (over the prior year).

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52. The Company remained free of long-term debt with over $40 million in cash and cash equivalents. It also repurchased $1.3 million of its shares during the first quarter under its $30 million repurchase plan.

53. In the Q1 2016 earnings press release, Defendant Nguyen stated:

Our commitment to increased profitability this year is on track, as our cost reduction strategy and focused R&D investments will result in EBITDA ramping through the year. We’ve also made significant progress toward achieving many of our full year objectives, including increasing our programmatic business, expanding our position in the mobile ecosystem through our growing DSP, and launching MDX-NXT, our next generation ad management platform. (Emphasis added.)

54. On August 3, 2016, Sizmek and Vector issued a press release announcing that they had entered into the Merger Agreement. The press release stated as follows, in relevant part:

AUSTIN, Texas, August 03, 2016 (GLOBE NEWSWIRE) — Sizmek Inc. (NASDAQ: SZMK) (“Sizmek” or the “Company”), a global open ad management company that delivers omnichannel campaigns, today announced that it has entered into a definitive agreement with affiliates of Vector Capital (“Vector Capital” or “Vector”), a technology-focused private equity firm, under which an affiliate of Vector will acquire all of the outstanding shares of Sizmek common stock for $3.90 per share in an all-cash tender offer (the “Vector Agreement”).

Vector Capital, founded in 1997, is a San Francisco-based private equity firm that partners with management teams to transform and grow technology businesses. Over its history, Vector has invested $1.6 billion in more than 40 technology companies, including in the advertising technology space.

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“We believe this transaction provides Sizmek with the resources and flexibility to execute upon our long term strategy of becoming the leading independent, global ad management platform,” said Neil Nguyen, President and Chief Executive Officer of Sizmek. “We are excited to partner with Vector and believe this transaction benefits our customers, employees, partners and shareholders.”

“We are enthusiastic to partner with the management team and the talented group of employees at Sizmek,” said Alex Beregovsky, Managing Director at Vector Capital. “We plan to invest in the Company’s growth, to further strengthen its industry-leading open ad management platform, to launch adjacent product offerings as well as to support Sizmek with capital for acquisitions.”

Under the terms of the Vector Agreement, Vector will commence a tender offer to purchase any and all of the outstanding shares of Sizmek common stock for $3.90 per share in cash. The purchase price represents a 65% premium to Sizmek’s 30-day volume weighted average trading price of $2.36 on August 2, 2016. Upon completion of the transaction, Sizmek will become a privately-held company.

The transaction, which is expected to close by the fourth quarter of 2016, is conditioned upon, among other things, satisfaction of a minimum tender condition, regulatory approvals and other customary closing conditions. There are no financing conditions associated with the proposed agreement.

J.P. Morgan is serving as financial advisor to Sizmek. Latham & Watkins LLP is acting as Sizmek’s legal advisor. Kirkland & Ellis LLP is acting as Vector’s legal advisor.

55. On August 3, 2016, the same day as, but after, the Proposed Transaction was announced, and after the Merger Agreement was signed, Sizmek announced (in a press release appended to a Form 8-K filed with the SEC) its financial results for the second quarter ended June 30, 2016. Revenues increased 22%, to $48.9 million, compared to Q2 2015. Core products revenues grew 47% for the second quarter, comprising over 98% of quarterly business. Specifically, mobile revenues grew 317%, data driven product revenues grew 21%, in stream video revenues grew 20%, and programmatic revenues grew 138%.

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56. The Company remained free of long-term debt with $36.8 million in cash and cash equivalents. Adjusted EBITDA grew 88% to $5.5 million and net losses improved 87% to $1.0 million.

57. In the Q2 2016 earnings press release, Defendant Nguyen stated:

We are encouraged by the second consecutive quarter of solid progress on our growth objectives, with a 22% increase in revenue driving significantly improved profitability. We are executing on our operating plan with better monetization of our investments along with a strict focus on cost optimization, which is fulfilling our commitment to drive profitable growth across our product portfolio, especially in programmatic, mobile and analytics. (Emphasis added.)

58. As discussed in the Recommendation Statement, the Company’s decision to hold back its second quarter financial results until after signing the Merger Agreement and announcing the Proposed Transaction was subject to Board debate, with Mr. Gutierrez “dissenting” because he believed second quarter financial results should be released first, as they were generally positive and “remained consistent with” management’s prior announcement of its full-year guidance on revenue and adjusted EBITDA.

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59. Moreover, Sabra Capital Partners (“Sabra”), which describes itself as a “significant shareholder of Sizmek,” published an article entitled “Sabra Capital Partners Opposes the Proposed Acquisition of Sizmek by Vector Capital” (the “Sabra Article”) on investor website Seeking Alpha on August 16, 2016. In addition to describing the Tender Price as “woefully inadequate” (as discussed in more detail below), Sabra “question[s] the timing of initiating a sales process without giving stockholders the benefit of an update on the Company’s improved operations as indicated by the second-quarter earnings release.”

THE TENDER PRICE IS UNFAIR

60. The Tender Price is grossly inadequate and significantly undervalues Sizmek. Indeed, it represents a significant discount to Sizmek’s 52-week high closing price of $7.67 per share prior to the Proposed Transaction, is below the Company’s book value of $4.00 per share, and represents a 0.4x Enterprise Value/LTM EBITDA multiple, which is significantly below the median of 1.8x for deals in the same SIC (Standard Industrial Classification). According to Sabra, the fact that the Board supported the Proposed Transaction when it valued Sizmek at only 0.4x revenues is “insult[ing].”

61. Moreover, as discussed in detail above, Sizmek’s largest stockholder, Meruelo, is “strong[ly] oppos[ed]” to the Proposed Transaction because it “does not maximize the value of the Company for all shareholders.” Specifically, according to Meruelo, the Proposed Transaction “does not fully reflect the strategic value of Sizmek’s position as a foundational asset within the advertising technology sector and . . . does not account for the Company’s most recent earnings outperformance.”

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62. Meruelo, through letters to the Board and in SEC filings, has “strongly urge[d] Sizmek Inc. shareholders to NOT tender shares” and will not be tendering its own shares which represent over 13% of the Company’s common stock. Moreover, Meruelo’s representative on the Board, Xavier Gutierrez, voted against the Proposed Transaction “in light of his fiduciary duties to the Company and its shareholders.” In short, according to Meruelo, “Sizmek shareholders deserve better than what the Vector transaction would deliver.”

63. Similarly, the Sabra Article explains that Sabra “believe[s] the proposed consideration of $3.90 is woefully inadequate and is not in the best interest of the Company or its shareholders.”

64. According to the Sabra Article: “The timing of the sale process was ill-advised, poorly constructed, and negligent in maximizing shareholder value. We are insulted that the Company and Board of Directors would support the Proposal when it values Sizmek at 0.4x revenues.” Furthermore, Sabra states that it delivered a letter to the Board—the text of which is included in the Sabra Article—expressing its belief that the Tender Price of $3.90 “significantly undervalues the Company,” which it believes “could be worth up to $8.00” per share.

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J.P. MORGAN’S CONFLICTS OF INTEREST TAINTED THE SALES PROCESS

65. According to the Recommendation Statement, the Board engaged J.P. Morgan to advise it during the sales process, which included seeking out and communicating with potential strategic and financial acquirors, analyzing the sufficiency of any acquisition offers, and issuing a fairness opinion.

66. During the sales process, J.P. Morgan was highly incentivized to ensure that the Company reached a deal with a potential acquiror (and that a majority of Sizmek stockholders tender their shares in order to consummate the Proposed Transaction), as two-thirds of J.P. Morgan’s transaction fee of approximately $3 million—thus, $2 million—“is payable contingent upon consummation of the Merger.” This created a conflict of interest whereby J.P. Morgan was more focused on getting any deal done rather than on providing neutral advice, which very well could have included a recommendation for the Company to remain independent.

67. Indeed, Mr. Gutierrez—who served on the Board’s “Strategy Committee” formed to explore “strategic options for the Company, including a possible sale or other business combination intended to achieve value for stockholders”—was adamant that the $3.90 per share Tender Price “undervalued the Company’s prospects over the long term” and that he “would vote against any deal at that price” (which he did). Mr. Gutierrez’s role was to evaluate strategic options for a possible sale, yet he refused to sign off on the sale to Vector for consideration that J.P. Morgan deemed “fair.”

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68. Sabra was equally adamant that the timing of the sales process was “ill advised,” as it occurred during a period when Sizmek’s share price was artificially depressed and the Company was “on the cusp of a strong revival” as “the fundamentals of the business [were] strengthening.” Sabra reached this conclusion based on its own projections of the Company’s future performance, which were, in fact, lower than those of Sizmek’s own management (in terms of projected 2017 revenue, gross income, and EBITDA). Yet, J.P. Morgan, relying on management’s higher projections, opined that the same consideration Sabra concluded was “woefully inadequate” based on its lower projections, was “fair” to Sizmek’s stockholders.

69. Moreover, although the Recommendation Statement discloses that in the past two years, J.P. Morgan has performed work for Vector and its affiliates that has earned it approximately $1.7 million—which alone may have created a disabling conflict of interest—the Recommendation Statement does not disclose that at least four of the 30 employees of Vector recently worked for J.P. Morgan.¹

¹  Specifically, according to Vector’s website employee directory, prior to joining Vector as Private Equity Associates in 2015, Steve Wu and Monish Desai were members of J.P. Morgan’s Technology, Media, and Telecom Group, where they worked on numerous M&A advisory and financing assignments. Prior to joining Vector as a Credit Analyst in 2013, lan Aharoni worked for J.P. Morgan as an Analyst advising on M&A and financing transactions. Prior to joining Vector in 2007, where he is currently a Principal, Credit Fund Portfolio Manager, Ilya Voytov worked in the Leveraged Finance group at J.P. Morgan.

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THE INDIVIDUAL DEFENDANTS’ CONFLICTS OF INTEREST

70. The Individual Defendants stand to benefit personally from the Proposed Transaction. In agreeing to a grossly inadequate Tender Price, they have placed their own interests above those of the Company’s stockholders.

71. For example, the Recommendation Statement discloses that Sizmek’s “executive officers and directors may be deemed to have certain interests in the Offer and the Merger and related transactions that may be different from or in addition to those of the Company’s stockholders generally.”

72. For example, according to the Recommendation Statement:

Pursuant to the Merger Agreement, effective as of immediately prior to the Effective Time, each Company [Restricted Stock Unit] RSU that is outstanding (i) shall automatically become fully vested and the restrictions thereon shall lapse and (ii) by virtue of the Merger and without any action on the part of any holder of any Company RSU, shall be cancelled immediately prior to the Effective Time and converted into the right to receive an amount in cash equal to the product obtained by multiplying (a) the aggregate number of shares of Company Common Stock subject to such Company RSU immediately prior to the Effective Time and (b) the Offer Price, subject to any applicable withholding or other taxes required by applicable law.

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73. Based on this provision, each of the Individual Defendants stands to immediately receive the following sums upon the consummation of the Proposed Transaction because their RSUs will immediately vest:

Director	Number of Company RSU’s Held		Value of Company RSUs
Nguyen		523,542	$	2,041,814
Saunders		339,396	$	1,323,644
Ginsburg		35,604	$	138,856
Harris		66,074	$	257,689
Klein		46,052	$	179,603
Moore		61,980	$	241,722
Recht		46,052	$	179,603
Total		1,118,700	$	4,362,931

74. Accordingly, each member of the Board will receive an immediate and substantial cash payout upon completion of the Proposed Transaction in exchange for their unvested Sizmek RSUs, totaling approximately $4.4 million. The acceleration of these securities incentivized the Individual Defendants to favor a sale of the Company rather than remain standalone, and they similarly incentivized their chosen financial advisor also to favor a sale.

THE DEAL PROTECTION DEVICES ARE OVERLY RESTRICTIVE

75. In signing the Merger Agreement, the Company agreed to include several “deal protection devices,” including a limited “Go-Shop” provision, “Matching Rights,” and a single “Termination Fee.” Although Defendants, in the Recommendation Statement, tout these provisions as “favorable” to the Company and its stockholders, they are anything but.

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76. These provisions favor Vector over any potential competing bidders and are calculated to unreasonably dissuade such bidders from making competing offers for Sizmek.

77. For example, Section 6.04(b) of the Merger Agreement includes a “Go-Shop Period” of only 30 days from the announcement of the Proposed Transaction, which expired at 6:00 p.m. EDT on September 2, 2016. This limited Go-Shop Period created a “ticking clock” problem that significantly reduced the chances that a competing bidder would emerge. That is because it would be difficult for any competing bidder to complete its due diligence (and for Sizmek to complete due diligence on the bidder) during such a short time period. Knowing this, any potential competing bidders would rationally be deterred from starting a bidding process in the first place.

78. This problem is exacerbated by additional deal protection devices that afford Vector advantages over any potential competing bidder, such as “Matching Rights.” Section 6.04(d)(i) of the Merger Agreement provides Vector with Matching Rights, which ensure that Vector receives written notice at least two business days in advance of the Board accepting any alternative acquisition proposal of the fact that such proposal has been made, of the identity of the alternative bidder(s), and of the material terms of the alternative proposal (plus copies of all relevant documents relating thereto). Vector then has the right to re-negotiate the terms and conditions of the Proposed Transaction so that any alternative acquisition proposal “would cease to constitute a Superior Proposal.”

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79. Matching Rights serve the purpose of not just giving the initial bidder—Vector in this case—a last-look option to increase its offer; they also deter alternative bids from coming forward in the first place. Potential alternative bidders will rationally understand that they cannot truly “win” in a situation where the initial bidder has Matching Rights, as there are only two possible outcomes, both bad from its perspective. Either the new bidder will bid and win, in which case it has paid more than the more informed initial bidder (who has already completed due diligence and has an informational advantage/head start), or it will conduct due diligence and could ultimately lose anyway when the original bidder has a chance to match or improve its offer, in which case it has nothing to show for its efforts. In this way, Matching Rights deter alternative acquisition proposals.

80. The Company also agreed to Vector’s requirement that any deal must include Tender and Voting Agreements from Defendants Nguyen and Ginsburg—who have potential interests in consummating the Merger that are different than those of Sizmek’s stockholders, including accelerated vesting of their RSUs— pursuant to which Nguyen and Ginsburg have pledged to tender their shares in the transaction. The combined shareholdings subject to such agreements, which includes the shares of an additional Sizmek stockholder, the Moon Doggie Family Partnership, total approximately 13.7% of the outstanding shares of the Company’s common stock. This further virtually ensures the success of the Tender Offer at this inadequate price.

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81. Section 10.3(a) of the Merger Agreement contains a single “Termination Fee” provision—instead of dual-level provisions that are typical in go-shop situations—of approximately $4.25 million, or 3.50% of the total deal equity value. Although the Recommendation Statement provides that the Termination Fee will “not likely deter competing bids,” that is precisely its purpose, and the lack of a lower level termination fee during the Go-Shop Period underscores that purpose.

DEFENDANTS ARE SOLICITING STOCKHOLDERS TO TENDER THEIR SHARES THROUGH A MATERIALLY DEFICIENT RECOMMENDATION STATEMENT

82. The Recommendation Statement omits material information necessary to allow Sizmek’s public stockholders to make an informed decision as to whether to tender their shares or to seek appraisal rights if the Proposed Transaction is consummated. The omitted information described herein, if and when disclosed, would significantly alter the totality of information available for consideration by Sizmek stockholders, and thus its exclusion from the Recommendation Statement constitutes a breach of the Individual Defendants’ fiduciary duties.

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83. The Recommendation Statement omits material information regarding the events and circumstances leading up to the Proposed Transaction. More specifically, the following is omitted:

a. The Recommendation Statement provides that: “On December 7, 2015, Niel Nguyen, the Company’s CEO, contacted a financial sponsor (“Sponsor B”) . . . and had a conversation about reengaging in discussions regarding the potential combination of the business.” Recommendation Statement at page 13 (“P. 13.”)

However, the Recommendation Statement does not disclose why—as the Company had already formed a Strategy Committee and retained J.P. Morgan to conduct and lead the sales process—Defendant Nguyen made this contact and not them. Considering that Nguyen had potentially different interests than those of the Company’s public stockholders, it would be material to such stockholders to know whether this contact represented interference by Nguyen with the sales process.

b. The Recommendation Statement provides that: “Mr. Nguyen had held discussions with Sponsor B about a potential acquisition or merger with their portfolio company during the fall of 2013 and spring of 2014.” (P. 13.)

However, the Recommendation Statement does not disclose how Nguyen and Sponsor B came to have such discussions, whether Nguyen had a prior relationship with Sponsor B, and what the results of those discussions were, including whether Sponsor B made an offer to acquire Sizmek at that time. To the extent such discussions were at arm’s-length and resulted in an indication of interest or an offer, disclosure of this information could be material to the Company’s stockholders related to their determination as to whether or not the Tender Price is fair.

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c. The Recommendation Statement provides that: “Although the Board had engaged J.P. Morgan on an exclusive basis in March 2015 with respect to running a sales process, the Strategy Committee reached out to other nationally recognized investment banking firms for their views on the Ad Tech industry generally and the Company’s prospects over the near and long term.” (P. 13.)

However, the Recommendation Statement does not disclose why the Board felt the need to reach out to investment banking firms other than J.P. Morgan, and what those firms’ responses to the Board’s inquiries were. The views of these firms concerning industry prospects could be material to the Company’s stockholders in making their determination as to whether to take the Tender Price or refuse to tender and hope that Sizmek remains a standalone company.

d. The Recommendation Statement provides that: “J.P. Morgan had contacted 26 strategic companies and ten financial sponsors (including Vector) regarding their interest in receiving non-public information regarding Sizmek together with a management presentation, and possibly bidding to acquire the Company. Of these 36 parties, only six requested access to non-public information, and only four signed confidentiality agreements. Of the four, only three attended a management presentation, including Vector. All of the other parties expressed no interest . . . .” (P. 15.)

However, the Recommendation Statement does not disclose what happened to the three of four parties that signed confidentiality agreements, other than Vector. It also does not disclose what happened to the two of three parties that attended a management presentation, aside from Vector. Did any give indications of interest or make bids? Did they drop out of the process, and if so, when and why?

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e. The Recommendation Statement provides that: “J.P. Morgan reported on its negotiations with Vector and advised that in its view Vector would not bid more than $4.75 per share and that there is a risk Vector will withdraw unless it is provided with an exclusive period to complete its diligence and negotiate a definitive merger agreement.” (P. 16.);

However, the Recommendation Statement does not disclose the basis for J.P. Morgan’s “view” of what Vector would offer. Was this a guess? Did it come from discussions with Vector? If this information came from Vector and Vector gave its reasons as to why it would not bid more than $4.75 per share, such information would be material to the Company’s stockholders when determining whether or not to tender their shares.

f. The Recommendation Statement provides that: “On July 6, 2016, representatives of Vector and J.P. Morgan met telephonically to discuss the items that Vector had identified during its accounting due diligence, and J.P. Morgan presented Sizmek’s views with respect to such items.” (P. 18.)

However, the Recommendation Statement does not disclose what Sizmek’s “views” were with respect to the items that Vector had identified. Did it agree with Vector that the accounting items “would require Vector to lower its bid . . . likely by more than $1.02 per share”? The Recommendation Statement also does not disclose what J.P. Morgan’s views of such items were and whether it agreed with Vector.

g. The Recommendation Statement provides that: “[T]he Board approved the Merger Agreement and the recommendation to stockholders, with Mr. Gutierrez dissenting and Mr. Nguyen abstaining as the Company’s CEO.” (P. 21.)

However, the Recommendation Statement does not disclose the reasons given by Defendant Nguyen for abstaining from the vote.

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h. The Recommendation Statement provides that: “On August 9, 2016, Mr. Nguyen received an unsolicited non-binding preliminary [sic] from a Chinese Ad Tech firm to acquire all of the outstanding stock of Sizmek at $4.29 per share, subject to due diligence.” After having initial discussions about the offer with the Chinese firm and its attorneys, “[a]s of August 28, 2016, the Company has yet to hear back from the Chinese firm or its counsel . . . .” (P. 22.)

However, the Recommendation Statement does not disclose whether the Board, J.P. Morgan, counsel for the Board, or anyone else at Sizmek made any efforts to reach out to the Chinese Ad Tech firm once it did not hear back, and if not, why not.

MATERIAL OMISSIONS CONCERNING J.P. MORGAN’S FINANCIAL ANALYSES

84. In connection with its fairness opinion, J.P. Morgan performed a Public Trading Multiples Analysis, which is summarized in the Recommendation Statement. Although J.P. Morgan “selected” “multiple reference ranges” and “appl[ied] such ranges” to calculate an implied estimate range of equity values, the Recommendation Statement does not disclose the low, mean, median, or high metrics that J.P. Morgan calculated for each comparable public company.

85. The Recommendation Statement also does not contain a summarized Precedent Transactions Analysis, which is typically conducted by financial advisors in the evaluation of mergers transactions. The fact that there is no Precedent Transactions Analysis is not necessarily an issue, but the reasons why no such analysis was conducted—or perhaps it was but is not disclosed—would be material information to Sizmek stockholders and has been omitted.

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COUNT I

(Breach of Fiduciary Duties Against the Individual Defendants)

86. Plaintiff repeats and realleges the preceding allegations as if fully set forth herein.

87. As alleged herein, the Individual Defendants have breached their fiduciary duties to Sizmek stockholders by failing to take steps to obtain the highest value available for Sizmek in the marketplace and, in fact, agreeing to onerous deal protection devices to decrease the chances of obtaining a competing bid.

88. As a result of the Individual Defendants’ breaches, Plaintiff and the Class will suffer irreparable injury because Sizmek’s stockholders will not receive fair value for their equity interests in the Company.

89. Unless enjoined by this Court, the Individual Defendants will continue to breach their fiduciary duties and will attempt to consummate the Merger, to the irreparable harm of the Class.

90. Plaintiff and the members of the Class have no adequate remedy at law.

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COUNT II

(Aiding and Abetting the Board’s Breaches of Fiduciary Duties Against Vector)

91. Plaintiff repeats and re-alleges the preceding allegations as if fully set forth herein.

92. Defendant Vector knowingly assisted the Individual Defendants’ breaches of fiduciary duties in connection with the Proposed Transaction, which, without such aid, would not have occurred.

93. As a result, Plaintiff and the Class members are being irreparably harmed.

94. Plaintiff and the members of the Class have no adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment and relief as follows:

A. Ordering that this action may be maintained as a class action and certifying Plaintiff as the Class representative and Plaintiff’s counsel as Class counsel;

B. Preliminarily and permanently enjoining Defendants and all persons acting in concert with them from proceeding with, consummating, or closing the Proposed Transaction;

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C. In the event Defendants consummate the Proposed Transaction, rescinding it and setting it aside or awarding rescissory damages to Plaintiff and the Class;

D. Directing Defendants to account to Plaintiff and the Class for their damages sustained because of the wrongs complained of herein;

E. Awarding Plaintiff the costs of this action, including reasonable allowance for Plaintiff’s attorneys’ and experts’ fees; and

F. Granting such other and further relief as this Court may deem just and proper.

Dated: September 7, 2016

	ROSENTHAL, MONHAIT & GODDESS, P.A.
	By:	Carmella P. Keener (#2810)
OF COUNSEL:		919 North Market Street, Suite 1401
		Citizens Bank Center
WOLF POPPER LLP		Wilmington, DE 19801
Carl L. Stine		(302) 656-4433
Robert S. Plosky
845 Third Avenue, 12th Floor		Attorneys for Plaintiff
New York, NY 10022
(212) 759-4600

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EX-99.(A)(5)(E)

Exhibit (a)(5)(E)

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

JOSEPH BURNS, Individually and on Behalf	:
of All Others Similarly Situated,	:
	:     Civil Action No.
Plaintiff,	:
	:
v.	:     CLASS ACTION COMPLAINT FOR
	:     VIOLATIONS OF SECTIONS 13(e),
JOHN R. HARRIS, NEIL H. NGUYEN,	:     14(a) AND 20(a) OF THE SECURITIES
SCOTT K. GINSBURG, XAVIER A.	:     EXCHANGE ACT OF 1934 AND
GUTIERREZ, ADAM KLEIN, CECIL H.	:     RULES 13e-3 AND 14a-9 AND
MOORE, STEPHEN E. RECHT, ALEX	:     BREACH OF FIDUCIARY DUTY
MERUELO LIVING TRUST,	:     UNDER DELAWARE LAW
MERUELO INVESTMENT PARTNERS LLC,	:
ALEX MERUELO, SIZMEK, INC.,	:     JURY TRIAL DEMANDED
SOLOMON HOLDING, LLC, SOLOMON	:
MERGER SUBSIDIARY, INC., VECTOR	:
SOLOMON HOLDINGS (CAYMAN), LTD.,	:
VECTOR CAPITAL IV, LP, VECTOR	:
CAPITAL IV INTERNATIONAL, LP, and	:
VECTOR ENTREPRENEUR FUND II, LP,	:
	:
Defendants.	:

CLASS ACTION COMPLAINT

Joseph Burns (“Plaintiff”), on behalf of himself and all others similarly situated, by and through his attorneys, alleges the following upon information and belief, including investigation of counsel and review of publicly-available information, except as to those allegations pertaining to Plaintiff, which are alleged upon personal knowledge:

1. This is a class action brought by Plaintiff on behalf of himself and the other public stockholders of Sizmek, Inc. (“Sizmek” or the “Company”), other than Defendants (defined below) and their affiliates, against the members of the board of directors of Sizmek (the “Board” or the “Individual Defendants”), Alex Meruelo Living Trust (“Meruelo LT”), Meruelo

Investment Partners LLC (Meruelo IP”), Alex Meruelo (collectively with Meruelo LT and Meruelo IP, “Meruelo”), Sizmek, Solomon Holding, LLC (“Holding”), Solomon Merger Subsidiary, Inc. (“Merger Sub”), Vector Solomon Holdings (Cayman), LTD. (“Vector I”), Vector Capital IV, LP (“Vector IV”), Vector Capital IV International, LP (“Vector International”), and Vector Entrepreneur Fund II, LP (“Vector II,” and collectively with Holding, Merger Sub, Vector I, Vector IV, and Vector International, “Vector”) for their violations of Sections 13(e), 14(a) and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), 15.U.S.C. §§ 78m(e), 78n(a&e), 78t(a), SEC Rule 14a-9, 17 C.F.R. 240.14a-9, and SEC Rule 13e-3, 17 C.F.R. 240.13e-3, and against the Board for breach of fiduciary duty in connection with the ongoing private transaction between Sizmek and Vector, whereby Vector will acquire Sizmek through a tender offer for the inadequate consideration of $3.90 per share.

2. Meruelo violated the above referenced Sections of the Exchange Act by causing a materially incomplete and misleading Recommendation Statement (the “Meruelo Recommendation Statement”), to be filed with the SEC pursuant to Sections 13(e) and 14(a) of the Exchange Act and Rules 14a-9 and 13e-3. The Meruelo Recommendation Statement recommends that Sizmek stockholders do not tender their shares in favor of the merger between Sizmek and Vector (the “Transaction” or “Merger”) and exercise their appraisal rights under Section 262 of the Delaware General Corporation Law (the “DGCL”).

3. The Board breached their fiduciary duties and violated the above referenced Sections of the Exchange Act by causing a materially incomplete and misleading Recommendation Statement (the “Sizmek Recommendation Statement”), to be filed with the SEC pursuant to Sections 13(e) and 14(a) of the Exchange Act and Rules 14a-9 and 13e-3. The Sizmek Recommendation Statement recommended that Sizmek stockholders tender their shares in favor of the Merger.

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4. Vector violated the above referenced Sections of the Exchange Act by causing a materially incomplete and misleading Tender Offer Statement (the “Tender Offer Statement”), to be filed with the SEC pursuant to Sections 14(d)(1) and 13(e)(1) of the Exchange Act. The Tender Offer Statement urges Sizmek stockholders to tender their shares in favor of the Merger.

5. As discussed below, the Merger Consideration Sizmek stockholders will receive in connection with the Transaction does not reflect the fair value of Plaintiff’s Sizmek shares.

6. The Meruelo Recommendation Statement, the Sizmek Recommendation Statement and the Tender Offer Statement all contain material omissions, including omissions which are necessary to ensure the statements in those documents related to Plaintiff’s ability to seek appraisal are not materially false and misleading. Specifically, all of these documents omit information related to Meruelo’s intention to seek appraisal under Section 262 of the DGCL which is particularly important because under a recent amendment to Section 262(g) of the DGCL, the court is now required to dismiss appraisal proceedings as to all holders of such shares who are otherwise entitled to appraisal rights unless: (1) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of the class or series eligible for appraisal; or (2) the value of the consideration provided in the merger or consolidation for such total number of shares exceeds $1 million. As a result, if Meruelo is seeking appraisal as he has urged other stockholders to do, stockholders holding less than 1% of Sizmek’s outstanding stock or stock worth $1,000,000 based on the proposed Merger consideration will not know whether their appraisal action will be dismissed, making it more difficult to arrange for counsel prior to the time required for them to demand appraisal.

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7. For these reasons and as set forth in detail herein, Plaintiff seeks to recover damages resulting from the Defendants’ violations of the Exchange Act and the Board’s breaches of fiduciary duty under Delaware law.

JURISDICTION AND VENUE

8. This Court has subject matter jurisdiction pursuant to Section 27 of the Exchange Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331 (federal question jurisdiction) as Plaintiff alleges violations of Sections 13(e),14(a) and 20(a) of the Exchange Act and SEC Rules 14a-9 and 13e-3.

9. This Court has supplemental jurisdiction under 28 U.S.C. § 1367 for the Delaware state law claim of breach of fiduciary duties.

10. Personal jurisdiction exists over each Defendant either because the Defendant conducts business in or maintains operations in this District, or is an individual who is either present in this District for jurisdictional purposes or has sufficient minimum contacts with this District as to render the exercise of jurisdiction over each Defendant by this Court permissible under traditional notions of fair play and substantial justice.

11. Venue is proper in this District under Section 27 of the Exchange Act, 15 U.S.C. § 78aa, as well as under 28 U.S.C. § 1391, because: (i) the conduct at issue took place and had an effect in this District; (ii) Sizmek maintains its primary place of business in this District; (iii) a substantial portion of the transactions and wrongs complained of herein, including Defendants’ primary participation in the wrongful acts detailed herein, occurred in this District; and (iv) Defendants have received substantial compensation in this District by doing business here and engaging in numerous activities that had an effect in this District.

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PARTIES

12. Plaintiff was, and has been at all relevant times, the owner of Sizmek common shares. Plaintiff held his Sizmek shares since prior to the wrongs complained of herein. Plaintiff is a resident of New York.

13. Defendant Sizmek is a Delaware corporation that maintains its principle executive offices in Austin, Texas. Sizmek is an open ad management company traded on the NASDAQ stock exchange under the symbol “SZMK”.

14. Defendant Solomon Holding, LLC is a Delaware limited liability company.

15. Defendant Solomon Merger Subsidiary, Inc., is a Delaware corporation and a wholly owned subsidiary of Vector.

16. Defendant Vector Solomon Holdings (Cayman), LTD is a Cayman company and is a controlled affiliate of Vector.

17. Defendant Vector Capital IV, LP is a $1.2 billion private equity fund structured as a Delaware Limited Company.

18. Defendant Vector Capital IV International, LP is a Cayman Islands Exempted Limited Company.

19. Defendant Vector Entrepreneur Fund II, LP is a Delaware Limited Company.

20. Defendant Meruelo Investment Partners LLC is a Delaware Limited Liability Company.

21. Defendant Alex Meruelo Living Trust is a California-based trust controlled by Alex Meruelo.

22. Defendant Alex Meruelo is a resident of the State of New York and beneficially holds the largest stake in Sizmek of any single stockholder of the Company.

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23. Defendant John R. Harris (“Harris”) is and at all material times was the Chairman of the Company’s Board. He is also a member of the Nominating and Corporate Governance Committees.

24. Defendant Neil H. Nguyen (“Nguyen”) is the President and Chief Executive Officer of Sizmek and is a member of the Board.

25. Defendant Scott K. Ginsburg (“Ginsburg”) is a member of the Company’s Board.

26. Defendant Xavier A. Gutierrez (“Gutierrez”) is a member of the Company’s Board. He is also the chairperson of the Compensation Committee. Gutierrez was appointed to the Sizmek Board at the request of Meruelo.

27. Defendant Adam Klein (“Klein”) is a member of the Company’s Board. He is also a member of the Audit Committee and the Chairperson of the Nominating and Corporate Governance Committees.

28. Defendant Cecil H. Moore (“Moore”) is a member of the Company’s Board. He is also the Chairperson of the Audit Committee.

29. Defendant Steve Recht (“Recht”) is a member of the Company’s Board. He is also a member of the Audit and Compensation Committees.

30. The Defendants identified in paragraphs 23-29 are collectively referred to herein as the “Individual Defendants.”

31. The Defendants referred to in paragraphs 13-29 are collectively referred to herein as the “Defendants”.

SUBSTANTIVE ALLEGATIONS

A. The Transaction Undervalued Sizmek

32. Sizmek is a Delaware corporation formed in 2013, that operates a leading independent global online ad campaign management and distribution platform as measured by

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the number of advertising impressions served and the number of countries in which it serves customers. Sizmek’s revenues are principally derived from services related to online advertising. Sizmek helps advertisers, agencies and publishers engage with consumers across multiple online media channels (mobile, display, rich media, video and social) while delivering efficient, impactful and measurable ad campaigns. Sizmek connects 19,000 advertisers and 3,700 agencies to audiences in approximately 65 countries, serving more than 1.3 trillion impressions a year.

33. The proposed Merger undervalues the Company. Indeed, the Company’s largest stockholder, Meruelo has publicly stated he opposes the proposed Merger and on August 4, 2016 submitted a letter to the Board expressing opposition to the Merger because “the proposed transaction does not maximize the value of the Company for all shareholders [and] . . . does not fully reflect the significant strategic value of the Company within the advertising technology sector.”

B. The Materially Incomplete and Misleading Disclosures Related to the Merger

34. On June 16, 2016, Delaware Governor Jack Markell signed into law House Bill No. 371, which for the first time required that a court dismiss an action seeking appraisal of shares cashed out in a merger if, among other things, the total number of shares entitled to seek appraisal exceeds 1% of the outstanding shares of the class or series eligible for appraisal; or the value of the consideration provided in the merger or consolidation for such total number of shares exceeds $1 million.

35. As a result of the revisions to Delaware’s appraisal statute it is now critical that stockholders know whether any other stockholders are likely to seek appraisal. This is particularly important because Delaware law requires that a stockholder seeking appraisal to demand appraisal within the later of (1) the consummation of the offer; or (2) 20 days after the

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date of mailing of the Sizmek Recommendation Statement. Thus, absent disclosure by Defendants, stockholders are required to obtain counsel and demand appraisal before any stockholder that holds less than $1 million in Sizmek stock or less than 1% of the outstanding shares knows whether their appraisal action will be dismissed.

36. On August 11, 2016, Meruelo filed the Meruelo Recommendation Statement. The Meruelo Recommendation Statement recommends that “stockholders of the Company (i) not tender their Shares in the Offer and (ii) if the Offer is successful, seek appraisal of their Shares pursuant to Section 262 of the DGCL.” However, Meruelo has not stated whether he intends to seek appraisal himself. This is critical to ensure Meruelo’s recommendation is not materially false or misleading for several reasons. Most importantly, because Meruelo beneficially holds 13.8% of the outstanding shares of Sizmek, if he files for appraisal, then stockholders with less than $1 million in Sizmek stock or who hold less than 1% of the company’s shares will know they will not have their appraisal actions dismissed. This will make it more likely stockholders will seek appraisal and in addition because there is only one appraisal proceeding under Delaware law, stockholders may be more likely to seek appraisal due to the potential ability to reduce the cost of litigation. If, on the other hand, Meruelo is uncertain of whether he intends to seek appraisal, then Meruelo must disclose that fact to stockholders. For example, if Meruelo will only seek appraisal if a certain number of other Sizmek stockholders seek appraisal then stockholders need to know that fact so they can determine whether to seek appraisal for themselves. Finally, if Meruelo does not intend to seek appraisal that fact is clearly material and necessary to ensure that Meruelo’s recommendation that stockholders seek appraisal is not false and misleading.

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37. Similarly, the Board was required to disclose any knowledge they have regarding Meruelo’s intent to seek appraisal. This disclosure is particularly important to ensure that the Sizmek Recommendation Statement’s disclosure that “Section 262 of the DGCL provides that the Court of Chancery shall dismiss the proceedings as to all holders of Shares who are otherwise entitled to appraisal rights unless (1) the total number of Shares entitled to appraisal exceeds 1% of the outstanding Shares or (2) the value of the consideration provided in the Merger for such total number of Shares exceeds $1 million” is not materially false and misleading, if the Board knew any information regarding the likelihood that this condition would never be met. Furthermore, Board member Gutierrez is controlled by Meruelo and should know whether Meruelo intends to seek appraisal and, at a minimum, the Board owed a duty to inquire of Meruelo’s intentions. Therefore, the Board was required to disclose whether Meruelo intends to seek appraisal in the Sizmek Recommendation Statement.

38. Similarly, the Tender Offer Statement indicates that “Section 262 of the DGCL provides that the Court of Chancery shall dismiss the proceedings as to all holders of Shares who are otherwise entitled to appraisal rights unless (1) the total number of Shares entitled to appraisal exceeds 1% of the outstanding Shares or (2) the value of the consideration provided in the Merger for such total number of Shares exceeds $1 million.” As with the Sizmek Recommendation Statement, this statement is likewise materially false and misleading unless Vector discloses its knowledge regarding whether Meruelo intends to seek appraisal of his shares.

B. The Board’s Fiduciary Duties

39. Under Delaware law, the officers and directors of a publicly traded corporation have fiduciary duties of loyalty and care to stockholders. To diligently comply with these duties, neither the officers nor the directors may take any action that:

(a) adversely affects the value provided to the corporation’s stockholders;

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(b) will discourage, inhibit, or deter alternative offers to purchase control of the corporation or its assets;

(c) contractually prohibits themselves from complying with their fiduciary duties;

(d) will otherwise adversely affect their duty to secure the best value reasonably available under the circumstances for the corporation’s stockholders; and/or

(e) will provide the officers and/or directors with preferential treatment at the expense of, or separate from, the public stockholders.

40. In accordance with the Board’s duties of loyalty, the Individual Defendants, as officers and/or directors of Sizmek, are obligated under Delaware law to refrain from:

(a) participating in any transaction where the officers’ or directors’ loyalties are divided;

(b) participating in any transaction where the officers or directors receive, or are entitled to receive, a personal financial benefit not equally shared by the public stockholders of the corporation; and/or

(c) unjustly enriching themselves at the expense or to the detriment of the public stockholders.

41. Defendants, separately and together, in connection with the Proposed Transaction, are knowingly or recklessly violating their fiduciary duties, including their duties of loyalty and due care owed to Plaintiff and other public stockholders of Sizmek.

CLASS ACTION ALLEGATIONS

42. Plaintiff brings this action on his own behalf and as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of the Class. Excluded from the Class are Defendants herein and any person, firm, trust, corporation, or other entity related to or affiliated with any of the Defendants.

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43. This action is properly maintainable as a class action for the following reasons:

(a) The Class is so numerous that joinder of all members is impracticable. As of August 12, 2016, there were over 29 million outstanding Sizmek shares. The holders of these shares are believed to be geographically dispersed through the United States;

(b) There are questions of law and fact which are common to the Class and which predominate over questions affecting individual Class members. The common questions include, inter alia, the following:

i. Whether Defendants have violated Section 14(a) of the Exchange act and Rule 14a-9 promulgated thereunder;

ii. Whether Defendants have violated Rule 13e-3;

iii. Whether the Individual Defendants have violated Section 20(a) of the Exchange Act;

iv. Whether the Board breached its fiduciary duties; and

v. Whether Plaintiff and the other members of the Class have suffered damages as a result of Defendants’ violations of the Exchange Act.

(c) Plaintiff is an adequate representative of the Class, has retained competent counsel experienced in litigation of this nature, and will fairly and adequately protect the interests of the Class;

(d) Plaintiff’s claims are typical of the claims of the other members of the Class, and Plaintiff does not have any interests adverse to the Class;

(e) The prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members of the Class, which would establish incompatible standards of conduct for the party opposing the Class;

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(f) Defendants have acted on grounds generally applicable to the Class with respect to the matters complained of herein, thereby making appropriate the relief sought herein with respect to the Class as a whole; and

(g) Plaintiff anticipates that there will be no difficulty in the management of this litigation. A class action is superior to other available methods for fairly and efficiently adjudicating this controversy.

CLAIMS FOR RELIEF

COUNT I

On Behalf of Plaintiff and the Class Against Sizmek and the Individual Defendants for Violations of Section 14(a) of the Exchange Act and Rule 14a-9

44. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein.

45. Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange Act, provides that such communications with stockholders shall not contain “any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.

46. As detailed above, the Sizmek Recommendation Statement violates Section 14(a) and Rule 14a-9 because it omitted material information necessary to ensure the Sizmek Recommendation Statement’s disclosures related to the availability of appraisal rights under Delaware law are not materially false and misleading.

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47. Sizmek and the Board issued the Sizmek Recommendation Statement or allowed their names to be used in the Sizmek Recommendation Statement with the intention of soliciting the support of Sizmek stockholders for the Transaction. Sizmek and the Board reviewed and authorized the dissemination of the Sizmek Recommendation Statement, which misleadingly described the availability of appraisal rights to Sizmek stockholders. In so doing, Defendants made materially incomplete and misleading statements of fact and/or omitted material facts necessary to make the statements made not misleading.

48. Each of the Individual Defendants, by virtue of their roles as officers and/or directors of Sizmek, were obligated to review the Sizmek Recommendation Statement and were therefore aware of the above-referenced misleading statements and omitted information, but failed to disclose or correct such information, in violation of Section 14(a). The Individual Defendants and Sizmek further knew that the statements in the Sizmek Recommendation Statement related to the availability of appraisal rights were false and/or misleading, because they were presented with or reviewed these disclosures before they were filed with the SEC.. The Individual Defendants and Sizmek were therefore negligent in allowing and failing to correct to the above-referenced material misstatements and omissions in the Recommendation Statement.

49. The Individual Defendants and Sizmek were also involved in preparing, editing, reviewing, and approving the Sizmek Recommendation Statement, as the Board and Sizmek attempted to fulfill their obligations under Rule 13e-3 via the statements in the Sizmek Recommendation Statement. The Merger Agreement also gave the Board and Sizmek the right to review and edit the Sizmek Recommendation Statement. Sizmek and the Board therefore knew, or was negligent in not knowing, that the Sizmek Recommendation Statement contained

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the above-referenced misleading statements and omitted the above-referenced material information, and were also negligent in failing to ensure that the Sizmek Recommendation Statement was materially complete and not misleading.

50. As a direct result of Defendants’ preparation, review and dissemination of the false and/or misleading Sizmek Recommendation Statement, the Class was precluded both from exercising their right to seek appraisal and were induced to vote their shares and accept the inadequate Merger Consideration. The false and/or misleading Sizmek Recommendation Statement used to obtain shareholder approval of the Merger deprived Plaintiff and the Class of their right to a fully informed shareholder vote in connection therewith and of the full and fair value for their Sizmek shares, and caused enough Sizmek shares to vote in favor of the Transaction, which resulted in all Sizmek stockholders giving up their Sizmek shares in exchange for the inadequate Merger Consideration. The Recommendation Statement was thus an essential link in causing the Company’s shareholders to approve the Merger.

51. As a direct and proximate result of the dissemination of the false and/or misleading Sizmek Recommendation Statement the Board and Sizmek used to obtain shareholder approval of the Merger, Plaintiff and the Class have suffered damages and actual economic losses (i.e. the difference between the value of the Merger Consideration Sizmek shareholders received and the true value of their units at the time of the Merger) in an amount to be determined at trial. Plaintiff and the Class have therefore suffered economic loss and are entitled to monetary damages. By reason of the misconduct detailed herein, Defendants are liable pursuant to 14(a) of the Exchange Act and SEC Rule 14a-9 promulgated thereunder.

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COUNT II

On Behalf of Plaintiff and the Class Against the Individual Defendants for Violations of Section 20(a) of the Exchange Act

52. Plaintiff incorporate each and every allegation set forth above as if fully set forth herein.

53. The Individual Defendants acted as controlling persons of Sizmek within the meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as officers and/or directors of Sizmek, and participation in and/or awareness of the Company’s operations and/or intimate knowledge of the incomplete and misleading statements contained in the Sizmek Recommendation Statement filed with the SEC, they had the power to influence and control and did influence and control, directly or indirectly, the decision making of the Company, including the content and dissemination of the various statements that Plaintiff contends are materially incomplete and misleading.

54. Each of the Individual Defendants was provided with or had unlimited access to copies of the Sizmek Recommendation Statement and other statements alleged by Plaintiff to be misleading prior to and/or shortly after these statements were issued and had the ability to prevent the issuance of the statements or cause the statements to be corrected.

55. In particular, each of the Individual Defendants had direct and supervisory involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had the power to control or influence the particular transactions giving rise to the Exchange Act violations alleged herein, and exercised the same. The omitted information identified above was reviewed by the Board and the Conflicts Committee prior to voting on the Transaction. The Sizmek Recommendation Statement at issue contains the unanimous recommendation of each of the Individual Defendants to approve the Transaction. They were, thus, directly involved in the making of the Sizmek Recommendation Statement.

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56. In addition, as the Sizmek Recommendation Statement sets forth at length, and as described herein, the Individual Defendants were involved in negotiating, reviewing, and approving the Merger Agreement. The Sizmek Recommendation Statement purports to describe the various issues and information that the Individual Defendants reviewed and considered. The Individual Defendants participated in drafting and/or gave their input on the content of those descriptions.

57. By virtue of the foregoing, the Individual Defendants have violated Section 20(a) of the Exchange Act.

58. As set forth above, the Individual Defendants had the ability to exercise control over and did control a person or persons who have each violated Section 14(a) and Rule 14a-9, by their acts and omissions as alleged herein. By virtue of their positions as controlling persons, these defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and proximate result of Individual Defendants’ conduct, Plaintiff and the Class have been harmed.

59. Plaintiff and the Class have therefore suffered economic loss and are entitled to monetary damages.

COUNT III

On Behalf of Plaintiff and the Class Against Vector for Violations of Section 14(a) of the Exchange Act and Rule 14a-9

60. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein.

61. Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange Act, provides that such communications with stockholders shall not contain “any statement

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which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.

62. As detailed above, the Tender Offer Statement violates Section 14(a) and Rule 14a-9 because it omitted material information necessary to ensure the Tender Offer Statement’s disclosures related to the availability of appraisal rights under Delaware law are not materially false and misleading.

63. Vector issued the Tender Offer Statement or allowed their names to be used in the Tender Offer Statement with the intention of soliciting the support of Sizmek stockholders for the Transaction. Vector reviewed and authorized the dissemination of the Tender Offer Statement, which misleadingly described the availability of appraisal rights to Sizmek stockholders. In so doing, Vector made materially incomplete and misleading statements of fact and/or omitted material facts necessary to make the statements made not misleading.

64. Vector was obligated to review the Tender Offer Statement and was therefore aware of the above-referenced misleading statements and omitted information, but failed to disclose or correct such information, in violation of Section 14(a). Vector further knew that the statements in the Tender Offer Statement related to the availability of appraisal rights were false and/or misleading, because they were presented with or reviewed these disclosures before they were filed with the SEC.. Vector was therefore negligent in allowing and failing to correct to the above-referenced material misstatements and omissions in the Tender Offer Statement.

65. As a direct result of Vector’s review and dissemination of the false and/or misleading Tender Offer Statement, the Class was precluded both from exercising its right to seek appraisal and was induced to vote its shares and accept the inadequate Merger

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Consideration. The false and/or misleading Tender Offer Statement used to obtain shareholder approval of the Merger deprived Plaintiff and the Class of their right to a fully informed shareholder vote in connection therewith and of the full and fair value for their Sizmek shares, and caused enough Sizmek shares to vote in favor of the Transaction, which resulted in all Sizmek stockholders giving up their Sizmek shares in exchange for the inadequate Merger Consideration. The Tender Offer Statement was thus an essential link in causing the Company’s shareholders to approve the Merger.

66. As a direct and proximate result of the dissemination of the false and/or misleading Tender Offer Statement Vector used to obtain shareholder approval of the Merger, Plaintiff and the Class have suffered damages and actual economic losses (i.e. the difference between the value of the Merger Consideration Sizmek shareholders received and the true value of their units at the time of the Merger) in an amount to be determined at trial. Plaintiff and the Class have therefore suffered economic loss and are entitled to monetary damages. By reason of the misconduct detailed herein, Defendants are liable pursuant to 14(a) of the Exchange Act and SEC Rule 14a-9 promulgated thereunder.

COUNT IV

On Behalf of Plaintiff and the Class Against Meruelo for Violations of Section 14(a) of the Exchange Act and Rule 14a-9

67. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein.

68. Rule 14a-9, promulgated by the SEC pursuant to Section 14(a) of the Exchange Act, provides that such communications with stockholders shall not contain “any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.” 17 C.F.R. § 240.14a-9.

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69. As detailed above, the Meruelo Recommendation Statement violates Section 14(a) and Rule 14a-9 because it omitted material information necessary to ensure the Meruelo Recommendation Statement’s disclosures related to his recommendation that stockholder’s seek an appraisal are not materially false and misleading.

70. Meruelo issued the Meruelo Recommendation Statement or allowed their names to be used in the Meruelo Recommendation Statement with the intention of soliciting stockholders to not tender their shares and seek appraisal. Meruelo reviewed and authorized the dissemination of the Meruelo Recommendation Statement, which was misleading because it did not disclose, among other things, whether Meruelo intends to seek appraisal of his shares. In so doing, Meruelo made materially incomplete and misleading statements of fact and/or omitted material facts necessary to make the statements made not misleading.

71. Meruelo was aware of the above-referenced misleading statements and omitted information, but failed to disclose or correct such information, in violation of Section 14(a). Meruelo was therefore negligent in allowing and failing to correct to the above-referenced material misstatements and omissions in the Meruelo Recommendation Statement.

72. As a direct result of Meruelo’s preparation, review and dissemination of the false and/or misleading Meruelo Recommendation Statement, the Class was precluded from being able to determine whether to exercise their right to seek appraisal consistent with Meruelo’s recommendation. The Recommendation Statement was thus an essential link in causing the Company’s shareholders to approve the Merger.

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73. As a direct and proximate result of the dissemination of the false and/or misleading Meruelo Recommendation Statement, Meruelo used to obtain shareholder dissent of the Merger, Plaintiff and the Class have suffered damages and actual economic losses (i.e. the difference between the value of the Merger Consideration Sizmek shareholders received and the true value of their units at the time of the Merger) in an amount to be determined at trial. Plaintiff and the Class have therefore suffered economic loss and are entitled to monetary damages. By reason of the misconduct detailed herein, Defendants are liable pursuant to 14(a) of the Exchange Act and SEC Rule 14a-9 promulgated thereunder.

COUNT V

On Behalf of Plaintiff and the Class Against the Individual Defendants for Breach of Fiduciary Duties

74. Plaintiff incorporates each and every allegation set forth above as if fully set forth herein.

75. The Individual Defendants have violated the fiduciary duties of care and loyalty owed to the public stockholders of Sizmek and have acted to put their personal interests ahead of the interests of Sizmek stockholders.

76. By the acts, transactions, and course of conduct alleged herein, Defendants, individually and acting as a part of a common plan, are attempting to unfairly deprive Plaintiff and other members of the Class of the true value of Sizmek.

77. The Individual Defendants have violated their fiduciary duties by entering Sizmek into the Proposed Transaction without regard to the effects of the Proposed Transaction on Sizmek stockholders.

78. The terms of the Proposed Transaction were not entirely fair to the Class.

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79. As demonstrated by the allegations above, the Individual Defendants failed to exercise the care required, and breached their duties of loyalty and due care owed to the stockholders of Sizmek by entering into the Merger and providing stockholders with the materially false and misleading statements in the Sizmek Recommendation Statement.

80. By reason of the foregoing acts, practices, and course of conduct, the Individual Defendants have failed to exercise ordinary care and diligence in the exercise of their fiduciary obligations toward Plaintiff and the other members of the Class.

81. As a result of the Individual Defendants’ unlawful actions, Plaintiff and the other members of the Class have suffered damages and are entitled to a quasi-appraisal remedy.

RELIEF REQUESTED

WHEREFORE, Plaintiff demands monetary damages and other relief in his favor and in favor of the Class and against the Defendants jointly and severally, as follows:

A. Declaring this action to be a proper Class Action pursuant to Rule 23 of the Federal Rules of Civil Procedure and certifying Plaintiff as Class Representative and his counsel as Class Counsel;

B. Declaring that the Recommendation Statement distributed by Defendants to the Sizmek stockholders was materially false and misleading, in violation of Sections 13(e) and 14(a) of the Exchange Act and Rules 13e-3 14a-9 promulgated thereunder and in breach of the Board’s fiduciary duties;

C. Awarding Plaintiff and the members of the Class compensatory and/or recissory damages against the Defendants, including, but not limited to, pre-judgment and post-judgment interest, as well as reasonable attorneys’ fees, expert witness fees and other costs and disbursements;

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D. Awarding extraordinary, equitable and/or injunctive relief as permitted by law, equity and the federal statutory provisions sued hereunder, and any appropriate state law remedies; and

E. Granting such other and further relief as this Court may deem just and proper.

JURY DEMAND

Plaintiff demands a trial by jury.

DATED: September 15, 2016	Respectfully submitted,
	EDWARDS SUTARWALLA PLLC
	/s/ Murtaza Sutarwalla
	Murtaza Sutarwalla
	TX State Bar No. 24056398
	George Edwards
	TX State Bar No. 24055438
	2555 N. MacGregor Way
	Suite 100
	Houston, TX 77004
	Tel.: (832) 717-2562
	Fax: (713) 583-8715
	Email:	murtaza@eslawpartners.com
		george@eslawpartners.com
	Counsel for Plaintiff

OF COUNSEL

Nadeem Faruqi

FARUQI & FARUQI, LLP

685 Third Avenue, 26^th Floor

New York, NY 10017

Tel: 212-983-9330

Fax: 212-983-9331

Email: nfaruqi@faruqilaw.com

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Derrick B. Farrell

FARUQI & FARUQI, LLP

20 Montchanin Road, Suite 145

Wilmington, DE 19807

Tel.: (302) 482-3182

Email: dfarrell@faruqilaw.com

Juan E. Monteverde

MONTEVERDE & ASSOCIATES PC

The Empire State Building

350 Fifth Avenue, 59th Floor

New York, NY 10118

Tel: (212) 971-1341

Fax: (212) 601-2610

Email: jmonteverde@monteverdelaw.com

Counsel for Plaintiff

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