SEC Comment Letter for CYNERGISTEK, INC (CIK 0001011432) — Sep 22, 2021
CYNERGISTEK, INC (CIK 0001011432)
Date: Sept. 22, 2021 · CIK: 0001011432 · Accession: 0000000000-21-011555
AI Filing Summary & Sentiment
File numbers found in text: 001-38011
Letter
September 2 2, 2021 Via E -mail William Caffee , Esq. White Summers Caffee & James, LLP 541 Jefferson Ave., Redwood City, CA 94063
Re: Cynergistek, Inc. Preliminary Proxy Statement on Schedule 14A Filed September 17, 2021 by Daniel Berger File No. 001-38011
Dear Mr . Caffee :
We have reviewed the above -captioned filing an d have the following comment s. In some of our comments, we may ask you to provide us with information so we may better understand your disclosure.
Please respond to these comments by providing the requested information or advise us as soon as possible when you will respond. If you do not believe our comments apply to your facts and circumstances, please tell us wh y in your response.
After reviewing your response to these comments, we may have additional comments.
PREN 14A Filed September 17, 2021 General
1. Please disclose why you have chosen both to rely on Rule 14a -18 in having your materials and nominee included in the registrant’s proxy statement and proxy card while simultaneously engaging in a contested proxy solicitation .
2. With a view toward facilitating the ability o f shareholders to make an informed voting decision , please advise us of how you complied with any requirements in Cynergistek’s bylaws to notify management of your intention s to deliver your own proxy statement and seek proxy authority . We note that the registrant has already filed its definitive proxy statement, raising the potential concern that the registrant may not have been aware of your intentions to engage in a contested director election. If applicable, your response should include an analysis of the effect of any failure to comply with the bylaws on your solicitation , including , but not limited to , whether shareholders may lawfully vote for your nominee.
William Caffee, Esq. White Summers Caffee & James, LLP September 2 2, 2021 Page 2
3. Clarify your recommendation for the method shareholders use to vote giv en that it appears shareholders may vote for your nominee on both the registrant ’s proxy card and your proxy card. In this regard, we note that you have urged shareholders not to return any proxy card receive d from the registrant , yet shareholders have the option to vote for you r nominee on the registrant ’s proxy card .
4. Provide the factual basis for your assertions that “ for the past several years, results have been poor” and that “CTEK ’s shares have underperformed its peers, its industry sector, an d the broader market .”
5. Describe in more detail your “ successful track record of raising capital that led to positive equity events .”
6. In your next filing, disclose the website that will be used for the Company’s virtual annual meeting and describe how shareholders may participate in the meeting.
Reasons for Our Solicitation, page 3
7. Describe with specificity the Board’s strategic, operational, and hiring decisions to which you are referring in the first paragraph of this section , as well as your view of how each has led to destruction of shareholder value.
Form of Proxy Card
8. Please revise your form of proxy to adhere to the requirements of Rule 14a-4(b)(2) . Specifically, the form of proxy must set forth the names of all persons nominated f or election as directors and provide sufficient space for shareholders to withhold authority to vote for any such nominee.
9. Revise your proxy statement and form of proxy to state that there is no assurance that the registrant’s nominees will serve if elected with your nominee. Refer to Rule 14a -4(d)(4)(iv).
* * *
William Caffee, Esq. White Summers Caffee & James, LLP September 2 2, 2021 Page 3
We remind you that the filing persons are responsible for the accuracy and adequacy of their disclosures, notwithstanding any review, comments, action or absence of action by the staff.
Please direct any ques tions to me at (202) 551 -7951.
Sincerely,
/s/ Joshua Shainess
Show Raw Text
September 2 2, 2021
Via E -mail
William Caffee , Esq.
White Summers Caffee & James, LLP
541 Jefferson Ave.,
Redwood City, CA 94063
Re: Cynergistek, Inc.
Preliminary Proxy Statement on Schedule 14A
Filed September 17, 2021 by Daniel Berger
File No. 001-38011
Dear Mr . Caffee :
We have reviewed the above -captioned filing an d have the following comment s. In some
of our comments, we may ask you to provide us with information so we may better understand
your disclosure.
Please respond to these comments by providing the requested information or advise us as
soon as possible when you will respond. If you do not believe our comments apply to your facts
and circumstances, please tell us wh y in your response.
After reviewing your response to these comments, we may have additional comments.
PREN 14A Filed September 17, 2021
General
1. Please disclose why you have chosen both to rely on Rule 14a -18 in having your materials
and nominee included in the registrant’s proxy statement and proxy card while
simultaneously engaging in a contested proxy solicitation .
2. With a view toward facilitating the ability o f shareholders to make an informed voting
decision , please advise us of how you complied with any requirements in Cynergistek’s
bylaws to notify management of your intention s to deliver your own proxy statement and
seek proxy authority . We note that the registrant has already filed its definitive proxy
statement, raising the potential concern that the registrant may not have been aware of your
intentions to engage in a contested director election. If applicable, your response should
include an analysis of the effect of any failure to comply with the bylaws on your solicitation ,
including , but not limited to , whether shareholders may lawfully vote for your nominee.
William Caffee, Esq.
White Summers Caffee & James, LLP
September 2 2, 2021
Page 2
3. Clarify your recommendation for the method shareholders use to vote giv en that it appears
shareholders may vote for your nominee on both the registrant ’s proxy card and your proxy
card. In this regard, we note that you have urged shareholders not to return any proxy card
receive d from the registrant , yet shareholders have the option to vote for you r nominee on the
registrant ’s proxy card .
4. Provide the factual basis for your assertions that “ for the past several years, results have been
poor” and that “CTEK ’s shares have underperformed its peers, its industry sector, an d the
broader market .”
5. Describe in more detail your “ successful track record of raising capital that led to positive
equity events .”
6. In your next filing, disclose the website that will be used for the Company’s virtual annual
meeting and describe how shareholders may participate in the meeting.
Reasons for Our Solicitation, page 3
7. Describe with specificity the Board’s strategic, operational, and hiring decisions to which
you are referring in the first paragraph of this section , as well as your view of how each has
led to destruction of shareholder value.
Form of Proxy Card
8. Please revise your form of proxy to adhere to the requirements of Rule 14a-4(b)(2) .
Specifically, the form of proxy must set forth the names of all persons nominated f or election
as directors and provide sufficient space for shareholders to withhold authority to vote for
any such nominee.
9. Revise your proxy statement and form of proxy to state that there is no assurance that the
registrant’s nominees will serve if elected with your nominee. Refer to Rule 14a -4(d)(4)(iv).
* * *
William Caffee, Esq.
White Summers Caffee & James, LLP
September 2 2, 2021
Page 3
We remind you that the filing persons are responsible for the accuracy and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of action by the staff.
Please direct any ques tions to me at (202) 551 -7951.
Sincerely,
/s/ Joshua Shainess
Joshua Shainess
Special Counsel
Office of Mergers and Acquisitions