Jason Terrell v. Kiromic Biopharma, Inc. ( 2022 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
MORGAN T. ZURN LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
January 20, 2022
Scott J. Leonhardt, Esquire Laurence V. Cronin, Esquire
The Rosner Law Group LLC Smith, Katzenstein & Jenkins LLP
924 North Market Street, Suite 810 1000 West Street, Suite 1501
Wilmington, Delaware 19801 Wilmington, Delaware 19801
RE: Jason Terrell v. Kiromic Biopharma, Inc.,
Civil Action No. 2021-0248-MTZ
Dear Counsel:
The disputes in this case turn on competing interpretations of a suite of
documents granting stock options in a biotechnology company to its former director.
The company contends language in the notice granting the director’s most recent
options extinguished two earlier, more lucrative option grants. The director argues
the language preserves those options. The company filed the pending motion to
dismiss seeking to confirm its interpretation.
At oral argument on that motion, I raised a threshold issue the parties did not
brief: a dispute resolution provision in the stock option agreement, requiring the
parties to submit “[a]ny dispute regarding the interpretation of this Agreement” to a
committee of the company’s board. The parties also disagree as to whether that
provision governs their dispute over the option grant language.
Jason Terrell v. Kiromic Biopharma, Inc.,
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I endeavored to resolve their competing interpretations of the dispute
resolution provision, but encountered a circular problem along the way. Interpreting
the dispute resolution provision would require me to resolve a “dispute regarding the
interpretation” of the stock option agreement, violating that dispute resolution
provision. Faced with this Mobius strip, I look to this Court’s jurisprudence
governing how to interpret arbitration and non-arbitration dispute resolution
provisions. Because the dispute resolution provision does not call for arbitration, it
must be construed in accordance with its plain text. The text commands that the
referenced committee must interpret the dispute resolution provision to determine
its scope. So for the reasons that follow, the matter is stayed pending the
committee’s determination.
I. BACKGROUND1
Plaintiff Dr. Jason Terrell is a former consultant and director at Kiromic
Biopharma, Inc. (“Kiromic” or the “Company”), a biopharmaceutical company
based in Houston, Texas. Terrell was affiliated with Kiromic from 2014 until he
1
For the purposes of the pending motion, I draw the following facts from the plaintiff’s
Verified Complaint, available at Docket Item (“D.I.”) 1 [hereinafter “Compl.”], as well as
the documents attached and integral to it. See, e.g., Himawan v. Cephalon, Inc., 2018 WL
6822708, at *2 (Del. Ch. Dec. 28, 2018); In re Gardner Denver, Inc. S’holders Litig., 2014
WL 715705, at *2 (Del. Ch. Feb. 21, 2014).
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resigned from its board in 2019. During that time, the Company compensated
Terrell by granting him a series of stock options. For the purposes of this letter, I
adopt Terrell’s characterizations of these transactions as “Agreement 1,”
“Agreement 2,” and “Agreement 3.” I do not describe Agreement 1 and
Agreement 2 here, as they are known to the parties and not relevant here.
What is relevant here is Agreement 3, which comprises three parts: a Notice
of Stock Option Grant (the “Grant Notice”),2 a stock option agreement (the “Stock
Option Agreement”),3 and an annex, which contains ancillary documents including
a 2017 Equity Incentive Plan (the “Incentive Plan”).4 Terrell’s Agreement 3 options
generally resemble his options under Agreements 1 and 2, but there are two critical
differences.
First, only his Agreement 3 options would be adjusted if the Company
changed its capital structure by a stock split or a reverse stock split.5 Two stock
splits in 2019 and 2020 adjusted Terrell’s Agreement 3 options to the right to
purchase 14,285 shares at a strike price of approximately $6.65 per share.
2
See Compl. Ex. D, Notice of Stock Option Grant [hereinafter “Grant Notice”].
3
See Grant Notice, Ex. A, Stock Option Agreement [hereinafter “Stock Option Agr.”].
4
See Stock Option Agr., Annex A, 2017 Equity Incentive Plan [hereinafter “Incentive
Plan”]. The annex also includes a “Stock Option Exercise Notice and Agreement.”
5
See id. § 2.2.
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These changes to Terrell’s Agreement 3 options were amplified because of
the second critical difference in Agreement 3. Its Grant Notice includes the
following italicized language:
By signing this Grant Notice, you acknowledge and agree that other
than the Shares, you have no other rights to any other options, equity
awards or other securities of the Company (except securities of the
Company, if any, issued to you on or prior to the date hereof, if any),
notwithstanding any commitment or communication regarding options,
equity awards or other securities of the Company made prior to the
date hereof, whether written or oral, including any reference to the
contrary that may be set forth in your offer letter, consultant agreement
or other documentation with the Company or any of its predecessors.6
I refer to this provision as the “Release.”
Kiromic contends the Release extinguishes Terrell’s options under
Agreements 1 and 2. Kiromic informed Terrell he holds only his Agreement 3
options, and challenged his right to any others. Terrell argues that the Release’s
parenthetical exception carves out his options under Agreements 1 and 2. Under
Terrell’s interpretation, his option holdings are more plentiful and more lucrative:
500,000 shares at $0.50 per share (the Agreement 1 options), 500,004 shares at $0.17
6
Grant Notice at 2.
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per share (the Agreement 2 options),7 and 14,285 shares at $6.65 per share (the
Agreement 3 options).
Terrell filed his verified complaint in this matter (the “Complaint”) on
March 22, 2021.8 The Complaint asserts two counts, both seeking declaratory
judgments that his options under Agreements 1 and 2 survive the Release in
Agreement 3’s Grant Notice.9 Kiromic moved to dismiss (the “Motion”) on
May 20.10 As initially framed, the parties’ dispute turns on their competing
interpretations of the Release. The parties briefed the Motion and the Court heard
oral argument on October 20.11
In preparation for oral argument, I came across Section 15.1 of Agreement 3’s
Stock Option Agreement, which governs its interpretation:
7
The Complaint indicates Terrell received 500,005 options in Agreement 2, while
Agreement 2 itself indicates 500,004. Compare Compl. ¶ 17, with Compl. Ex. C § 6.
8
See generally Compl.
9
Terrell’s Complaint also sought indemnification from the Company under its amended
certificate of incorporation. See id. ¶¶ 37–39, 50, 59. Terrell withdrew his indemnification
claims in his answering brief on the Motion. See D.I. 16 at 2.
10
See D.I. 12.
11
See D.I. 22.
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Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee [Terrell] or the Company to
the Committee for review. The resolution of such a dispute by the
Committee shall be final and binding on the Company and Optionee.12
The Incentive Plan defines the “Committee” as a committee created by the
Company’s board or, if no committee is created, the Kiromic board itself.13
Though neither party discussed Section 15.1 in their initial submissions, the
Court has a mandate to construe “the agreement as a whole and giv[e] effect to all
its provisions.”14 At argument, I asked whether the parties’ dispute over the Release
is one “regarding the interpretation of this Agreement,”15 which must be submitted
to the Committee. The parties submitted supplemental briefs on that issue on
November 15.16
Those supplemental briefs presented a dispute over the interpretation of
Section 15.1 and other parts of the Stock Option Agreement. Kiromic argues the
provision bars Terrell from asking this Court to interpret the Grant Notice, because
12
Stock Option Agr. § 15.1.
13
See Incentive Plan § 14 (defining “Committee”). Kiromic represented in its
supplemental brief that such a committee exists. See D.I. 26 at 3 n.2.
14
Salamone v. Gorman, 106 A.3d 354, 368 (Del. 2014) (citing GMG Cap. Inv., LLC. v.
Athenian Venture P’rs I, L.P., 36 A.3d 776, 779 (Del. 2012)).
15
Stock Option Agr. § 15.1.
16
D.I. 25; D.I. 26.
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the Grant Notice incorporates and is incorporated by reference into the Stock Option
Agreement.17 Terrell contends his suit is not barred because Section 15.1 references
only the “Agreement,” which the Stock Option Agreement defines as the Stock
Option Agreement itself. 18
II. ANALYSIS
Kiromic moved to dismiss the Complaint under Court of Chancery Rule
12(b)(6) for failure to state a claim for relief.19 The standards governing such a
motion are well settled:
(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are “well-pleaded” if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the non-moving party; and ([iv]) dismissal is inappropriate
unless the “plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible to proof.”20
The parties’ initial dispute turns on competing interpretations of the Release.
Their secondary dispute turns on competing interpretations of Section 15.1. As I
will explain, under Delaware’s alternative dispute resolution (“ADR”)
17
See D.I. 26 at 2 (citing Grant Notice at 1, and Stock Option Agr. § 15.2).
18
See D.I. 25 at 2 (citing Stock Option Agr. at 1).
19
See generally D.I. 12. In its supplemental brief, Kiromic also argued Section 15.1
rendered the dispute unripe, calling into question this Court’s subject matter jurisdiction
under Rule 12(b)(1). See D.I. 26 at 4–5.
20
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (citations omitted).
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jurisprudence, resolving these disputes requires asking and answering the following
questions in the following way:21
Question 1: What type of provision is Section 15.1: an arbitration
provision, or something else?
Answer 1: Section 15.1 is not an arbitration provision.
Question 2: Who decides whether a non-arbitration ADR provision
applies to the dispute at hand?
Answer 2: The plain text of a non-arbitration ADR provision
dictates who decides its scope.
Question 3: Who does the plain text of Section 15.1 charge with
deciding its applicability?
Answer 3: Section 15.1’s plain text charges the Committee with
deciding its applicability.
I will endeavor to lead the parties through these nested questions and answers. I
conclude that this action must be stayed so that the Committee can determine
whether Section 15.1, in the Stock Option Agreement, governs the dispute over the
Release, in the Grant Notice.
21
See generally Penton Bus. Media Hldgs., LLC v. Informa PLC, 252 A.3d 445, 453–466
(Del. Ch. 2018) (framing and answering the questions “Does Delaware Recognize A
Distinction Between An Arbitration And An Expert Determination?”; “What Type Of
Proceeding Does The Merger Agreement Contemplate?”; and “Who Determines The
Scope Of The Accounting Firm’s Jurisdiction?” in analyzing an ADR provision).
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A. Section 15.1 Is Not An Arbitration Provision.
The first step in the analysis is determining whether the parties intended
Section 15.1 to act as an arbitration provision. “Determining what type of dispute
resolution mechanism the parties have agreed to presents a question of contract
interpretation.”22 I am guided by Delaware’s well-understood objective theory of
contracts in that exercise.23
In some cases, it might be difficult to determine whether the parties had
selected an expert determination, arbitration, or something else. If
parties have not stated their intention explicitly, then a court will have
to examine other aspects of the contract or even turn to extrinsic
evidence.24
Vice Chancellor Laster’s scholarly decision in Penton Business Media
Holdings, LLC v. Informa PLC noted state and federal courts have taken varying
approaches to categorizing different types of alternative dispute resolution
paradigms.25 Penton approvingly discussed New York’s system, which “places
22
Id. at 461.
23
See, e.g., Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010).
24
Penton, 252 A.3d at 462.
25
Id. at 463.
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heavy weight on the scope of the provision and the procedure that the parties agree
to follow.”26 I follow that approach.
Generally speaking, “[t]he grant of authority to an arbitrator, but not to an
expert, is analogous to the powers of a judge in a judicial proceeding.”27 Arbitrators
have the authority to “decide all legal and factual issues necessary to resolve the
matter” and to “award a legal remedy.”28 An expert’s authority is generally “limited
to its mandate to use its specialized knowledge to resolve a specified issue of fact.
The parties agree that the expert’s determination of the disputed factual issue will be
final and binding on them[,]” but do not usually grant the expert authority to
determine issues like legal liability.29
26
Id.; see id. at 464 (noting New York’s system is in line with academic authorities that
consider factors such as “the type and scope of authority given to the party resolving the
dispute,” as well as “the procedures that the party is directed to follow”). Penton included
a lengthy discussion of a 2013 report by the Committee on International Commercial
Disputes of the New York City Bar Association. See generally Comm. on Int’l Com.
Disputes, N.Y.C. Bar Ass’n, Purchase Price Adjustment Clauses and Expert
Determinations: Legal Issues, Practical Problems and Suggested Improvements (2013)
[hereinafter “New York Bar Report”].
27
Id. at 464 (quoting New York Bar Report at 4); see also Ray Beyond Corp. v. Trimaran
Fund Mgmt., L.L.C., 2019 WL 366614, at *8 (Del. Ch. Jan. 29, 2019) (“Arbitration
provisions typically broadly encompass the entire legal and factual dispute between the
parties.”).
28
Penton, 252 A.3d at 464 (quoting New York Bar Report at 4).
29
Id. (quoting New York Bar Report at 4).
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The procedures for arbitration and expert determinations also differ.
“Arbitration provisions typically include procedural rules affording each party the
opportunity to present its case; indeed, this is viewed as a defining characteristic of
arbitration provisions.”30 By contrast, expert proceedings are typically “attended by
a larger measure of informality and [experts] are not bound to the strict judicial
investigation of an arbitration.”31
The parties did not brief whether Section 15.1 calls for arbitration, an expert
determination, a referee, or something else. I conclude it does not call for arbitration.
Section 15.1 does not grant the Committee powers to resolve all legal and factual
disputes, “analogous to the powers of a judge in a judicial proceeding.” 32 Its scope
is narrower, limited to disputes over the Stock Option Agreement’s interpretation.
Nor does Section 15.1 give the Committee the power to award a remedy. As far as
process, Section 15.1 does not “include procedural rules affording each party the
30
Ray Beyond, 2019 WL 366614, at *7 (footnotes and internal quotation marks omitted)
(quoting Gary B. Born, International Arbitration: Law and Practice § 1.01[A][4] (2nd ed.
2016), and compiling sources); see also James & Jackson, LLC v. Willie Gary, LLC, 906
A.2d 76, 80–81 (Del. 2006) (discussing the impact of incorporating American Arbitration
Association rules into an arbitration provision).
31
Penton, 252 A.3d at 463 (internal quotation marks omitted) (quoting In re Delmar Box
Co., 127 N.E.2d 808, 811 (N.Y. 1955)).
32
Id. at 464 (quoting New York Bar Report at 4).
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opportunity to present its case,”33 nor does it bind the Committee to “the strict
judicial investigation of an arbitration.”34 There is no basis to conclude the parties
intended Section 15.1 to be an arbitration provision.
Section 15.1 is not squarely an “expert determination” either. It directs legal,
not factual, questions to the Committee.35 Penton acknowledged that provisions
calling for expert determinations “normally have not granted the expert the authority
to make binding decisions on general issues of law or legal disputes.”36 But Penton
also noted “parties could give an expert the authority to interpret a contract.”37
I conclude that Section 15.1 gives the Committee the authority to interpret the
Agreement, but is not an arbitration provision.
33
Ray Beyond, 2019 WL 366614, at *7.
34
Penton, 252 A.3d at 463 (internal quotation marks omitted) (quoting Delmar Box, 127
N.E.2d at 811).
35
See id. at 464 (discussing the differences between expert determinations and arbitration
and noting that experts’ authority is typically limited to a “specific factual dispute,” as
opposed to making “binding decisions of law”). Section 15.1 loosely resembles the
“referee” provision at issue in Kuhn Construction, Inc. v. Diamond State Port Corp., which
reserved questions “concerning the interpretation of Plans and Specifications” for the
referee. 990 A.2d 393, 394 (Del. 2010). The Delaware Supreme Court held that this
provision did not compel the parties to arbitrate their disputes. See id. at 396–98. Penton
reiterated this holding and cited Kuhn as an example of a “Delaware decision[] [that]
maintained the distinction between an arbitration and an expert determination.” See 252
A.3d at 456 & n.44.
36
Penton, 252 A.3d at 466 (internal quotation marks omitted) (quoting New York Bar
Report at 15).
37
Id. at 448.
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B. The Plain Text Of A Non-Arbitration ADR Provision Dictates Who
Decides Its Scope.
It was important to decide whether Section 15.1 is an arbitration provision
because that informs how to determine who decides its applicability to the dispute
over the Release. If Section 15.1 were an arbitration provision, this Court would
presumptively decide whether the Court or the Committee should determine its
scope, pursuant to James & Jackson, LLC v. Willie Gary, LLC.38 Willie Gary held
that questions of substantive arbitrability are presumptively decided by a court,
absent “clear and unmistakable” evidence of the parties’ intent to have the arbitrator
make that decision instead.39
But because Section 15.1 does not call for arbitration, the Willie Gary
presumption of judicially determined substantive arbitrability does not apply.
Unlike other jurisdictions, Delaware “does not apply arbitral principles” in
38
See 906 A.2d at 79 (“The question of whether the parties have submitted a particular
dispute to arbitration, i.e. the question of arbitrability, is an issue for judicial determination
unless the parties clearly and unmistakably provide otherwise. The [United States Supreme
Court] distinguished between issues of substantive arbitrability and procedural
arbitrability. Substantive arbitrability issues are gateway questions about the scope of an
arbitration provision and its applicability to a given dispute. The court presumes that
parties intended courts to decide issues of substantive arbitrability.” (alterations and
internal quotation marks omitted) (quoting Howsam v. Dean Witter Reynolds, Inc., 537
U.S. 79, 83 (2002))).
39
Id.Jason Terrell v. Kiromic Biopharma, Inc.,
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January 20, 2022
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construing private dispute resolution mechanisms that do not call for arbitration.40
Where an ADR provision calls for something other than arbitration, the Court
applies contract interpretation principles to determine whether the arbiter could
construe that provision. As Penton put it:
Holding that the Dispute Resolution Provision calls for an expert
determination means that the contract itself determines the scope of the
expert’s jurisdiction. Where the parties have entrusted the power of
decision to an expert, the extent of the expert’s jurisdiction depends on
the terms of the contract between the parties.
Whether the [expert] has jurisdiction to construe the scope of the
Dispute Resolution Provision and determine whether it can consider
extrinsic evidence presents a question of contract interpretation. There
is no general principle either that the expert always has exclusive
jurisdiction to decide the meaning of the terms of the contract, or that
the expert never has exclusive jurisdiction to do so. Rather, in each
case it is necessary to examine the contract itself in order to decide
what the parties intended should be a matter for the exclusive decision
of the expert.
...
40
See Penton, 252 A.3d at 459; see also id. at 454 (“The buyer posits that arbitral principles,
including the doctrines of substantive and procedural arbitrability, always apply whenever
parties have selected a private third-party to decide a dispute. They rely on cases which
hold that ‘if the parties have agreed to submit a dispute for a decision by a third party, they
have agreed to arbitration.’ In my view, those cases speak too broadly. Most importantly
for present purposes, Delaware decisions distinguish between expert determinations and
arbitrations.” (alteration omitted) (quoting Bakoss v. Certain Underwriters at Lloyds of
London Issuing Certificate No. 0510135, 707 F.3d 140, 143 (2d Cir. 2013))).
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The Merger Agreement does not specifically say whether or not the
[expert] can construe the Dispute Resolution Provision. Although
Delaware cases have not expressly adopted a default rule for use when
the agreement is silent, the logic of the decisions suggests that an expert
charged with making a narrow determination will not have authority to
interpret the governing agreement unless the contract says so.41
Because Section 15.1 is not an arbitration provision, the answer to who is charged
with interpreting it is found in its plain text, without applying any arbitral
presumptions.42
41
Id. at 465–66 (footnotes, alterations, and internal quotation marks omitted) (bold italics
added) (quoting Clive Freedman & James Farrell, Kendall on Expert Determination 245 &
256 (5th ed. 2015)).
42
See id. at 448 (“Delaware has not elided the distinction between expert determinations
and arbitrations, nor have our courts applied arbitral principles to all contractual dispute
resolution mechanisms. This outcome comports with Delaware’s position as a freedom of
contract state, with a policy of enforcing the voluntary agreements of sophisticated parties
in commerce. As Chief Justice Strine recognized while writing as Chancellor on this court,
Delaware is a state that respects the freedom of contract. Thus, when two parties have a
contract on which payment must be made, they are free to determine the basis for that
payment. When a contract plainly says that a contractual input (the value of a certain
property) will be determined by an appraiser selected in accordance with the contract’s
terms, that is what it plainly means. An expert determination—whether by an appraiser,
an auditor, or a different type of expert—is not an arbitration unless the parties specifically
designate that expert as an arbitrator for that purpose, thereby invoking the body of law
governing arbitrators. The court interprets and enforces the contract provisions governing
the expert determination; the court does not apply arbitral principles.” (footnotes and
internal quotation marks omitted) (quoting Pers. Decisions, Inc. v. Bus. Plan. Sys., Inc.,
2008 WL 1932404, at *6 (Del. Ch. May 5, 2008), aff’d, 970 A.2d 256 (Del. 2009)
(TABLE), and Senior Hous. Cap., LLC v. SHP Senior Hous. Fund, LLC, 2013 WL
1955012, at *24–25 (Del. Ch. May 13, 2013))).
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C. Section 15.1’s Plain Text Charges The Committee With Deciding
Its Applicability.
The plain text of Section 15.1 provides that the Committee must determine
Section 15.1’s scope. The parties specifically delegated the Committee the authority
to interpret the “Agreement.”43 The Stock Option Agreement defines “Agreement”
as the Stock Option Agreement itself:
This Stock Option Agreement (this “Agreement”) is made and entered
into as of the date of grant (the “Date of Grant”) set forth on the Notice
of Stock Option Grant attached as the facing page to this Agreement
(the “Grant Notice”) by and between Kiromic, Inc., a Delaware
corporation (the “Company”), and the optionee named on the Grant
Notice (“Optionee”).44
Notwithstanding whether the “Agreement” extends to the Grant Notice, as Kiromic
contends, it unquestionably includes the Stock Option Agreement. The parties’
arguments on Section 15.1’s scope, which invoke several Stock Option Agreement
provisions,45 turn almost exclusively on questions of that agreement’s interpretation.
Section 15.1 is a provision of the Stock Option Agreement; under its plain text, a
dispute over its scope is a decision for the Committee.
43
Stock Option Agr. § 15.1.
44
Stock Option Agr. at 1.
45
See D.I. 25 at 1–5 (discussing, inter alia, Stock Opt. Agr. §§ 1, 2.1, 15.1, 15.2, 18, 22);
D.I. 26 at 1–4 (discussing, inter alia, Stock Opt. Agr. §§ 15.1, 15.2).
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And so, out of respect for the parties’ agreement, I end my analysis there. This
matter will be stayed until the Committee determines whether Section 15.1 applies
to the parties’ dispute over the Release in the Grant Notice. If the Committee
determines it does, the parties shall submit their competing interpretations of the
Release to the Committee for its review. The parties shall inform the Court of the
Committee’s decision(s).
III. CONCLUSION
For the foregoing reasons, this matter is STAYED pending the Committee’s
decision on the applicability of Section 15.1 to the parties’ dispute. To the extent
the following requires an order to take effect, IT IS SO ORDERED.
Sincerely,
/s/ Morgan T. Zurn
Vice Chancellor
MTZ/ms
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