chillinger Genetics, Inc. v. Benson Hill Seeds, Inc. ( 2021 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SCHILLINGER GENETICS, INC., )
an Iowa corporation, and JOHN )
SCHILLINGER, on his own behalf )
and in his capacity as Owners’ )
Representative, )
)
Plaintiffs, )
)
v. ) C.A. No. 2020-0260-MTZ
)
BENSON HILL SEEDS, INC., f/k/a )
SGI GENETICS, INC., a Delaware )
corporation, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: October 5, 2020
Date Decided: February 1, 2021
Michael P. Kelly, Andrew S. Dupre, and Sarah E. Delia, McCARTER & ENGLISH,
LLP, Wilmington, Delaware, Attorneys for Plaintiffs.
Travis S. Hunter and Dorronda R. Bordley, RICHARDS, LAYTON & FINGER,
P.A, Wilmington, Delaware; Kenneth J. Mallin, Jason S. Meyer, and Sasha D.
Riedisser, BRYAN CAVE LEIGHTON PAISNER, LLP, St. Louis, Missouri,
Attorneys for Defendant.
ZURN, Vice Chancellor.
Parties contracting in good faith and with prudent foresight often place funds
in escrow to tailor their contractual obligations to events, predicted or unexpected,
that may come to pass. In the present case, the buyer purchased substantially all of
the seller’s assets pursuant to an asset purchase agreement, and escrowed funds to
secure the seller’s obligations with respect to any post-closing price adjustment or
indemnity claims in two distinct accounts, each guarded by some procedural hurdles
that the buyer struggled to clear.
The first account contained escrow funds to be distributed in accordance with
the agreement’s post-closing purchase price adjustment process. Under that process,
the buyer was obligated to deliver to the seller a closing statement setting forth the
buyer’s calculated purchase price adjustment within ninety days of closing. The
buyer failed to timely deliver the requisite closing statement. After much prodding
by the seller, the buyer submitted the closing statement nearly two months late.
The second escrow account contained funds to be distributed in satisfaction
of any timely indemnity claim for the seller’s breach of the agreement. The
agreement set forth a period and procedure for the buyer to give notice of such
indemnity claims and preserve the buyer’s right to claw back the indemnity escrow
funds. The agreement also specified how notice was to be given, while providing
that the buyer’s failure to properly notice an indemnity claim would not adversely
affect the buyer’s right to the indemnity escrow funds in the absence of material
1
prejudice. The buyer’s written notice of an escrow claim pressed the boundaries of
the agreement’s time and manner requirements.
The seller, as plaintiff in this action, claims the buyer breached the agreement
by failing to follow the procedures for properly claiming the escrowed funds and by
ultimately refusing to release those funds. The seller moved for partial summary
judgment. Because the buyer failed to timely deliver the closing statement as
required by the agreement, I conclude the seller is entitled to summary judgment on
its claim for the adjustment escrow funds. But because the buyer preserved its
indemnity claim by providing sufficient notice, I conclude summary judgment is
appropriate in the buyer’s favor on the seller’s count regarding the indemnity escrow
funds.
I. BACKGROUND1
Schillinger Genetics, Inc. (“Seller” or the “Company”) is an Iowa corporation
that was formerly engaged in the business of soybean research and breeding.2
Plaintiff John Schillinger (“Schillinger,” and together with Seller, “Plaintiffs”)
1
Citations in the form of “Compl. ¶ ––” refer to the plaintiff’s complaint, available at
Docket Item (“D.I.”) 1. Citations in the form of “Answer ¶ ––” refer to the Defendant’s
answer to the Complaint; citations in the form of “Affirmative Defense ¶ ––” refer to
Defendant’s affirmative defenses to the Complaint; and citations in the form “Countercl. ¶
––” refer to Defendant’s counterclaims; each is available at D.I. 44.
2
Answer ¶ 7.
2
founded Seller.3 Benson Hill Seeds, Inc. (“Defendant” or “Buyer”) is a Delaware
corporation and “crop improvement company dedicated to unlocking the natural
diversity of plants.”4 Buyer conducts soybean research and breeding using assets
purchased from Seller.5
A. The Parties Execute The APA And Escrow Agreement.
This action arises out of an asset purchase agreement dated February 7, 2019
(the “Closing”)6 between and among Seller or certain stockholders of Seller (the
“Owners”), Schillinger as “Owners’ Representative,” and Buyer (the “APA”).7 The
APA transferred all assets and certain liabilities of Seller to Buyer for $14,000,000
subject to certain adjustments (the “Transaction”).8 The APA contemplates a post-
Closing purchase price adjustment and sets forth a process for calculating and paying
any adjustment out of escrowed funds. It also contains indemnification provisions
3
Id. ¶ 8.
4
D.I. 24 at 2; D.I. 24, Affidavit of Michael Wainscott ¶ 3 [hereinafter “Wainscott Aff.”].
Buyer is formerly known as “SGI Genetics, Inc.” and is a wholly owned subsidiary of
Benson Hill Biosystems. See Wainscott Aff. ¶ 3.
5
Answer ¶ 9.
6
I use this term to refer to both the closing of the Transaction and the date on which it
occurred, February 7, 2019.
7
Compl. Ex. A [hereinafter “APA”].
8
Id. Recital A, §§ 2.1, 2.2, 2.3; see also Answer ¶ 15; D.I. 18, Affidavit of John Schillinger
¶ 2 [hereinafter “Schillinger Aff.”].
3
pursuant to which Seller agreed to indemnify Buyer for breaches of certain
provisions of the APA, also out of escrowed funds.
The parties also executed an escrow agreement dated February 7, 2019
(the “Escrow Agreement”).9 Buyer deposited $950,000 into an escrow account
(the “Escrow Funds”).10 The Escrow Funds are divided into two separate accounts:
“(a) $250,000 (such amount, together with any interest, future deposits, and other
income thereon, the “Adjustment Escrow Funds”), and (b) $700,000 (such amount,
together with any interest, future deposits, and other income thereon, the “Indemnity
Escrow Funds”).”11 The Adjustment Escrow Funds are intended to secure the
parties’ post-Closing price adjustment obligations under Section 2.5 of the APA, and
the Indemnity Escrow Funds are intended to secure the parties’ indemnification
obligations under Sections 7.1, 7.2, 7.3, and 7.5 of the APA. 12 Accordingly, the
Adjustment Escrow Funds and Indemnity Escrow Funds are held in separate
accounts and have distinct release and timing mandates under the APA and Escrow
Agreement.13
9
Compl. Ex. B [hereinafter “Escrow Agreement”]; Answer ¶ 17.
10
Answer ¶ 19.
11
Escrow Agreement § 3; see also APA § 2.8(a); Answer ¶ 20.
12
See Answer ¶ 16.
13
See APA § 2.8(a)–(c).
4
1. Post-Closing Price Adjustment
Section 2.5 of the APA sets forth a purchase price adjustment process.14 That
section obliges the Owners’ Representative to prepare and deliver to Buyer a pre-
Closing “Estimated Closing Statement” setting forth a reasonable good faith
estimate of Seller’s accounts payable.15 After Closing, Buyer bears the burden of
establishing a post-Closing adjustment to the purchase price if the Seller’s actual
accounts payable assumed and paid by Buyer exceeded the pre-Closing estimate:16
Within ninety (90) calendar days after the Closing, Buyer shall prepare
and deliver to Owners’ Representative a calculation of the Accounts
Payable of the Company and the Subsidiaries as of the Calculation
Time (the “Closing Accounts Payable”) and a calculation of the
amount, if any, by which the Closing Accounts Payable exceeds the
Target Accounts Payable (taking into account the adjustment to
Accounts Payable made pursuant to Section 2.5(a)) (the “Closing
Statement”). The Closing Statement shall be prepared in accordance
with the Accounting Principles and the terms of this Agreement. After
delivery of the Closing Statement, Buyer shall permit Owners’
Representative and its accountants reasonable access to the accounting
records, work papers, and computations used by Buyer in the
preparation of the Closing Statement.17
The APA does not specify what should happen if Buyer fails to timely deliver a
Closing Statement.18
14
See id. § 2.5.
15
Id. § 2.5(a).
16
Id. § 2.5(b).
17
Id.
18
See id. § 2.5(b)–(c).
5
Within twenty days of receipt of the Closing Statement, Owners’
Representative may notify Buyer in writing (a “Notice of Dispute”) of any
“Disagreement” regarding the Closing Statement.19 If Owners’ Representative fails
to timely deliver a Notice of Dispute to Buyer, then Owners’ Representative is
deemed to have accepted the Closing Statement, and the Closing Statement is final,
binding, and non-appealable.20 If Owners’ Representative does timely deliver a
Notice of Dispute, then the APA sets forth a process for resolving the Disagreement:
first by the parties’ good faith negotiation and resolution efforts, but if those efforts
are unsuccessful within twenty-five days after Buyer receives the Notice of Dispute,
then by referral to an independent accounting firm.21 If there is no Disagreement, or
after any Disagreement is resolved under Section 2.5(c), the Estimated Closing
Statement and Closing Statement are to be used to calculate and pay a “Final
Adjustment Amount” under Sections 2.5(d), (e), (f), (g), and (h).22
Under those subsections, the APA’s baseline outcome, in which Seller
receives the Adjustment Escrow Funds as part of the Transaction consideration, may
change depending on whether the Final Adjustment Amount was less than or equal
19
Id. § 2.5(c) (defining “Disagreement” as “any” disagreement with respect to the Closing
Statement).
20
Id.
21
Id.
22
Id. § 2.5(c), (d).
6
to $50,000; in excess of $50,000 and positive; or in excess of $50,000 and negative.23
An negative amount in excess of $50,000 triggers Buyer’s right to claw back all or
some of the Adjustment Escrow Funds.24 But if the Final Adjustment Amount is
zero, less than $50,000, or in excess of $50,000 and positive, Seller receives the
Adjustment Escrow Funds.25 Adjustment Escrow Funds that are not “claimed” by
Buyer as a Final Adjustment Amount are to be released to Seller.26
23
See id. § 2.5(e) (“[I]f the numeric value of the Final Adjustment Amount (without taking
into account whether such number is positive or negative) is less than or equal to fifty
thousand dollars ($50,000.00), then no post-Closing adjustment pursuant to this Section
2.5 shall be made, the Final Adjustment Amount, shall be deemed to be zero, and Sections
2.5(f), 2.5(g) and 2.5(h) shall be of no further force and effect. In the event that the numeric
value of the Final Adjustment Amount (without taking into account whether such number
is positive or negative) is more than fifty thousand dollars ($50,000.00), then (and only
then) the provisions of Sections 2.5(f), 2.5(g), and 2.5(h) shall apply.”); id. § 2.5(f) (“[I]f
the Final Adjustment Amount is a positive number, the Company shall be entitled to
receive from Buyer an amount in cash equal to the Final Adjustment Amount, which
amount shall be payable in accordance with Section 2.5(g) below. If the Final Adjustment
Amount is a negative number, Buyer shall be entitled to receive from the Company an
amount in cash equal to the absolute value of the Final Adjustment Amount.”).
24
See id. § 2.5(f), (h).
25
See id. § 2.5(e), (f). If the Final Adjustment Amount is in excess of $50,000 and positive,
Seller gets funds in addition to the Adjustment Escrow Funds. See id. § 2.5(f)–(h).
26
Id. § 2.8(c) (governing release of unclaimed escrow funds “[w]ithin the later of ninety
(90) days after the Closing Date and five (5) days after the determination of the Final
Adjustment Amount”); id. § 2.5(h) (providing for release of the Adjustment Escrow Funds
after determination of the Final Adjustment Amount); Escrow Agreement § 4 (providing
that within five business days following the determination of the Final Adjustment
Amount, Buyer and Owners’ Representative shall instruct the Escrow Agent to pay the
amount, “if any, of the Adjustment Escrow Fund to be paid to Buyer pursuant to Section
2.5” of the APA, and that “[i]f there is no amount to be paid to Buyer under Section 2.5 of
the [APA], then . . . the entire balance of the Adjustment Escrow Fund will be disbursed
by the Escrow Agent to the Company”).
7
2. Indemnification For Breaches Of Certain
Representations, Warranties, And Covenants
Under The APA
Plaintiffs promised to ensure the Company’s Business was protected for
Buyer’s benefit and made numerous representations, warranties, and covenants
regarding that Business.27 Relevant here, Plaintiffs covenanted that Seller and
Owners’ Representative would refrain from competing with the Business, soliciting
its suppliers and customers, and disclosing its confidential information.28
Under Section 7.2 of the APA, Seller agreed to indemnify Buyer for “Losses”
“incurred or to be incurred by any of them resulting from or arising out of or in
connection with” a breach of the representations, warranties, covenants or “other
obligations” of Seller or any Owner in the APA, any “Related Agreement, or any
other document delivered pursuant [to the APA] or in connection with the
Closing.”29 The Escrow Agreement is the only “Related Agreement” under the
APA, and is explicitly identified as a document delivered in connection with Closing
27
See, e.g., APA §§ 3.1–3.36, 5.3, 5.6, 5.7. Under the APA, “‘Business’ means the
business activities, operations, and practices of the Company . . . as conducted by the
Company . . . on the date hereof.” Id. § 1.19.
28
See id. §§ 5.6, 5.7. The parties stipulated that breaches of the non-compete and non-
solicitation covenants in Section 5.7 would constitute irreparable harm. Id. § 5.8(b).
29
Id. § 7.2(a)–(b). “Losses” include “any and all claims, losses, monetary damages,
obligations, liabilities, fines, fees, penalties, expenses, or costs, plus reasonable attorneys’
and professional fees and expenses, court costs, and expert witness fees and expenses,
incurred in connection therewith and/or in connection with the enforcement of” the APA.
Id. § 7.2.
8
under Section 2.4.30 Owner’s Representative also agreed to indemnify Buyer Losses
incurred from or in connection with breaches of his representations, warranties,
covenants, and obligations under the APA.31
Section 7.1’s survival provision puts different limits on Buyer’s recourse for
different classes of representations.32 Representations that are not “Fundamental
Representations” (the “Non-Fundamental Representations”) are subject to a one-
year survival period; they expire twelve months after the Closing Date, “except that
such expiration shall have no effect on any obligations in respect of which a notice
of claim has been submitted hereunder prior to such expiration.”33 Plaintiffs’ non-
compete, non-solicitation, and non-disclosure covenants, as well as the
representations and warranties in dispute between the parties, are Non-Fundamental
Representations.34
Section 7.5 of the APA and Section 5 of the Escrow Agreement set forth the
process for Buyer to notice and preserve indemnity claims (each an “Indemnity
Claim”) for breaches subject to indemnification, for the parties to resolve disputes
30
See id. §§ 1.121, 2.4(a)(vii), 2.4(b)(iv); Answer ¶ 18.
31
APA § 7.3(a)(b).
32
Id. § 7.1.
33
Id.
34
Id. (characterizing a select few representations, warranties, and obligations, under the
APA “Fundamental,” and rendering all others non-Fundamental).
9
as to such claims, and for disbursement of the Indemnity Escrow Funds. 35 Both
agreements require Buyer to provide Seller and Owners’ Representative with written
notice of an Indemnity Claim via a “Claim Notice.”36 The APA offers four means
of giving a Claim Notice: (1) in person; (2) by confirmed facsimile; (3) by overnight
courier, in which case notice is effective the next Business Day; and (4) by registered
or certified mail, in which case notice is effective on the second succeeding Business
Day.37 The Escrow Agreement mirrors these methods, and additionally permits
notice to be duly given via email.38 Both agreements specify where notice
thereunder must be given to Seller, including a particular mailing address and email
address at “schillgen.com” for Schillinger; but they also permit delivery “at such
other address for a Party as shall be specified by like notice.”39
35
See id. § 7.5; Escrow Agreement § 5.
36
APA § 7.5 (stating that if Buyer seeks indemnification it “shall give reasonably prompt
written notice to the indemnifying Party . . . specifying the facts constituting the basis for
such claim and the amount, to the extent known, of the claim asserted”); id. § 8.1
(mandating that all notices under the APA be in writing); Escrow Agreement § 5(a) (“If
Buyer is permitted to and elects to assert an Indemnity Claim, it shall give written notice
of such claim (a ‘Claim Notice’) . . . .”); id. § 16 (mandating that all notices under the
Escrow Agreement be in writing).
37
APA § 8.1(a)–(d).
38
Escrow Agreement § 16(i)–(iii).
39
APA § 8.1; accord Escrow Agreement § 16 (stating that notice thereunder shall be
“addressed at the address shown in this Section 16, or, as applicable, using such other
address, facsimile number or e-mail address as may be designated in writing hereafter by
such party”).
10
Both agreements provide deadlines for submitting a Claim Notice. Under
Section 7.5(a) of the APA, Buyer
shall give reasonably prompt written notice to the indemnifying Party
. . . specifying the facts constituting the basis for such claim and the
amount, to the extent known, of the claim asserted; provided, that the
right of a Person to be indemnified hereunder shall not be adversely
affected by a failure to give such notice unless, and then only to the
extent that, an Indemnifying Party is actually and materially prejudiced
thereby.40
Under the Escrow Agreement, Buyer was required to submit a Claim Notice of any
permitted Indemnity Claim “prior to the expiration of the Escrow Period” by
February 10, 2020.41
Seller’s receipt of a Claim Notice kicks off a dispute resolution process.
Within ten business days of receipt, Seller may dispute the validity or amount of the
claim (an “Indemnity Notice of Dispute”).42 Thereafter, the parties must consult and
try to resolve their dispute; after thirty days, the Buyer may file suit.43
40
APA § 7.5(a).
41
Escrow Agreement § 5(a) (requiring Buyer to “give written notice of such claim to the
Escrow Agent and to the [Owners’] Representative promptly following its obtaining
knowledge of such Losses (and in any event prior to the expiration of the Escrow Period)”
(emphasis added)). The Escrow Period began at Closing and “end[ed] one (1) Business
Day following the one-year anniversary” of same. Id. § 1. The Escrow Agreement defines
“Business Day” as “any day other than a Saturday, Sunday or federal holiday, or a day on
which commercial banks in the State of Missouri are authorized to close.” Id. The one-
year anniversary of Closing fell on Friday, February 7, 2020. The next Business Day was
Monday, February 10.
42
APA § 7.5(d).
43
Id.
11
If indemnification is ultimately owed, then “Owners’ Representative shall
cause the Escrow Agent to pay such amount not more than thirty (30) days after any
Buyer Indemnified Person provides notice to Owners’ Representative of such
amount.”44 Indemnity Escrow Funds not claimed via a Claim Notice are to be
promptly disbursed after the Escrow Period expires.45
B. The Parties’ Relationship Sours Post-Closing.
Pursuant to the APA, Buyer agreed to hire Schillinger as Chief Technology
Officer.46 At Closing, Schillinger accepted Buyer’s employment offer, and he
continued to work for Buyer pursuant to an employment agreement dated February
7, 2019 (the “Employment Agreement”).47 The Employment Agreement included
various non-competition and restrictive covenants.48 The parties did not identify the
44
Id. § 7.5(c).
45
Escrow Agreement § 5(d) (“Upon the expiration of the Escrow Period, the Escrow Agent
shall disburse to the Company, as promptly as practicable, any portion of the Indemnity
Escrow Fund not subject to a Claim Notice as provided in this Section 5.”); APA § 2.8(c)
(stating that Indemnity Escrow Funds not subject to claim were to be released “[p]romptly
following the first anniversary of the Closing Date”); id. § 7.5(a) (stating that “[s]ubject to
the terms of this Agreement and of the Escrow Agreement (except to the extent that the
Indemnifying Party disputes the indemnification obligations associated with such claim),
the Indemnifying Party shall pay, or, if applicable, shall cause the Escrow Agent to pay,
the amount of any valid claim not more than thirty (30) days after the Indemnified Party
provides notice to the Indemnifying Party of such amount”).
46
See APA § 5.11(a) & Sched. 5.11; see also Answer ¶ 21.
47
See Answer ¶¶ 21, 22; Schillinger Aff. ¶ 3; D.I. 12, Ex. 2 [hereinafter “Employment
Agreement”].
48
See, e.g., Employment Agreement §§ 2.5, 2.6.
12
Employment Agreement as a “Related Agreement” under the APA or as a document
to be delivered in connection with Closing under Section 2.4.49
Shortly after signing the Employment Agreement, Schillinger allegedly
hatched plans to compete with the Business; began soliciting its customers and
disclosing his competitive plan in the process; began taking other actions in
furtherance of his plan; and began sharing Buyer’s confidential and proprietary
information.50 Buyer learned of Schillinger’s actions, and believed they breached
the Employment Agreement and the APA.51 As a result, on April 12, Buyer
terminated Schillinger’s employment and his access to his schillgen.com e-mail
account.52 This spurred Schillinger to file an arbitration action against Buyer, which
is currently pending in Iowa and scheduled for a final hearing in spring of 2021 (the
“Arbitration”).53
49
See APA §§ 1.121, 2.4. Section 2.4 does, however, require to Seller to deliver at Closing
“such other documents, instruments and agreements, including notarial and other deeds, as
may be required by local Law and custom, or reasonably requested by Buyer, for the
purpose of consummating the transactions contemplated by this Agreement.”
Id. § 2.4(a)(xxii). Buyer faces no similar Closing document delivery obligation under
Section 2.4(b).
50
See Wainscott Aff. ¶¶ 7, 9, 10, 11, 12, 20 & Exs. 2–5.
51
See D.I. 24 at 11–14 (summarizing Schillinger’s alleged breaches of the Employment
Agreement and APA § 5.6); see also Wainscott Aff. Ex. 3.
52
Answer ¶ 22; Schillinger Aff. ¶ 4; Wainscott Aff. ¶ 13.
53
Answer ¶ 23; Wainscott Aff. ¶¶ 19, 20; D.I. 12, Ex. 3. On April 23, Buyer filed for
injunctive relief in Iowa state court to compel Schillinger to turn over his electronic devices
in aid of Buyer’s investigating his misconduct. See D.I. 24, Affidavit of Kenneth J. Mallin
[hereinafter “Mallin Aff.”] Ex. 12. Schillinger counterclaimed on the basis that his
termination was wrongful under the Employment Agreement. Id. Ex. 13. The Iowa court
13
In addition to the fallout under Schillinger’s Employment Agreement, the
parties’ relationship further soured when Buyer discovered that Plaintiffs engaged
in pre- and post-Closing conduct that allegedly breached certain APA Non-
Fundamental Representations. For example, Buyer learned that Seller failed to
disclose Material Contracts and their attendant obligations, as well as encumbrances
on certain Accounts Receivable, and that Seller potentially misrepresented that it
had not been violating or infringing any intellectual property by conducting the
Business.54
C. Buyer Issues An Untimely Closing Statement.
The parties’ fractured relationship also manifested in their post-Closing
settling up. The APA obligated Buyer to deliver to Schillinger, as Owners’
Representative, a Closing Statement and to give Schillinger reasonable access to the
records used in preparing it.55 Because Closing occurred on February 9, Buyer was
required to deliver a Closing Statement by May 8, 2019. Buyer failed to do so.56
held that Schillinger’s claims were governed by a mandatory arbitration provision, and
stayed that action pending an arbitration. Id. Ex. 14. Schillinger pursued the Arbitration,
and Buyer counterclaimed in that proceeding. See Wainscott Aff. ¶¶ 19–20 & Ex. 8.
54
See, e.g., Wainscott Aff. ¶¶ 21–27.
55
See APA § 2.5; Answer ¶¶ 25, 26.
56
Answer ¶¶ 27, 28.
14
In view of Buyer’s failure, Seller contacted Buyer via counsel three times.57
On May 9, Seller’s counsel notified Buyer’s counsel that the deadline to submit the
Closing Statement had lapsed.58 Buyer’s counsel did not dispute that the deadline
lapsed, but indicated that that they had followed up with their client and were
awaiting a response.59 On May 20 and 29, Seller again apprised Buyer it had still
not submitted a Closing Statement, and that Seller expected to receive one. 60 In
Seller’s May 29 communication, its counsel acknowledged the Arbitration and
expressly noted Seller’s “preference not to expand the disputes between the parties,”
but also made clear that “the continued delays may leave [Schillinger] and the
company with no choice if [Buyer] continues to fail to satisfy its obligation to deliver
the required report.”61
57
Compl. Exs. C, D, E; Answer ¶ 29.
58
See Compl. Ex. C at 1 (“Yesterday was the deadline (pursuant to section 2.5(b) of the
Purchase Agreement) for Benson Hill to deliver to John Schillinger a statement of the
Closing Accounts Payable and the amount, if any, by which the Closing Accounts Payable
differed from the Target Accounts Payable. Do you know (or can you check on) the status
of this report?”).
59
See id. (“We followed up with our client on this yesterday and are awaiting their
response. We’ll continue to follow up to get this wrapped up.”).
60
See Compl. Ex. D at 1 (“Just following up on the AP report that was due on May 8. Do
you have any more information on its status and timing?”); id. (“We confirmed with our
client that they have a draft and it is just about complete. They are meeting internally with
the finance team finalize. I would expect it in the next few days, but we’ll keep you
posted.”); Compl. Ex. E at 1 (communicating on May 29 that the Closing Statement
deadline had passed).
61
Compl. Ex. E at 1 (“The statement of the Closing Accounts Payable and the amount, if
any, by which the Closing Accounts Payable differed from the Target Accounts Payable is
now three weeks past its due date under the Asset Purchase Agreement. Given the limited
15
Approximately one month passed, and Buyer still failed to satisfy its
obligation under Section 2.5. Seller’s counsel sent Buyer’s counsel a letter on June
24 (the “June 24 Letter”).62 The June 24 Letter stated,
Pursuant to Section 2.5(b) of the Asset Purchase Agreement, the report
referred to above was required to be delivered to Mr. Schillinger, as the
“Owner’s Representative” of the Company, on or before May 8, 2019.
SGI Genetics, Inc. [Buyer] has failed and refused to deliver this report
in accordance with the terms of the Asset Purchase Agreement. I have
contacted your external law firm (Bryan Cave Leighton Paisner LLP)
on three separate occasions in an attempt to ascertain the status and
timing of the delivery of this report. I have been told that it “was just
about complete”, that it is being reviewed and that it was to be expected
“in the next few days”. The report is now more than six weeks past
due, and SGI Genetics, Inc. [Buyer] continues to fail and refuse to
provide the report and permit the inspections envisioned and required
by section 2.5(b) of the Asset Purchase Agreement. On behalf of
[Seller] and John Schillinger, as the Owner’s Representative, you are
hereby notified that SGI Genetics, Inc. [Buyer] is in default of, has
breached and continues to breach and be in default of the Asset
Purchase Agreement.63
scope of the report and the relatively small number of accounts payable that it likely covers,
it is difficult to understand the cause of the delay. I know that John Schillinger and SGI
Genetics are already involved in a dispute, and it is our preference not to expand the
disputes between the parties. However, the continued delays may leave John and the
company with no choice if BHB continues to fail to satisfy its obligation to deliver the
required report. Please let me know when we can expect the report.”); id. (“We’ve passed
this request along to our client and will pass along their reply as soon as we have it.”).
62
Compl. Ex. F; Answer ¶ 29.
63
Compl. Ex. F at 2 (emphasis added) (noting Seller’s belief that Buyer’s breaches were
“intentional and willful”).
16
As with the May 29 communication, Seller recognized the Arbitration and
“prefer[ence] to avoid a continuing and protracted dispute with [Buyer].”64
Accordingly, the June 24 Letter warned,
If SGI Genetics, Inc. [Buyer] does not provide the report and other
information required by section 2.5(b) on or before July 5, 2019, the
Company and Mr. Schillinger will be forced to take such steps as may
be necessary and appropriate to protect its and their interests, including
but not limited to filing suit to obtain injunctive relief and damages
resulting from defaults of SGI Genetics, Inc. under the Asset Purchase
Agreement . . . .65
Nearly two months after the deadline passed, on July 3, Buyer emailed Seller
a purported Closing Statement and Closing Accounts Payable, and informed Seller
that “[t]he calculations reflect a negative adjustment of $80,219.04.”66 On a July 9
telephone conference, Seller’s counsel acknowledged that the July 3 email, rather
than a “formal notice letter,” was an acceptable delivery.67 The parties continued to
communicate regarding the Closing Statement.68
64
Id.
65
Id.
66
Compl. Ex. H at 4; Answer ¶ 30.
67
Compl. Ex. H at 4 (“On behalf of Benson Hill Biosystems, please find attached the
Closing Statement with calculation of Closing Accounts Payable, which we are delivering
pursuant to 2.5(b) of the Asset Purchase Agreement. . . . In the interest of getting this to
you and John as quickly as possible, we are sending to you via email without a formal
notice letter. We would appreciate your confirmation of receipt and that this manner of
delivery is acceptable to you and John.”); id. (“Thank you for your call and for confirming
that delivery by email is acceptable. Per your request, we will send a hard copy of the
spreadsheet to John S. by FedEx. I expect it will go out tomorrow.”).
68
See generally id.
17
On July 15, Buyer delivered revised versions of those documents.69 Buyer
purported to claim a purchase price adjustment for a $49,292.53 line item labeled
“Seth Taylor Bad Debt” (the “Bad Debt”).70 To understand Buyer’s purported
adjustment, Seller repeatedly requested that Buyer give Seller and Schillinger
reasonable access to its accounting work papers, records, and computations used to
prepare the late Closing Statement, pursuant to Section 2.5(b) of the APA. 71 In
response, Buyer provided certain records and computations.72
Via letter dated July 31, Schillinger issued a Notice of Dispute.73 Seller’s
counsel informed Buyer of its Disagreements with respect to the Closing Statement,
including Buyer’s untimely submission in violation of the APA;74 Seller’s belief that
Buyer had not allowed access to all “the accounting records, work papers, and
computations used by Buyer in relation to the proposed adjustment for” the Bad
69
Answer ¶ 31.
70
Id.
71
Id. ¶ 33.
72
Id. ¶ 34.
73
Id. ¶ 32; Compl. Ex. G (stating that “[t]his letter shall serve as the Notice of Dispute of
the Owner[s’] Representative, on his behalf and on behalf of the Company, of its and their
Disagreement with the proposed and revised Closing Statement and Closing Accounts
Payable”).
74
Compl. Ex. G at 2 (identifying as a “Disagreement” that “Buyer failed and refused to
deliver its proposed Closing Statement and Closing Accounts Payable until July 3, 2019 in
clear violation of and default of the Asset Purchase Agreement”).
18
Debt;75 and Seller’s belief that the Bad Debt concerned an Account Receivable,
rather than an Account Payable that would affect any post-Closing adjustment under
Section 2.5.76 Seller’s Notice of Dispute reiterated that “Owners’ Representative
and the Company stand ready and willing to negotiate in good faith to resolve any
Disagreement which remains,” and reminded Buyer that, under the APA, failure to
resolve any Disagreement required the parties to submit their disputes to an
independent accountant.77
In an attempt to resolve the Disagreements in good faith, as required by the
APA, Seller requested access to the supporting papers, but Buyer provided no further
documents.78 Given that the APA’s allotted twenty-five day period to resolve
Disagreements had ended, Seller emailed Buyer on September 6 and October 8,
requesting to submit the Disagreement to an independent accountant for final
resolution under Section 2.5(c).79 Seller noted that Buyer’s continued avoidance and
75
Id.
76
Id. at 2–3.
77
Id. at 4.
78
See Answer ¶¶ 33, 34.
79
Id. ¶ 38; Compl. Ex. H at 1 (“The 25 day negotiation period has ended, and we
presumably aren’t going to reach an agreement (since [Buyer] didn’t even respond to our
objections). The agreement envisions the appointment of a neutral accountant to determine
the correct adjustment, if any, and the corresponding distribution of funds from the escrow
account. Given that [Buyer] has missed each of the deadlines associated with this
adjustment, we would like to get/keep this process moving to a resolution.”); Compl. Ex. I
at 1 (“I have heard nothing from you since you for a month and a half, and the 25 day
negotiation period has long since ended. [Buyer] has not responded to our objections, nor
19
frustration of Section 2.5’s processes would result in court action.80 To date, Buyer
has refused to resolve the Disagreement under Section 2.5 or execute a joint
instruction releasing the $250,000 Adjustment Escrow Funds to Seller.81
D. Buyer Asserts An Indemnity Claim.
On February 7, 2020, Buyer sent Schillinger and his counsel a Claim Notice
under Section 7.5 of the APA for Plaintiffs’ alleged breaches of Non-Fundamental
Representations.82 Buyer sent the Claim Notice, dated February 7, 2020, via
Overnight Express to Schillinger at his specified mailing address under the APA and
Escrow Agreement.83 Schillinger received it on February 10, three days after the
Non-Fundamental Representations’ survival period expired and on the final day of
the Escrow Period.84 Buyer also sent the Claim Notice via email to Schillinger’s
has it responded to our request to appoint a neutral accountant to resolve any accounting
disputes and to direct the distribution of funds from the escrow account.”).
80
Compl. Ex. I at 1 (“We would prefer to avoid the need to file a lawsuit to compel [Buyer]
to participate in the agreed upon process, but [Buyer]’s actions (or, more accurately,
inactions) are effectively requiring us to do so. Please let me know this week what
[Buyer]’s position is with respect to our objections. If we are unable to resolve this -- and
appoint a neutral accountant in accordance with the terms of the agreement -- within the
next two weeks, we will have no other choice than to seek a court order appointing a neutral
accountant and proceeding with the format agreed upon in the purchase agreement.”).
81
Answer ¶¶ 40, 41.
82
Compl. Ex. J at 1; Answer ¶¶ 50, 51.
83
Answer ¶¶ 50, 51.
84
Id. ¶ 50. Also on February 7, Buyer sent the Claim Notice via e-mail and FedEx to the
Escrow Agent, as required under the APA and Escrow Agreement; the Escrow Agent also
received the FedEx package on February 10. See id. ¶¶ 50, 51.
20
defunct schillgen.com email address; Schillinger did not receive that e-mail, and
Buyer did not receive receipt of its delivery.85 Schillinger had never updated his e-
mail address from the one listed in the APA and Escrow Agreement.86 Since Buyer’s
Claim Notice, the Escrow Agent has continued to hold the Indemnity Escrow
Funds.87
Within ten days of receiving Buyer’s Claim Notice, via letter on February 19,
Seller issued its Indemnity Notice of Dispute, challenging Buyer’s Indemnity Claim
on the basis that notice was untimely and that its substantive allegations were false.88
By letter dated March 5, Buyer responded and refuted Seller’s position, but stated
that Buyer would contact Seller’s counsel to attempt to resolve the dispute in good
faith, while also reserving the right to file suit in this Court.89
E. This Action Ensues.
Plaintiffs filed this action on April 7, 2020, claiming Buyer has improperly
refused to release the Escrow Funds to Seller.90 Count I asserts a claim for breach
85
Id. ¶¶ 53, 54; Schillinger Aff. ¶ 5.
86
Wainscott Aff. ¶ 28.
87
See Answer ¶¶ 51, 66.
88
Compl. Ex. K at 2 (“We have received a letter from Kenneth J. Mallin, Esq., of Bryan
Cave Leighton Paisner LLP, dated February 7, 2020 . . . , which purports to be a Dispute
Notice pursuant to the Asset Purchase Agreement . . . . The Letter is untimely, it is
insufficient, and it is both inaccurate and false and misleading . . . .”).
89
Compl. Ex. L at 3.
90
See generally Compl.
21
of the APA and Escrow Agreement regarding the Indemnity Escrow Funds.91 Count
II asserts a claim for breach of the APA and Escrow Agreement regarding the
Adjustment Escrow Funds.92 Count III asserts trade libel.93 Plaintiffs seek damages;
specific performance of Buyer’s obligations under the Escrow Agreement to execute
a joint instruction to cause the Escrow Agent to release all remaining Escrow Funds;
a declaration that Defendant has waived its right to a post-Closing adjustment by
failing to pursue it in the manner required by APA Section 2.5; and costs and fees.94
On April 20, Buyer moved to dismiss or stay this action in view of the
Arbitration (“Buyer’s Motion”),95 contending “any decision with regard to th[e
Escrow Funds] revolves around factual claims and legal issues raised by Plaintiffs
and [Defendant] in the First Filed Arbitration.”96 In response, on May 8, Plaintiffs
moved for partial summary judgment on Counts I and II of the Complaint (the
“Motion,” and together with Buyer’s Motion, the “Motions”).97 Buyer opposed the
Motion and submitted an affidavit pursuant to Court of Chancery Rule 56(f).98
91
Id. ¶¶ 69–76.
92
Id. ¶¶ 77–82.
93
Id. ¶¶ 83–86.
94
Id. ¶¶ A–F.
95
D.I. 7.
96
D.I. 12 at 1.
97
D.I. 13.
98
See D.I. 24, Rule 56(f) Declaration of Travis S. Hunter, Esq. [hereinafter “Rule 56(f)
Aff.”]; see also Ct. Ch. R. 56(f).
22
Buyer contended summary judgment is inappropriate because it had yet to answer
the Complaint or conduct discovery, and because discovery is necessary into any
unclean hands defense, whether Plaintiffs received actual notice of Buyer’s claim
for indemnification, and damages.99 The parties fully briefed the Motions as of July
31.100
On August 24, the Court denied Buyer’s Motion and allowed Plaintiffs’
claims to proceed, as Counts I and II arise out of the APA and Escrow Agreement
and are subject to valid forum selection clauses in favor of Delaware courts.101
The Court heard argument on the Motion on August 25.102 In order to better
assess the Motion on summary judgment, the Court directed Buyer to answer the
99
See Rule 56(f) Aff. ¶¶ 11–15.
100
D.I. 13; D.I. 18; D.I. 24; D.I. 27.
101
D.I. 37. However, I invited the parties to address at argument whether the Arbitration
addresses a competing claim to the Indemnification Escrow Funds; whether, assuming
Plaintiffs prevail in this action, the arbiter’s ruling could warrant withholding or offsetting
payout of those escrowed amounts; and whether the APA and Escrow Agreement permit
such a delay. Id. The parties’ presentations did not persuade the Court that this action and
the Arbitration overlap such that the Arbitration bears on these proceedings. To the
contrary, they are distinct, and it is not apparent that the parties will be able to stake any
claim to the Escrow Funds in the Arbitration, which is siloed to the Employment
Agreement. And to the extent Defendant attempts to loop in breach of the Employment
Agreement as a basis for indemnification under Section 7.5 of the APA, that position fails.
Under the APA, Plaintiffs agreed to indemnify Buyer for breaches of the APA, any Related
Agreement, “or any other document delivered pursuant [to the APA] or in connection with
the Closing.” APA § 7.1. The APA does not identify the Employment Agreement as a
Related Agreement, nor does it identify it as a document to be delivered in connection with
Closing. See id. §§ 1.121, 2.4.
102
D.I. 38; D.I. 41 [hereinafter “Hr’g Tr.”].
23
Complaint and file any counterclaims and affirmative defenses, and afforded the
parties to submit supplemental letter briefs regarding summary judgment.103
Accordingly, on September 16, Buyer filed its Answer, Affirmative Defenses,
and Counterclaim.104 Buyer asserted as an affirmative defense that “[t]he Complaint
is barred, in whole or in part, by the doctrines of waiver, estoppel, laches, and/or
unclean hands,” pointing to Plaintiffs’ alleged breaches of the APA. 105 Buyer also
affirmatively asserted that “Plaintiffs waived the requirement that any Closing
Statement be delivered on or before May 8, 2019” via the June 24 Letter; 106 that
“Plaintiffs have suffered no prejudice as a result any delay in delivery of the Closing
Statement”;107 and that to the extent the Court finds Buyer’s Indemnity Claim
untimely, “Plaintiffs have suffered no actual or material prejudice or other injury as
a result thereof.”108 Buyer’s Counterclaim asserted one count for breach of contract,
alleging that Seller and Schillinger breached the APA by engaging in competitive
103
See Hr’g Tr. at 49–50; Kelly v. Blum, 2010 WL 629850, at *6 (Del. Ch. Feb. 24, 2010)
(stating that the Court “maintains the discretion to deny summary judgment if it decides
that a more thorough development of the record would clarify the law or its application”).
104
See generally D.I. 44.
105
Affirmative Defense ¶ 2.
106
Id. ¶ 3.
107
Id. ¶ 4.
108
Id. ¶ 9.
24
behavior, sharing confidential information, and failing to make disclosures required
by the APA.109
After Plaintiffs and Buyer submitted their supplemental letter briefs, the
Motion was taken under advisement on October 5.110
II. ANALYSIS
Summary judgment may be granted if the moving party demonstrates that
there is “no genuine issue as to any material fact” and that it is “entitled to a judgment
as a matter of law.”111 Under Delaware law, the “proper interpretation of language
in a contract, while analytically a question of fact, is treated as a question of law,”
requiring the court to “make its own interpretation of the contractual language.”112
“When interpreting a contract, the role of a court is to effectuate the parties’
intent.”113 “If a writing is plain and clear on its face, i.e., its language conveys an
unmistakable meaning, the writing itself is the sole source for gaining an
understanding of intent.”114
109
Countercl. ¶¶ 71–78.
110
See D.I. 48; D.I. 50.
111
Ct. Ch. R. 56(c).
112
Pellaton v. Bank of N.Y., 592 A.2d 473, 478 (Del. 1991) (quotation omitted).
113
Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006).
114
City Investing Co. Liquidating Tr. v. Cont’l Cas. Co., 624 A.2d 1191, 1198 (Del. 1993).
25
“Indeed, this Court has described ‘pure[] matters of contractual interpretation’
as ‘readily amenable to summary judgment.’”115 However, summary judgment for
a contract interpretation “is appropriate only if the contract in question is
unambiguous.”116 And “[s]ummary judgment will be denied when the legal question
presented needs to be assessed in the more highly textured factual setting of a trial.
The Court also maintains the discretion to deny summary judgment if it decides that
a more thorough development of the record would clarify the law or its
application.”117 “Finally, the Court may award summary judgment in favor of
a nonmoving party if it finds that the material facts are undisputed and that
the nonmoving party is entitled to judgment as a matter of law.”118
The parties agree that the APA and Escrow Agreement (collectively, the
“Agreements”) are unambiguous, and therefore summary judgment is the proper
framework for enforcing their terms. Here, as the relevant facts are undisputed, the
115
Barton v. Club Ventures Invs. LLC, 2013 WL 6072249, at *5 (Del. Ch. Nov. 7, 2013)
(quoting LaPoint v. AmerisourceBergen Corp., 2007 WL 1309398, at *3 (Del. Ch.
May 1, 2007), aff’d, 957 A.2d 642 (Del. 2008) (TABLE)).
116
United Rentals, Inc. v. RAM Hldgs., Inc., 937 A.2d 810, 830 (Del. Ch. 2007).
117
Kelly, 2010 WL 629850, at *6 (footnote and internal quotation marks omitted) (quoting
Schick Inc. v. Amalgamated Clothing & Textile Workers Union, 533 A.2d 1235, 1239 n.3
(Del. Ch. 1987), and then quoting Tunnell v. Stokley, 2006 WL 452780, at *2 (Del. Ch.
Feb. 15, 2006)).
118
Liggett Gp. Inc. v. Affiliated FM Ins. Co., 2001 WL 1456811, at *4 (Del. Super. Ct.
Sept. 12, 2001) (collecting cases), aff’d sub nom. Liggett Gp., Inc. v. Ace Prop. & Cas. Ins.
Co., 798 A.2d 1024 (Del. 2002).
26
Court need only address three issues: (1) did Buyer comply with the Agreements’
notice requirements to preserve its Indemnity Claim, and if not, did Buyer breach
the Agreements by refusing to release the Indemnity Escrow Funds; (2) did Buyer
breach Section 2.5 of the APA by failing to timely provide a Closing Statement, and
if so, did Buyer breach the Agreements by refusing to release the Adjustment Escrow
Funds; and (3) does Buyer’s unclean hands defense preclude summary judgment in
Plaintiffs’ favor? I address each in turn, and conclude that the Motion is granted and
denied in part as to Plaintiffs, and granted in part as to Defendant.
A. Defendant, Not Plaintiffs, Is Entitled To Summary Judgment
On Count I.
Plaintiffs claim that Defendant breached the APA by refusing to release the
Indemnity Escrow Funds. Plaintiffs contend that Defendant did not timely notice its
Indemnity Claim, such that the Indemnity Escrow funds were not “then claimed”
under Section 2.8(c) and were required to be released “[p]romptly following the first
anniversary of the Closing Date.”119 In response, Defendant argues that it did, in
fact, properly notice its Indemnity Claim and “claim” the Indemnity Escrow Funds
by February 7, 2020, and that in any event, Defendant substantially complied with
the APA’s terms.120 I conclude that Defendant’s notice was adequate under the
119
APA § 2.8(c).
120
See D.I. 24 at 32–34.
27
Agreements; that no dispute of material fact exists to that effect; and, therefore, that
Defendant, not Plaintiffs, is entitled to summary judgment on Count I.
Defendant seeks indemnification for Plaintiffs’ alleged breaches of the APA’s
Non-Fundamental Representations, which are subject to a one-year survival period
after Closing.121 The APA afforded Defendant recourse for those Non-Fundamental
Representations to the extent any breach thereof occurred by and through
February 7, 2020. The parties do not dispute that the alleged breaches of the Non-
Fundamental Representations occurred before that date.
Rather, the dispute is over whether Defendant’s notice to Plaintiffs was in the
correct manner and timely.122 Under Section 7.1 of the APA, “Survival,” the
expiration of the survival period has no effect where “a notice of claim has been
submitted hereunder prior to such expiration.”123 Accordingly, the reader must look
to Section 7.5(a), “Notice of Claim,” to determine how Defendant was required to
121
See APA § 7.1.
122
Plaintiffs also argue that Defendant’s Claim Notice is substantively deficient under the
APA, contending it fails to allege breach of confidentiality covenants and fails to recite
specific Losses attributable to breach of noncompete covenants. D.I. 18 at 29–31, 33–34.
In addition, Plaintiffs argue that the proper remedy for a breach of the noncompete
covenant is injunctive relief, not indemnification, under Section 5.7 of the APA. Id. at 33–
34 (citing APA § 5.8(b)). These substantive arguments are misplaced on the Motion.
Count I only asserts a claim for breach of the APA with respect to the Indemnity Escrow
Funds, and does not reach the merits of any underlying Indemnity Claim. Plaintiffs will
have ample opportunity to address these concerns in the context of Defendant’s
Counterclaim. See, e.g., Countercl. ¶¶ 31–44, 74–76.
123
APA § 7.1.
28
submit a notice of claim under Section 7.1.124 That section specifies that Defendant
was required to “give reasonably prompt written notice to” Plaintiffs, but that
Defendant’s indemnification right “shall not be adversely affected by a failure to
give such notice unless, and then only to the extent that, an Indemnifying Party is
actually and materially prejudiced thereby.”125
Thus, to notice and preserve an Indemnity Claim for breach of Non-
Fundamental Representations under the APA, notice must be “reasonably prompt”
and “prior to” the expiration of the survival period, but late notice only adversely
affects indemnification rights if and to the extent that the indemnifying party was
actually and materially prejudiced.126 That flexibility is by design. It reflects an
agreement not to strip Defendant of an important protection based solely on a non-
prejudicial delay in notice and is in keeping with the practicalities of Section 7.1’s
survival period.127 Taken together, Sections 7.1 and 7.5(a) of the APA afford some
temporal flexibility to Defendant when noticing and preserving Indemnity Claims.
124
See id. §§ 7.1, 7.5.
125
Id. § 7.5(a).
126
See id. § 7.1 (noting that where a “notice of claim has been submitted hereunder prior
to” expiration of the survival period, “such expiration shall have no effect”); id. § 7.5(a)
(noting that a failure to give notice in accordance with the terms of the APA only affects
indemnification if there is actual and material prejudice).
127
An illustration is helpful. If Plaintiffs breached a Non-Fundamental Representation and
Defendant learned of the breach in the survival period’s final seconds, then Defendant
would hold a viable, unexpired claim. Assume that to preserve that claim “prior to” the
survival period’s expiration under Section 7.1, Defendant submits reasonably prompt
notice in a permitted manner at 11:59 p.m., before the survival period expires. But the
29
By contrast, Section 8.1, “Notice,” provides formal and rigid manner
requirements. For all notices under the APA to be “duly given,” Buyer must send
the notice to the addresses and in the manner specified.128 Notice of an Indemnity
Claim is “duly given” “(a) when delivered in person, (b) when received by facsimile,
receipt confirmed electronically, (c) on the next Business Day when sent by
overnight courier, or (d) on the second succeeding Business Day when sent by
registered or certified mail (postage prepaid, return receipt requested), to the
respective Parties at” the address specified under the APA.129
In addition to complying with the APA to preserve an Indemnity Claim, Buyer
must comply with the Escrow Agreement’s complementary requirements to seek
escrow funds for that Indemnity Claim. As to time, Section 5 compels Buyer to give
notice of the Indemnity Claim via a Claim Notice “prior to the expiration of the
Escrow Period,” or no later than February 10, 2020.130 As to form, Section 16 of the
Escrow Agreement contemplates electronic transmission other than facsimile, such
as email, but requires the sender to “receive[] electronic evidence from the recipient
consequences of time and space cause Plaintiffs to actually receive notice at or after 12:00
a.m., after the survival period expired. Or, alternatively, the consequences of time and
space prevent Defendant from submitting notice until 12:01 a.m. or later, after the survival
period expired. In either situation, Section 7.5’s flexibility preserves Defendant’s
indemnification right, in the absence of actual and material prejudice to Plaintiffs.
128
APA § 8.1.
129
Id. § 8.1(a)–(d).
130
Escrow Agreement § 5(a).
30
of the delivery.”131 That Section also provides notice by courier service is “duly
given and made” upon confirmation of delivery.132
On Friday, February 7, 2020, the last day to preserve a claim for breach of
Non-Fundamental Representations, Defendant sent a Claim Notice via overnight
express and via email to Plaintiffs’ Specified Address. Under the Escrow
Agreement, that mailed notice was duly given on February 10, before the Escrow
Period expired.133 Under the APA, Notice of the Indemnity Claim was “duly given”
on the next Business Day after being sent by overnight courier: Monday, February
10.134 While February 10 is not “prior to” the APA’s survival period’s expiration as
facially required by Section 7.1, Defendant’s Claim Notice was still valid by the
grace of Section 7.5. That Section dictates that Defendant’s indemnification right is
only foreclosed by a “failure to give such notice” under Section 7.1 “unless, and then
only to the extent that, an Indemnifying Party is actually and materially prejudiced
thereby.”135 On the Motion, Plaintiffs have offered no evidence of actual, material
131
Id. § 16(i).
132
Id. § 16(iii).
133
The parties do not dispute confirmation of the February 10 FedEx delivery and instead
focus their dispute on the propriety of the February 7 email. See Answer ¶ 50; D.I. 18 at
15–16, 23–24; D.I. 24 at 26; D.I. 27 at 13, 15 n.10. In fact, Plaintiffs agree that the Claim
Notice “was delivered by overnight courier in accordance with subsection (c) [of APA
Section 8.1] and received on the next business day (February 10, 2020), so the notice was
‘deemed to have been duly given’ on February 10, 2020.” Compl. Ex. K at 3.
134
APA § 8.1(c); see also Escrow Agreement § 16(iii).
135
APA § 7.5(a).
31
prejudice, and at argument, Plaintiffs could not identify any prejudice aside from the
alleged breaching untimely notice itself.136 In the absence of actual and material
prejudice, Defendant’s right to be indemnified for the reasons set forth in the Claim
Notice is unaffected by the Claim Notice’s timing.137
The Claim Notice by overnight courier was timely under both Agreements.
By preserving its Indemnity Claim for Non-Fundamental Representations and
submitting a Claim Notice for the entirety of the Indemnity Escrow Funds within
these parameters,138 Defendant rendered the Indemnity Escrow Funds “then
claimed” for purposes of Section 2.8(c), such that Plaintiffs were not entitled to
distribution of the Indemnity Escrow Funds “[p]romptly following the first
136
See, e.g., Hr’g Tr. at 12 (“But here, in particular, because the difference in strict
compliance versus substantial compliance means this ultimately determines whether
defendant’s notice was timely or not and, therefore, whether sellers were entitled to
disbursement or not, it really can’t be said that there is a lack of prejudice.”).
137
In briefing, Plaintiffs sought summary judgment on the grounds that even proper notice
could not preserve a claim for breach of a Non-Fundamental Representation beyond
Section 7.1’s survival period of twelve months after the closing date, and that the survival
period served as a statute of limitations for filing an action for breach. D.I. 18 at 25–29.
Plaintiffs also contended that proper notice could only extend Buyer’s time to file an action
for breach for thirty days under Section 7.5(d)’s dispute resolution provision. Id. at 28.
But at argument, Plaintiffs agreed that a Claim Notice that satisfied the notice requirements
would preserve the subject claim, and that the Indemnity Escrow Funds could remain in
escrow and available pending adjudication of the claim beyond the survival period. Hr’g
Tr. 16–17. I need not address this argument further.
138
The Claim Notice asserted that Defendant’s “damages exceed the amounts held in
escrow.” Compl. Ex. J at 10.
32
anniversary of the Closing Date.”139 Summary judgment on Count I is accordingly
entered in Defendant’s favor.
The Indemnity Escrow Funds were to remain in Escrow pending completion
of the procedures in Section 7.5(d), which required the parties to consult in good
faith and fail before initiating a lawsuit.140 Seller disputed the Indemnity Claim
within ten days of receiving notice, as required by the APA, and after the parties
could not resolve the dispute within thirty days, Defendant properly asserted its
claims in this Court via its Counterclaim.141 The substantive issues underlying the
Indemnity Claim have been raised via Defendant’s Counterclaim. Release of the
Indemnity Escrow Funds is deferred pending a final judgment in this action.142 Upon
adjudication of the Counterclaim, the Court will determine any “valid” claim to the
Indemnity Escrow Funds, and thereafter payment, if any, shall be made in
accordance with the APA from any validly “claimed” Indemnity Escrow Funds
within thirty days.143
139
APA § 2.8(c). Assuming that the Claim Notice did not request payment of all Indemnity
Escrow Funds, Seller would have been entitled to disbursal of any non-claimed portion
under Section 2.8(c).
140
See id. § 7.5(d); see also id. § 7.5 (b) & (c).
141
See Compl. Exs. K & L; APA § 7.5(d).
142
Any damages can be handled through an offset before entry of a final judgment in this
matter.
143
See APA §§ 2.8(c), 7.5(a)–(d).
33
B. Plaintiffs Are Entitled To Summary Judgment On Count II.
I now turn to Plaintiffs’ Motion on Count II, which seeks the Adjustment
Escrow Funds on the grounds that Defendant’s untimely Closing Statement breached
the APA. The APA specifies rigid requirements for delivering the Closing
Statement. Section 2.5(b) obligated Defendant to deliver the Closing Statement
within ninety days of Closing, by May 8, 2019. Defendant’s obligation to do so was
mandatory and unconditional. There is no dispute—and in fact, Defendant
concedes—that it did not deliver the Closing Statement by that date.144 Defendant
delivered the Closing Statement on July 3.
Defendant asserts Plaintiffs waived their right to a timely Closing Statement,
and that Defendant needs discovery into Plaintiffs’ performance under the APA to
meaningfully assert an unclean hands defense against Count II, such that summary
judgment is premature. As discussed below, Defendant’s arguments regarding the
Adjustment Escrow Funds fail. Summary judgment is granted in Plaintiffs’ favor,
as Defendant breached the APA and waived its right to a post-Closing adjustment.
But the Adjustment Escrow Funds shall remain in escrow pending a final judgment.
See Answer ¶ 28 (“Defendant admits that it did not deliver a Closing Statement by
144
May 8, 2019.”).
34
1. Plaintiffs Did Not Waive The Right To A Timely
Closing Statement.
Defendant contends that Plaintiffs’ June 24 Letter waived the Closing
Statement deadline by demanding delivery of the Closing Statement by July 5.
Defendant also asserts that “[t]o the extent Plaintiffs dispute the plain intention of
that letter, this is a question of fact that precludes the entry of partial summary
judgment (requiring, at a minimum, discovery regarding the drafting of the letter and
any communications regarding the same).”145
Defendant’s position is unsupported by Delaware law, the plain language of
the APA and June 24 Letter, and Seller’s conduct. “[U]nder Delaware law, a waiver
is found where a party had actual or constructive notice of a known right, and that
the party voluntarily and intentionally relinquished that known right.”146 It “implies
knowledge of all material facts, and intent to waive.”147 “Waivers of contractual
rights are not lightly found,” as a waiver “must be unequivocal.”148 Further, under
the APA, the parties agreed that “[a]ny failure or delay of a Party to comply with
145
D.I. 50 at 1–2.
146
Ashall Homes Ltd. v. ROK Ent. Gp. Inc., 992 A.2d 1239, 1247 (Del. Ch. 2010)
(alterations, footnote, and internal quotation marks omitted) (quoting Danvir Corp. v. City
of Wilm., 2008 WL 4560903, at *7 (Del. Ch. Oct. 6, 2008)).
147
James J. Gory Mech. Contr., Inc. v. BPG Residential P’rs V, LLC, 2011 WL 6935279,
at *3 (Del. Ch. Dec. 30, 2011) (quoting Wimbledon Fund LP–Absolute Return Fund Series
v. SV Special Situations Fund LP, 2010 WL 2368637, at *4 (Del. Ch. June 14, 2010)).
148
Id. (alteration omitted) (quoting Wimbledon Fund LP–Absolute Return Fund Series,
2010 WL 2368637, at *4).
35
any obligation herein may be waived only by a written instrument signed by the
Party against whom the waiver is to be effective,” and “[a]ny such waiver or failure
to insist upon strict compliance with such obligation shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure.”149
After the May 8 deadline to submit the Closing Statement passed, Plaintiffs
informed Defendant that the deadline had lapsed.150 After more time passed without
Defendant submitting the Closing Statement, Plaintiffs again pointed out that the
deadline lapsed and stated that Sellers would be forced to take legal action with
respect to Defendant’s failure to satisfy its obligations under Section 2.5 of the
APA.151 The June 24 Letter reiterated this position and, importantly, expressed
Plaintiffs’ belief that “SGI Genetics, Inc. [Buyer] is in default of, has breached and
continues to breach and be in default of the Asset Purchase Agreement.”152 Plaintiffs
indicated their willingness to move forward with Section 2.5’s price adjustment
process and afforded Defendant until July 5 to comply with the APA. But still, the
June 24 Letter preserved Plaintiffs’ position and claim that Defendant breached as
of May 8.153
149
APA § 8.5.
150
See Compl. Exs. C, D, E.
151
See, e.g., Compl. Ex. E.
152
Compl. Ex. F at 2.
153
See id.
36
On this record, Plaintiffs did not waive the Closing Statement deadline, nor is
there any genuine issue of material fact with respect to the same that precludes
summary judgment. The parties negotiated for a strict express waiver provision,
requiring written authorization by the opposing party to deviate from the APA’s
terms.154 The June 24 Letter did not grant such an express waiver to Defendant, in
view of its express assertion that Defendant had been and continued to be in breach
of the APA.155 Nothing in the June 24 Letter amounted to an unequivocal intention
to waive Plaintiffs’ claims. Because Defendant failed to deliver the Closing
Statement by May 8 as required, Plaintiffs are entitled to a determination on the
154
See APA § 8.5.
155
Nor does Plaintiffs’ good faith attempt to carry out Section 2.5’s procedures, as required,
excuse Defendant’s noncompliance with its obligation to deliver the Closing Statement by
May 8, 2019. See APA § 2.5(c) (mandating that the parties attempt to resolve price
adjustment disputes in good faith); id. § 5.1(a) (stating that “the Parties will use their
respective commercially reasonable efforts to take all action and to do all things necessary
to consummate and make effective the transactions contemplated by this Agreement”). In
the interactions following that deadline, Plaintiffs explained that Defendant’s untimeliness
violated the APA and reserved their right to file this exact claim. Defendant failed to follow
Plaintiffs through Section 2.5’s process in good faith, yet again upsetting the parties’
agreed-to and carefully timed process. When the parties clearly could not resolve the
Disagreements with respect to the untimely Closing Statement within twenty-five days,
Plaintiffs asked in good faith that the parties submit Plaintiff’s Disagreements with respect
to the untimely Closing Statement to an independent accountant as required under Section
2.5(c). After being met with Defendant’s persistent silence, Plaintiffs again asked in good
faith to submit the Disagreement to an independent accountant, but warned that
Defendant’s failure to move forward would result in Court action. See Compl. Exs. H, I.
37
Motion that Defendant breached Section 2.5 of the APA and corresponding
provisions of the Escrow Agreement.156
2. Defendant’s Unclean Hands Defense Does Not
Foreclose Summary Judgment.
Although agreeing that the APA is unambiguous and the relevant facts are
undisputed, Defendant argues that genuine issues of material fact exist as to whether
Plaintiffs materially breached the APA, and so Plaintiffs cannot enforce it against
Defendant. Specifically, Defendant perceives such issues regarding whether certain
information Schillinger shared with third parties is protectable confidential
information under the APA; whether Plaintiffs made misrepresentations about value;
156
Defendant also argues that the APA’s requirement under Section 2.5(a) that Plaintiffs
provide a “reasonable, good faith calculation of an estimate” of the accounts payable of the
Company and its subsidiaries was a condition precedent to its obligation to deliver the
Closing Statement under Section 2.5; that Plaintiffs failed to do so; and that, therefore,
summary judgment should be denied. See D.I. 24 at 28–29. Vice Chancellor Laster
addressed and rejected a similar argument, brought by an affiliate of Defendant here, in
J&J Produce Holdings, Inc. v. Benson Hill Fresh, LLC, 2020 WL 1188052 (Del. Ch. Mar.
11, 2020) (ORDER), appeal dismissed without prejudice, 234 A.3d 161 (Del. 2020)
(TABLE). There, the buyer argued that the seller breached the relevant agreement by not
preparing an Estimated Closing Statement using reasonable, good faith estimates, and that
therefore the buyer was absolved of its failure to timely submit a Closing Statement. Id. at
*3. The Court rejected this position, reasoning that even if the buyer were correct in its
assumptions, it failed to identify or explain the failures with regard to the estimates used to
calculate the Estimated Closing Statement in a manner that would raise a material dispute
of fact. Id. at *3–4. This logic applies with equal force here. The relevant provisions of
the agreement in J&J Produce are very similar to those at issue in the APA. Compare id.
at *3–4, with APA § 2.5. And while cast as failing to perform a condition precedent,
Defendant has failed to explain how Plaintiffs’ alleged failure to provide a reasonable, good
faith calculation of an estimate of the accounts payable raises a material dispute of fact as
to whether Defendant prepared its Estimated Closing Statement under Section 2.5(a) in
good faith. Plaintiffs remain entitled to summary judgment on Count II.
38
whether Plaintiffs failed to disclose material contracts; and other problems.
Although these potential shortcomings ultimately appeared in Defendant’s
Counterclaim, in opposing the Motion, Defendant categorizes them as unclean hands
that would preclude Plaintiffs from seeking their requested relief.157 And so in its
Rule 56(f) affidavit, Defendant asserts that discovery is needed to develop that
defense and that the issues bearing on that defense involve genuine disputes of
material fact that preclude summary judgment.
“[A] party opposing summary judgment may, pursuant to Court of Chancery
Rule 56(f), request limited discovery if it cannot present facts essential to oppose the
summary judgment motion. Normally, Rule 56(f) comes into play when the party
opposing summary judgment cannot state certain facts essential to justify its position
because those facts are within the exclusive knowledge of the moving party.”158 The
invoking party carries the burden under Rule 56(f) to show that it could not present
facts essential to oppose the motion for summary judgment.159 However, “[t]he Rule
157
See Rue 56 Aff. ¶¶ 10, 12.
158
Corkscrew Mining Ventures, Ltd. v. Preferred Real Estate Invs., Inc., 2011 WL 704470,
at *3 (Del. Ch. Feb. 28, 2011) (footnote omitted).
159
See, e.g., K&K Screw Prod., L.L.C. v. Emerick Cap. Invs., Inc., 2011 WL 3505354, at
*18 (Del. Ch. Aug. 9, 2011).
39
56 opportunity to present affidavits or engage in discovery is not absolute. It is
necessarily circumscribed by the discretion of the trial court . . . .”160
The Court has permitted discovery pursuant to a Rule 56(f) affidavit where
the party opposing summary judgment “claimed that several of its affirmative
defenses required the support that discovery might yield.”161 But while purported
need to conduct discovery into an affirmative defense may be sufficient to meet the
invoking party’s burden under Rule 56(f), the Court will not permit discovery where
that party “ha[s] failed to identify any specific discovery that would inform the
Court’s consideration of their affirmative defenses.”162 More importantly, the Court
has denied a request for discovery under Rule 56(f) where the evidence sought would
be “irrelevant” in light of applicable law.163
160
Malpiede v. Townson, 780 A.2d 1075, 1091 (Del. 2001); see also Salzman v. Canaan
Cap. P’rs, 1996 WL 33167788, at *2 (Del. Ch. Apr. 19, 1996) (“A Rule 56(f) motion is
designed to permit the Court, in the exercise of its discretion, to deny entry of judgment or
withhold decision on a pending summary judgment motion to permit limited discovery, all
with the expectation that limited discovery will clarify or eliminate disputed issues of
fact.”).
161
3Com Corp. v. Diamond II Hldgs., Inc., 2010 WL 2280734, at *1 (Del. Ch.
May 31, 2010).
162
Quantlab Gp. GP, LLC v. Eames, 2019 WL 1285037, at *7 (Del. Ch. Mar. 19, 2019),
aff’d, 222 A.3d 580 (Del. 2019) (TABLE).
163
Salzman, 1996 WL 33167790, at *1 (citing A.I. Credit Corp. v. Liberty Mut. Ins. Co.,
1996 WL 3962, at * (S.D.N.Y. Jan. 4, 1996) (denying Rule 56(f) application where the
evidence sought to be obtained was irrelevant in light of the court’s decision on dispositive
issues)); see also Ch. Ct. R. 1 (stating the rules “shall be construed, administered, and
employed by the Court and the parties, to secure the just speedy and inexpensive
determination of every proceeding”).
40
These principles are colored by Vice Chancellor Laster’s holding in in J&J
Produce, Inc. v. Benson Hill Fresh, LLC.164 The buyer in that case was an affiliate
of Buyer here, and was bound by an agreement with terms very similar to the APA’s.
There, as here, the buyer claimed that there were genuine issues of fact about
whether the seller breached its obligations under the purchase agreement and “about
whether the Seller’s conduct rises to the level of reprehensibility to warrant the
unclean hands bar on its claim.”165 The Court rejected this position and concluded
that the buyer’s unclean hands defense did not preclude summary judgment. “The
purpose of the unclean hands doctrine is to protect the public and the court against
misuse by one who, because of his conduct, has forfeited his right to have the court
consider his claims . . . .”166 “The Court of Chancery has broad discretion in
determining whether to apply the doctrine of unclean hands.”167 And in certain
circumstances, an unclean hands defense will fail when applying it or allowing it to
impede summary judgment would eschew well-settled principles of Delaware
164
2020 WL 1188052, at *4.
165
Id. (alteration and internal quotation marks omitted).
166
Id. (alterations omitted) (quoting Skoglund v. Ormand Indus., Inc., 372 A.2d 204, 213
(Del. Ch. 1976)).
167
Id. (quoting SmithKline Beecham Pharm. Co. v. Merck & Co., 766 A.2d 442, 448 (Del.
2000)).
41
contract law.168 In view of these principles and general principles of contract law,
Vice Chancellor Laster rejected the buyer’s unclean hands defense:
Although the Buyer frames its argument as an unclean hands defense,
the Buyer essentially is asking this court to excuse its nonperformance
because of the Seller’s own breaches of the representations and
warranties, which the Buyer characterizes as willful. The Buyer,
however, currently is seeking indemnification under the Agreement for
those breaches. A party may be excused from performance under a
contract if the other party is in material breach thereof. But a party may
not refuse to perform its contractual obligations after a material breach
while simultaneously retaining the benefits of a contract. The Buyer
therefore cannot seek indemnification under the contract while at the
same time claiming that the Agreement was vitiated because of the
Seller’s material breach. These well-settled principles of Delaware law
foreclose the unclean hands defense. Notably, this outcome does not
leave the Buyer without a remedy. It rather consigns the Buyer to the
remedy it bargained for (indemnification), while denying the Buyer the
self-help remedy that did not bargain for and yet invoked (frustration
of the Adjustment mechanism).169
Here, Defendant has elected to pursue its Indemnity Claim with respect to the
same issues that underlie its unclean hands defense. Defendant cannot pursue its
Indemnity Claim under the APA while simultaneously relying on Plaintiffs’ alleged
breaches to excuse its own non-performance. Rather, the proper course of action is
168
See id.169
Id. (citations and internal quotation marks omitted) (quoting Post Hldgs., Inc. v. NPE
Seller Rep LLC, 2018 WL 5429833, at *5 (Del. Ch. Oct. 29, 2018) (holding that a party’s
election to pursue indemnification required the party to “continue to be bound by and to
perform under the contract as well”)).
42
to permit both parties to pursue their respective breach allegations through the
appropriate and contractually agreed-upon channels.
3. Defendant Has Waived Its Right To A Post-
Closing Adjustment, But The Adjustment
Escrow Funds Shall Remain In Escrow Pending
A Final Judgment.
As a remedy for Defendant’s breach, Plaintiffs seek a declaration that
Defendant has waived its right to a post-Closing adjustment and immediate release
of the Adjustment Escrow Funds. Vice Chancellor Laster also addressed this issue
in J&J Produce.170 In that case, the Court found the defendant buyer breached the
governing agreement by failing to submit a Closing Statement.171 When considering
the appropriate remedy, the Court expressly rejected the buyer’s contention that the
Court should simply order the buyer to provide a Closing Statement and require the
parties to complete the agreement’s price adjust process, as “[t]hat result would
reward the Buyer for its breach.”172 The Court determined that “[t]he more fitting
contractual remedy is to deem the Buyer to have waived its right to the determination
of the Final Adjustment Amount” because “[b]y failing to provide a Closing
Statement, the Buyer prevented the Final Adjustment Amount from being
determined in a timely fashion in accordance with the procedures set forth in the
170
Id. at *2–3.
171
Id. at *2.
172
Id.
43
Agreement” and “thereby gave up its opportunity to have a Final Adjustment
Amount that potentially came out in its favor.”173 And so under that agreement’s
post-closing adjustment process, which was nearly identical to Section 2.5 of the
APA,174 the Court determined that the buyer waived its right to post-closing price
adjustment, that the Final Adjustment Amount was therefore deemed to be zero, and
that the seller was entitled to any Adjustment Escrow Funds.175
This logic applies with equal force here, despite the fact that Defendant
ultimately submitted a Closing Statement claiming to calculate a negative
adjustment of $80,219.04. By submitting a Closing Statement too late, Defendant
forfeited its right to a post-Closing adjustment and determination of the Final
Adjustment Amount, and so the Final Adjustment Amount shall be deemed zero.176
As in J&J Produce, to hold otherwise would reward Defendant for its breach—even
more so here, where Defendant’s Closing Statement seeks an adjustment in its
173
Id.
174
Compare id. at *2–3, with APA § 2.5(d)–(h).
175
See J&J Produce, 2020 WL 1188052, at *2–3.
176
See id. (explaining the basis for forfeiture and deeming the Final Adjustment Amount
to be zero, “[w]ith apologies to mathematicians”).
44
favor.177 Under the APA and principles of logic, Seller is entitled to the Adjustment
Escrow Funds.178 Plaintiffs are entitled to a declaration to that effect.
This outcome fulfills the parties’ expectations, which treated those funds as
part of the baseline consideration for the deal. The Adjustment Escrow Funds were
placed in escrow as security for an Adjustment that benefitted Buyer; otherwise, they
would go to Seller. Because Buyer frustrated the determination of the Final
Adjustment Amount by breaching its obligation to timely deliver the Closing
Statement, the proper award of expectancy damages is to provide Seller with the
baseline consideration to which the Seller was entitled; that amount is reflected by
the Adjustment Escrow Funds.179
177
See id. From this reasoning, Defendant’s argument that “Plaintiffs suffered no prejudice
from any delay as they were and are able to review the Closing Statement and object to the
calculations contained therein” is unpersuasive. D.I. 24 at 26. The parties agreed to the
APA’s temporal requirements for the Closing Statement. They bargained for that ninety-
day window with the expectation that they would know of their final financial positions
under the APA shortly after Closing. Defendant’s tardiness breached Plaintiffs’ bargained-
for right, especially in the face of Plaintiffs’ numerous communications alerting Defendant
that the Closing Statement was overdue in violation of the APA. Accordingly, the Court’s
determination is unchanged by Defendant’s assertions that Defendant’s untimely Closing
Statement was substantively adequate.
178
See J&J Produce, 2020 WL 1188052, at *2–3. The APA contemplated a baseline
outcome in which Seller received the Adjustment Escrow Funds as part of the transaction
consideration. APA § 2.5(e). If the Final Adjustment amount is zero, or less than $50,000
in either direction, Seller would receive the Adjustment Escrow Funds. See id. § 2.5(e),
(f), (g), (h).
179
See J&J Produce, 2020 WL 1188052, at *3.
45
In view of this determination, Plaintiffs request an order requiring specific
performance and directing Defendant to immediately direct release the Indemnity
Escrow Funds pursuant to Section 2.8(b). This Court could issue such an order.180
And the APA contemplates such an equitable remedy and prompt release of the
Adjustment Escrow Funds following determination of the Final Adjustment
Amount.181 “But the court is not obligated to issue a decree of specific performance,
which remains a matter of discretion.”182
J&J Produce is instructive yet again. Vice Chancellor Laster concluded that,
although the seller was entitled to the Adjustment Escrow Funds, “[e]ntering a
decree of specific performance at this stage on the basis set forth in this order likely
would trigger a series of unproductive procedural moves and countermoves.”183 The
same is true here. As a matter of judicial economy, a series of potential and
180
See id. at *5 (citing QC Hldgs., Inc. v. Allconnect, Inc., 2018 WL 4091721, at *11 (Del.
Ch. Aug. 28, 2018), and also citing Sparton Corp. v. O’Neil, 2018 WL 3025470, at *4 (Del.
Ch. June 18, 2018)).
181
See APA § 8.9(a) (“In the event that any party violates or fails or refuses to perform any
covenant or agreement made by such party herein, the non-breaching party shall be entitled,
in addition to the exercise of other remedies, to seek and (subject to court approval) obtain
injunctive and other equitable relief . . . .”); id. § 2.5(e) (requiring release of the Adjustment
Escrow Funds to Seller if the Final Adjustment Amount is deemed zero); id. § 2.5(h)
(requiring prompt release of the Adjustment Escrow Funds to Seller within five days after
determination of the Final Adjustment Amount); id. § 2.8(c) (requiring funds that are not
“then claimed” by Buyer under Section 2.5 to be released to Seller within the later of ninety
days after Closing or five days after determination of the Final Adjustment Amount).
182
J&J Produce, 2020 WL 1188052, at *5 (citing Kan. City S. v. Grupo TMM, S.A., 2003
WL 22659332, at *5 (Del. Ch. Nov. 4, 2003)).
183
Id.46
disruptive appeals “can be avoided by denying the request for the decree and
allowing the Adjustment Escrow Funds to remain in escrow until the end of the
case.”184 That approach facilitates the speedy resolution of this matter, and
considering the timeline of this dispute to date,
[i]t seems unlikely that the Seller will suffer any harm from having the
Adjustment Escrow Funds remain in escrow pending the entry of a final
judgment. Under the arrangements for the Adjustment Escrow Funds,
the Seller will earn interest in the interim. Because the Buyer’s breach
occurred on [May 8, 2019,] when it failed to deliver a timely Closing
Statement, the Seller became entitled to the Adjustment Escrow Funds
as of that date. The Seller’s lost time value of money can be addressed
through an interest award. Because the Adjustment Escrow Funds will
earn some return in the interim, any interest award will take that amount
into account.185
Plaintiffs’ Motion is therefore granted with respect to Count II, and the Court will
enter an order that Buyer breached its obligation to provide the Closing Statement,
foreclosing the Buyer from obtaining a determination of the Final Adjustment
Amount and entitling Seller to the Adjustment Escrow Funds. But release of the
Adjustment Escrow Funds is deferred pending a final judgment in this matter.
III. CONCLUSION
For the foregoing reasons, summary judgment on Count I is GRANTED in
Defendant’s favor, and summary judgment on Count II is GRANTED in Plaintiffs’
184
Id.185
Id.47
favor. The parties shall submit an implementing order within twenty days of this
decision.
48