Braga Investment & Advisory, LLC v. Yenni Income Opportunties Fund I, L.P. ( 2020 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
BRAGA INVESTMENT & ADVISORY, )
LLC, )
)
Plaintiff, )
)
v. ) C.A. No. 2017-0393-AGB
)
YENNI INCOME OPPORTUNITIES )
FUND I, L.P., )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: April 9, 2020
Date Decided: June 8, 2020
Blake Rohrbacher and Kevin M. Regan, RICHARDS, LAYTON & FINGER, P.A.,
Wilmington, Delaware; David Lackowitz and Alexandra Kolod, MOSES &
SINGER LLP, New York, New York; Attorneys for Plaintiff Braga Investment &
Advisory, LLC.
Julia B. Klein, KLEIN LLC, Wilmington, Delaware; Justin S. Stern, FRIGON
MAHER & STERN LLP, New York, New York; Attorneys for Defendant Yenni
Income Opportunities Fund I, L.P.
BOUCHARD, C
This post-trial opinion resolves a contractual dispute arising from an
investment Braga Investment & Advisory, LLC (“Braga”) made to acquire 23.3%
of the membership interests of Steven Feller, P.E., LLC (“Newco”) as part of a
transaction in which Newco acquired the business of Steven Feller P.E., PL
(“Oldco”). Yenni Income Opportunities Fund I, L.P. (“the Fund”), a private equity
investment firm, put the transaction together and ultimately became the Managing
Investor of Newco. The transaction closed in September 2016.
The trial concerned claims under two different contracts: (i) a purchase
agreement among the Fund, Oldco, and Oldco’s principals that Braga never signed
and (ii) a co-investment agreement between Braga and the Fund that brought Braga
into the deal. Braga contends the Fund breached the purchase agreement by agreeing
to amend its terms shortly before the closing to exclude certain assets from being
transferred to Newco without Braga’s written consent. Braga also contends the Fund
breached the co-investment agreement by depriving Braga of its right as a board
observer to receive “board packages.”
For the reasons discussed below, the court concludes that the Fund is entitled
to judgment in its favor on all claims. As to the first issue, the court finds that
Braga’s written consent was not required to amend the purchase agreement and, even
if it was, Braga failed to prove that it suffered any damages as a result of the
amendment, which benefited Newco. As to the second issue, the court finds that the
1
Fund did not breach Braga’s right to receive board packages based on the ordinary
and usual meaning of that term.
I. BACKGROUND
The facts recited in this opinion are the court’s findings based on the testimony
and documentary evidence presented during a two-day trial held in December 2019.
The record includes stipulations of fact in the Pre-Trial Stipulation and Order, over
100 trial exhibits, four depositions, and live testimony from three fact witnesses.
A. The Players
Newco is a Delaware limited liability company based in Florida that provides
design engineering services.1 Oldco is a Florida professional limited liability
company wholly-owned by Steven Feller (“Feller”) and Louise Feller (together, the
“Sellers”).2 Newco acquired the assets that make up its business from Oldco in a
transaction that closed on September 19, 2016 (the “Closing”). Feller serves as the
President of Oldco and Newco.3
The Fund is a Delaware limited partnership with its principal place of business
in New York, New York.4 Musa Yenni is the Fund’s managing partner.5 The Fund
1
JX 39 at 505-543 (“Amended Operating Agreement”) (dated September 19, 2016) § 2.1.
2
JX 8 (“Purchase Agreement”), Preamble.
3
Id. Signature Pages; Amended Operating Agreement §§ 3.1(c)(i), 3.2.
4
Pre-Trial Order (“PTO”) ¶ 12 (Dkt. 179).
5
Yenni Dep. 431-32. All citations to “Dep.” refer to deposition transcripts (Dkt. 178).
2
negotiated and structured the Oldco/Newco transaction and brought Braga into the
deal as a minority investor.
Braga is a Delaware limited liability company that maintains its corporate
headquarters in New York, New York.6 Ricardo Braga has served as Braga’s
managing member since 2011.7 Ricardo’s son, Rodrigo Braga, has served as a
director and member of Braga since 2015.8 For clarity, this opinion refers to these
two individuals respectively as “Ricardo” and “Rodrigo.”
B. The Purchase Agreement
On November 16, 2015, the Fund entered into a Membership Interest
Purchase Agreement with the Sellers and Oldco (the “Purchase Agreement).9 The
Purchase Agreement, which designated Feller as the Sellers’ Representative,10
contemplates several transactions:
i. Sellers would transfer all of Oldco’s assets and liabilities to
Newco, except certain assets listed in Exhibit H as “Excluded
Assets,”11 in exchange for 100% of Newco’s authorized but
unissued membership interests;
6
PTO ¶ 11.
7
Tr. 274; Ricardo Dep. 8, 10-11. All citations to “Tr.” refer to the Trial Transcript Volumes
I-II from December 3-4, 2019 (Dkt. 187; Dkt. 188).
8
Rodrigo Dep. 8, 10.
9
PTO ¶ 1; Purchase Agreement, Preamble.
10
Purchase Agreement § 10.02(a).
11
Id. at H-1 (“Exhibit H”) (listing cash, sports and entertainment tickets, certain personal
property and personal communication equipment).
3
ii. The Fund as “Buyer” would invest up to $2.4 million in cash in
Oldco in exchange for 80% of the equity interests in Newco;
iii. Newco would secure a loan of at least $8.6 million; and
iv. Newco would place $990,000 in escrow and distribute $8.91
million to Oldco to redeem Newco membership interests such
that Buyer would own 80% of the equity interests in Newco and
Oldco would own the remaining 20%.12
The Purchase Agreement contains a representation and indemnification rights
with respect to accounts receivable that have not been collected for 120 days or
longer (“Aged AR”). Specifically, Oldco and Sellers represented under Section 3.13
that Oldco’s accounts receivable were, subject to a bad debt reserve, “collectible in
full within one hundred twenty (120) days after billing,” and agreed in Section 8.02,
jointly and severally, to indemnify the Fund and Newco for a breach of this
representation.13
Section 2.04 of the Purchase Agreement provides for an adjustment (the
“Working Capital Adjustment”) if the working capital transferred to Newco at
Closing (the “Closing Working Capital”) deviates from the “Target Net Working
Capital,” which was set at $3.8 million based on the fourteen-month trailing average
of Oldco’s working capital.14 Under Section 2.04(a), if the Closing Working Capital
12
PTO ¶¶ 14, 27; Purchase Agreement § 2.01.
13
Purchase Agreement §§ 3.13, 8.02(a). Section 3.13 further provides that, “[s]hould
Newco seek and be indemnified for a breach of this Section 3.13 Newco shall, upon receipt
of such indemnity, transfer and assign such accounts receivable to [Oldco] and Sellers.”
14
Id. at 1-I; Tr. 378 (Yenni); JX 2.
4
is less than the Target Net Working Capital, then Oldco or the Sellers must promptly
pay Newco the amount of the shortfall, and if Closing Working Capital is greater
than the Target Net Working Capital, then Newco must issue to Oldco a promissory
note in the amount of the surplus, payable starting within a year of Closing.15
C. The Fund’s “False Panic” Over Working Capital
In the summer of 2016, the Fund became concerned about a potential Working
Capital Adjustment in Oldco’s favor. On June 26, 2016, Yenni advised Feller, that
“[i]f the working capital is verified to be $5.3 million, we need to pay you the
difference via a two year note,” which would violate Newco’s covenants with its
potential lenders.16 Later that day, Yenni wrote back to Feller that this was a “false
panic for us and the lenders” because “almost $2 million of the $5.5 million
[accounts receivable] is over 120 days and would not be included in the surplus
calculation, therefor[e] eliminating any surplus” and not requiring Newco to issue a
note.17 Feller responded by email “Good.”18
Yenni subsequently emailed a Fund employee explaining the “false panic”
and how “almost $2M of the $5.5M in AR is over 120 days old, [therefore] it would
15
Purchase Agreement § 2.04(a).
16
JX 3 at 1.
17
Id.
18
Id.
5
not be considered in the calculation of the surplus!”19 A few weeks later, in an email
to the Fund’s accountant, Yenni reiterated that Aged AR would not be considered in
the calculation.20
D. The Co-Investment and Joinder Agreements
In August 2016, the Fund approached Braga regarding an opportunity to
invest in Newco.21 Although the Fund originally asked Braga to invest in the Fund,
Braga declined and sought to make a direct investment in Newco.22
On August 25, 2016, the Fund provided Braga with an investment memo it
had created to summarize the terms of the transaction.23 The investment memo
included a slide titled “Proposed Transaction Structure” that stated: “Net Working
Capital Target was set at $3.8 million. If there is a surplus at close, it will be payable
to Seller within two years. Only AR aged less than 120 days will be considered.”24
On August 26, 2016, the Fund provided Braga with a copy of the Purchase
Agreement.25
19
JX 4 at 1.
20
JX 5 at 2.
21
PTO ¶ 28.
22
Id. ¶ 29.
23
Id. ¶ 30.
24
Id. ¶ 31; JX 7 (“Investment Memo”) at 39.
25
PTO ¶ 34.
6
After reviewing the diligence documents, Braga agreed to become a co-
investor in Newco. On September 2, 2016, Braga and the Fund entered into an
agreement whereby Braga would purchase 23.3% of the equity of Newco for
$700,000 (the “Co-Investment Agreement”).26 Braga represented in the Co-
Investment Agreement that it “reviewed the [Purchase Agreement] and all exhibits,”
“had an opportunity to consult with advisors,” and “is a sophisticated investor
experienced in making such investments.”27
Braga asked for a seat on Newco’s board of managers (the “Board”) so that it
could “be privy to monitoring [its] investment[] and add value.”28 The Fund
declined this request but offered instead, and Braga accepted, certain board observer
rights that are documented in the Co-Investment Agreement.29
The Co-Investment Agreement recites that Braga “intends to be a passive
investor in Newco.”30 Consistent with this intention, the Co-Investment Agreement
provided that the Fund had the right to “vote [Braga’s] equity interest in Newco for
so long as [Braga] owns any equity interest in Newco and this grant shall constitute
26
JX 9 (“Co-Investment Agreement”).
27
Id. § 7(e).
28
Tr. 28 (Ricardo), 277 (Rodrigo); JX 106 at 2 (Braga’s conference call notes).
29
Co-Investment Agreement § 4.
30
Id.
7
an irrevocable power of attorney to do so at all meetings of equity holders and for
any other purpose equity owners are called to vote or consent.”31
The Co-Investment Agreement references that Braga had “agreed to enter into
a so-called Joinder Agreement pursuant to which it shall be deemed to be a Buyer
under the [Purchase Agreement] and will be entitled to all of the rights and subject
to all of the obligations described in the [Purchase Agreement].” 32 On September 8,
2016, Braga signed the contemplated joinder agreement (the “Joinder
Agreement”).33 Although the record is unclear as to the precise timing, Yenni, on
behalf of Newco, would eventually countersign the Joinder Agreement at or around
the Closing.34
E. The Side Letter
In mid-September 2016, Oldco began to prepare its pre-Closing certificate and
hired Marc Horowitz, who became Newco’s CFO after the Closing, as an
independent contractor to assist in the financial and accounting transition between
the two companies.35 On September 12, 2016, Oldco sent the Fund its “good faith”
estimate of the Closing Working Capital showing a shortfall from the Target
31
Id. § 5.
32
Id. § 3.
33
JX 14 (“Joinder Agreement”).
34
See JX 107 (September 14, 2016 email discussing who should countersign the Joinder
Agreement on behalf of Newco).
35
Horowitz Dep. 12-14; JX 10.
8
Working Capital of approximately $372,000, which the Fund forwarded to Braga,
among others.36
On September 15, 2016, counsel for Oldco and Sellers circulated a “final”
estimate of Closing Working Capital, dated September 14, 2016, reflecting a smaller
shortfall of approximately $130,000 (the “September 14 Estimate”).37 According to
Horowitz, both of these estimates reflected over $2 million in Aged AR as adjusted
to reflect the transfer and indemnity provisions of Section 3.13 of the Purchase
Agreement.38 Later on September 15, counsel for Oldco and the Sellers retracted
the September 14 Estimate as incorrect and took the position that the Aged AR
should not be adjusted for on the worksheet unless it remained with Oldco.39
Because the Sellers’ estimated Closing Working Capital reflected $6.2 million
of accounts receivable, of which approximately $2 million was Aged AR, the
Sellers’ approach would have resulted in a Working Capital Adjustment in favor of
Oldco of over $2 million for which Newco would have to issue a promissory note.
To avoid this result, Yenni proposed an alternative arrangement to exclude
approximately $2 million of Aged AR from the assets to be transferred to Newco
and place the proceeds into escrow with 20-25% of the collections passing to
36
JX 15.
37
JX 21.
38
Horowitz Dep. 54-55; see JX 10 at 1.
39
JX 19.
9
Newco.40 Yenni informed the lenders that this new arrangement was warranted
because Oldco’s “AR has increased to $6.2MM compared to the $3.8MM target we
had set.”41 In reality, however, the amount of Oldco’s accounts receivable had not
changed. Rather, the Sellers were insisting on including the Aged AR as an asset in
the working capital calculation, rather than excluding it from the calculation as
Yenni mistakenly thought would be the case.
On September 16, 2016, Sellers sent an email in which they insisted on
retaining 100% of the collections instead of allowing Newco to retain 20-25% of
them, as Yenni had proposed.42 The Fund agreed to this proposal six minutes later,
without consulting Braga or the lenders.43
During the evening of September 16, a Fund employee emailed Rodrigo the
September 14 Estimate in response to his request for a copy of Oldco’s working
capital file with information on the accounts receivable.44 The email referred to a
tab in the attachment reflecting Aged AR “totaling to $2.027 million . . . being
transferred to [Oldco] upon closing.”45 Rodrigo responded later in the evening,
40
JX 22 at 2.
41
JX 20 at 1.
42
JX 26.
43
Id.
44
JX 23; Tr. 340 (Rodrigo).
45
JX 23.
10
stating that he would look at the file that night and “touch base” tomorrow.46
Referencing the earlier stage of the negotiations with the Sellers, the Fund employee
further clarified that “[w]e are transferring 100% of [the Aged AR] to Steve so [we
are] no longer receiving the 20-25% of it that was earlier expected.”47 Rodrigo
forwarded this email exchange to Ricardo.48
In a separate email sent during the evening of September 16, Yenni told
Ricardo that “[w]e had to resolve some issues around the calculation of surplus
Working Capital that would be due to the Seller additionally” and the Fund had “just
come to a simple agreement with Steve that he will keep the AR over 120 days or
longer.”49 Yenni went on to write that “[t]his change to the Purchase Agreement
will be documented via a short side letter which our attorneys will draft by Monday
morning” and that he believed the closing would occur on September 19, 2016.50
Ricardo forwarded Yenni’s message to Rodrigo, who promptly responded that
Yenni’s message was in line with what the father and son had discussed earlier.51
Ricardo did not seek any clarification of Yenni’s message.52
46
JX 24.
47
Id.
48
Id.
49
JX 25.
50
Id.
51
Id.
52
Tr. 46-47 (Ricardo).
11
On September 17, after Yenni updated Newco’s prospective lenders on the
“simple agreement” he had reached with the Sellers, they raised concerns, writing,
“Didn’t we plan on owning and collecting those A/R for [Newco]? Won’t we now
have to finance the cash flow we expected from those A/R?”53 The next day, Yenni
relayed to Feller the lenders’ concerns about running Newco with significantly less
accounts receivable, reminded Feller of their prior discussion about the potential
need for a working capital note, and asked him to forego seeking reimbursement for
the Sellers’ transaction expenses.54 Specifically, Yenni wrote to Feller that:
The Purchase Agreement we signed is clear on the definition of
Accounts Receivables excluding anything over 120 days (Section
3.13). That is what guides the calculation of Working Capital (Section
2.04). Hence, the [September 14 Estimate] was correct per the
Purchase Agreement. I had a scare on that about a month ago, thinking
we may need to have a large Working Capital Note violating lender
covenants. Then I re-read the Purchase Agreement. Then you and I
confirmed that the 120+day AR would be excluded. The Purchase
Agreement we signed never excluded those receivables from being
transferred to Newco.
*****
I refreshed overnight. I believe I can convince the lenders to the
reneging of the Purchase Agreement and get the deal closed hopefully
tomorrow as follows. We amend the Purchase Agreement allowing you
to keep $2M of that AR, which we already reported to both lenders.
Your keeping any larger amount will not work. However, you have to
53
JX 27.
54
JX 29; JX 30.
12
forego all transaction fees you were supposed to be reimbursed for.
You will not get reimbursed for them period.55
Ultimately, Yenni was able to secure a concession from the Sellers in the form
of a cap on their right to be reimbursed for professional fees, saving Newco
$200,000.56 Newco’s lenders were unimpressed. In an email to Yenni, one lender
sarcastically wrote that “[g]iving up $200,000 of expense for an[] extra few million
of A/R seems like a very good deal to me.”57
On September 19, 2016, the Fund, the Sellers, and Oldco entered into a letter
agreement memorializing their last-minute negotiations (the “Side Letter”).58 The
Side Letter’s key terms included:
 Excluding $2,027,995 of Oldco’s Aged AR, which represented
the amount of accounts receivable that was 120 days past due as
of September 14, 2015 (the “Excluded AR”), from the assets to
be transferred to Newco at Closing by adding the Excluded AR
to the list of “Excluded Assets” on Exhibit H of the Purchase
Agreement that Oldco would retain;
 Providing that “Sellers and [Oldco] shall be responsible for all of
their legal and other Transaction expenses in excess of $100,000
as well as all pre-closing professional claims expense in excess
of insurance received and related legal fees as currently provided
in the Purchase Agreement;” and
55
JX 30 at 1-2.
56
Id. at 1.
57
JX 31 at 2.
58
JX 37 (“Side Letter”); PTO ¶ 67.
13
 Providing that “[a]ny adjustments to be proposed by the Buyer’s
Post-Closing Statement concerning accounts receivable shall be
on an accrual basis and shall exclude all of the Excluded AR.”59
F. The Closing and Post-Closing Events
On September 19, 2016, the transaction closed. Newco became the Fund’s
first and only investment and Yenni became Newco’s executive chairman and its
managing member alongside Feller.60 On the Closing call, the parties discussed the
material terms of the transaction, which included the Side Letter and the Excluded
AR.61 Ricardo, who participated on the call, raised a question about the terms of a
“junior loan” but did not raise any objections about the Side Letter or the Excluded
AR.62
Shortly after the Closing call, Ricardo participated in a call with Newco’s
Board members, observers, and consultants during which Oldco’s retention of the
Excluded AR was discussed.63 In connection with this discussion, Braga received
materials regarding the breakdown of the Excluded AR and a final accounts
59
Side Letter.
60
Amended Operating Agreement § 3.2; Yenni Dep. 81; PTO ¶ 74.
61
JX 40; Tr. 396 (Yenni).
62
See JX 41.
63
JX 42.
14
receivable aging report.64 Ricardo again raised no objections during this post-
closing call regarding the Side Letter and the Excluded AR.
On September 22, 2016, in an email exchange with Yenni, Ricardo
acknowledged that “[w]e had issues at the last minute of the closing with the AR’s
that motivated renegotiation with [Seller] and also with [the lender].” 65 Braga still
had raised no objections concerning the Side Letter.
On October 10, 2016, Braga received a copy of the Side Letter for the first
time.66 After receiving the copy, Braga raised no objections regarding its terms or
how it was approved.
On October 20, 2016, Braga received notice of Newco’s first board meeting
to be held on October 24 with an agenda attached.67 The agenda advised that the
first substantive item to be discussed and resolved was the “[r]atification of all
matters taken in connection with the acquisition of [Oldco], including the financing
thereof.”68
64
Id.
65
JX 43.
66
Tr. 195 (Ricardo); JX 46 at 1.
67
JX 48.
68
Id.
15
On October 24, 2016, Ricardo attended Newco’s first Board meeting as a
board observer.69 At the meeting, the Board ratified the acquisition of Oldco without
any objection.70 According to the minutes, Ricardo spoke and weighed in on a
variety of matters but raised no objections regarding the Side Letter, its terms, or
how it was approved.71
Less than two months after the Closing, Newco began experiencing cash flow
problems. Originally, the Fund had agreed to collect the Excluded AR on Oldco’s
behalf and at Newco’s expense, and to transfer the proceeds back to Oldco.72 In
early November, the Fund suggested deferring the transfer to Oldco of any collected
Excluded AR so that Newco could use it for operations.73 Braga agreed with this
approach74 and suggested sending the Side Letter to the Sellers to assist in
negotiating a payment plan for the collected Excluded AR.75 Eventually, Sellers
agreed to let Newco defer payment of the collected Excluded AR so that Newco
could use the proceeds for its operating expenses.76
69
JX 50.
70
Id.
71
Id.
72
Horowitz Dep. 43.
73
JX 52.
74
Id.
75
JX 53.
76
Tr. 404 (Yenni).
16
In December 2016, Newco began to prepare the Buyer’s post-closing
statement, as required under the Purchase Agreement. Braga was involved and
contributed to the calculation of the final Working Capital Adjustment, referencing
and factoring in the terms of the Side Letter.77
On January 17, 2017, Newco circulated the Buyer’s post-closing statement,
which set forth Newco’s determination of the Closing Working Capital. 78 The
statement reflected that with Oldco’s retention of the Excluded AR, the Closing
Working Capital totaled $2,878,527, resulting in a shortfall by Sellers of $921,473.79
Sellers did not dispute the Buyer’s post-closing statement and accounted for the
$921,473 adjustment by cancelling Newco’s debt to Oldco for the deferred transfer
of the collected Excluded AR and releasing funds from the escrow.80
G. Braga’s Board Observer Rights
At Closing, Braga’s Board observer rights, as described in the Co-Investment
Agreement, were incorporated into Newco’s operating agreement effective as of the
date of Closing.81 Shortly after the Closing, Braga received a Board package and an
77
JX 59.
78
JX 60.
79
Id.
80
JX 60; PTO ¶ 82.
81
Amended Operating Agreement § 3(c)(i). The amended operating agreement is the
subject of the parties’ separate litigation in this court. See infra Part II.
17
invitation to attend Newco’s first Board meeting. On October 17, 2016, Yenni
requested that Horowitz deliver “a complete board package” to the Board members
and observers, including Braga.82
On October 20, 2016, Horowitz circulated a notice of the Board meeting
scheduled for October 24.83 On October 21, 2016, the Fund added Braga to Newco’s
data room, which included “important shared files” and marketing material.84 At the
Board meeting held on October 24, the Board ratified Braga’s Board observer
status.85
On January 26, 2017, the Fund, Newco’s vice-president, and Feller agreed
that Braga’s board observer status should be rescinded because Braga had filed an
action in New York State court against the Fund.86 By e-mail that same day, the
Fund advised Braga that, in light of the commencement of the lawsuit, “[y]our board
observer status has been rescinded effective immediately until we resolve this
matter.”87 Braga did not attend the January 27, 2017 Board meeting, the minutes of
which reflect that no Board member or observer raised any objection in response to
82
JX 47.
83
JX 48.
84
JX 49.
85
JX 50.
86
JX 62.
87
JX 63.
18
the rescission of Braga’s Board observer status.88 On February 7, 2017, Braga
amended his New York complaint to add claims regarding the revocation of its
Board observer status.89
On February 23, 2017, the Fund restored Braga’s Board observer rights and
provided Braga with a copy of the minutes of the January 27, 2017 Board meeting
it had missed, along with a budget and cash forecast that had been prepared for Board
members.90 From February 2017 forward, Braga was invited to attend all Newco
Board meetings and received the Board packages that were sent to Board members.91
II. PROCEDURAL HISTORY
On May 22, 2017, Braga filed its initial complaint in this action,92 which was
amended on September 7, 2017.93 The amended complaint (the “Complaint”) asserts
four claims. Count I asserts that the Fund breached Section 10.10 of the Purchase
Agreement when it entered into the Side Letter without Braga’s express written
consent to remove the Excluded AR from the assets that were transferred to
Newco.94 Count II seeks a declaration that the Fund breached the Co-Investment
88
Id.; JX 69 at 13.
89
JX 64.
90
JX 69.
91
PTO ¶¶ 88-89; Tr. 413 (Yenni).
92
Dkt. 1.
93
Dkt. 34 (“Compl.”).
94
Compl. ¶¶ 33-39.
19
Agreement by depriving Braga of its Board observer rights and damages for the
breach.95 Count III seeks specific performance of the Co-Investment Agreement to
enforce Braga’s Board observer rights.96 Count IV asserts that the Fund breached
its fiduciary duties.97
On September 26, 2017, the Fund moved to dismiss Counts I and IV. 98 In
April 2018, the court denied the motion as to Count I and granted it as to Count IV.99
On May 31, 2019, Braga filed a separate lawsuit in this court against Yenni
and the Fund.100 Braga alleges in that action that Yenni and the Fund breached
Newco’s 2015 operating agreement by purporting to amend that agreement without
Braga’s approval and seeks a declaratory judgment that the amended operating
agreement is invalid.101 On February 25, 2020, the court denied Yenni and the
Fund’s motion to dismiss.102 The parties are currently engaged in discovery.
95
Id. ¶¶ 40-44.
96
Id. ¶¶ 45-51.
97
Id. ¶¶ 52-57.
98
Dkt. 36.
99
See Mot. to Dismiss Tr. Ruling 14-16 (Apr. 30, 2018) (Dkt. 49).
100
Braga Inv. & Advisory LLC v. Musa Yenni and Yenni Income Opportunities Fund I,
L.P., C.A. 2019-0408-AGB.
101
C.A. 2019-0408-AGB, Dkt. 1.
102
C.A. 2019-0408-AGB, Dkt. 20.
20
The court held a two-day trial in this action in December 2019 and heard post-
trial argument on April 9, 2019.103
III. ANALYSIS
Braga seeks to enforce the terms of two separate agreements: the Purchase
Agreement and the Co-Investment Agreement. To establish a claim for a breach of
contract under Delaware law, a plaintiff must prove: (i) the existence of a valid and
enforceable contract; (ii) that the defendants breached the contract; and (iii) that the
plaintiff was damaged as a result of those breaches.104 As the party seeking to
enforce each contract, Braga bears the burden to prove its breach of contract claims
by a preponderance of the evidence.105 Braga also bears the burden of proving that
it is entitled to specific performance by clear and convincing evidence.106
Under Delaware law,107 courts are required to give unambiguous contract
terms their plain meaning, without regard to extrinsic evidence.108 Delaware law
“adheres to the objective theory of contracts, i.e., a contract’s construction should be
103
Dkt. 181; Dkt. 198.
104
Ivize of Milwaukee, LLC v. Compex Litig. Supp., LLC, 2009 WL 1111179, at *8 (Del.
Ch. Apr. 27, 2009) (citations omitted).
105
Zimmerman v. Crothall, 62 A.3d 676, 691 (Del. Ch. 2013).
106
In re IBP, Inc. S’holders Litig., 789 A.2d 14, 31 (Del. Ch. 2001).
107
The Purchase Agreement is governed by Delaware law. Purchase Agreement §10.11(a).
Although the Co-Investment Agreement has no choice of law provision, both parties rely
on Delaware law to construe the agreement in their papers. The court thus does the same.
108
Norton v. K–Sea Transp. P’rs, L.P., 67 A.3d 354, 360 (Del. 2013).
21
that which would be understood by an objective, reasonable third party.” 109 When
interpreting a contract, the court “will give priority to the parties’ intentions as
reflected in the four corners of the agreement,” construing the agreement as a whole
and giving effect to all of its provisions.110
Braga asserts that the Fund breached each contract’s express terms and is
entitled to damages for the Fund’s breach of both agreements and specific
performance of the Co-Investment Agreement. The court considers each claim in
turn.
A. The Purchase Agreement Claim
The Purchase Agreement, as executed on November 16, 2015, included all
accounts receivable of Oldco as assets to be transferred from Oldco to Newco. To
be more specific, Section 2.01 of the Purchase Agreement obligated Oldco to
transfer “all of its assets” to Newco at Closing except for certain “Excluded Assets”
listed on Exhibit H, which originally did not include any accounts receivable as an
excluded asset.111 The plain terms of the Side Letter, however, which was signed in
connection with the Closing on September 19, 2016, amended Exhibit H of the
109
Salomone v. Gorman, 106 A.3d 354, 367-68 (Del. 2014) (citation omitted).
110
Id. at 368.
111
Purchase Agreement §2.01; Exhibit H.
22
Purchase Agreement to list $2,027,995 of Oldco’s Aged AR (as defined above, the
“Excluded AR”) as an excluded asset.112
Braga contends the Fund breached Section 10.10 of the Purchase Agreement
by purporting to amend Exhibit H via the Side Letter to remove the Excluded AR
from the assets to be transferred to Newco without his prior written consent. Section
10.10 provides that the Purchase Agreement may only be amended “by an agreement
in writing signed by the Buyer [the Fund], the Company [Oldco] and the Sellers’
Representative [Feller].”113 According to Braga, its written consent to the Side
Letter amendment of the Purchase Agreement was necessary because Braga became
a “Buyer” under the Purchase Agreement when it entered into the Joinder
Agreement. For this alleged breach of the Purchase Agreement, Braga seeks
$488,725 in damages.
The Fund contends that Braga’s consent was not necessary to amend the
Purchase Agreement because it was not a party to the Purchase Agreement when it
was amended by the Side Letter. According to the Fund, “the Joinder Agreement
was an invalid modification” because the Fund, Oldco, and the Sellers’
Representative never approved it.114 As a consequence, Braga was not a Buyer under
112
Side Letter.
113
Purchase Agreement §10.10.
114
Def.’s Post-Trial Answering Br. 20 (Dkt. 193).
23
the Purchase Agreement when the Side Letter was signed and “Braga’s written,
signed consent to the Side Letter Agreement was not required.”115 The Fund also
contends that, even if the Purchase Agreement was breached, Braga failed to prove
any damages to the value of his investment in Newco resulting from the amendment
in the Side Letter to remove the Excluded AR from the assets to be transferred to
Newco.116
For the reasons explained below, the court concludes that (i) Braga’s written
consent to the Side Letter amendment was not required because Braga was not a
“Buyer” under the Purchase Agreement when the Side Letter was executed and
(ii) even if it was and the Fund breached Section 10.10 by executing the Side Letter
without Braga’s written consent, Braga failed to prove any damages.
1. Braga’s Written Consent Was Not Required to Approve the
Side Letter Amendment to the Purchase Agreement
Section 10.10 of the Purchase Agreement provides that it “may only be
amended, modified or supplemented by an agreement in writing signed by” the
115
Id. 19.
116
The Fund contends, in the alternative, that even “if Braga were to be considered a
‘Buyer’ under the Purchase Agreement,” he “waived, acquiesced to, or otherwise ratified”
the amendment of the Purchase Agreement through his course of conduct. Id. 21. The
court does not reach this issue.
24
“Buyer,” Oldco, and the Sellers’ Representative.117 The preamble of the Purchase
Agreement defines “Buyer” to be the Fund.118
In connection with the Closing, Braga entered into the Joinder Agreement,
which purports to give Braga “all of the rights and obligations of a ‘Buyer’ [under
the Purchase Agreement] as if it had executed the [Purchase Agreement.]”119
Critically, however, only Yenni, on behalf of Newco, countersigned the Joinder
Agreement with Braga.120 The Joinder Agreement was not signed by any of the
parties necessary under Section 10.10 of the Purchase Agreement to amend the
Purchase Agreement, i.e., the Fund, Oldco, or the Sellers’ Representative. Without
the written consent of these three parties, the Joinder Agreement’s purported
modification to add Braga as a party to the Purchase Agreement is facially invalid.
Braga does not contend that the Fund, Oldco, and the Sellers’ Representative
gave their written consent to the Joinder Agreement. Braga argues instead that this
fact “does not matter” for three reasons: (i) the Fund previously argued in this action
that Braga was a “Buyer” under the Purchase Agreement, (ii) Yenni testified at trial
that he believed the Joinder Agreement made Braga a “Buyer” under the Purchase
Agreement, and (iii) the Joinder Agreement “was ratified by all necessary parties”
117
Purchase Agreement § 10.10.
118
Id. Preamble.
119
Joinder Agreement.
120
Def.’s Post-Trial Answering Br. 20; Joinder Agreement.
25
before the Side Letter was executed.121 For the reasons discussed next, each of these
arguments is without merit.
As to the first issue, Braga contends that the Fund conceded in its opening
brief in support of its motion to dismiss that Braga became a party to the Purchase
Agreement by entering into the Joinder Agreement.122 Braga, however, does not
provide any legal basis for why the Fund should be precluded from taking a different
position at trial than it did in its motion to dismiss brief. 123 In fact, Braga
acknowledged it was not aware of any legal doctrine to support that result.124
As to the second issue, Braga relies on Yenni’s testimony that Braga became
subject to the obligations and benefits of the Purchase Agreement when it signed the
Joinder Agreement on September 8, 2016.125 The legal effect of the Joinder
121
Pl.’s Post-Trial Reply Br. 3-5 (Dkt. 194).
122
Id. 5 (citing Def.’s Mot. to Dismiss Opening Br. 3, 11, 16 (Dkt. 36)).
123
Although Braga never mentioned it in his post-trial briefs, the doctrine of judicial
estoppel “prevents a litigant from advancing an argument that contradicts a position
previously taken by that same litigant, and that [a court] was persuaded to accept as the
basis for its ruling.” Julian v. E. States Constr. Serv., Inc., 2009 WL 1211642, at *6 (Del.
Ch. May 5, 2009) (internal quotation marks and citation omitted) (alteration in original).
This doctrine would not apply here because Braga failed to show that the court relied on
any of the statements Braga identified from the Fund’s motion to dismiss brief when the
court ruled on that motion.
124
Post-Trial Tr. 36 (Apr. 9, 2020) (Dkt. 199). (“There’s no legal doctrine that I am aware
of that says that they are bound by everything in their motion to dismiss brief.”).
See Tr. 440 (Yenni) (“Q. It was your understanding when the Bragas signed the Joinder
125
Agreement that they were subject to all of the obligations under the Purchase Agreement.
Yes? A. Yes, generally. Q. And entitled to all the benefits afforded under the Purchase
Agreement as well. Yes? A. Yes, generally.”); see also id. 434 (Yenni) (“Q. And with
26
Agreement, however, is an issue for the court to decide irrespective of whatever
subjective belief the Fund or Braga may have had about its meaning.126 As explained
above, the effectiveness of the Joinder Agreement’s purported modification of the
Purchase Agreement is governed by the unambiguous terms of the written consent
requirement in Section 10.10 of the Purchase Agreement. That provision
indisputably was not satisfied because Oldco and the Sellers’ Representative (as well
as the Fund) did not consent in writing to the Joinder Agreement.
As to the third issue, Braga contends that “the uncontested evidence shows
that [the Joinder Agreement] was ratified by all necessary parties before the [Side
Letter] was executed.”127 For support, Braga points to a single email exchange on
respect to this Joinder Agreement, you testified earlier this morning that you signed that in
order to make Braga a buyer under the Purchase Agreement. Correct? A. Yes.”). Braga
does not point to any evidence that Oldco or the Sellers’ Representative shared a similar
subjective understanding.
126
See Leaf Invenergy Co. v. Invenergy Renewables LLC, 210 A.3d 688, 696 (Del. 2019)
(The court’s “task is to fulfill the parties’ shared expectations at the time they
contracted. [B]ut because Delaware adheres to an objective theory of contracts, the
contract’s construction should be that which would be understood by an objective,
reasonable third party.”) (internal quotation marks and citation omitted); Salomone, 106
A.3d at 367-68 (“When interpreting a contract, this Court will give priority to the parties’
intentions as reflected in the four corners of the agreement.”) (citation omitted) (emphasis
added); Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006)
(“[T]he true test is not what the parties to the contract intended it to mean, but what a
reasonable person in the position of the parties would have thought [the words]
meant.”) (internal quotation marks and citation omitted).
Pl.’s Post-Trial Reply Br. 3. Braga also argues that “Newco’s transmittal of the Joinder
127
Agreement to Braga constituted an offer and . . . all that was required to bind the parties
was Braga’s acceptance, which occurred when Braga returned it signed” on September 8,
2016. Id. 4. This argument has nothing to do with the Purchase Agreement, which is the
27
September 14, 2016, between counsel for the Fund and the Sellers.128 In one of these
emails, Sellers’ counsel lists ten transaction documents and suggests that Yenni sign
“for Newco” on three of them instead of Feller signing “for Newco.”129 One of these
documents is the “Joinder for Braga.”130 According to Braga, the email exchange
supports ratification because it demonstrates that “despite the fact that the parties
didn’t sign the agreement, they all had copies of it and they all agreed that it should
be signed” and therefore “everybody understood that Braga was a buyer before the
closing.”131 The court disagrees.
Under Delaware law, “[r]atification is an equitable defense that precludes a
party who has accepted the benefits of a transaction from thereafter attacking it.”132
As our Supreme Court has explained, ratification may be express or implied through
conduct in certain circumstances:
Ratification may be either express or implied through a party’s conduct,
but it is always a voluntary and positive act. . . . Implied ratification
occurs where the conduct of a complainant, subsequent to the
transaction objected to, is such as reasonably to warrant the conclusion
contract Braga seeks to enforce. Even if the Joinder Agreement constitutes a valid contract
between Newco and Braga, it did not alter the rights and obligations under the Purchase
Agreement because it lacks all of the written consents required under Section 10.10.
128
Id. 3 (citing JX 107).
129
Id.
130
Id.
131
Post-Trial Tr. 10-11.
132
Genger v. TR Inv’rs, LLC, 26 A.3d 180, 195 (Del. 2011) (internal quotation marks and
citations omitted).
28
that he has accepted or adopted it, and his ratification is implied through
his acquiescence. Ratification of an unauthorized act may be found
from conduct which can be rationally explained only if there were an
election to treat a supposedly unauthorized act as in fact authorized.133
Even assuming arguendo that Yenni’s testimony (discussed above) and his provision
of the Joinder Agreement to Braga134 constituted an express or implied ratification
of its terms on behalf of the Fund, Braga has failed to prove by a preponderance of
the evidence that Feller ratified the Joinder Agreement as a principal of Oldco and/or
as Sellers’ Representative.
Braga did not provide any evidence that Feller expressly accepted that Braga
was a “Buyer” under the Purchase Agreement, verbally or in writing, before the Side
Letter was signed. The only question, therefore, is whether Feller implicitly ratified
the Joinder Agreement’s terms on behalf of Oldco and as Sellers’ Representative via
his counsel’s September 14 email to the Fund’s counsel.
Contrary to Braga’s assertions, the text of the September 14 email regarding
who should sign “for Newco” on the “Joinder for Braga” does not support an implicit
ratification because it cannot rationally be interpreted to mean that Feller had
accepted its terms on behalf of Oldco or the Sellers’ Representative. Rather, the
plain terms of this email exchange reflect that counsel were discussing a simple
133
Id. (internal quotation marks and citations omitted).
134
JX 13 (September 8, 2016 email from Yenni to Ricardo transmitting draft of Joinder
Agreement).
29
issue: who, as between Feller and Yenni, should sign the Joinder Agreement “for
Newco” as its managing member.135 It is not surprising that this would be a subject
of discussion at the time because Newco’s governance structure was expected to
change in connection with the Closing.136
Contemporaneous evidence also shows that Feller and his counsel took care
to properly document changes to the terms of the Purchase Agreement in accordance
with Section 10.10 when they wished to do so. For example, on September 19, just
five days after the September 14 email exchange, Yenni (on behalf of the Fund) and
Feller (on behalf of Oldco and as Sellers’ Representative) executed the Side Letter
to remove the Excluded AR from the assets to be transferred at Closing.137
Putting the September 14 email exchange aside, the record shows that Feller
never treated Braga as a “Buyer” at any time before execution of the Side Letter.
Although the Fund kept Braga informed of developments during the negotiations,
Braga never participated in the negotiations of the transaction with the Sellers; the
Fund and its own counsel were the sole negotiators with the Sellers; and the Fund
was involved in the day-to-day activity to close the deal with Feller, not Braga.138
135
JX 107 at 3 (emphasis added).
136
See Amended Operating Agreement §§ 3.1(c)(i), 3.2 (Yenni became Newco’s Chairman
and a managing member along with Feller, who continued to serve as Newco’s President).
137
Side Letter at 3.
138
Tr. 140-41 (Ricardo), 340 (Rodrigo), 385, 390 (Yenni); JX 15; JX 23; JX 24; JX 25.
30
Based on the preponderance of the evidence, the court finds that neither Oldco
nor the Sellers’ Representative ratified the Joinder Agreement before the execution
of the Side Letter. Accordingly, Braga has failed to establish that the Joinder
Agreement validly modified the Purchase Agreement to make Braga a “Buyer”
before the Side Letter was executed such that the Side Letter required Braga’s
written consent under Section 10.10 of the Purchase Agreement.139
2. Braga Failed to Prove Damages
Under Delaware law, “a breach of contract claim . . . requires a showing of
compensable injury.”140 To be compensable, the plaintiff must prove “damages that
the plaintiff suffered as a result of the breach.”141 To satisfy this element, “a plaintiff
must show both the existence of damages provable to a reasonable certainty, and
that the damages flowed from the defendant’s violation of the contract.”142
“The proper measure of damages for breach of contract is an amount sufficient
to restore the injured party to the position it would have been in had the breach not
occurred.”143 “The proponent must prove its damages by a preponderance of the
139
In reaching this conclusion, the court expresses no opinion on whether Braga became a
Buyer under the Purchase Agreement at the Closing or thereafter.
140
Kronenberg v. Katz, 872 A.2d 568, 606 (Del. Ch. 2004).
141
eCommerce Indus., Inc., v. MWA Intelligence, Inc., 2013 WL 5621678, at *13 (Del. Ch.
Sept. 13, 2013).
142
Id. (citing LaPoint v. AmerisourceBergen Corp., 2007 WL 2565709, at *9 (Del. Ch.
Sept. 4, 2007)).
143
Ivize, 2009 WL 1111179, at *10 (internal quotation marks and citations omitted).
31
evidence, and, while absolute precision is not required, mere speculation is not
sufficient.”144
Complicating the court’s consideration of damages in this case, neither side
retained a damages expert. Rather, Braga put forward its own mathematical
calculation of the damages Newco allegedly suffered for which it contends it is
entitled to a pro rata share based on its membership interest in Newco. Specifically,
Braga seeks $488,725 in damages on the assumption that the Side Letter was invalid.
Braga followed four steps to calculate this amount.145 First, Braga contends
that, if the Side Letter had not been executed, Newco would have received at Closing
additional assets worth $2,027,995 in the form of the Excluded AR, i.e., the amount
of Aged AR as of September 14, 2020. Second, Braga contends that an additional
$267,608 of Aged AR—representing accounts receivable that became 120 days past
due between September 15, 2016 and September 18, 2016 that was transferred to
Newco at Closing146—should have been excluded when calculating the Closing
Working Capital, which would have resulted in a “$267,608 working capital
adjustment in [Newco’s] favor.”147 The sum of the first two steps ($2,027,995 +
$267,608) is $2,295,603. Third, Braga subtracts from this amount $200,000,
144
Id.145
See Pl.’s Post-Trial Br. 47-48 (Dkt. 191).
146
Tr. 407 (Yenni); JX 60.
147
Pl.’s Post-Trial Br. 47.
32
representing the savings in transaction expenses Newco obtained in the Side Letter,
which leaves a balance of $2,095,603. Fourth, Braga multiplies this figure by its
percentage membership interest in Newco (23.3%) to arrive at $488,725.148
Braga’s calculation would be a reasonable estimate of damages if the transfer
of the Excluded AR to Newco at Closing actually would have increased the net asset
value of Newco by approximately $2 million; if the $267,608 of additional accounts
receivable should have been excluded from Closing Working Capital even though
they were transferred to Newco at Closing; and if Braga had a right to receive a pro
rata share of damages that Newco allegedly suffered.149 These three assumptions
underlie steps one, two, and four of Braga’s calculation. For the reasons discussed
below, however, none of these assumptions is valid.
The first assumption is incorrect because of the operation of the Working
Capital Adjustment provision in the Purchase Agreement. As discussed above,
Section 2.04 provides for a Working Capital Adjustment if the Closing Working
Capital deviated from the Target Net Working Capital, which was set at $3.8
148
($2,295,603 - $200,000 = $2,095,603) x 0.233 = $488,275.
149
Braga’s calculation assumes that Aged AR (i.e., receivables past due for over 120 days)
should be valued at face value and not discounted for the risk of collection. This
assumption seems reasonable given that Oldco represented in the Purchase Agreement that
“accounts receivable arising after the date thereof” (i.e., November 16, 2015) “are
collectible in full within one hundred twenty (120) days after billing” and agreed to
indemnify Newco for a breach of that representation. Purchase Agreement §§ 3.13,
8.02(a); see also Tr. 234-35 (Ricardo), 398 (Yenni).
33
million.150 Specifically, under Section 2.04(a), if the Closing Working Capital was
less than the Target Net Working Capital, then Oldco or the Sellers were obligated
to promptly pay Newco the amount of the shortfall, and if Closing Working Capital
was greater than the Target Net Working Capital, then Newco was obligated to issue
to Oldco a promissory note in the amount of the surplus, payable starting within a
year of Closing.151
Yenni testified at trial without contradiction that, without the Side Letter, the
net effect to Newco of receiving the Excluded AR would have been a “wash.”152
This result is demonstrated by comparing the outcome of the Working Capital
Adjustment calculation (i) that was conducted after the Closing in accordance with
the Side Letter and (ii) if it had been conducted without regard for the Side Letter.
After the Closing, the parties to the Purchase Agreement followed the
procedures in Section 2.04 to determine the Working Capital Adjustment in
accordance with the Side Letter. The parties thus excluded approximately $2 million
of Excluded AR from the calculation of Closing Working Capital.153 This yielded a
shortfall from the Target Working Capital of approximately $900,000. 154 Thus, the
150
See supra Part I.B.
151
Purchase Agreement § 2.04(a).
152
Tr. 399-400 (Yenni).
153
JX 60 at 4 (noting the exclusion of $2,027,995 for “Agreed A/R Past Due 120+ Days”).
154
Id. (reflecting a $921,473 shortfall from Target Working Capital).
34
net result of calculating the Working Capital Adjustment in accordance with the Side
Letter is that Oldco became obligated to pay Newco approximately $900,000.
Had the parties disregarded the Side Letter and included the Excluded AR in
calculating the Closing Working Capital, the Target Working Capital would have
been exceeded by approximately $1.1 million, representing a $2 million swing from
a shortfall of $900,000.155 This outcome would have had two consequences. First,
because the shortfall would have been eliminated, Newco would no longer be
entitled to receive approximately $900,000 from Oldco. Second, because an excess
over the Target Working Capital would have been created, Newco would be
obligated under the Purchase Agreement to pay Oldco approximately $1.1 million
by delivering “a non-negotiable promissory note” to Oldco for the amount of the
surplus.156 In other words, the benefit of Newco retaining approximately $2 million
of Excluded AR would have been offset dollar-for-dollar by (i) the loss of cash
Oldco otherwise would have had to pay Newco ($900,000) and (ii) Newco’s
incurrence of debt to pay Oldco for exceeding the Target Working Capital ($1.1
million).
155
See Tr. 408 (Yenni) (“Q. And, Mr. Yenni, had there not been a side letter agreement
and had the 2 million in Aged AR been kept on Newco’s books, what would the numbers
in the buyer’s post-closing look like? A. The 4.15 million, at the very top right, would
have increased by that exact amount and would have become $6.15 million. And with all
other things being equal, it would have resulted, instead of a $921,000 shortfall, in an
excess of 1.1 million that would have been due to Oldco.”).
156
Purchase Agreement § 2.04(a).
35
Braga does not dispute that transferring the Excluded AR to Newco at Closing
would have resulted in a wash if the calculation of the Working Capital Adjustment
operates as just described. It asserts instead that the provision was intended to
operate differently in that “Aged AR was not supposed to be counted for working
capital purposes.”157 In advancing this argument before and during trial, Braga did
not point to any language in the Purchase Agreement that supports this interpretation
or that it believed was ambiguous. Rather, Braga’s interpretation relied on
documents outside of the Purchase Agreement, namely (i) an investment memo it
received during due diligence suggesting that “Only AR aged less than 120 days will
be considered” in the working capital calculation158 and (ii) various communications
that, according to Braga, show that “every party to the deal understood at every point
leading up to the September 15, 2016 email for Sellers’ counsel . . . that Aged AR
would not be considered for working capital purpose.”159
Critically, the plain language of the Purchase Agreement before it was
amended via the Side Letter included all accounts receivable of Oldco in the
157
Pl.’s Post-Trial Reply Br. 16.
158
Investment Memo at 39.
159
Pl.’s Post-Trial Reply Br. 14-17. Some of these communications reflect that Yenni at
times appeared to misunderstand how accounts receivable were to be treated under the
Working Capital Adjustment provision. See, e.g., JX 30 (Yenni incorrectly contending
that Aged AR was excluded from the definition of “Accounts Receivable” based on Section
3.13 of the Purchase Agreement). The Purchase Agreement, however, is clear and
unambiguous on this point for the reasons explained above.
36
calculation of the Working Capital Adjustment without any exclusion for any Aged
AR of Oldco.160 Given that the relevant contractual provision is unambiguous, the
court must apply the terms of the Purchase Agreement as written and may not rely
on extrinsic evidence to vary from those terms.161
After trial, Braga argued for first time that “ambiguity exists with respect to
how ‘Current Assets’ and ‘Current Liabilities’ are defined . . . because there are
inconsistencies with respect to Oldco’s accounting methods.”162 There are two
fundamental problems with this argument. First, there is no apparent inconsistency.
Both of those definitions use identical language to describe the operative accounting
160
The Purchase Agreement defines (i) “Net Working Capital” to mean “Current Assets
less Current Liabilities” and (ii) “Current Assets” to mean, in relevant part, Oldco’s
“current assets” excluding cash, certain prepaid expenses, deferred tax assets, and
“receivables from any of [Oldco’s] Affiliates, managers, employees, officers or members
and any of their respective Affiliates.” Purchase Agreement at 1-C, 1-H. The Side Letter
removed the Excluded AR from the assets to be transferred to Newco at Closing and from
the calculation of the Closing Working Capital. See supra Part I.E.
161
Bathla v. 913 Mkt., LLC, 200 A.3d 754, 759-60 (Del. 2018) (“The Court must interpret
clear and unambiguous terms according to their ordinary meaning and in an unambiguous,
integrated written contract, the Court may not use extrinsic evidence to vary or contradict
the terms of that contract.”) (internal quotation marks and citations omitted); BLGH Hldgs.
LLC v. enXco LFG Hldg., LLC, 41 A.3d 410, 414 (Del. 2012) (“Where, as here, the plain
language of a contract is unambiguous i.e., fairly or reasonably susceptible to only one
interpretation, [the court] construe[s] the contract in accordance with that plain meaning
and will not resort to extrinsic evidence to determine the parties’ intentions.”) (citation
omitted); Citadel Hldg. Corp. v. Roven, 603 A.2d 818, 822 (Del. 1992) (“When the
language of a contract is plain and unambiguous, the intent of the parties expressed in that
language is binding.”).
162
Pl.’s Post-Trial Br. 35-37.
37
methods.163 Second, any confusion over the application of Oldco’s accounting
methods would be a question of fact—which Braga did not raise or attempt to
address at trial—and does not mean that either definition is ambiguous. Indeed, even
after trial, Braga made no effort to explain how any alleged inconsistency concerning
Oldco’s accounting methods would be relevant to whether to include Aged AR in
the Closing Working Capital calculation.164
The second assumption underlying Braga’s damages calculation is invalid for
two reasons. First, the alleged breach concerning the additional $267,608 of Aged
AR does not flow from the contractual breach asserted in Braga’s pleading, i.e., that
the Fund breached Section 10.10 of the Purchase Agreement by purporting to amend
Exhibit H via the Side Letter to exclude assets (i.e., the Excluded AR) from being
transferred to Newco. This is because, unlike the Excluded AR, the $267,608 of
accounts receivable that became 120 days past due between September 15 and 18
163
See Purchase Agreement at 1-C (“Current Assets” and “Current Liabilities” are both
“determined using the same accounting methods, practices, principles, policies and
procedures, with consistent classifications, judgments and valuation and estimation
methodologies that were used in the preparation of the Year End Financial Statements [of
Oldco] for the most recent fiscal year end as if such accounts were being prepared and
audited as of the fiscal year end.”).
164
Braga also asserts that Yenni and Feller amended the Purchase Agreement in June 2016
when Yenni “confirmed” with Feller via email that the Aged AR would be excluded from
the Closing Working Capital calculation. Post-Trial Reply Br. 14-15; see JX 3. This
argument is devoid of merit. This email exchange simply shows Yenni’s preferred reading
of the Purchase Agreement. Nowhere do either Yenni or Feller identify any contract
language to amend.
38
was transferred to Newco at Closing.165 Damages that do not result from the alleged
breach are not compensable.166 Second, even if Braga had asserted a claim for
breach of the Working Capital Adjustment provision in Section 2.04 of the Purchase
Agreement, the additional $267,608 of Aged AR would have been included in the
calculation of the Closing Working Capital in accordance with the unambiguous
language of the Purchase Agreement for the reasons discussed above. Thus, there
would have been no adjustment in Newco’s favor as Braga contends.
The third assumption underlying Braga’s damages calculation is that Braga
had a right to receive a pro rata share of damages that Newco allegedly suffered.
This assumption is plainly incorrect. Under the Purchase Agreement, any accounts
receivable acquired from Oldco was to be transferred to Newco at Closing167 and,
similarly, any adjustment in Newco’s favor in calculating the Closing Working
Capital would have redounded to the benefit of the entity. Neither Braga nor any
other member of Newco was entitled to receive a distribution from Newco in
connection with the transaction in cash or any other the form.168
165
Tr. 407 (Yenni); JX 60.
166
See Carlson v. Hallinan, 925 A.2d 506, 528-29 (Del. Ch. 2006) (rejecting contract claim
where plaintiffs failed to prove “that any damages resulted from the violation.”).
167
Purchase Agreement § 2.01.
168
See Tr. 233-34 (Ricardo).
39
In its Complaint, Braga contended that its investment in Newco—which
consists of an illiquid minority interest in a non-public entity—would have been
“less valuable than it should have been” if the Purchase Agreement had been
breached.169 This articulation of the potential harm to Braga arising from a breach
of the Purchase Agreement is logical given the structure of the transaction and the
nature of Braga’s investment. But Braga never introduced any evidence of the
diminution in the value of its investment. Braga instead focused on alleged harm to
Newco. Because Braga’s calculations do not reflect its “actual damages” and
because Braga provided no “principled way” for the court to determine its alleged
damages (as opposed to Newco’s) if either or both of his first two assumptions had
been proven to be correct, Braga’s analysis would have to “be put aside” for that
independent reason as well.170
In sum, for the reasons explained above, the court finds that, even if the Fund
had breached Section 10.10 of the Purchase Agreement, Braga failed to prove that it
suffered any cognizable damages resulting from such a breach.
169
Compl. ¶ 39.
170
See Ivize, 2009 WL 1111179, at *11-12 (rejecting plaintiff’s damages calculation and
awarding nominal damages of one dollar even though it seemed likely that plaintiff “did
suffer some damages” because its expert “simply made plaintiff-friendly calculations” that
“do not reflect [plaintiff’s] actual damages” and the court was not “in a position to
determine the value of [plaintiff’s] loss in a principled way” given “the evidence present
in the record.”).
40
Apart from the fact that each of the three assumptions underlying Braga’s
damages calculation are invalid for the reasons discussed above, the court finds that
Newco benefited from the Side Letter in two ways. First, without the Side Letter,
Newco would have had to issue a promissory note to Oldco, which would have
jeopardized Newco’s compliance with its loan covenants.171 Second, as Braga
acknowledges in its own damages calculation, the Side Letter saved Newco
$200,000 of transaction expenses it otherwise would have been obligated to pay. 172
Thus, far from indicating that Newco was damaged by the decision to enter into the
Side Letter, the record reflects that it actually benefited from doing so.
*****
For the reasons explained above, the court finds that Braga failed to prove that
the Fund breached the Purchase Agreement and, even if it had, that Braga suffered
any damages as a result. Accordingly, judgment on Count I of the Complaint will
be entered in favor of the Fund.
B. The Co-Investment Agreement Claim
Counts II and III of the Complaint both concern the Co-Investment
Agreement, Section 4 of which provides, in its entirety, that:
[Braga] intends to be a passive investor in Newco but shall be granted
[Board] observer rights in which capacity it shall receive copies of all
171
Tr. 399 (Yenni); JX 3 at 1; JX 30 at 1.
172
See Purchase Agreement § 10.01.
41
Board packages prepared for Board members concurrent with receipt
thereof by all Board members and shall be reimbursed all travel and
related expenses in accordance with Company policy.173
Under Section 6 of the Co-Investment Agreement, Braga is obligated to pay the
“Managing Partner” of the Fund an annual fee of $14,000, which equates to two
percent of Braga’s $700,000 investment in Newco, payable in quarterly installments
of $3,500.174
Braga asserts that the Fund materially breached its “ongoing obligation to
make sure [Braga’s Board observer] rights are honored” under Section 4 of the Co-
Investment Agreement.175 In terms of remedy, Braga seeks an order of specific
performance and damages for the fees it paid “from the date on which Braga’s Board
Observer Rights were rescinded until they are truly fully restored.”176 The Fund
counters that it does not have a “continuing enforcement obligation . . . with respect
to Braga’s Board observer rights” under the Co-Investment Agreement, and even if
it did, it “materially complied with these rights.”177 For the reasons explained below,
the court concludes that the Fund has an obligation under the Co-Investment
173
Co-Investment Agreement § 4.
174
Id. § 6; Ricardo Dep. 62-63.
175
Pl.’s Post-Trial Reply Br. 19, 25.
176
Pl.’s Post-Trial Br. 57-58.
177
Def.’s Post-Trial Answering Br. 43.
42
Agreement to ensure that Braga receives its Board observer rights but that the Fund
materially complied with this obligation.
According to the Fund, Section 4 of the Co-Investment Agreement does not
create an ongoing obligation on the part of the Fund because it contemplates the
“granting of Board observer rights to Braga” and “[s]uch rights are Newco’s to grant,
and Newco’s management to maintain, not the Fund’s.”178 Consequently, “once
Newco granted Braga its Board observer rights through its executed and ratified
Operating Agreement, it discharged the Fund’s obligation to Braga.”179 The court
disagrees.
It is correct that Newco’s operating agreement as of the Closing recognizes
Braga’s Board observer rights, including its right to receive Board packages.180 The
plain language of Section 4 of the Co-Investment Agreement, however, creates an
independent obligation on the Fund—as the “Managing Investor” of Newco—to
ensure Braga receives the rights it secured in Section 4 in exchange for agreeing to
purchase a 23.3% interest in Newco, including that Braga “shall be granted [Board]
178
Id. 41-42.
179
Id. 42.
180
Amended Operating Agreement §3.01(c)(i) (“In addition, Yenni shall have the right to
invite (and/or remove) up to four (4) Board observers to any and all meetings of the Board
who shall be entitled to receive Board packages at the same time as Board Members. The
initial Board observers so appointed are . . . and Ricardo Braga. . . .”). This language is an
issue in the other lawsuit between the parties pending in this court. See supra Part II.
43
observer rights” and “shall receive copies of all Board packages.”181 This conclusion
is further supported by the fact that (i) Braga and the Fund are the only parties to the
Co-Investment Agreement; (ii) nothing in that agreement reflects that the Fund’s
obligations under Section 4 were intended to be discharged upon incorporating those
rights into Newco’s operating agreement; and (iii) it was the Fund that restored
Braga’s Board observer rights pursuant to the Co-Investment Agreement in February
2017—more than six months after Braga’s Board observer rights had been
incorporated into Newco’s operating agreement.182
The court’s next task is to determine what type of information Braga is entitled
to receive under Section 4 of the Co-Investment Agreement and whether the Fund
materially complied with its obligation to ensure Braga received those materials
consistent with its Board observer rights. The relevant part of Section 4 provides
that Braga “shall receive copies of all Board packages prepared for Board members
concurrent with receipt thereof.”
Braga asserts that this provision entitles it to receive a sweeping amount of
information falling into three categories:
 Documents “uploaded to the Board Data Room” before Braga’s
rights were “rescinded” in January 2017 when Ricardo was
181
Co-Investment Agreement § 4 (emphasis added).
182
See JX 69 (February 23, 2017 letter from counsel for the Fund reinstating “all Board
Observation Rights afforded to Braga Investment & Advisory . . . as set forth in Paragraph
4 of the Co-Investment Agreement.”).
44
disinvited from attending a Board meeting,183 including “Board
Meeting Agendas, Monthly Reports regarding New Proposals,
Monthly Reports of New Additional Services, Monthly Reports of
Approved Additional Services, Borrowing Base Certificates,
Weekly Cashflow Reports, Covenant Calculations, Lender Reports,
and Weekly Sales Reports.”184
 Any information provided to Newco’s other Board observers,
including “reports related to Newco’s loans, especially to the extent
Newco is in default; Board meeting agendas; the independent
assessment report that led to the Newco’s lenders insisting that
Newco must retain a CRO; a letter of intent related to Newco’s
potential purchase of the assets of a related company; borrowing
base certificates; cash forecasts sent to Newco’s lenders; sales
forecasts; and discussions regarding forbearance on Newco’s
loans.”185
 All information “related to Newco’s operations and finances, to
which a Newco Board member is entitled,” including “for instance,
matters concerning any tax liens; forbearance agreements, including
related correspondence; correspondence regarding defaults under
Newco’s loan agreements; information regarding Yenni’s 2018
criminal conviction; assessment reports; board meeting agendas and
meeting minutes; lender reports; monthly reports regarding new
proposals; monthly reports of new additional services; monthly
reports of approved additional services; borrowing base certificates;
183
The Board meeting in question occurred on January 27, 2017. Less than one month
later, on February 23, the Fund sent Braga a copy of the January 27 Board package and
restored its Board observer rights. See JX 69. Braga does not seek relief concerning this
specific incident but identifies the incident as the point when the Fund allegedly “provided
Braga with less information than it had before.” Pl’s Post-Trial Br. 48-49.
184
Pl.’s Post-Trial Br. 52.
185
Id. 53 (citations omitted).
45
weekly cashflow reports; covenant calculations; weekly sales
reports; and Newco’s tax returns.”186
In an effort to support its expansive interpretation of the term “Board
packages,” Braga asserted for the first time after trial that the term is ambiguous and
requires extrinsic evidence.187 Braga points to no parol evidence concerning the
drafting of the Co-Investment Agreement. It argues instead that the term should be
interpreted in accordance with the parties’ “course of conduct” based on the scope
of materials that were provided to Braga during a few months after the Closing, i.e.,
from the first Board meeting in October 2016 until late January 2017.
The Fund counters that “the term ‘Board package’ is plain on its face” and
covers a far more discrete set of information as is “commonly understood by
Delaware courts.”188 According to the Fund, “the language at issue reflects no more
than an intention to include Braga as part of Newco’s normal distribution of its Board
packages.”189 The court agrees.
“A contract is not rendered ambiguous simply because the parties do not agree
upon its proper construction.”190 Rather, “the court stands in the shoes of an
186
Id. 56.
187
Id. 49-50.
188
Def.’s Post-Trial Answering Br. 45.
189
Id. 46.
190
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del.
1992).
46
objectively reasonable third-party observer, and ascertains whether the contract
language is unmistakably clear.”191 In doing so, the court will give the terms of a
contract their “ordinary and usual meaning.”192
The term “Board package” is not static and does not equate to an unvarying
checklist of items, but that does not mean that the term does not have an ordinary
and usual meaning or that it is ambiguous as used in the Co-Investment Agreement.
Here, the plain language of Section 4 reflects the parties’ intention to provide Braga
the same set of materials that Newco management determines, in good faith, are
necessary to provide to Board members in connection with a Board meeting so that
they can perform their duties in an informed manner. Delaware courts commonly
refer to Board packages consistent with this definition.
In Amalgamated Bank v. Yahoo! Inc., for instance, the court explained that
“[t]he corporate secretary generally prepares board packages or gathers them from
the applicable members of management, reviews what is gathered to ensure it is
narrowly tailored to the board’s purposes and disseminates the materials necessary
for the board members to review in advance of each meeting of the board.”193
Similarly, in Elow v. Express Scripts Holding Co., the court described “board or
191
In re IAC/InterActive Corp., 948 A.2d 471, 494-95 (Del. Ch. 2008) (internal quotation
marks and citations omitted).
192
Rhone-Poulenc, 616 A.2d at 1195.
193
132 A.3d 752, 790 & n.38 (Del. Ch. 2016) (internal quotation marks omitted).
47
committee packages” to include “agendas, minutes, or presentations” relating to
board meetings.194 What specific presentations or other materials management
decides to distribute to board members for a particular meeting will vary depending
on the circumstances, of course, but the guiding principle is “to provide the board of
directors with the information that the directors need to perform their statutory and
fiduciary roles.”195
Braga’s proposed interpretation of the term “Board packages” and, more
broadly, the intent of Section 4 of the Co-Investment Agreement is untenable.
Contrary to Braga’s interpretation, nothing in that provision contemplates that Braga
is entitled to receive every scrap of paper that a Board member theoretically could
ask to see untethered to the materials that are selected, in good faith, for inclusion in
a package of materials for the Board member’s review in connection with a particular
Board meeting. Rather, to repeat, Section 4 expressly provides that Braga only is
entitled to receive “copies of all Board packages prepared for Board members
concurrent with receipt thereof.”196
Braga produced no evidence to support a finding that the Fund materially
failed to comply with its obligation to ensure that Braga received Board packages
194
2017 WL 2352151, at *7 (Del. Ch. May 31, 2017).
195
Amalgamated Bank, 132 A.3d at 781 (collecting authorities).
196
Co-Investment Agreement § 4.
48
based on the ordinary and usual meaning of that term, described above.197 Rather,
the record reflects that “Yenni and Newco invited Braga to attend all . . . Board
meetings” after the January 2017 meeting and “shared with Braga the board
packages that were sent to others, board members and observers.” 198 Those Board
packages typically included, as would be customary, Newco’s management report,
Board meeting minutes and agendas, financial statements, and “any special
information [for] any significant items that require board attention or board
voting. . . .”199
*****
For the reasons explained above, the court finds that Braga failed to prove that
the Fund breached Section 4 of the Co-Investment Agreement and thus it is entitled
to no relief thereunder. Accordingly, judgment on Counts II and III of the Complaint
will be entered in favor of the Fund.
IV. CONCLUSION
For the reasons explained above, judgment will be entered in favor of the Fund
and against Braga on Counts I-III of the Complaint. The Fund is entitled to costs as
197
As noted above, Braga was not provided a copy of the Board package for the January
27, 2017 meeting, which was sent to him the next month. See supra note 183.
198
PTO ¶ 88; Tr. 413 (Yenni); see also Tr. 249 (Ricardo) (“Q. And you’ve been invited to
attend all board meetings. Is that correct? A. That’s correct.”).
199
Tr. 413-15 (Yenni).
49
the prevailing party on all counts.200 The parties are directed to confer and to submit
an implementing order consistent with this opinion within five business days.
200
Ch. Ct. R. 54(d) (“[C]osts shall be allowed as of course to the prevailing party unless
the Court otherwise directs.”).
50