Plaze, Inc. and Apollo Aerosol Industries LLC v. Chris K. Callas

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
TAMIKA R. MONTGOMERY-REEVES Leonard Williams Justice Center
VICE CHANCELLOR 500 N. King Street, Suite 11400
Wilmington, Delaware 19801-3734
Date Submitted: December 7, 2017
Date Decided: March 29, 2018
Kevin R. Shannon, Esquire John M. Seaman, Esquire
Christopher N. Kelly, Esquire E. Wade Houston, Esquire
Andrew H. Sauder, Esquire Abrams & Bayliss LLP
Potter Anderson & Corroon LLP 20 Montchanin Road, Suite 200
1313 North Market Street Wilmington, Delaware 19807
Hercules Plaza, 6th Floor
Wilmington, Delaware 19801
RE: Plaze, Inc. & Apollo Aerosol Industries LLC v. Chris K. Callas et al.
Civil Action No. 2017-0432-TMR
Dear Counsel:
This letter opinion addresses Defendants’ Motion to Dismiss under Court of
Chancery Rule 12(b)(6). For the reasons set forth below, the Motion is DENIED.
I. Background
All facts are drawn from the Verified Complaint for Injunctive and Other
Relief (the “Complaint”) and the documents incorporated therein. At this stage of
the proceedings, I must take all of Plaintiffs’ well-pled facts as true and draw all
reasonable inferences in their favor. 1
1
The Complaint alleges that Defendants shredded a large quantity of documents in
the month leading up to their departure and had their third-party IT vendor purge
their company emails before their departure. Compl. ¶¶ 41-42. Plaintiffs explained
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Plaintiff Plaze, Inc. (“Plaze” or the “Buyer”) is a “full-service specialty
contract manufacturer of automotive, household, insecticide, and pesticide
aerosols.” 2 Plaze is the sole member of Plaintiff Apollo Aerosol Industries LLC
(“Apollo” or the “Company”). 3 In 2015, Plaze acquired Apollo from Defendants (or
the “Sellers”) for $100,000,000 pursuant to a stock purchase agreement (the
“SPA”). 4
The parties signed the SPA on November 24, 2015, and the transaction closed
on December 15, 2015. 5 The SPA sets out a mechanism for post-closing adjustments
to the purchase price, as well as a limitation on the Sellers’ post-closing
indemnification liability. The SPA contains representations and warranties by
Defendants on behalf of Apollo that are at issue in this litigation.6 These include
representations and warranties about the financial records of Apollo, Apollo’s
that the Complaint is based primarily on the company emails they were able to
recover after the purge. Id. ¶ 42; Oral Arg. Tr. 51-52.
2
Compl. ¶ 9.
3
Id. ¶ 10.
4
Id. ¶ 2.
5
Id. ¶ 23.
6
Id. ¶¶ 63-66; Id. at Ex. 1, at 20-35.
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compliance with certain laws and contracts, and Apollo’s product liability exposure.
Indemnification is the sole remedy for a breach of a representation or warranty under
the SPA. 7 The SPA also contains several restrictive covenants relevant to this
litigation, including non-compete, non-solicit, and confidentiality provisions. 8 The
parties agreed that specific performance, an injunction, or other equitable relief are
necessary to enforce these provisions of the SPA. 9
After the closing, Defendants Chris Callas10 and Maria Callas continued to
work at Apollo, but the relationship soured. On March 28, 2016, Apollo and Chris
Callas entered into a mutual separation and settlement agreement (the “Separation
Agreement”) effective March 31, 2016. 11 The Separation Agreement included a
severance amount, a repurchase of LLC units, and a settlement of the purchase price
under the SPA, as well as additional representations, warranties, and restrictive
covenants applicable to Chris Callas.
7
Id. at Ex. 1, § 6.7.
8
Id. ¶¶ 25-33; Id. at Ex. 1, at 53-55.
9
Id. at Ex. 1, at 61-62.
10
At closing, Defendant Chris Callas entered into an employment agreement with
Plaintiffs to continue working as CEO of Apollo. Id. ¶ 24.
11
Id. ¶ 35; Id. at Ex. 2. Maria Callas also departed Apollo on March 31, 2016. Id. ¶
35.
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The heart of the Complaint is Plaintiffs’ contention that after the Callases
departed Apollo they started a competing business and attempted to solicit
employees from Apollo. Plaintiffs also contend that several breaches of
representations and warranties, for which Defendants owe them indemnification,
came to light during the survival period.
On June 7, 2017, Plaintiffs filed the Complaint seeking to enjoin the
competitive behavior of Defendants and compel payment of the indemnification and
tax adjustment amounts. Defendants moved to partially dismiss the Complaint on
July 7, 2017, and the Court heard oral argument on the Partial Motion to Dismiss on
December 7, 2017.
II. Analysis
The Complaint contains nine counts, eight of which Defendants move to
dismiss. 12 These eight counts fall into two broad categories: (1) breaches of
restrictive covenants, for which Plaintiffs seek specific performance or injunctive
relief, and (2) breaches of representations and warranties, for which Plaintiffs seek
indemnification. Counts I through IV allege breaches of restrictive covenants.
Counts V through VIII allege breaches of representations and warranties. In support
12
Defendants have not moved to dismiss Court IX, which alleges a breach of Section
6.8 of the SPA related to the tax adjustment amount. Id. ¶¶ 132-36.
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of their motion to dismiss, Defendants first argue that the subsequent Separation
Agreement between Plaintiffs and Defendant Chris Callas settled all claims in
Counts V through VIII for breaches of representations and warranties. Second,
Defendants argue that the allegations in the Complaint fail to state a claim under
Court of Chancery Rule 12(b)(6) as to Counts I through IV and part of Count VIII.
I address each argument in turn.
A. Standard of Review
When considering a motion to dismiss for failure to state a claim under Court
of Chancery Rule 12(b)(6), a court must accept all well-pled factual allegations in
the complaint as true, accept even vague allegations in the complaint as well-pled if
they provide the defendant notice of the claim, “draw all reasonable inferences in
favor of the non-moving party,” and deny the motion unless the plaintiff could not
recover “under any reasonably conceivable set of circumstances susceptible of
proof.”13
All the claims in this case hinge on the Court’s interpretation of the parties’
contracts. “Delaware adheres to the ‘objective’ theory of contracts, i.e., a contract’s
construction should be that which would be understood by an objective, reasonable
13
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002).
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third party.” 14 “When interpreting a contract, this 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 its provisions.” 15 “In giving sensible
life to a real-world contract, courts must read the specific provisions of the contract
in light of the entire contract.”16
B. The Separation Agreement Does Not Release Any Indemnification
Claims for the Breaches of the Representations and Warranties
Alleged in Counts V through VIII as a Matter of Law
Defendants contend that a provision in the Separation Agreement, when read
in the context of, and in conjunction with, the SPA, released any indemnification
claims against Defendants arising from the SPA as a matter of law. Defendants point
to Section 6.3(f) of the SPA and Paragraph 4 of the Separation Agreement to support
this contention.
Section 6.3 of the SPA governs “Sellers’ Indemnification” and lays out a
comprehensive indemnification scheme. 17 Section 6.3(f) of the SPA states: “[a]ll
14
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010).
15
Salamone v. Gorman, 106 A.3d 354, 367-68 (Del. 2014) (quoting GMG Capital
Invs., LLC v. Athenian Venture P’rs I, L.P., 36 A.3d 776, 779 (Del. 2012)).
16
Chi. Bridge & Iron Co. N.V. v. Westinghouse Elec. Co., 166 A.3d 912, 913-14 (Del.
2017).
17
Id. at Ex. 1, at 41.
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indemnification payments under this Section 6.3 shall be deemed adjustments to the
Final Purchase Price.” 18 Paragraph 4 of the Separation Agreement states:
Employee, in his capacity as a Seller (as defined in the
Purchase Agreement) and Representative (as defined in
the Purchase Agreement), and Plaze hereby agree that the
Final Purchase Price (as defined in the Purchase
Agreement) and the related purchase price adjustment
under Section 2.4 of the Purchase Agreement (“the Final
Purchase Price Adjustment”) are each set forth on Annex
C attached hereto and that such Final Purchase Price and
the Final Purchase Price Adjustment shall be final,
conclusive, and binding on the parties to the Purchase
Agreement. 19
Defendants argue that Paragraph 4 of the Separation Agreement settled all
indemnification payments under Section 6.3 because any indemnification payment
must adjust the Final Purchase Price due to Section 6.3(f) of the SPA. But the Final
Purchase Price and Final Purchase Price Adjustment in the Separation Agreement
were “final, conclusive, and binding” on the parties, which would make any
indemnification adjustment required under Section 6.3(f) impossible. Thus, any
indemnification claims must have been settled by the Separation Agreement.
18
Id. at Ex. 1, at 42.
19
Id. at Ex. 2, at 2.
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In response, Plaintiffs first argue that Defendants’ interpretation of Section
6.3(f) of the SPA is incorrect. Plaintiffs point to the United States Supreme Court
case Arrowsmith v. Commissioner 20 as evidence that Section 6.3(f) merely relates to
the parties’ intended tax treatment of any indemnification payments. Next, Plaintiffs
argue that it would be absurd to read the Separation Agreement to nullify the
complex eighteen-month indemnification provisions of the SPA in the way
Defendants suggest. Plaintiffs point to the fact that Paragraph 4 of the Separation
Agreement explicitly mentions Section 2.4 of the SPA, which governs the Post-
Closing Adjustment to the Final Purchase Price, but the Separation Agreement does
not mention anything about indemnification or Section 6.3 of the SPA. 21 The
Separation Agreement’s final paragraph states: “For the avoidance of doubt, nothing
contained in this Agreement shall limit, modify, or otherwise affect any party’s
obligations under the [SPA] . . . .” 22 Thus, Plaintiffs contend nothing in the
Separation Agreement evidences the intent of the parties to gut the indemnification
provisions of the SPA.
20
344 U.S. 6 (1952).
21
Compl. Ex. 2, at 2.
22
Id. at Ex. 2, at 4.
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In light of Plaintiffs’ arguments, Defendants, at best, offer another possibly
reasonable interpretation of the contract. While this may entitle them to discovery
related to the parties’ intentions, it does not entitle them to dismissal as a matter of
law at this stage.
Defendants argue in the alternative that, at the very least, the Separation
Agreement released Plaintiffs’ claims for breach of the financial statement
representations and warranties because Section 2.4 includes working capital
adjustments, and accounts receivable and accounts payable are both part of the
working capital calculation. I agree with Plaintiffs that this argument “conflates the
SPA’s post-closing working capital adjustment process—i.e., the process for
determining a ‘final, conclusive, and binding’ Final Purchase Price as set forth in
Section 2.4 of the SPA—with the parties’ right to seek indemnification for breach
of representations, warranties, and covenants under Article VI of the SPA.”23 The
Motion to Dismiss Counts V through VIII therefore is DENIED.
C. Plaintiffs Have Pled Sufficient Facts to State a Claim for Breach of
the Non-Compete and Non-Solicit Provisions of the SPA
The Complaint contains well-pled facts that state a reasonably conceivable
claim that Defendants violated Sections 6.16(b) and 6.16(c) of the SPA, which
23
Pls.’ Opp’n Br. 23.
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contain the restrictive covenants that prohibit competition and solicitation by
Defendants post-closing.
Section 6.16(b) is the restrictive covenant prohibiting post-closing
competition. It states:
Each Seller covenants that during the period commencing
on the date hereof and ending on the third anniversary of
the date hereof (the “Restricted Period”), other than at the
request or direction of Buyer, such Seller shall not, directly
or indirectly, invest or own any interest in, manage,
control, participate in (whether as an operator, consultant,
director, employee, agent, representative or otherwise),
consult with, render services for or otherwise engage in
any business or entity that competes with the Company
Group’s businesses as conducted or actively planned to be
conducted on the date hereof within any geographic
location in which the Company Group operates or actively
plans to operate on the date hereof (it being understood
that such geographic area currently comprises the United
States); provided, however, that nothing in this Section
6.16(b) shall prevent a Seller from being a passive owner
of not more than 5% of the outstanding equity securities
of any publicly traded entity, so long as such Seller has no
active participation in the business of such entity. 24
Section 6.16(c) is the restrictive covenant prohibiting post-closing solicitation
of Apollo employees. It states:
Each Seller covenants that during the Restricted Period,
other than at the request or direction of Buyer, such Seller
shall not, directly or indirectly, (i) (x) induce or attempt to
24
Compl. Ex. 1, at 55.
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induce any employee or independent contractor of the
Company or any Subsidiary who is employed or engaged
by the Buyer Group to leave the employ of the Buyer
Group, or in any way knowingly interfere adversely with
the relationship between the Buyer Group and any
employee thereof or (y) actually hire any employee or
independent contractor that is or was, at any time within
six months of such proposed hiring, employed by the
Buyer Group; (ii) solicit or induce or attempt to solicit or
induce any customer, supplier, licensor, licensee or lessor
of the Company or any Subsidiary (each a “Business
Relation”) to cease or refrain from doing business with, or
otherwise modify adversely the business done with, the
Company or the Subsidiaries; or (iii) in any way
knowingly interfere with the relationship (or prospective
relationship) between any Business Relation and the
Buyer Group. It shall not be a violation of Section
6.16(c)(i)(x) if a Seller makes good faith generalized
solicitations for employees (not specifically targeted at
employees of the Company Group) through
advertisements or search firms. 25
Plaintiffs have pled the following facts pertaining to Defendants’ violations
of the non-compete and the non-solicitation agreements. “[I]n early January 2016,
Chris Callas, on information and belief, asked another Apollo employee to research
whether the company names ‘First Brands’ and ‘Best Brands’ were already in use.”26
“Then, in a series of emails throughout January, February, and March 2016, Chris
25
Id.
26
Id. ¶ 37.
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Callas emailed with multiple financial advisors about acquiring new companies
and/or opening investment credit lines, noting, for example, ‘the truth is I am
interest[ed] to buy another company.’” 27 “In addition, in email correspondence
throughout February and March 2016, Chris Callas indicated an intention to
purchase tanks and/or concrete pads for heptane tanks at some point in the future.”28
Then, days before his departure from Apollo, “[o]n March 16, 2016 . . . [Chris
Callas] directed an Apollo employee to circulate technical calculations for a heptane
concrete pad in order ‘to talk the same language[,]’ cautioning ‘send it from your
cell phone and don’t cc me[.]’” 29
“[I]n the summer of 2016, Chris Callas—through non-party and former
Apollo Vice President Richard Wilkinson (‘Wilkinson’)—bid on used aerosol
equipment auctioned off by another chemical company.” 30 “Shortly thereafter,
Wilkinson began working for SPL, which . . ., in June 2016, registered as a foreign
profit corporation in Georgia, with its principal office in Thomaston, Georgia—one
27
Id. ¶ 38 (alteration in original).
28
Id. ¶ 39
29
Id. (final two alterations in original).
30
Id. ¶ 47.
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mile from the site of a former Apollo manufacturing plant which [Defendants],
through their holding company (AMC Upson), owned at that time.” 31 “On October
5, 2016, SPL’s webpage began indicating that it had a manufacturing plant in
Thomaston, Georgia. Shortly thereafter, SPL began leasing equipment for its
Thomaston plant.” 32
“In late February and early March 2017, [Defendants]—through AMC
Upson—sold the former Apollo manufacturing plant in Thomaston to SPL.” 33
Defendants “financed part of SPL’s purchase.”34 “Shortly after that sale, Wilkinson,
on behalf of his employer, SPL, contacted a major supplier of aerosol propellant
tanks about purchasing two 10,000-gallon aerosol tanks.” 35
Over the “Easter holiday in April 2017, Chris Callas invited SPL’s Chief
Executive Officer, Zachary Colander (‘Colander’), to his home. Chris Callas also
invited Wilkinson and two current Apollo employees, as well as another Apollo
31
Id. ¶ 48.
32
Id. ¶ 49.
33
Id. ¶ 50.
34
Id.
35
Id. ¶ 52.
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customer, who all attended.”36 “At the Easter dinner, Chris Callas introduced
Colander to a current Apollo executive as his ‘very dear friend Zach,’ and, when
discussing SPL’s business with Apollo’s employees, Chris Callas referred to SPL as
‘we,’ further indicating his involvement with SPL.” 37 “At the same dinner, Colander
told an Apollo employee about SPL’s plans for the Thomaston site, including that
SPL plans to ‘run’ aerosols and to fill ‘anything our customers want.’” 38 “Chris
Callas [also] told a current Apollo employee to ‘listen to [SPL CEO] Colander,’ and
that if Colander wants the employee to be his president, then the employee should
be his president—even going so far as to shout out salary figures in front of the
employee’s family.” 39
All of these allegations taken as true make it reasonably conceivable that (1)
Defendants, directly or indirectly, invested or owned an interest in, managed,
controlled, participated in, consulted with, rendered services for or otherwise
engaged in a business or entity that that was competing with Apollo; and (2)
36
Id. ¶ 53.
37
Id. ¶ 54.
38
Id. ¶ 55.
39
Id. ¶ 57 (final alteration in original).
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Defendants directly or indirectly attempted to induce an employee of Apollo to leave
Apollo. Thus, Plaintiffs have stated a claim that Defendants violated Section 6.16(b)
and (c) of the SPA, and the Motion to Dismiss as to Counts I and II is DENIED.
D. Plaintiffs Have Pled Sufficient Facts to State a Claim Against Chris
Callas for Breach of the Confidentiality Covenants in the SPA and
Separation Agreement
The Complaint contains well-pled facts that state a reasonably conceivable
claim that Chris Callas breached Section 6.16(a) of the SPA and Paragraph 5 of the
Separation Agreement. The relevant language of Section 6.16(a) states:
Upon the request of Buyer at any time after the date hereof,
each Seller shall deliver promptly to Buyer or destroy all
tangible embodiments (and all copies) of the Confidential
Information which are in such Seller’s possession or under
such Seller’s control and provide confirmation thereof in
writing.40
The relevant language of Paragraph 5 of the Separation Agreement states:
“Employee represents, warrants, and covenants that: . . . (v) Employee has returned,
or will prior to the Separation Date, return, to the Company all Confidential
Information (it being understood that upon execution of this Agreement this
representation shall constitute Employee’s affirmative confirmation thereof . . . .” 41
40
Id. at Ex. 1, at 53-54.
41
Id. at Ex. 2, at 2.
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Plaintiffs allege that “[o]n the same day Chris Callas signed the Separation
Agreement, he asked an Apollo employee to send him an investor presentation from
Apollo’s files that, upon information and belief, contained Apollo’s Confidential
Information.” 42 It is reasonable to infer that Chris Callas has not returned all the
Confidential Information in his possession, and thus, Plaintiffs have shown that it is
reasonably conceivable that Defendants violated Section 6.16(a) of the SPA and
Paragraph 5 of the Separation Agreement. The Motion to Dismiss as to Count III
against Chris Callas and Count IV is therefore DENIED.
E. Plaintiffs Have Pled Sufficient Facts to State a Claim Against
Maria Callas for Breach of the Confidentiality Covenant in the
SPA
The Complaint contains well-pled facts that state a reasonably conceivable
claim that Maria Callas breached Section 6.16(a) of the SPA, which contains the
restrictive covenant regarding confidentiality. The pertinent contract language
states:
Each Seller covenants that, from and after the Closing,
such Seller shall, and shall cause each of such Seller’s
Affiliates and representatives to, not disclose, and shall
treat and hold as strictly confidential, all Confidential
Information and, except as otherwise expressly permitted
by this Agreement, refrain from using any Confidential
Information (other than for the benefit of the Buyer Group
42
Id. ¶ 45.
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as an employee or consultant thereof after the Closing
Date). 43
Plaintiffs have not pled that Maria Callas disclosed any Confidential
Information. Plaintiffs have pled, however, that in late March 2016 “Maria Callas
emailed from her Apollo business email account to a personal email account a host
of Apollo documents containing, among other items, information related to Apollo’s
accounts receivable and accounts payable.”44 Plaintiffs also pled that shortly before
her separation from Apollo, “Maria Callas instructed an Apollo IT manager to send
her a critical set of documents containing Apollo’s Confidential Information.”45
Taking these facts as true, and considering them in the context of all the facts
Plaintiffs have pled, it is, just barely, reasonably conceivable that Maria Callas has
used this Confidential Information in violation Section 6.16(a) of the SPA. Plaintiffs
have therefore stated a claim for the breach of this restrictive covenant as to Maria
Callas, and the Motion to Dismiss as to Count III against Maria Callas is DENIED.
43
Id. at Ex. 1, at 53-54.
44
Id. ¶ 40.
45
Id. ¶ 43.
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F. Plaintiffs Have Pled Sufficient Facts to State a Claim Against
Defendants for Breach of the Legal Compliance Representation
and Warranty
Defendants only challenge the sufficiency of the allegations related to the
alleged breaches of representations and warranties in one paragraph of the
Complaint. The paragraph, however, contains well-pled facts that state a reasonably
conceivable claim that Defendants breached Section 3.16 of the SPA. Section 3.16
contains Defendants’ representations and warranties on behalf of Apollo regarding
Apollo’s compliance with laws. Section 3.16(a) states:
(a) Except as set forth on Schedule 3.16(a), the Company
Group has complied and is in compliance, in each case, in
all material respects, with all applicable laws and no
written notices have been received by and no claims have
been filed against the Company Group alleging a violation
of any such laws. Neither the Company nor any Subsidiary
has received any written notice of any violation or any
alleged violation of any law. No officer, director,
employee, independent contractor, consultant, advisor or
agent of the Company Group has been or is authorized to
make or receive, and none of the Company Group’s
officers, directors, managers, employees or, to the
Knowledge of the Company, consultants, advisors or
agents have made or received, any bribe, kickback
payment or other illegal payment at any time with respect
to the business of the Company Group.46
46
Id. at Ex. 1, at 33.
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Plaintiffs plead that “Chris Callas caused Apollo to enter into a fictitious long
term lease arrangement with a longtime associate, pursuant to which Apollo paid
over $300,000 for copiers that were never delivered to Apollo.” 47 The Complaint
further alleges that “Chris Callas profited personally from the sham arrangement by
receiving all or most of the money Apollo paid for the copiers.” 48 Plaintiffs argue
that this arrangement constituted a “bribe, kickback payment or other illegal
payment,” in violation of Section 3.16 of the SPA. Because the Court must deny a
motion to dismiss unless the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof, the Motion to
Dismiss as to this claim must be DENIED.
III. Conclusion
For the foregoing reasons the Motion to Dismiss is DENIED.
IT IS SO ORDERED.
Sincerely,
/s/Tamika Montgomery-Reeves
Vice Chancellor
47
Id. ¶ 81.
48
Id.