IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ASHISH CHORDIA, LAMPROS KALAMPOUKAS, RAGHU KODIGE, RAVI SARMA, RICHARD ANDRADES, ASHISH BALDUA, JOHN GEE, KAJAL VIBHAKAR, THE SHAOIE CHAN CHORDIA GST TRUST, THE SAMAY KODIGE GST TRUST, and THE VEVAAN KODIGE GST TRUST, Plaintiff s ,
v. EDWARD LEE, MATTHEW DURGIN, JAEWOO HWANG, RONALD WASINGER, ADAM SEXTON, CHRIS JO, and ZENIT H ELECTRONICS LLC, Defendant s, and ALPHONSO INC., a Delaware c orporation, Nominal Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 2023

- 0382

- NAC

MEMORANDUM OPINION
Date Submitted: December 5, 2023 Date Decided : January 4 , 2024Bradley R. Aronstam, R. Garrett Rice, Holly E. Newell, ROSS ARONSTAM & MORITZ

LLP, Wilmington, Delaware; Brian M. Burnovski, Andrew Ditchfield, Pascale Bibi, Nikolaus J. Williams, Marie Killmond , Danielle Mullery, DAVIS POLK & WARDWELL LLP, New York, New York ; Counsel for Plai ntiffs Ashish Chordia, Lampros Kalampoukas, Raghu Kodige, Ravi Sarma, Richard Andrades, Ashish Baldua, John Gee, Kajal Vibhakar, The Shaoie Chan Chordia GST Trust, The Samay Kodige GST Trust, and The Vevaan Kodige GST Trust. William M. Lafferty, Ryan D. Stottmann, Lauren K. Neal, Alec Hoeschel, Grant E. Michl, MORRIS, NICHOLS, ARSHT & TUNNEL LLP, Wilmington, Delaware; Hallie B. Levin, WILMER CUTLER PICKERING HALE AND DORR LLP, New York, New York; Timothy Perla, WILMER CUTLER P ICKERING HALE AND DORR LLP, Boston, Massachusetts; Counsel for Defendants Edward Lee, Mathew Durgin, Jaewoo Hwang, Ronald Wasinger, Adam Sexton, and Chris Jo. William M. Lafferty, Ryan D. Stottmann, Lauren K. Neal, Alec Hoeschel, Grant E. Michl, MORRIS, NICHOLS, ARSHT & TUNNEL LLP, Wilmington, Delaware; William Savitt, Jonathan M. Moses, Elaine Golin, Graham W. Meli, Ryan A. McLeod, WACHTELL, LIPTON, ROSEN & KATZ, New York, New York; Eric Seiler, Lance J. Gotko, Jason Rubinstein, David J. Ranzenhofer, Sof ie Syed, FRIEDMAN KAPLAN SEILER, ADELMAN & ROBBINS LLP, New York, New York; Counsel for Defendant Zenith Electronics LLC. Kurt M. Heyman, Elizabeth A. DeFelice, HEYMAN ENERIO GATTUSO & HIRZEL LLP, Wilmington, Delaware; Counsel for Nominal Defendant Alphon so Inc. COOK , V.C.1

Silicon Valley tech startup founders sold a majority interest in their company to LG Electronics . In exchange, the founders received cash and liquidity rights embodied in a stockholders’ agreement. The liquidity rights were protected by the founders’ contractual right to designate up to three of the company’s seven

- person board of directors. But the parties conditioned the designation right on at least one founder rema ining at the company as an officer or employee (the “Designation Condition”)

. The stockholders’ agreement also granted the LG

- controlled board the right to hire and fire the company’s executive officers

. B ut this right did not allow the board to termina te non - executive

- officer employees. Only the company could terminate the latter. Unlike the board, the stockholders’ agreement obligated the company to use its “reasonable efforts” to ensure that the rights conferred in the stockholders’ agreement remain ed effective for the founders’ benefit. After the sale, LG sought to remove the founders ’ designation right by terminating them to caus e the non

- occurrence of the Designation Condition. The LG

- controlled board effectuated this plan by terminating the exe cutive

- officer founders . B ut the board could not terminate all the founders since two were non

- executive

- officer employees . T hus, the board appointed an interim CEO to carry out the remaining terminations. LG then executed the requisite consent to remove the founders from the board. The plaintiffs bring this action under 8 Del. C. § 225 seeking a determination of the board’s proper compositi on. I conclude that the interim CEO acted for the company in carrying out the terminations . He was thus bound by and breached the “reasonable efforts” clause in the stockholders’ agreement. The company’s acts , as a party to the stockholders’ agreement2

and having materially contributed to the non

- occurrence of the Designation Condition, render the condition excused. Accordingly, the non

- executive

- officer employee founders are entitled to designate directors under the terms of the stockholders’ agreement

. FACTUAL BACKGROUND The evidence presented at trial supports the following findings of fact. 1 A. The Parties And Relevant Non
- Parties
In 2012 , plaintiff Ashish Chordia co - founded nominal defendant Alphonso Inc. (“Alphonso”) , 2 a Delaware corporation, alon g with plaintiffs Lampros Kalampoukas, Raghu Kodige, Ravi Sarma, and Richard Andrades (collectively, the “Founders”). 3 The Founders, t ogether with Ashish Baldua, T he Shaoie Chan Chordia GST Trust, T he Samay Kodige GST Trust, T he Vevaan Kodige GST Trust, and non

- party Sandeep Beotra , are referred to as the “Key Holders” (collectively, with John Gee and Kajal Vibhakar , and excluding Beotra , “Plaintiffs” ). Alphonso is a Silicon Valley tech startup that developed automatic content recognition (“ ACR”) technology. ACR enhances advertising efforts by collecting data on

1 Joint trial exhibits are cited as “JX___” and trial testimony is cited as “TT ___ (Name).”

2 See TT 60:10

– 24 (Chordia).

3 Chordia v. Lee , C.A. No. 2023

- 0382

- NAC, Docket (“Dkt

. ”) 170 , Pre

- Trial Stipulation and [Proposed] Order (“Pre

- Trial Stipulation”) ¶ 3 ; s ee also TT 7:1

– 6 (Chordia).3

what s mart TV users view in order to efficiently target advertisements. 4 In the years that followed its formation , Alphonso received roughly $6.2 million in funding from investors

. 5
It used these funds , in conjunction with stock options, to expand its workforce to over 130 employees. 6 B etween 2017 and 2019, a trend emerge d of s mart TV brands entering into large acquisitions or strategic partnership deals with companies like Alphonso. Although Alphonso participat ed in several discussions with potential s mart TV brands, it remained unsuccessful in closing any such deal of its own. 7 Defendant Zenith Electronics LLC (“Zenith”) is a Delaware l imited l iability

c ompany and a wholly owned subsidiary of non

- party LG Electronics U.S.A. Inc. (“LG US”). 8 In turn, LG US is a wholly owned su bsidiary of non

- party LG Electronics, Inc. (“LGE”) , which is based in Seoul, South Korea

. 9 A mong other things, LGE is a global manufacturer of smart TVs

. Like the many other smart TV brands at the time, LGE also became interested in making a strategic i nvestment in an ACR technology company

. 10

4 JX 0 653 62:13

– 63:7 (Chord i a) ; TT 494:2

– 20 ( Edward Lee).

5 TT 10:21

– 11:1 (Chordia).

6 JX0407 at 13 ; s ee also TT 212 :22

– 213:10 , 247:3

– 12 (Kodige)

. 7 TT 71:15

– 72:17 (Chordia)

. 8 Pre

- T rial Stipulation ¶ 13.

9 Id. ; s ee also TT 593: 13

– 22 (Wasinger).

10 TT 494:2

– 20 ( Edward Lee).4

Defendants Ronald Wasinger, Edward Lee, Mathew Durgin, and Jaewoo Hwang were members of Alphonso’s board (the “Board”) on December 16, 2022

. 11 These Board members approved a resolution to terminate certain executive officers

. 12 After the Board terminated the executives, it appointed d efendant Adam Sexton as Alphonso’s Interim CEO to carry out additional terminations

. 13 Defendant Chris Jo served on Alphonso ’s Board from March 2022 until June 2022 an d “ [c] hampion[ed]” the purported reorganization. 14
B. The Deal In January 2020, Alphonso began discussions with LGE over the prospect of a deal between the two. 15 The almost year

- long negotiation process culminated in LGE acquiring a majority stake in Alphon so through Zenith

. CEO Chordia, Chief Product Officer Kodige, CFO Beotra, and General Counsel Tom Cushing negotiated on behalf of Alphonso and the Key Holders

. 16 Tom Hahm served as LGE’s principal negotiator. 17

11 Pre

- Trial Stipulation ¶¶ 14

– 17.

12 See JX0515 (recording of Alphonso’s Board meeting on December 16, 2022).

13 JX0518 at 2 ; s ee also JX0515.

14 See Pre

- Trial Stipulation ¶ 18; JX0435 a t 18; TT 685:24

– 68 7:20 (Jo)

. 15 TT 494:21

– 495:4 ( Edward Lee)

. 16 TT 12:18

– 13:15 (Chordia) ; see also TT 202:19

– 203:1 (Kodige).

17 See TT 13:9

– 15 (Chordia).5

1. Negotiations In March 2020, LGE sent Alphonso a letter of intent. 18 The letter communicated LGE’s “ desire ” to “ take a 51% equity position in ” Alphonso

. 19 In exchange, LGE “will work together with [the equity holders ] to come up with a scheme that makes sense for all parties” and provide the equity holders with a “ trigger

- based method to allow for a slow exit.” 20 Through out the negotiations, LGE maintained its interest in acquiring control over Alphonso

. And this is sue too k center stage during subsequent communications. For example, i n May 2020 , Chordia, Kodige, and Beotra visited LGE in Seoul to meet with Hahm, Edward Lee, and Hyoung

- S aey i Park. 21 During that visit, Beotra “insiste[ d ]” that the Key Holders would n ot sell more than 49% of Alphonso

. 22 But this approach proved unsuccessful and led to the Alphonso team leaving “empty

- handed.” 23 Although talks eventually picked back up, LGE’s message was clear

. LGE was only interested in a majority stake. 24

18 JX0008 at 2.

19 Id.

20 Id.

21 T T 15:12

– 18 (Chordia)

. 22 TT 15:18

– 16:1 (Chordia).

23 T T 15:18

– 16:1 (Chordia).

24 T T 16:1

– 10 (Chordia).6

The Key Holders’ hesita nce to give up control was justified , as t hey understood the gravity of the decision they were making

. 25 Indeed, LGE made no attempt s to hide the ball on this issue . LGE s pecifically stated that in these typ es of transactions, things “might not work out well for the founders

. ” 26 But t his was not news to the Key Holders . I n one of the Key Holders’ June 2020 term sheet markups, they stated that their plan s for business development, external funding, and “IPO and M&A decisions will rest with LG.” 27 The markup also acknowledged that “[s]omething that makes sense for Alphonso may not make sense for LG but we won’t have the right to decide

. ” 28 As with any nego tiation, the parties proposed and reject ed numerous terms. Among those LGE rejected lies a June 2020 term for employment contracts. 29 If accepted, this
term contemplated providing “Key Employees” with three

- year employment contracts. 30

25 See JX0014 at 4; JX0022 at 1; JX0023 at 1; TT 15:1

– 4 (Chordia).

26 T T 84:13

– 21 (Chordia).

27 JX0014 at 4 ; see also JX0022 at 1; T T 75:14

– 79:18 (Chordia).

28 JX0014 at 4

– 5 ; see also JX0022 at 1.

29 Compare JX0012 at 2, and JX0014 at 6

– 7, with JX0050.

30 TT 98:2

– 99:13 (Chordia); see also JX0014 at 6

– 7 ; JX0012 at 2 (“ Key Employees (TBD list): [] Agree to 3
- year employment contracts, inclusive of base salary and incentive compensation [] If Key Employee leaves without Cause or Good Reason (each to be further defined), they will continue to own existing illiquid stock, but will no longer be able to participate in Employee Liquidity Option; unvested equity to be can celed. [] If Key Employee is terminated without Cause or Good Reason, their equity stake will be cashed out pursuant to the equity valuation at the time of termination (see Employee Liquidity Option for details on valuation); all unvested equity of such Ke y Employee to be fully accelerated[.] ”).7

Likewise, LGE als o rejected an October 2020 term that would have made “hiring, termination, or change of the compensation of the chief executive officer” subject to the veto of certain Key Holder s sitting on Alphonso’s Board. 31
In the weeks follow ing LGE’s rejection of this latter term , Beotra exchanged emails with Hahm

. T he se emails expressed concern over LGE’s ability to terminate Alphonso’ s CEO. In one of these emails, Beotra explained his understanding that LGE would have the ability to “control [] the board and hence all the decisions that need simple board majority

- CEO hire/fire/comp, operating plan, LG funding, additional debt etc.” 32 In response to these concerns , Hahm did not deny LGE’s ability to terminate the CEO . But he explained that firing “C

- level officers and replac[ing] them with LGE staff . . . is only a nuclear option that we have no incentive to do, unless you are running the company into the ground and destroying value, which you also have no incentive to do.” 33
T he Key Holders ’ hesitance to sell control was valid

. Yet, giving up control came with considerable upside

. The Key Holders leveraged the significance of this control to negotia te over a control premium and to bargain for favorable terms and protecti ons . 34

31 Compare JX0020 at 41, and JX0021 at 99, with JX0050 § 10.5(d).

32 JX0022 at 1 ; JX0023 at 2

. 33 JX0023 at 4 (emphasis added).

34 See TT 98:2

– 99:13 (Chordia); JX0014 at 3 ( June 2020 term sheet from Beotra to LGE stating that “there is a critical difference between whether LGE acquires <=49.9% or >=50.1%

- it is the issue of control and hence controlling Alphonso’s destiny which entails a control premium”)

.8

N otwithstanding the protections LGE rejected , LGE and Alphonso agreed on a variety of terms designed to afford certain rights to certain of Alphonso’s stockholder s ( i.e. , the Key Holders). 35 The Key Holders, Zenith, and Alphonso gave effect to these terms by execut ing

a s tockholders’ a greement (the “Stockholders’ Agreement” ) on December 23, 2020

. 36

2. The Stockholders’ Agreement The protections and rights bargained for in the Stockholders’ Agreement included certain liquidity rights ( the “Liquidity Rights”), a director

- designation right ( the “Director

Designation Right”) , and corresponding veto rights ( the “Veto Rights”)

. 37
The Li quidity Rights provide Key Holders the right to demand an IPO and the right
to scheduled tender offers . Section 9.1(a) set s for th the IPO demand right, which provides that if, after December 30, 2023, Alphonso receives a request from Key Holders owning fi fty percent of the registerable securities held by the Key Holders in aggregate, then Alphonso shall file a Form S

- 1 registration statement.

35 See JX0050.

36 I d.

37 Id.9

Section 11.1 sets forth the scheduled tender offer right

. 38 This right provides that Zenith shall commence scheduled tender offers at the greater of fair market value or $11.09 ( i.e. , the floor price) on (1) March 31, 2024, (2) March 31, 2025, and (3) March 31, 2026

. 39 Section 10 of the Stockholders’ Agreement sets forth t he Director

- Designation Right . This right provides that the Board shall be comprised of seven directors

. 40 Of these
seven, LGE will designate f our (the “LG

- Affiliated Directors”)

. 41 If certain conditions are met, t he “Employee Key Holder Majority” can d esignate , at most, the remaining three directors (the “Common Directors”)

. 42 There are two requirements the Key Holders must satisfy to exercise this right. 43 First, they must collectively hold a requisite percentage of Alphonso’s outstanding Capital Sto ck. The percentage of ownership held corresponds to the number of directors the Employee Key Holder Majority can designate. 44 The Employee

38 Id.

39 See id. § § 11, 1.42, 1.43 , 1.29 ; JX0040 §§ 1.5(b), 1.5(j), 1.5(s) , 1.5(kk) (December 18, 2020 , Common Stock Purchase Agreement).

40 JX0050 § 10.1.

41 Id. § 10.2(a). The Stockholders’ Agreement defines “LGE” as “Zenith Electronics LLC . . . and its affiliates.” Id. § 1.27.

42 Id. § 10.2(b). The Stockholders’ Agreement defines the “Employee Key Holder Majority” as “ the Key Holders who are directors, officers or employees of [Alphonso] at such time (the ‘Employee Key Holders’) holding a majority of the shares of Capital Stock then held by all Empl oyee Key Holders

. ” Id. § 6.2.

43 See id. §§ 10.2(b), 6.2.

44 See i d. § 10.2(b).10

Key Holder Majority could designate three directors “during such time as Key Holders hold at least twenty percent ( 20%) of the outstanding shares of Capital Stock.” 45 But if the Key Holders’ cumulative holdings fall between 10 % and 15%, the Employee Key Holder Majority could only designate one director. 46 Second, to exercise the Director

- Designation Right, at least one of the Key Holders
must b e an Alphonso officer or employee ( i.e. , the D esignation Condition)

. 47 Section 10.2(b) concludes with the following: “ F or the avoidance of doubt, this director desig nation right by the Employee Key Holder Majority under this Subsection 10.2(b) shall be null and void if no Key Holder serves as an officer or employee of the Corporation at such time [

. ] ” 48
U nder Section 10.3(a), no director may be removed unless “ (i) su ch removal is directed or approved by the affirmative vote of the Person(s), or of the holders entitled under Subsection 10.2(a) or (b) to designate that director” or “(ii) the Person(s) originally entitled to designate or approve such director or occupy s uch Board seat pursuant to

45 Id. § 10.2(b) (i)

. 46 Id. § 10.2(b)(iii).

47 Id. § 10.2(b).

48 Id. The bargaining history over this term is relevant. The parties designed the Designation Condition to align the Key Holders’ interests with LGE’s. Hahm’s deposition testimony explained that the purpose of the Designation Condition was to make sure the Key Holders had “skin in the game.” JX0648 94:25

– 95:13 (Hahm); see also id. 79:21

– 80:4 (Hahm). By which, he meant that he structured the Stockholders’ Agreement “for employees to want to work at the company, to build value because by building value they’re also benefiting from the value increase in their own pocket through stock options and other programs and owning equity. So that was the intent.” Id. 94:25

– 95:13 (Hahm). And build value they did. See i nfra Section I.D.11

Subsection 10.2(a) or (b) is no longer so entitled to designate or approve such director.” 49 This brings Section 10.2(c) into play. W h ere there is no Director

- Designation Right, such removals under Section 10.3(a)(ii) create va cancies that can be filled pursuant to Section 10.2(c) . Section 10.2(c) provides that the vacant seats of the Common Directors shall be filled through appointment “ by the holders of Capital Stock entitled to vote in accordance with applicable law and the Restated Certificate

. ” 50 Additionally, Section 13.1(b)(iii) provides that the Stockholders’ Agreement “shall terminate” upon: The execution of a written instrumen t by (x) the Corporation, (y) LGE and (z) the Employee Key Holder Majority. For the avoidance of doubt , such execution by the Employee Key Holder Majority shall not be required if no Key Holder serves as an officer or employee of the Corporation at such ti me. 51 Given these mechanics, i t might seem that the Director

- Designation Right requires protection of its own. Plaintiff s identif y Section 12.1 as the express contractual safeguard of this right. Section 12.1 provides the following: [Alphonso] agrees t o use its reasonable efforts , within the requirements of applicable law, to ensure that the rights granted under this Agreement are effective and that the Parties enjoy the benefits of this Agreement. Such actions include, without limitation, the use of th e Corporation ’ s reasonable efforts to cause the nomination and election of the directors as provided in this Agreement. 52

49 JX0050.

50 See id.

51 Id

. 52 Id

. (emphasis added).12

This protection aside, the Director

- Designation Right does not , by itself, seem to provide any meaningful degree of influence

. But when considered in connection with the Veto Right, its significance materializes. Specifically, Section 10.5(d) conditions the Board’s ability to engage in certain actions on the “affirmative conse nt or vote of at least one Common Director[.]” 53 The actions subject to this Veto Right include (1) postponing an IPO beyond December 2025, (2) postponing or modifying the tender offers , (3) entering into related

- party transactions between Alphonso and LGE, subject to certain exceptions , and (4) determining fair market value for the scheduled tender offers

. 54
T he Veto Right does not restrict the Board’s “ exclusive right ” to “hire or employ, terminate employment, appoint position and determin e the compensation and benefits of executive officers of [Alphonso] and any employee” who receives annual compensation equal to or exceeding $500,000. 55
As t hese terms demonstrate , LGE got control, and, in exchange, the Key Holders got cash upfront and the “slow exit” 56 embodied in the Liquidity Rights. Until the exit, the Key Holders would appoint directors to watch over and preserve the Liquidity Rights. At the Board level, the Common Directors could not do anything on their own other than block

53 Id. § 10.5(d) . Section 11.2(a) uses this same language to condition the Board’s approval of the fair market value per share at the time of each scheduled tender offer.

54 See id. § § 10. 5(d), 11.2(a).

55 See id. § 10.5(c).

56 See JX0008 at 2.13

certain attempts to interfere with the Key Holders’ Liquidity Rights. This was the bargain. And i ndeed, this bargain mirrored LGE’s earlier promise that it would “work together with [the Founders] to co me up with a scheme that makes sense for all parties involved to allow some trigger

- based method to allow for a slow exit.” 57

3. Closing The deal closed in December 2020

. 58 LGE, through Zenith, invest ed roughly $78 million in total in exchange for over 55 % o f Alphonso ’s stock at $11.09 per share based on a $110 million valuation

. 59 Following the sale, Zenith contributed to the creation of Alphonso’s stock option pool, which reduced its holdings to 50.1% on a fully diluted basis. 60 In conjunction with th ese transaction s and in addition to the protections provided in the Stockholders’ Agreement, the Key Holders received considerable upfront payments from Zenith

. 61 As Defendants point out , Kalampoukas received over $5.5 million, Chordia received over $3.5 million, Kodige received over $2.4 million , and both Andrades and Sarma received over $1 million each in these upfront payment s . 62

57 Id.

58 See JX0050; JX0040 ; TT 68:1

– 4 (Chordia).

59 See JX0250 at 12 ; JX0040 § 1.5(j) ; JX0407 at 286

. 60 See JX0407 at 286; TT 163:8

– 14 (Chordia); Pre

- Trial Stipulation ¶¶ 13, 32.

61 See JX0041 at 56

– 57.

62 Id.14

After the deal closed, the Employee Key Holder Majority exercised the Director

Designation Right and appointed Chordia, Kodig e, and Kalampoukas to the Board as the Common Directors. 63 Pursuant to Zenith’s right to appoint LG

- Affiliated Directors, it also named four members to the Board. 64 C. Post - Closing Conflict The parties’ relationship started off well. But friction soon develop ed . Chordia and Kodige did not get along well with the LG

- Affiliated Directors and the other LGE employees with whom they interacted. Chordia and Kodige’s unwillingness to abide by the established c hain of command proved a consistent point of tension. This is perhaps one of the clearest illustrations of the overarching clash between LGE’s relatively buttoned

- down, hierarchical culture and Alphonso’s horizontal startup culture. LGE had an establishe d team that managed its relationship with Alphonso: this included primary contact s , Edward Lee and Jo

. The record is littered with emails from Chordia and Kodige to LGE’s higher

- ups , including Sangwoo Lee and Hyoung

- Saeyi Park (Edward Lee and Jo’s bosses), William Cho (LGE’s CEO) , and Doo

- Yon g Bae (LGE’s CFO) . These emails were seldom pleasant and often denigrating toward Jo and Edward Lee. In a frustrated email to Chordia, Edward

63 Pre

- Trial Stipulation ¶ 34.

64 Pre

- Trial Stipulation ¶ 35.15

Lee explained that “your counter partner of L GE is not Sangwoo but me. So [s] top
contact [ing] him directly with my business matter.” 65
This was not the only area of tension between Alphonso and LGE

. A mong other things, disputes ar ose over Alphonso’s use of LG’s brand name, executive officer hiring without Board approval, refusal to comply with LG E ’s data

- privacy audit requests, depletion of Alphonso’s stock option pool, and transfer pricing for ad inventory, as well as a variety of other professional and interpersonal conflicts.
In addition to the companies’ cultural difference s , s ome of this friction derived from difference s in Chordia’s and LGE’s objectives

. LGE had long

- term goals that required cautious i ntegrati on of Alphonso’s ACR technology into its s mart TVs. 66 By contrast, Chordia and many of the Key Holders were focused on getting to an IPO. 67 Although LGE

was on board with the idea at the beginning , it soon became less accommodating and sought strategic flexibility in that area. 68

65 JX0128 at 1

. 66 TT 493:8

– 19 ( Edward Lee).

67 JX 00 67 ( f

orwarded Slack message from Chordia to Edward Lee on March 3, 2021, explain ing that “[f]rom now to March 2024 is about 1000 days. That’s all we have!” to get to IPO , and outlining items for Alphonso to do to achieve that goal )

.

68 See JX0105 at 2 (May 17, 2021 email to Chordia: “LGE would fully support Alphonso going public with revenue goal stated above and valuation above $1B

. . . .”) ; JX0148 at 2 (August 21, 2021 email from Hyoung

- Saeyi Park) , 3 (August 19, 2021 email from Chordia providing no tes from August 17, 2021 WebEx meeting with Sangwoo Lee, Edward Lee, and Hyoung

- Saeyi Park) ; JX0182 at 2 (December 7, 2021 email from Edward Lee).16 1. LG Ads I n March 2021, Chordia decided to “rebrand” Alphonso as “ LG Ads ” without receiving authorization to do so from LGE. 69 Chordia explained that this move was inspired by the need to be recognized in the market as being affiliated with LGE and Chordia ’s belief that th e market was already beginning to call Alphonso “LG Ads.” 70 In

a n email to Edward Lee , Chordia revealed that the rebranding was one part of his overarching plan to get to an IPO by March 2024. 71 As part of this rebranding, Chordia went so far as to launc h an LG Ads website, which, after domain issues arose , redirect ed viewers to an online gambling website. 72

69 TT 110:18

– 11 2 :1 7 (Chordia) ; see also JX0653 255:9

– 14 (Chordia).

70 See TT 196:6

– 197:13 (Chordia). As a practical matter, Chordia’s use of the name “LG Ads” was not wholly unfounded since similar ly situated companies had rebranded themselves as “Roku Ads,” “Samsung Ads,” and “Vizio Ads.” TT 196 :6

– 197:13 (Chordia) ; s ee also JX0096 at 1 ; TT 211:2

– 19 (Kod ige) . Chordia’s correspondence on this subject, however, illustrates his unfortunate penchant for being provocative and offensive with LGE team members and senior executives. Chordia asserted in an email to Sangwoo Lee that Alphonso might as well be “ reb randing to dominate the ballsy advertising business ” and “ calling itself Large Gonads Advertising ” with “LG Ads” being simply a “short form” version of that title. JX0096 at 3.

71 JX0067.

72 TT 111:4

– 10 , 113:14

– 115:1 (Chordia) ; JX0067 at 1.17

After learning of this, LGE asked Chordia to take the website down. 73 While Chordia agreed and did t ake the website down , he put it back up shortly thereafter

— again without LGE’s permission

. 74 In what would be just one of many communications sent to Edward Lee’s boss , Chordia explained in a May 2, 2021 email to Sangwoo Lee that “ [a] sking our team to take down our website

— a re quest we entertained for over two weeks at the cost of business and hiring

— or change to some other branding instead of LG Ads just does not work.” 75
This issue continued as an ongoing fight between Alphonso and LGE until well after Kodige replaced Chordia as Alphonso’s CEO in July 2021

. 76 But it was not the last time Chordia would cause conflict.

73 JX0653 25 5:5

– 257:13 (Chordia).

74 Id. 256:8

– 17 (Chordia) ; TT 116:4

– 10 (Chordia). In an email to Sangwoo Lee, Chordia acknowledged the cultural disconnect between LGE and Alphonso. JX0096 at 1

– 2. Chordia wrote that in contrast to what he saw as LGE’s rig id hierarchical structure , “we work [based] on reason. We solve problems. No real reason has been presented, nor a problem that cannot be solved, for us to be called LG Ads. I had gifted our team ‘No rules rules’ which describes the Netflix culture and ours is similar.” Id. at 1

– 2

.

75 JX0096 at 2.

76 See TT 202:21

– 24, 211:2

– 212:10 (Kodige).18 2. Serge Matta Chordia hir ed a new President, Serge Matt a in April 2021. 77 And he did so without the Board’s required approval. 78 Matta had been an advisor to Alphonso since 2017 , during which time he was also the CEO of Comscore Inc. 79 Chordia had disclosed to Edward Lee, who at this time was an LG

- Affiliated Director, that Matta had some run

- ins with the SEC

. 80 But Chordia did not disclose the full extent of those issues , which included Matta settling accounting and disclosure fraud charges and Com s core paying over $5 million in penalties

. 81 Additionally, the settlement terms prohibited Matta from serving as an office r or director of a public company for ten years. 82
After these issues came to light, controversy ensued. Although based partially on Chordia’s choice of hire, the controversy als o centered around Chordia’s ability to hire a President for Alphonso

. Section 10.5(c) of the Stockholders’ Agreement gave the Board the “ exclusive right ” to hire executives and those compensated $500,000 or greater

— of which Matta was both

. 83 Responsive to these issues, Chordia prepared a timeline of the

77 TT 138:2

– 7 (Chordia); JX0082.

78 TT 138:2

– 7 (Chordia) ; see also JX0082 (Matta Offer Letter) ; JX0050 § 10.5(c).

79 See JX0007 (Matta Press Release).

80 JX0007; TT 138:2

– 147:2 (Chordia).

81 JX0007 ; TT 138:2

– 147:2 (Chordia)

. 82 JX0007.

83 TT 150:24

– 151:5 (Chordia) ; s ee also JX0082. Section 10.5(c) permits the Board to hire executive officers with a simple majority. With the Common Directors occupying19

events leading to Matta’s hire , which purports to involve discussions of the Comscore SEC issues with Alphonso’s General Counsel Cushing , who was also previously employed by Comscore and work ed in its legal department at the time of the events giving rise to the SEC’s fraud investigation. 84 At trial, Chordia testified that he understood that B oard approval was required to hire Matta. 85 But the evidence at trial demonstrated that notwithstan ding this belief, Chordia also asked Steve Wheeler, Chordia’s “long

- term” personal lawyer, for an opinion that the role of p resident is not an executive office

— an opinion which Wheeler declined to provide. 86 Although the Board later removed Matta from his role as P resident, he stayed on in a senior management role where he remains. 87

three of the Board’s seven seats, I acknowledge that LG

- Affiliated Director Edward Lee’s favorable response to Chordia’s proposal to h ire Matta might have led Chordia to believe

— as he testified at trial

— that he had the necessary Board majority to hire Matta under Section 10.5(c), assuming approval by the other Common Directors. See TT 151:17

– 22 (Chordia).

84 See JX0157 at 10; TT 150:6

– 9 , 148:8

– 16 (Chordia).

85 TT 150 : 14

– 16 (Chordia).

86 TT 151:3

– 10 (Chordia).

87 TT 151:23

– 152:4 (Chordia). Matta is now Alphonso’s head of advertising and sales. See TT 414:3

– 6 (Durgin).20 3. Data Privacy Disputes also arose from data privacy and compliance concerns. A 2017 New York Times article lent weight to these concerns

. 88 The article specific ally named Alphonso and quoted Chordia while purporting to detail “questionable [data privacy] practices” by companies like Alphonso

. 89 Before joining Alphonso’s Board and acting as Vice President and General Counsel of LG US, Wasinger requested that Alph onso undergo a privacy audit by a law firm. 90 Wasinger was clear that LGE wanted the audit to be conducted by a law firm and went so far as to invite Alphonso to propose the law firm that should conduct the audit. 91 In response, Chordia i nsisted that , instead of a law firm audit, Alphonso would only be willing to conduct a standards

- based review. 92 Amidst the numerous emails sent on this

88 See JX0630.

89 Id.

90 JX 0 101 at 2.

91 Id. at 1

– 2 ( May 6, 2021 email from Wasinger to Cushing: “ I t is very important that the audit report and related audit communications be privileged, so it should be a law firm that manages.”) ; s ee also JX0128 at 4 ( e mail from Edward Lee to Chordia on June 8, 2021, stat ing that “we need LG Ads to proactively participate in the privacy audit le [] d by LGEUS [’s] legal team. This action item is not optional but mandate [d] for all LGE subsidiaries.”) ; JX0168 at 1

– 2 (October 21, 2021 email from Wasinger to Cushing: “As I have repeatedly stated since May, this review is merely reasonable due diligence on privacy and security standards before Alphonso ACR technology is integrated in LG televisions and other LG Pll is shared with Alphonso for its business. ” “ I am concerned that Alphonso management has been delaying and throwing up roadblocks for months. The review should have been completed this summer, and now the timeline is extremely compressed.”).

92 See, e.g. , JX 0128 at 4.21

topic is a May 9, 2021 email that Chordia sent to Sangwoo Lee. 93 Therein , he referred to Wasinger’s attempts to mo ve forward with a law firm

- based audit as “overreaching and totally unnecessary” as LG US had “no authority over Alphonso and they can go fish. ” 94 Despite recognizing the obligations, procedures, and even abundance of caution with which large corporations like LGE operate, 95 Chordia premised hi s resistance to a law firm audit on his belief that there was limited up

- side for Alphonso

. 96 Like with the LG Ads issue, this was a repeated point of tension th at the parties did
not resolve until the end of 2021, several months after Kodige replaced Chordia as Alphonso’s CEO. 97

4. Depletion Of The Stock Option Pool The depletion of the stock option pool generated more conflict. The pool was created after LGE’s investment and had the effect of diluting LGE’s holdings from over 55 % to 50.1%. But i n March 2022, Alphonso ran out of available stock options. 98 Chordia

93 See JX0101 at 1.

94 Id.

95 See TT 121 :13

– 17 (Chord i a).

96 JX0128 at 2

– 3 ( June 2021 email s from Chordia and Cushing to Edward Lee and Wasinger , explain ing t hat “[t]he problem with an outside audit being performed by a law firm is that while it may provide LGE with some degree of comfort, it otherwise provides no benefit upon Alphonso or LG”)

.

97 See TT 21 3 :21

– 21 6:13 (Kodige).

98 TT 163:15

– 17 (Chordia).22

explained that “ [g] rowth led to hiring and hiring led to a depletion of the stock option pool.” 99 After running out of stock options, Chordia asked LGE to replenish the pool

. 100 This was an option that Chordia understood would likely require LGE to dilute its ownership and leave LGE with less than 50% of Alphonso

. 101 Despite several exchanges and attempts to formulate a solution, Alphonso and LGE

were unable to resolve this issue

. 102 In response to the se unsuccessful attempts, Kodige , who by this time had taken over as CEO, sought to escalate the issue to LGE executives.
In December 2022, Kodige emailed LGE’s CEO and CFO (Cho and Bae, respectively) to describ e the pool depletion issue and what he viewed as LGE’s “egregious” approach to “expanding the Options pool” and Jo’s inability to resolve the challenges Alphonso faced. 103
5. The Inventory Agreement In April 2021, Alphonso and LGE entered into an agreement related to LGE’s sale of ad inventory to Alphonso. 104 The price term for the i nventory was left open and the ad

99 TT 164:1

– 2 (Chordia).

100 TT 164:24

– 166:1 (Chordia) ; se e also JX0246

. 101 TT 164:24

– 166:1 (Chordia).

102 See, e.g. , TT 174:7

– 176:22 (Chordia).

103 JX0510 at 1

– 2

. 104 Pre

- Trial Stipulation ¶¶ 38

– 39; JX0196 at 7

– 14 (original agreement).23

inventory LGE provided to Alphonso during 2021 was considered a “free trial.” 105 After negotiating pricing terms for 2022, the parties amended the agreement in January 2022 (the “Inventory Agreement”). 106 This amendment in clude d the insertion of transfer price
terms. 107 The parties set pricing terms that were favorable to Alphonso and lower than the price Alphonso paid for inventory from third parties. 108 But shortly after the amendment, LGE tried to change the “mutually ag reed upon” transfer price. 109 It also tried to apply the change retroactively. 110 Durgin believed this to be a “terrible” and “dumb idea” since, as he confirmed, “no leader of Alphonso should agree to amend the transfer price in the inventory agreement to raise the transfer price to benefit LG at the expense of

105 See JX0212 at 26 (“All LG Ad Inventory provided by LG to Alphonso prior to January 1, 2022 shall be provided as a free trial; no fees shall be payab le by Alphonso for any LG Ad Inventory provided prior to January 1, 2022.”).

106 Pre

- Trial Stipulation ¶¶ 38

– 39; JX0212 at 25

– 30; JX0347 at 1

– 8. The Inventory Agreement was structured so that Alphonso agreed to buy LGE’s global ad inventory at fixed prices. Accordingly, the Inventory Agreement itself stated that , “[f]or the avoidance of doubt, Alphonso bears all economic benefits and burdens associated with any LG Ad Inventory purchased by Alphonso, regardless of whether the same is sold or otherwise moneti zed.” JX0212 at 25. E ither side could unilaterally terminate the Inventory Agreement “for convenience upon 60 days prior written notice to the other party.” JX0196 at 8 ; see also TT 177:10

– 17 (Chordia).

107 TT 178:4

– 10 (Chordia); JX0212 at 25

– 30; JX0347 at 1

– 8.

108 TT 179:3

– 15 (Chordia).

109 JX0386 at 14.

110 TT 486:3

– 21 (Durgin).24

Alphonso[.]” 111 LGE’s internal documents noted the LG

- Affiliated Directors’ fiduciary obligations in addressing this issue

. 112 It directed them to “[a]pproach the matter as a compliance risk issue” specifically “to prevent fiduciary duty issue pertinent to LG Directors (fiduciary duty, decision

- making from Alphonso’s stance), approach the matter with focus on tax risk.” 113 This was indeed the rationale LGE put forth. 114 Alphonso took the tax compliance concerns seriously and conducted its own investigation into the matter and had PwC conduct its a review of KPMG’s original study. 115 In September 2022, PwC concluded that , “[b]ased on our review, the arm’s length prices for LG Ads Inventory identified in the KPMG Transfer Pricing Analysis appear reasonable and consistent with the arm’s length standard outlined in the Section 482 Regulations.” 116 PwC further concluded that the Inventory “Agreement is ‘commercial
gr ade’ in substance and appearance, including the length of its term which is consistent

111 TT 486:3

– 21 (Durgin) ; see also JX0397 at 1 ( October 28, 2022 email from Durgin to the LGE team , express ing concern over “the idea th at LG will put a new leader who would negotiate from the POV of the other party in the agreement, then take an existing price and raise it not in the best interests of his/her company, but in the best interest of LG” since this “is not what I’d expect out of any new business leader”).

112 See JX0312 at 20.

113 Id.

114 See TT 179:15

– 21 (Chordia).

115 JX0386 at 13; see also JX0358 at 1

. 116 JX0358 at 12.25

with similar independent contractual agreements

. ” 117 Notwithstanding these conclusions, LGE was not satisfied and the parties continued to dispute the sufficiency of the transfer price into late fall 2022 with no meaningful resolution. 118

6. The Divided Board Of Alphonso Interwoven with the foregoing is an undercurrent of conflict and accusations of unprofessional behavior. For example, the Board often failed to approve meeting minutes promptly . This led Chordia , over the objection of his colleagues and against Wheeler’s advice , to insist that he record Board meetings

. 119 Kodige, in an October 10, 2022 , email
to Hyoung

- Saeyi Park and Cho , addressed this issue and use d it to illustrate “ how incompetent ” the Board purportedly was

. 120 On another occasion, in response to an inquiry by Edward Lee over a competing product that he believed Alphonso was developing, Kodige sought Edward Lee ’s remova l from the Board. 121 In his December 6, 2021, email to Hyoung

- Saeyi Park and Sangwoo Lee, he asserted that “Edward and team have very badly managed Alphonso investment and relationship over the past year[]” and describes what he asserted was “Edward’s erra tic

117 Id.

118 See Dkt

. 194 Defendants ’ Post

- Trial Answering Br. (“Defendants’ Post

- Trial Answering Br.”) at 26

– 27.

119 See , e.g. , JX0328 at 1

– 6.

120 JX0376 at 1.

121 JX0180 at 2

.26

[and] disrespectful behavior

. ” 122 This email concluded with the following: “We need to urgently address Edward ’ s behavior. We request that Edward be removed from working with Alphonso team [ sic ] right away and also be removed from our board.” 123 In addition to the numerous attempts to escalate issues to LGE’s senior executives, there is also some evidence that Chordia and Kodige were disruptive during Board meetings. 124 Moreover, t he type of language that Chordia and Kodige used also served as a source of conflict. Chordia was not hesitant to use profan e or crass language in his regular communications with LGE executives and employees and the LG

- Affiliated Directors. Among some of his emails, Chordia used phrases li ke “ [f] * * k you sangwoo,” 125 “don’t f* * king try to sugar coat the mess,” 126 “we don’t know f* * king LG English,” 127 and “get [ing] sh*t” done.” 128 At another point , Chordia asked the LGE team to “ please respect

122 JX0180 at 1

– 2

. 123 Id. at 2.

124 TT 576:17

– 577:19 (Wasinger); TT 672:8

– 15, 678:4

– 18 (Jo); s ee also JX0278 (Wasinger ’s email)

.

125 JX0143 at 3 (profanity edited).

126 Id. at 2 (profanity edited).

127 Id. (profanity edited).

128 JX0128 at 1 (profanity edited).27

the [LG Ads] team you have here like they are sent from God” because “[t]hat ’ s your only hope to make this company work.” 129 Despite what by all accounts was a divided b oard, there remained no meaningful gridlock because the LG

- Affiliated Directors controlled a majority of the Board seats. 130
As time w ould show, the LG

- Affiliated Directors even terminated the executive

- officer Key Holders without gridlock because, with four seats on the Board, they controlled Alphonso’s trajectory. 131 The LG

- Affiliated Directors only needed a Common Director’s approval to interfere with the Key Holders’ Liquidity Rights, or to enter related

- party transactions between Alphonso and LGE. 132 At bottom, this is what the parties had bargained for.

129 JX0143 at 2

. 130 At trial, Wasinger testified to the contrary. TT 586:18

– 587:1 (Wasinger) (“It was just a litany of problems” and “gridlock had developed.”)

. Although I agree that Chordia and Kodige’s conduct was decidedly unpleasant, I also like to think (or at least hope) that I am not naïve. As I discuss later in this decision, Chordia and Kodige seemed to turn invariably to the least diplomatic of approaches when given a choice. But they are by no means the first entrepreneurs who have sought to “move fast and break th ings” and to be quite successful in doing so. In summary, I found Defendants’ drumbeat evidentiary presentation on Chordia and Kodige’s r ough manner, and Wasinger’s testimony in particular, overreaching and intended more to “poison the well” than anything else. A lthough it is not disputed that the Board was divided, the record belies the notion that the Board was gridlocked in any meaningful way.

131 See JX05 36 at 3

. 132 See JX0050 §§ 10.5(d), 11.2(a).28

D. Alphonso ’s Continued Success Notwithstanding the division and disputes, Alphonso thrived. Alphonso exceeded the high revenue targets that LGE set and grew to a 300

- person work

- force. 133 In the two years that followed closing, Alphonso produced $78 million and $270 million in

revenue. 134 This greatly exceeded LG E’s initial target s for Alphonso

. 135 By December 2022, Alphonso was valued at over a $1 billion

— nearly ten times its valuation at closing. 136 And around that time, LGE’s own internal correspondence confirms that Alphonso’s value had risen to upwards of $1.4 billion. 137 On the technical side, Alphonso also out

- performed LGE’s expectations. In this regard, Alphonso brought the ACR technology to the point that it could be integrated into LGE’s smart TVs far ahe ad of schedule. 138 Both sides contributed meaningfully to this success, but LGE wanted a better deal than the one it had bargained for.

133 TT 247:3

– 12 (Kodige).

134 TT 247:13

– 248:20 (Kodige); TT 42:16

– 44:7 (Chordia).

135 TT 247:13

– 248:20 (Kodige); TT 42:16

– 44:7 (Chordia).

136 TT 247:13

– 248:20 (Kodige).

137 JX0463 at 5.

138 TT 247:13

– 248:20 (Kodige) ; see also JX0183 at 5 (“The teams have taken what was a 2 year roadmap and shrunk it down to 2 months.”).29

E. Project Wall
- E : War Project Wall

- E was developed for the purpose of taking control from the Key Holders. While Project Wall

- E was developed more explicitly in late

- 2022, the lead

- up to its execution began several months earlier.

1. Genesis In March 2022, Jo began working for LGE. 139 That same month , Jo to ok a seat on Alphonso’s Board as an LG

- Affiliated Director

. 140 In April 2022, Jo met with Kodige and communicated to Kodige that LGE was wavering on the idea of an IPO. 141 This was opposite the commitment to an IPO that LGE had communicated to the Key Hold ers the year prior. 142 Shortly after joining the Board , Jo tried to have Kodige hire Sexton , who m Jo believed was a “market industry veteran, that . . . could help the Alphonso business.” 143 In conjunction with his request, Jo set up a call with Sexton in early May 2022. 144
S exton took contemporaneous notes during the meeting , which he then emailed to himsel f after the meeting ended

. 145 Among other things, Sexton’s email draw s attention to

139 TT 685:10

– 12 (Jo).

140 TT 685:24

– 686:5 (Jo).

141 See JX0247 at 1.

142 See JX0105 at 2 ; JX0148 at 2; JX0182 at 2.

143 TT 690:2

– 691:7 (Jo) ; s ee , e.g. , JX0267 at 8.

144 JX0640 26:15

– 18 (Sexton).

145 See JX0253 ; TT 69 3 : 17

– 69 4 : 12 (Jo) (affirming in relevant part that “these notes reflect the substance of a call that [Jo] had with Mr. Sexton on or about May 6 [,] ” 2022)

.30

the details surrounding t he deal LGE had struck with the Key Holders and LGE’s desire to get “a return on their investment

. ” 146 Although noting that LGE initially “wanted to see if they can IPO , ” the email states that things may have changed and LGE “may have bigger plans.” 147 Sexton’s email also draws attention to Alphonso’s culture, which the email described as a “[m]ixture between Indian Culture [and] SV culture” and repeatedly explained that “LG has a lot of difficulty managing this organization [ .]” 148
Sexton ’s email also describe s a version of the blueprints for what would later become “Project Wall

- E ,”

— the project that Jo would go on to “ [c] hampion.” 149 The email , while recognizing that the Board “made [Chordia] step down [from CEO] to Board
Me mber [and] Chief HR Officer , ” further describe s a “[g]oal to remove him from whatever role” and “[b]ring in new upper management.” 150 Sexton’s email also includes a clear motivation for carrying out this strategy

— Jo viewed Alphonso as “1 of 3 pillars” in J o’s overarching goal to bring together “Adv, content, WebOS.” 151 Kodige , however, rejected

146 JX0253 at 1

– 2.

147 Id. at 1.

148 Id. at 1

– 2

. 149 See JX0435 a t 18; TT 687:14

– 688:10 (Jo).

150 JX0253 at 1

– 2 ; see TT 692:8

– 698:6 (Jo).

151 JX0253 at 1. Jo’s trial testimony confirmed this general sentiment. TT 687:4

– 13 (Jo) (affirming that he “want[ed] Alphonso to stay, to play the same role that it does toda y in the business”).31

Jo’s recommendation to hire Sexton , so nothing came of this initial attempt to seize full control

. 152 On May 16, 2022, after Jo ’s call with Sexton, Jo and Hy oung - Saeyi Park attended a meeting with Chordia and Kodige during which disagreement arose over Alphonso’s strategic future. 153 At this meeting, Kodige and Chord i a proposed two options for moving forward. The first option w ould make Alphonso a combined entity that included LGE’s “Content + Advertising ” 154 and “[i]inventory ownership.” 155 Beotra explained a similar idea at his deposition. There, he noted that “[y]ou cannot take an entity public where it has one contract, which, i f the contract is snapped, kills the investor story.” 156 Thus, he had previously proposed a similar idea

— that “instead of having an inventory agreement and transfer pricing, that LG transfer the inventory to [Alphonso] outright[.]” 157 The second option, should LGE refuse the first, asked LGE to buy out the Key Holders. 158 While at trial, Defendants made much of the May 16 meeting, it proved little more than the Key Holders’ request that LGE back them in their pursuit of an IPO or buy

152 TT 69 1 : 16

– 18 (Jo); JX0267 at 7.

153 TT 688:18

– 689:15 (Jo).

154 JX0261 at 21.

155 JX0259 at 2.

156 JX0647 179:2

– 22 (Beotra).

157 Id.

158 See JX0259 at 2; JX0261 at 21.32

them out

. But, as Sexton’s email showed, Jo and LGE had already begun to devel op an alternative plan for Alphonso’s strategic future. In June 2022, Jo stepped down as an Alphonso Board member. He asserted that this was “to avoid a potential conflict” given his continuing role as an LGE employee. 159 Wasinger replaced Jo as an LG

- Af filiated Director on Alphonso ’s Board

. 160 But at all relevant times Wasinger also served as Vice President and General Counsel of LG US. 161 Even before officially starting his additional role as a Board member, Wasinger began to paper the record. For example, after Wasinger attended a Board meeting on June 20, 2022 , as an observer, he sent an email to LGE executives and the LG

- Affiliated Dire ctors recounting Chordia and Kodige’s “incredibly disrespectful, outrageous, and

159 See TT 686:6

– 12 (Jo).

160 See TT 574:7

– 9 , 594:15

– 17 (Wasinger); TT 351:2

– 17 (Kalampoukas).

161 TT 593:10

– 15 (Wasinger).33

unproductive” behavior. 162 Wasinger explained Chordia and Kodige’s “abusive tactics” in which they would “gang up” 163 on other Board members and launch “personal attacks

. ” 164
Ar ound the same time, LGE began looking for ways to terminate the Stockholders’ Agreement to create strategic flexibility and avoid their obligations to the Key Holders. Specifically, LGE began looking for the “Nuclear Bomb option” in the Stockholders’ Agre ement. 165 In response to this inquiry, Hahm explained: In the Shareholders Agreement, clause 6.2, it defines Employee Key Holder as a person who is listed as a Key Holder AND who is also employed by the Company. In clause l0.2(b), only Employee Key Holde rs can place a person on the Board. Therefore, if we fire all the Key Holders, they have no ability to place a person on the Board. And, remember that we can fire anyone at anytime. After we fire the Key Holders, the new Board (filled with LGE people) c an alter or change . . . and terminate the Shareholders Agreement.

162 JX0278 at 1. But see TT 656:17

– 657:8 (Kalampoukas) (“I never experienced any behavior like that. They never ganged up, they never abused, they never used foul language. They never pers onally attacked any of the other board members. In fact, I don ’ t recall even ever raising their voice in the meeting. As I testified, there were disagreements, there were discussions, but that was the extent of it.”). I acknowledge Chordia and Kodige’s i mpatience, lack of decorum, written profanity, and “in your face” interpersonal style. C ertainly, Chordia and Kodige did not adhere to the adage that you catch more flies with honey than vinegar

. Having observed his testimony, however, I also found Kalam poukas to be a credible witness at trial. Ultimately, I conclude that Chordia and Kodige were extremely confident in their opinions and uninhibited in sharing them, often coming across as discourteous and direct to a fault in doing so. This was all likel y unpleasant and annoying for LGE, but, frankly, little more than that in terms of impeding the work of the Board. See also JX 0515 (video recording of December 16 , 2022 Board meeting).

163 JX0278 at 1.

164 TT 576:10

– 577:1 (Wasinger).

165 See JX0275 at 3 (“What is the Nuclear Bomb option in the provisions?”).34

Termination of the Shareholders Agreement removes all obligation in the Shareholders Agreement, which includes IPO, tender offer, etc. 166 Hahm recounted th is same idea in a September 9, 2022 email. 167 This time , he dr e w attention to the corresponding relationship between the Key Holders’ ownership of certain percentages of Alphonso ’s stock and the number of Common Directors the Key Holders can designate under Section 10 .2(b). 168 Hahm connects this to the fact that the “Board protections stay in place with just one Board seat.” 169 Hahm concludes this idea with the following: Remember our nuclear option: if you want to alter or remove the Stockholder Agreement, you need to fire them all. But if you do this, it will shock al l the employees and cause havoc . . . . Please also note, that once you fire Ashish, and they read the agreement and realize the careful wording of section 10.2b of the Stockholders Agreement, th ey will understand the nuclear option, and they will have more fear and freak out more than now. 170

166 Id. at 6.

167 JX0336 at 3.

168 Id. at 3. In the email, Hahm asserted that “[o]nce you fire Ashish, his shares will not be counted to calculate the threshold as to how many board seats the Key Holders can fill.” Id. As I explain below, Hahm’s interpretation of the provision in this manner is incorrect. See infra Section II.B.

169 JX0336 at 3.

170 Id. at 3

– 4.35

2. Preparing For “D
- Day” By the end of September 2022, LGE’s plans to terminate the Stockholders’ Agreement began to materialize. Justin Kim (a Wall

- E team mem ber) 171 sent meeting minutes to LGE executives and LG

- Affiliated Directors from a September 29, 2022 LGE
team meeting

. 172 Even the meeting’s purpose is telling

— to “change the management team of Alphonso” and “secure our company’s ownership ratio (Super Majority).” 173 But, LGE only purs ued these objecti ves “under the assumption that our company’s top management approved aborting the plan for Alphonso’s IPO.” 174 And indeed, expounding on the latter purpose, the minutes state: “Considering the JV, Al phonso is a key asset of our company. The IPO should be aborted and control must be maintained.” 175 At trial, Edward Lee interpreted these minutes to mean that “LG no longer wanted Alphonso to IPO because of the JV.” 176

171 TT 547:18

– 548:2 (Edward Lee); see also JX 0 365 at 5 (identifying Justin Kim’s role as a member of LGE’s Business Development Team).

172 See JX0365 at 3

. 173 Id. at 3

– 4.

174 Id.

175 Id.

176 TT 549: 3

– 13 (Edward Lee).36

With Jo at the helm, LGE convened a Project Wall

- E “task force” by October 2022

. 177 Project Wall

- E was designed to evaluate the avenues available for replacing Alphonso’s leadership. 178 But the plan did not end there. The task force evaluated at least two primary options: terminating three executives (Chordia, Kodige, and Beotra) and terminating all Key Holders. 179 The task force highlighted certain disadvantages associated with the former, which include that “ [t] he res t of key holders [ sic ] can still appoint Alphonso

- friendly person to a Board members [ sic ] , and key holders can still exercise their right to request for S

- 1 filing, and a veto right.” 180 The advantages identified for the latter “nuclear option ” 181 included “ [n] o IPO and tender offer obligation” and would mean that LGE “ [c] an terminate the Shareholders Agreement and the Board can run with only LGE

- designated board members[.]” 182 Wasinger also explained that this nuclear option might resolve the outstanding dispute over transfer

177 See TT 587:6

– 20 (Wasinger); JX0400 at 19; JX0435 at 18; TT 687:21

– 688:14 (Jo).

178 S ee JX0400 at 19.

179 See JX0402 at 18 ( “ [Option 1] Terminating only 3 Executives (CEO, CFO, CHRO) [Option 2] Terminating all of [ sic ] Human Key Share Holder (9 in total) ” ) (first and second alterations in original).

180 JX0402 at 19 (emphasis added).

181 JX0336 at 6.

182 JX0402 at 19.37

pricing for the Inventory Agreement since “it will be much easier to negotiate pricing and an amendment” with “new Alphonso management

. ” 183
LGE executives and the LG

- Affiliated Directors discussed these options in a n LGE
team meeting on October 26, 2022. 184 After the meeting, Kim sent an email summary to the group in which he stated: “I believe the key decision we made today was who we will be terminating, and we ne ed to back up our rationale for such termination. ” 185 “[W]e must prepare good rational [ sic ] (almost, individual level).” 186 Kim “ [s]et [their] direction toward termination of all key share holders.” 187 In preparation for the day Wasinger dubbed “D

- Day,” 188 the task force compiled a “playbook

. ” Among other things, the playbook identified backfilled “business justification[s]” for Key Holder termination s . 189 Additionally, LGE prepared a document

183 JX0397 at 4; see also JX0398 at 3

– 4 ( October 31, 2022 email from Edward Lee in which he explained that so long as they execute “Alphonso’s restructuring as soon as possible , ” it will “resolve the TP issue.”).

184 See JX0402 1

– 3.

185 Id. at 2.

186 Id.

187 Id.

188 TT 596:15

– 19 (Wasinger).

189 See JX0487 at “Impacted Employee List” sheet ( columns P and Q ) . Some of the justifications were compiled with a clear lack of specificity and detail . For example, a justification provided for terminating Ashish Baldua was that the “CHRO & Executive Chairman role is no longer needed in the company

. ” Id. at P8. But Ashish Baldua never held th ese role s . Instead, Ashish Chordia did. Indeed, this was not the last time that Chordia would be mistaken for another Key Holder. A recording of the December 16,38

the parties identify as “Exhibit A

. ” Much like the playbook, t his document also included a list of backfilled , and what I find to be largely pretextual , reasons to justify the terminations

. 190 As other internal documents demonstrate, LGE also sought to capitalize on the Key Holders’ terminations by acquiring a large r stake in Alphonso for the “[p]urpose” of “[m]itigating the risk of potential litigation from KSH dismissal and SHA termination[.]” 191 LGE planned to acquire this additional ownership by providing the terminated Key Holders with buyout offers. As of Nove mber 29, 2022, LGE’s internal valuation of Alphonso placed its value between $700 million and $1.4 billion. 192 Using the $700 million valuation, LGE believed Alphonso’s share price to be “around $50 per share.” 193 Notwithstanding these numbers, Wasinger’s December 1, 2022 , email reflects his intention “to buy them out at the lowest possible price.” 194 LGE faced few challenges during the planning phase. But one problem did surface. The problem LGE perceived was the Board’s inability to fire two non

- executi ve Key

2022 Board meeting , in which the LG

- Affiliated Directors terminated Chordia , reveals that even while actively firing Chordia, Wasinger repeatedly referred to Chordia as “Raghu” despite Raghu Kodige’s absence from the meeting. JX0515.

190 See JX0518 at 4.

191 JX0463 at 7

. 192 Id. at 5.

193 Id.

194 JX0461.39

Holders. 195 Section 10.5(c) of the Stockholders’ Agreement provided the Board with the “exclusive right” to terminate “executive officers,” and employees compensated $500,000
or more per year. 196 But not all Key Holders fell within these categories ( i.e. , employee
K ey Holders Andrades and Sarma ) . Hence , LGE’s “[n]eed” for a “new CEO’s cooperation to fire non

- executive key holders.” 197 LGE thus set out to find an interim CEO to appoint for the purpose of terminating Andrades and Sarma. After LGE reviewed several ca ndidates , it settled on Aman Sareen

. 198 Sareen agreed to serve as Alphonso’s interim CEO but backed out shortly thereafter

. 199 He explained h is reason for doing so in an email to the LGE team : “I will not be able to sleep at night . . . . I just can [’] t mo ve forward.” 200 Hyoung

- Saeyi Park’s November 30, 2022 email corroborates this reasoning

. 201 Therein, he recount ed a phone

195 JX0487 at 53 (“New CEO terminates the remainder of 2 Key Holders as employees that Board does not have the power to do itself.”).

196 See JX0050.

197 JX 0 402 at 19; see also JX0487 at 53

. 198 From the time it made the decision to terminate the Key Holders, LGE began reviewing potential CEO candidates. See JX0402 at 27 (referencing another candidate LGE identified as being “LG

- friendly” ).

199 See JX0465 at 2

– 3 ; JX0456.

200 JX0465 at 2.

201 Id.40

conversation with Sareen, in which Sareen “said he won’t sleep well being a person who stabs their back, and he can’t really do this.” 202 The next day, LGE “ shift[ed] to plan B with Adam Sexton. ” 203 Sexton had one primary job duty : “ R emove two key holders (Ravi Narayan Sarma and Richard Andrades).” 204 Believing itself to have resolved the Board’s inability to terminate all Key Holders , LGE continued to plan for the termination s and the subsequent termination of the Stockholders’ Agreement. At trial, the parties dispute d whether LGE planned to terminate the Stockholders’ Agreement in its entirety. T he evidence compels two conclu sions. First, LGE planned to terminate all Key Holders for the specific purpose of causing the failure of the Designation Condition in Section 10.2(b) to terminate the Direct or - Designation Right. Indeed, the LG

202 Id.

203 See JX0458

. 204 JX0445 at 8; see also JX0640 175:10

– 13 (Sexton).41

Affiliated Directors say as much. 205 Jo’s deposition testimony is in accord. 206 Second, after terminating all Key Holders, LGE intended to terminate the Stockholders’ Agreement. 207

205 TT 443:5

– 23 (Durgin) (“Q. . . . . The reason that those seven individuals were fired was so that the common directors on the board could be removed; correct? A. That’s right.

. . . Q. Sure. You believed that if the key holders were fired, their director

- designation righ t in the stockholders agreement would be null and void; correct? A. T hat’s correct.”); JX0657 150:14

– 20 (Hwang) (“Q. So the answer to my question were the seven k ey shareholders terminated in order to remove the common directors is yes? . . . . THE WITNESS: Yes, I think so.”); TT 602:4

– 8 (Wasinger) (“Q. The reason that all of the key holders employed by Alphonso needed to be fired was because that cleared the way for the common directors to be removed; right? A. From the board, yes.”); TT 520:19

– 23 (Edward Lee) (“Q. And why was the termination of the key holders a mission of Project Wall

- E? A. Because we needed new board leadership. So in order to have a new boar d, we need to remove all the key shareholder.”)

.

206 JX0656 169:7

– 12 (Jo) (“Q. Do you understand that some of the individuals terminated on D

- Day were terminated in order to remove the key holders right to appoint directors to the Alphonso board? A[.] Yes.”).

207 See , e.g. , JX0402 at 19 ( October 26, 2022 meeting slide deck: “Pros” of terminating all Key Holders include that LGE “[c]an terminate the Shareholders’ Agreement”); JX0435 at 4 ( Scope of Work for Project Wall

- E: “Dismissal of Alphonso’s Directors and Termination of the Shareholder s Agreement Extinguishment of our company’s obligations for IPO S

- Filing and tender offer, etc.”); JX0418 at 1 (November 10, 2022 email discussing “D

- Day procedures” and identifying step 6: “Board approves termination of SHA”); JX0441 (November 21, 2022 Wa ll

- E Task Governance Review: “After removing 3 BOD seats held by the Key Holders, the restrictive clauses, such as IPO, Scheduled Tender Offer, Co

- Sales, etc. should be removed through speedy termination of the SHA.”); JX0466 at 18 (“Based on the pros/cons document, no need to terminate stockholder ’ s agreement on D

- Day, but need to decide roughly when would be best time to terminate it.”) ; JX0499 at 3

– 4 (December 14, 2022: “[D]etailed agenda for the Wall

- E D

- Day and what you are expected to do.” After dism issing three directors, “[o]ur company and Alphonso can terminate the SHA contract.”); JX0505 at 1 (Online meeting invitation for December 15, 2022, to discuss “when” to terminate the Stockholders’ Agreement); JX0558 at 3 (December 20 , 2022 (four days afte r D

- Day) : “Additional Question: When do42

Indeed, just two days before D

- Day, Wasinger sent an online meeting invitation to Edward Lee, Durgin, and Hyoun g - Saeyi Park scheduled for December 15, 2022. 208 The invitation included a description of the meeting’s purpose: “ [S] etting up this call for final plans on when to terminate the stockholders’ agreement as part of Project Wall [

- ] e.” 209 Three days before D

- Da y, December 13, 2022, LGE ’s public affairs team floated several so

- called “dreadlines” ( i.e. , potential negative headlines) to LGE executives. 210
These dreadlines characterize d LGE’s efforts to seize greater control from the Key Holders

as a n “LG

- led coup,” an “LG takeover , ” and a “hasty Board takeover.” 211 The next day, Wasinger called a special meeting of the Board to be held on December 16, 2022

— a meeting which Kodige would be unable to attend

. 212 And, des pite Chordia’s repeated requests for the LG

- Affiliated Directors to circulate an agenda, they did not provide one. 213 These events set the stage for December 16, 2022

.

you plan to terminate the [Stockholders’] Agreement? . . . . [T]here will not be any issue for as long as the SHA Agreement is terminated within 2023.”)

.

208 JX0505 at 1

. 209 Id. (emphasis added).

210 See JX0500 at 16.

211 Id.

212 JX0546 at 21 ; see also JX0515.

213 See JX0546 at 18, 19, 20; JX0515.43

3. Invasion O n December 16, 2022 ( i.e. , D

- Day) , the Board initiated the “nuclear option

. ” 214 It did so by holding a special meeting in which Wasinger proposed a management reorganization resolution ( the “Resolution”) to terminate the five executive

- officer Key Holders: Kodige, Chordia, Kalampoukas, Beotra, and Baldua. 215 Among other th ings, the resolution also proposed appoint ing Sexton as Chief Operating Officer and Interim CEO. 216
All four LG

- Affiliated Directors 217 approved the Resolution

. 218 During this meeting, Wasinger assured the now - terminated Key Holders that LGE planned to give them buyout offers for their Alphonso shares

— offers that he “believed” to be “fair .” 219 The price LGE soon thereafter proposed: $16.64 per share

. 220

214 This “nuclear option” was different , and indeed substantially more severe, than the one the parties had discussed during negotiations. Compare JX0336 at 3 , 6 , and JX0275 3, 6, with JX0023 at 4.

215 JX0536 at 2

– 3; s ee also JX0515 ; Pre

- Trial Stipulation ¶ 42

. 216 JX0536 at 2

– 3 ; s ee also JX0515 ; Pre

- Trial Stipulation ¶ 43

. 217 On D

- Day , the LG

- Affiliated Directors were Wasinger, Durgin, Edward Lee, and Hwang. Pre

- Trial Stipulation ¶ 35; s ee also JX0515.

218 JX0515 ; s ee also Pre

- T rial Stipulation ¶ 42

. Hwang signed the Resolution the day prior to the Board meeting

. See JX0530 at 11.

219 JX0515; JX0528 at 4.

220 See JX0544 § 2.1.44

Immediately f

ollowing the Board’s meeting, Sexton, as Interim CEO, terminated

non - executive

- officer Key Holders Andrades and Sarma. 221 But n otwithstanding the contentious manner in which Alphonso, acting through Sexton, terminated Andrades and Sarma, they both demonstrated a highly cooperative spirit and were clearly valued members of their respe ctive teams at Alphonso. For example, b efore Sareen withdrew his acceptance of the CEO role, he expressed his clear desire to keep Sarma on his team after
D

- Day. 222 Hyoung

- Saeyi Park also sought to bring Sarma back to Alphonso as a consultant. 223
E ven af ter being terminated, both Andrades and Sarma continued to help the ir respective Alphonso teams. 224 Credible t rial testimon y demonstrates that each was involved extensively in the knowledge transfer process

— a knowledge transfer process that Alphonso only became aware it needed when Andrades ( while still in his termination meeting with Sexton ) voluntarily raised the question of how he could pass - off certain projects that only he had worked on and understood. 225

221 Pre

- Trial Stipulation ¶ 44; TT 523:19

– 524:2 ( Edward Lee) ; s ee also TT 380:3

– 384:12 (Andrades).

222 See JX0455 at 1; TT 638:18

– 639:19 (Wasinger).

223 TT 396:13

– 398:20 (Sarma).

224 See TT 396:13

– 398:20 (Sarma); TT 381:19

– 383:11 (Andrades).

225 TT 381:19

– 383:11 (Andrades) ; TT 396:24

– 398:3 (Sarma).45

Defendants argue that o nce all Key Holders had been terminated the D irector

D esignation R ight fell away pursuant to the Designation Condition in Section 10.2(b)

. Then , later that same day, Zenith executed a written consent ( the “December Consent”)
pursuan t to its purported rights under Sections 10.2(c) and 10.3(a)(ii) of the Stockholders’ Agreement to remove the Common Directors from the Board. 226 The disputed effect of the December Consent gave rise to the present litigation. Defendants argue that the December Consent validly removed Chordia and the other Common Directors from the Board. Plaintiffs argue the December Consent was not valid. No part y dispute s that the Stockholders’ Agreement is still in effect and no part y has argue d that , since December 16, 2022, LGE, Zenith, or Alphonso have acted to terminate the Stockholders’ Agreement

. 227 Accordingly, as things stand, all L iquidity R ights remain in effect. F. Procedural History These events le d Plaintiffs to file the complaint in this action on March 30, 2023. The complaint set forth two counts. These claims were bifurcated for separate resolution. 228 This action deals with Count I, in which Plaintiffs seek an order , pursuant to 8 Del. C. § 225, that the December Consent is invalid and that the Common Directors prior
to D

- Day remain members of the B oard

.

226 JX0563 2

– 3

. 227 On April 21, 2023, I granted a Status Quo Order prohibiting Defendants from terminating or amend ing the Stockholders’ Agreement during the pendency of this action. See Dkt. 29 Status Quo Order.

228 Pre

- Trial Stipulation ¶ 1.46

The parties’ litigated this matter at a n arguably leisurely pace , at least relative to other actions brought pursuant to 8 Del. C. § 225 . T rial was held on September 20 and 21, 2023 , and, following briefing , p ost

- trial argument was held on December 5, 2023. II. LEGAL ANALYSIS Plaintiffs seek a determination of the Board’s proper composition pursuant to 8 Del. C. § 225. The primary dispute here is whether the December Consent is valid. I conclude that it is not. Alphonso agreed to be bound by t he “reasonable efforts” obligation in Sectio n 12.1. Alphonso acted through Sexton when, as interim CEO and at LGE’s request, he terminate d Andrades and Sarma

. Alphonso failed to comply with its obligation arising under Section 12.1 , and t hus, Sexton’s acts caused Alphonso to breach the Stockholders’ Agreement. Generally, when a promisor ’s non

- performance of a contractual duty materially contributes to the non

- occurrence of a condition, the condition is excused. Although the December Consent’s validity is predicated on no Key Holder serving as an Alphonso employee or officer, Alphonso’s non - performance of its duty under Section 12.1 cause d the non

occurrence of the condition

. This non - performance compels me to find Alphonso’s breach
t o excuse the Designation Condition. Accordingly , the December Consent is invalid. I begin by noting that i t is proper for the Court to consider th is issue in a Section 225 action

. “The purpose of a Section 225 action ‘is to provide a quick method for re view of the corporate election process to prevent a Delaware corporation from being immobilized47

by controversies about whether a given officer or director is properly holding office.’” 229 But the scope of a Section 225 action is narrow and is “limited to de termining those issues that pertain to the validity of actions to elect or remove a director or officer.” 230 That notwithstanding, Delaware courts reject the notion that “ rigid, inflexible rules preclude this court from hearing anything but the narrowest arguments in Section 225 cases. ” Instead, “ the question [of] whether an issue is properly litigable in a Section 225 action turns .

. . upon a determination of whether it is necessary to decide in order to determine the validity of the election or designation by which the defendant claims to hold office. ” 231 Thus, it is appropriate to consider whether the removal of a director was invalid as a result of some “breach of contract” but only for the “limited purpose of determining the corporation’s de jure directors and officers.” 232 In a Section 225 action, “[t]he . . . plaintiff, bears the burden of proving by a preponderance of the evidence that it is entitled to relief.” 233 When considering a plaintiff’s claims, “the relative weight given to any part icular piece of evidence, and particularly

229 Genger v. TR Inv ’r s., LLC , 26 A.3d 180, 199 (Del. 2011).

230 Id. ; s ee also Hockessin Cmty. Ctr., Inc. v. Swift , 59 A.3d 437, 453 (Del. Ch. 2012); Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 909[b], at 9

- 214 (2022).

231 Brown v. Kellar , 2018 WL 6721263, at *6 (Del. Ch. Dec. 21, 2018) (alteration a nd omission in original) (footnote omitted )

.

232 Id. at *5 (Del. Ch. Dec. 21, 2018) (quoting Genger , 26 A.3d at 200)

. 233 Swift , 59 A.3d at 453 (internal quotation marks omitted); see also Robert S. Saunders et al., Folk on the Delaware General Corporation Law § 225.03 (7th ed. 2021) (“ [A] party challenging the validity of a vote carries the burden in a section 225 action.”).48

witness testimony, is a matter for the court to determine as the trier of fact.” 234 Thus, I find it proper to address the arguments Plaintiffs raise to determine the Board’s proper composition. My analysis begins and ends with the “reasonable efforts” provision in the Stockholders’ Agreement. This case turns on a simple breach of contract. “When parties have ordered their affairs voluntarily through a binding contract, Delaware law is strongly inclined to respec t their agreement, and will only interfere upon a strong showing that dishonoring the contract is required to vindicate a public policy interest even stronger than freedom of contract. ” 235
But “[s] uch public policy interests are not to be lightly found, as the wealth

- creating and
peace - inducing effects of civil contracts are undercut if citizens cannot rely on the law to enforce their voluntarily

- undertaken mutual obligations.” 236 “Under Delaware law, the elements of a breach of contract claim are: (1) a

c ontractual obligation; (2) a breach of that obligation by the defendant; and (3) a resulting

234 Swift , 59 A.3d at 453.

235 GRT, Inc. v. Marathon GTF Tech., Ltd. , 2011 WL 2682898, at *12 n.60 (Del. Ch. July 11, 2011) (quoting Libeau v . Fox , 880 A.2d 1049, 1056

– 57 (Del. Ch. 2005), af f’ d in pertinent part , 892 A.2d 1068 (Del. 2006)).

236 Id. ; see also Snow Phipps Grp., LLC v. Kcake Acq

. , Inc. , 2021 WL 1714202, at *51 n.566 (Del. Ch. Apr. 30, 2021) (“Delaware courts do not lightly trump the freedom to contract and, in the absence of some countervailing public policy interest, courts should respect the parties’ bargain.”) (quoting Gildor v. Opti cal Sols., Inc. , 2006 WL 4782348, at *11 (Del. Ch. June 5, 2006)).49

damage to the plaintiff.” 237 “When determining the scope of a contractual obligation and measuring the parties’ conduct against that obligation to determine breach , ‘the role of a court is to effectuate the parties’ intent.’ ” 238 Thus, “[a] bsent ambiguity, 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 t o all its provisions.’ ” 239 That is,

“ [u] nless there is ambiguity, Delaware courts interpret contract terms according to their plain, ordinary meaning. ” 240 This comports with the notion that a “contract’s construction should be that which would be understood by an objective, reasonable third party.” 241 Here, Plaintiffs argue that Defendants breached Section 12.1 of the Stockholders’ Agreement. Section 12. 1 provides: The Corporation [(“Alphonso”)] agrees to use its reasonable efforts , within the requirements of applicable law, to ensure that the rights granted under this Agreement are effective and that the Parties enjoy the benefits of this Agreement. Su ch actions include, without limitation, the use of the

237 VH5 Cap., LLC v. Rabe , 2023 WL 4305827, at *13 (Del. Ch. June 30, 2023) (quoting H

– M Wexford, LLC v. Encorp, Inc. , 832 A.2d 129, 140 (Del. Ch. 2003) ).

238 In re Anthem

- Cigna Merger Litig. , 2020 WL 5106556, at *90 (Del. Ch. Aug. 31, 2020), aff’d sub nom. Cigna Corp. v. Anthem, Inc. , 251 A.3d 1015 (Del. 2021); see also Weinberg v. Waystar, Inc. , 294 A.3d 1039, 1044 (Del. 2023).

239 In re Anthem

- Cigna Merger Litig. , 2020 WL 5106556, at *90

. 240 Id.

241 Thermo Fisher Sci. PSG Corp. v. Arranta Bio MA, LLC , 2023 WL 2771509, at *17 (Del. Ch. Apr. 4, 2023) (quoting Salamone v. Gorman , 106 A.3d 354, 367

– 68 (Del. 2014)).50

Corporation’s reasonable efforts to cause the nomination and election of the directors as provided in this Agreement. 242 Plaintiffs argue that Defendants breached the obligation imposed by this “effort s clause” by “pursu[ing] Wall

- E for the express purpose of eliminating [the Key Holders’] rights .” 243 Given this decision’s focus on Defendants’ specific argument in response, I set it out below (omitting citations for ease of reading) rather than simply s ummarizing it: [Plaintiffs’] argument fails on two grounds. First, Section 12.1 imposes obligations only on “the Corporation,” which the contract defines as “Alphonso Inc.” It imposes no obligation on the board or LG/Zenith

— both of which are themselves individually defined under the contract. The Stockholders’ Agreement takes care to specify the precise persons or entities to whom each of its provisions applies. Some provisions even assign different roles to “the Corporation” and “the Board” within th e same sentence. The obligations imposed on the “Corporation” by Section 12.1 therefore do not apply to the “Board” or to “LGE,” because where a contract specifically imposes duties on one defined entity and does not name another, there is a “negative im plication” that the exclusion was “intentional.” Plaintiffs, however, have sued only the Alphonso board and LG. They cannot have breached Section 12.1 because that section does not apply to them, and the conduct plaintiffs complain of was undertaken sole ly by or at the direction of the board and LG/Zenith. [ 244 ] Moreover, to the extent Section 12.1 is implicated here at all, the evidence shows that Alphonso complied with it. Plaintiffs omit from their discussion the key limiting language at the end of the provision, which confines the Corporation’s “reasonable efforts” obligation “to caus[ing] the nomination

242 JX0050 (emphases added).

243 Dkt

. 182 Plaintiffs’ Post

- Trial Opening Br. (“Plaintiffs’ Post

- Trial Opening Br.”) at 42.

244 Defendants include the following footnote: “Alphonso is named as a nominal defendant only for purposes of the derivative claim in Count II, which is not being tried now .” Defendants’ Post

- Trial Answering Br. at 38 n.161.51

and election of the directors as provided in this Agreement .” Alphonso’s role was to use reasonable efforts to ensure all “the rights granted under [ the] Agreement.” Those “rights” included the board’s exclusive and unfettered right to terminate the Key Holders. They also included Zenith’s right to remove the Common Directors if no Key Holder is employed at Alphonso. The board and Zenith each exerci sed their “rights granted under [the] Agreement,” resulting (as the contract permitted) in no remaining Key Holder employees. Because the Stockholders’ Agreement provided for “the nomination and election of the [Common] directors,” only for so long as K ey Holders remained employed at Alphonso, the reasonable

- efforts obligation necessarily fell away as to the nomination of directors once the Key Holders had been terminated. Plaintiffs’ contrary view seems to assume that the “reasonable efforts” provision required the parties to refrain from contractually permitted actions that altered the parties’ contractual rights

— and that the parties remained bound to use efforts to maintain contractual rights even after the contract no longer required them. Neith er proposition makes sense, and neither is supported in the cases. 245 Four questions guide my analysis of Plaintiffs’ breach of contract argument arising from Section 12.1. The Court must determine (1) which parties are required to use reasonable efforts, (2) toward whom reasonable efforts must be used, (3) the scope of the obligation imposed by the words “reasonable efforts,” and (4) whether the party that must use reasonable efforts acted in the manner required by the obligation toward those to w hom reasonable efforts must be used.

245 Defendants’ Post

- Trial Answering Br. at 37

– 40.52

A. Alphonso Was Obligated By Section 12.1’s “Efforts Clause” Defendants’ first argument is that Section 12.1 imposes an obligation only on Alphonso , but not on Alphonso’s Board. 246 In ordinary circumstances, I might have some reservations about this argument. 247 It is a truism that a corporation acts through individuals, as I discuss further below. In support of their argument, however, Defendants point out that the Stockholders’ Agreement itself distinguishes in various instances between Alphonso and the Board. 248 In some instances the Stockholders’ Agreement refers separately to the Board and Alphonso in the same provision. 249 For purposes of resolving this matter, then, I have d etermined to apply Defendants’ requested approach and,

246 In the course of three sentences and a footnote, Defendants attempt to skirt further examination of Alphonso’s actions by asserting that its breach is beyond the ken of this summary proceeding. Not so. In the very next paragraph, Defendants go on to argue that “Alphonso complied with” Section 12.1. Id . Indeed, breach of the efforts clause is Plaintiffs’ lead argument for the December Consent’s invali dity. And, for purposes of resolving this dispute, I am accepting Defendants’ argument that I should distinguish between Alphonso and its board of directors for purposes of analyzing the breach. The parties briefed the matter, and two of the nine witness es at trial (Andrades and Sarma) testified about their terminations by Alphonso. This is a special summary proceeding to determine the Board’s proper composition, not a proceeding to determine damages or other remedies. Defendants’ suggestion that I cann ot consider defendant Sexton’s actions and nominal defendant Alphonso’s resulting breach of the efforts clause is perhaps understandable given the nature of Sexton’s conduct. It is also, however, an unduly restricted view of this special summary proceedin g, particularly in light of the arguments and evidence presented at trial.

247 See Dkt. 200 Plaintiffs’ Post

- Trial Reply Br. (“Plaintiffs’ Post

- Trial Reply Br.”) at 10 n.9.

248 See Defendants’ Post

- Trial Answering Br. at 37

– 38.
249 Id.53

accordingly, analyze Section 12.1’s efforts clause as imposing a “reasonable efforts” obligation on Alphonso but not the Board. Unbound by the obligation in Section 12.1, the Board was then free to exe rcise its express and “exclusive right” to terminate the “executive officers,” and employees compensated $500,000 or more per year, as provided in Section 10.5(c). 250 The Board did just that. It exercised this bargained

- for contract right on December 16, 2022, when it terminated the five executive

- officer Key Holders and when it appointed Sexton as interim CEO. 251

250 See JX0050. Section 10.5(c) provides in relevant part: Subject to any additional approvals required by law, the Restated Certificate, or pursuant to Section 10.5(d), the Stockholders agree that the Board of Directors shall have the exclusive right to, upon a pproval at a meeting of the Board of Directors, (i) hire or employ, terminate employment, appoint position and determine the compensation and benefits of executive officers of the Corporation and any employee of the Corporation who receives an annual compe nsation (inclusive of salary, benefits and other compensation, including stock options and stock awards) equal to $500,000 or more[.] Id.

251 The preponderance of the evidence supports the conclusion that the parties contemplated LGE’s exercise of control as including the unilateral termination of Alphonso’s C

- level officers. But even LGE characterized this exercise as reflecting an outer limit

— a “nuclear option”

— that would only be triggered in very specific circumstances. JX0023 at 4 (November 2020 email f rom Hahm to Beotra: “You mention that we could fire the C

- level officers and replace them with LGE staff, but we both know this is only a nuclear option that we have no incentive to do, unless you are running the company into the ground and destroying valu e, which you also have no incentive to do.”).54

Within this framework, if Plaintiffs are going to demonstrate a breach of the Stockholders’ Agreement’s express terms, it must arise from Alp honso’s breach of Section 12.1. Plaintiffs demonstrate just such a breach. While Alphonso is subject to the clear burden provided in Section 12.1, it is also a corporation. As a corporation, “lack[ing] . . . body and mind,” Alphonso “only can act throug h human agents.” 252 In this case, Alphonso acted through Sexton. Following his appointment as interim CEO, Sexton could well be seen as Alphonso’s primary actor on D

- Day. At LGE’s and the LG

- Affiliated Directors’ behest, Sexton acted for Alphonso and a s CEO when he terminated Key Holder employees Andrades and Sarma. 253

252 In re Dole Food Co., Inc. S’holder Litig. , 110 A.3d 1257, 1261 (Del. Ch. 2015). Separately, the acts of an agent may be imputed to a corporation. Thus, in the context of the present dispute, this imputation provides an alternative analytical approach. It leads to the same conclusion as the notion that Alphonso acted through Sexton. That is, Alphonso is liable for Sexton’s acts. ChyronHego Corp. v. Wight , 2018 WL 3642132, at *10 n.100 (Del. Ch. July 31, 20 18) (“For multitudinous purposes the knowledge and actions of a corporation’s human decision

- makers and agents may be imputed to it.”) (quoting In re Dole Food Co., Inc. S’holder Litig. , 110 A.3d at 1262.); Stewart v. Wilmington Tr. SP Servs., Inc. , 112 A. 3d 271, 302

– 03 (Del. Ch. 2015 ) (“A basic tenet of corporate law, derived from principles of agency law, is that the knowledge and actions of the corporation’s officers and directors, acting within the scope of their authority, are imputed to the corporatio n itself.” Delaware courts follow the “general rule of imputation” and “hold[] a corporation liable for the acts and knowledge of its agents.”) , aff’d , 126 A.3d 1115 (Del. 2015)

.

253 Defendants argue that the Board is not bound by Section 12.1 and thus was within its rights to terminate the executive

- officer Key Holders. But they do not argue that Sexton did not act for Alphonso when he carried out the terminations or that his acts were not otherwise imputed to Alphonso. See Defendants’ Post

- Trial Answerin g Br. at 37

– 40.55

Unlike the Board, in acting for Alphonso, Sexton’s acts were subject to the obligation contained in Section 12.1. Sexton exercised a power that he believed to be within the scope of the a uthority held by Alphonso’s CEO. 254 But he overlooked the express bargained

- for contractual efforts obligation that Alphonso agreed to as a party to the Stockholders’ Agreement. Alphonso’s contractual undertaking infused Andrades and Sarma’s employment st atus with certain protections since it was a precondition to their rights under the Stockholders’ Agreement. 255 Alphonso acted through Sexton when he terminated Andrades and Samra for LGE’s purpose of depriving them of their bargained

- for and protected c ontract rights

— contract rights that Alphonso was obligated to use “reasonable efforts” to “ensure” their enjoyment of. B. Alphonso Owed Andrades And Sarma The Use Of Its “Reasonable Efforts” The obligation imposed on Alphonso in Section 12.1 required it to us e reasonable efforts “to ensure that the rights granted under this Agreement are effective and that the Parties enjoy the benefits of this Agreement.” 256

254 JX0640 123:3

– 14 (Sexton).

255 This was particularly true on D

- Day since, at the time Sexton fired Andrades and Sarma, the Board had already terminated all other Key Holders. This meant that Andrades and Sarma’s continued employment was all that stood between their Director

- Designation Right and the failure of the Designation Condition.

256 JX0050.56

As explained above, the express terms of the Stockholders’ Agreement permitted the Board to terminate the executive

- officer Key Holders. 257 But that right had limits. Defendants overlook these limits. Instead, they make the brazen assertion that the Board has an “exclusive and unfettered right to terminate the Key Holders.” 258 Next, Defendants suggest t hat by combining the Board’s termination right with Zenith’s director removal right their respective actions “result[ed] (as the contract permitted) in no remaining Key Holder employees.” 259 This argument is wrong. The lynchpin of Defendants’ entire argument on this point is that the Board had a contractual right to terminate “the Key Holders.” This mischaracterizes Section 10.5(c). Section 10.5(c) provides the Board with the “exclusive right” to terminate “executive officers” and employees whose an nual compensation is $500,000 or more. 260 This distinction is the difference between the Board being able to terminate all Key Holders and its ability to terminate only a select group of them. As LGE’s own internal D

- Day documents demonstrate, Andrades an d Sarma fit neither category

— they were not subject to termination by the Board under Section 10.5(c). 261 This is why the Board appointed Sexton as interim CEO. Section 10.5(c) did not provide the

257 See id. § 10.5(c).

258 Defendants’ Post

- Trial Answering Br. at 39.

259 Id.

260 JX0050.

261 See JX0487 at 53; JX0402 at 19.57

Board with the “power” 262 to “fire the non

- executive key hol ders.” 263 Hence the “[n]eed” for the “new CEO’s cooperation.” 264 As Key Holders, the Stockholders’ Agreement granted Andrades and Sarma express personal rights to designate directors so long as the Key Holders retained a certain percentage of Alphonso’s outstanding Capital Stock. 265 Section 10.2(b) provides in its entirety: (i) Three (3) members of the Board shall be designated by the Employee Key Holder Majority (the “Common Directors”) during such time as Key Holders hold at least twenty percent (20%) of the outstanding shares of Capital Stock; (ii) two (2) members of the Board shall be designated by the Employee Key Holder Majority during such time as Key Holders hold at least fifteen percent (15%) of the outstanding shares of Capital Sto ck and (iii) one ( 1) member of the Board shall be designated by the Employee Key Holder Majority during such time as Key Holders hold at least ten percent (10%) of the outstanding shares of Capital Stock. For the avoidance of doubt, this director designa tion right by the Employee Key Holder Majority under this Subsection 10.2(b) shall be null and void if no Key Holder serves as an officer or employee of the Corporation at such time[.] 266 This provision grants a right. Indeed, the Designation Condition its elf refers to the preceding sentence as the “director designation right [.]” 267

262 JX0487 at 53.

263 JX0402 at 19.

264 Id.

265 See JX0050 § 10.2(b).

266 JX0050.

267 Id. (emphasis added).58

But the first sentence of Section 10.2(b) does not confer some broad or general right. It grants a personal right

— a right that is capable of being held even by a single Key Ho lder. By its plain and unambiguous terms, there are two requirements to a Key Holder exercising the Director

- Designation Right. First, all existing Key Holders must together hold the requisite percentage of Alphonso’s outstanding stock. At a minimum, th is requires cumulative holdings of 10% of Alphonso’s outstanding Capital Stock. 268 Second, at least one Key Holder must be an Alphonso officer or employee. If only one Key Holder is an Alphonso officer or employee, then that sole Key Holder would necessar ily make up the “Employee Key Holder Majority.” 269 This means the sole Key Holder serving as an Alphonso employee or officer individually would hold the entire designation right and can decide whom to designate without any input from the other Key Holders. Consider how this played out in the minutes before Sexton terminated Andrades and Sarma on D

- Day. LGE’s internal documents on Project Wall

- E demonstrate that D

- Day was a carefully sequenced operation. 270 First, the Board, acting pursuant to its express bargained

- for contractual right in Section 10.5(c) and not bound by the obligations arising from Section 12.1, terminated the executive

- officer Key Holders at the Board meeting. At

268 Id. § 10.2(b).

269 JX0050 § 6.2 (defining the Employee Key Holder Majority as “the Key Holders who are directors, officers or employees of the Corporation at such time (‘the Employee Key Holders’) holding a majority of the shares of Capital Stock then held by all Employee K ey Holders”).

270 See, e.g. , JX0487 at 53 (D

- Day Schedule).59

the same time, the Board also appointed Sexton as interim CEO. 271 Immediat ely following the terminations, the majority holder of Alphonso’s Capital Stock then held by Andrades and Sarma constituted the entirety of the Employee Key Holder Majority. 272 Andrades and Sarma

— and only Andrades and Sarma

— held the right to designate all Common Directors. At this point

— after the Board terminated the executive

- officer Key Holders but before Sexton terminated Andrades and Sarma

— Alphonso or Sexton could have asked Andrades and/or Sarma to designate new Common Directors. 273 We can never know what their answer would have been because Andrades and Sarma were denied even this basic and reasonable courtesy. 274 Defendants’ arguments further compel the conclusion that the Stockholders’ Agreement granted Andrades and Sarma a right that Alphonso was re quired to exercise reasonable efforts to “ensure” their enjoyment of. Defendants’ briefing modifies the text of the second sentence of Section 12.1 to refer specifically to Common Directors

— i.e. , the directors identified in Section 10.2(b)

— writing that “t he Stockholders’ Agreement

271 See id.

272 At this time, the Key Holders’ collective holdings still exceeded the thresholds required by Section 10.2(b), which satisfied the first requirement. See Pre

- Trial Stipulation ¶ 33. Andrades and Sarma satisfied the second requirement because they had not yet been terminated and, were at that time, Alphonso employees.

273 See TT 632:7

– 12 (Wasinger).

274 See TT 632:7

– 12 (Wasinger).60

provided for ‘the nomination and election of the [Common] directors[.]’” 275 Defendants’ omit, however, the first half of Section 12.1’s second sentence, which provides that “[s]uch actions include, without limitation . . . .” 276 Section 12.1’s first sentence thus includes the obligation identified in the second sentence, which Defendants interpret as unequivocally referring to the Common Directors. 277 But, by its own terms, the second sentence of Section 12.1 does not limit Alphonso’s obligations under the first sentence to solely the “nomination and election” of Common Directors. Instead, it expressly imposes a broader obligation on Alphonso to ensure that the “rights” (plural) granted under the Stockholders’ Agreement are effective. 278 Building off the foregoing and in this context, Section 12.1 obligated Alphonso to use reasonable efforts to ensure the rights “granted under this Agreement” are effective as

275 Defendants’ Post

- Trial Answering Br. at 39 (citing JX0 050 § 12.1) ( first alteration in original). But see Dkt. 205 Transcript of 12

- 5

- 2023 Post

- Trial Oral Argument (“Post

- Trial Oral Argument Tr.”) 131:9

– 15 (“[DEFENDANTS’ COUNSEL]: Well, we haven’t seen that contention from the other side, as the Court[] just noted. And I think that’s because [the second sentence of Section 12.1] doesn’t really apply. It goes, we would argue, to nomination and election. We aren’t dealing with directors who are nominated or elected. We’re dealing with a designation right.”)

.

276 JX0050.

277 See Include , B LACK ’ S L AW D ICTIONARY (11th ed. 2019) [hereinafter B LACK ’ S L AW ] (defining “include” as “[t]o contain as part of something. . . . [S]ome drafters use phrases such as including without limitation and including but not limited to

— which mean the same thing [as including]”) (emphases in original); see generally , K ENNETH A. A DAMS , A M ANUAL O F S TYLE FOR C ONTRACT D RAFTING 356 (4th ed. 2017); J. Travis Laster & Kenneth A. Adams, When Contracts Seek To Preempt Judicial Discretion , 101 J UDICATURE 32, 35 (2017).

278 See JX0050 § 12.1.61

to those Key Holders whose employment it controlled ( i.e. , Andrades and Sarma’s employment). Put another way, Andrades and Sarma struck a heartier deal than the other Key Holders. The executive

- officer Key Holders’ rights to designate directors were subject to a condition the Board could trigger at any time and pursuant to its own express contractual right to do so. Accepting Defendants’ argument regarding the proper construction of Section 12.1, the Board owed no obligation to those Key Holders under Section 12.1. By contrast, only Alphonso could terminate Andrades an d Sarma’s employment and thus cause the failure of the Designation Condition on which their right to designate directors was predicated. And, accepting Defendants’ construction of Section 12.1, Alphonso had an obligation under Section 12.1 to use its “rea sonable efforts” to “ensure” the rights granted in the Stockholders’ Agreement were effective, with the plain text of the Stockholders’ Agreement and Defendants’ own arguments compelling the conclusion that such rights included Andrades and Sarma’s Directo r - Designation Right. In one of Defendants’ primary arguments on this issue, they assert that the reasonable efforts obligation fell away once Alphonso and the Board had terminated all of the Key Holders. 279 But Defendants miss the point entirely

— Alphonso h ad an obligation to use “reasonable efforts” to “ensure” the “effective[ness]” of Andrades and Sarma’s rights in the first place, irrespective of whether that right could, after the use of reasonable efforts, be effectively terminated by firing them as a r esult of the Designation Condition.

279 Defendants’ Post

- Trial Answering Br. at 39.62

Indeed, such an argument would require me to conclude that Alphonso’s “reasonable efforts” obligation under Section 12.1 only commenced after Alphonso terminated Andrades and Sarma, which is contrary to the plain text o f Section 12.1. C. Alphonso’s Reasonable Efforts Obligation Although this analysis has already included considerable discussion of efforts clauses, it is time to give actual meaning to the words “reasonable efforts.”

1. Definition: Adding Color As noted pre viously, the “reasonable efforts” language in Section 12.1 is “known as an ‘efforts’ clause.” 280 “Efforts clauses generally replace ‘the rule of strict liability for contractual non

- performance that otherwise governs’ with ‘obligations to take all reasonab le steps to solve problems and consummate the’ contractual promise.” 281 There are a variety of these “clauses.” 282 But in Delaware, courts interpret them as having the same general meaning. 283 “[W]here the parties fail[] to contractually set [a meaning for

280 Menn v. ConMed Corp. , 2022 WL 2387802, at 34 (Del. Ch. June 30, 2022) (referring to “commercially reasonable efforts”); s ee also Akorn, Inc. v. Fresenius Kabi AG , 2018 WL 4719347, at *86

– 87 (Del. Ch. Oct. 1, 2018) (identifying “reasonable efforts” as an efforts clause), aff’d , 198 A.3d 724 (Del. 2018).

281 ConMed , 2022 WL 2387802 at *34.

282 See Akorn, Inc. , 2018 WL 4719347, at *86

– 88 (discussing the meaning of the various efforts clauses, i.e. , “reasonable best efforts,” “reasonable efforts,” and “commercially reasonable efforts”).

283 Id. at * 87; s ee also ConMed , 2022 WL 2387802 at *35 (“Although deal practitioners have some sense of the hierarchy amo ng efforts clauses, courts applying the standards have struggled to discern daylight between them.” “This decision, therefore, interprets ‘commercially best efforts’ as imparting the same meaning as ‘best efforts.’”); Neurvana Med., LLC v. Balt USA, LLC , 2020 WL 949917, at *15 n.128 (Del. Ch. Feb. 27,63

the efforts clause,]” Delaware courts ascribe a default meaning. 284 Such “provisions place[] an affirmative obli gation on the parties to take all reasonable steps.” 285

2020) (“[T]here is no basis for suggesting that reasonable efforts should be given a meaning different from best efforts or reasonable best efforts. Most courts use the terms best efforts and reasonable effo rts interchangeably.”) (quoting Kenneth A. Adams, Understanding “Best Efforts” and Its Variants (Including Drafting Recommendations) , 50 P RAC
. L. 11, 14 (2004)); 2 Lou R. Kling & Eileen T. Nugent, Negotiated Acquisitions of Companies, Subsidiaries and Divi sions § 13.06, at 13

- 46 n.7 (2023 ed.) (compiling cases that use “reasonable efforts,” “reasonable best efforts,” and “commercially reasonable efforts” and explaining that these standards are “often, without comment, used . . . somewhat interchangeably w ith ‘best efforts’”); 2 Farnsworth on Contracts § 7.17c, at 405 n.13 (3d ed. 2004).

284 Neurvana Med. , 2020 WL 949917, at *15; see also ConMed , 2022 WL 2387802, at *34 (explaining that Neurvana Med. , 2020 WL 949917 and Himawan v. Cephalon, Inc. , 2018 WL 6822 708 (Del. Ch. Dec. 28, 2018) both include a contractual definition of the obligation the efforts clause imposes and “are thus of little help”).

285 Williams Companies, Inc. v. Energy Transfer Equity, L.P. , 159 A.3d 264, 273 (Del. 2017); see also ConMed , 2022 WL 2387802 at *34 (interpreting efforts clause as requiring “all reasonable steps”); Williams Field Servs. Grp., LLC v. Caiman Energy II, LLC , 2019 WL 4668350, at *34 (Del. Ch. Sept. 25, 2019) (“More g enerally, an obligation to take reasonable actions or use commercially reasonable efforts obligates a party ‘to take all reasonable steps to solve problems and consummate the transaction’ on the terms set forth in the governing agreement .”). Irrespective of whether Delaware courts would treat the various efforts clauses interchangeably, Delaware case law supports the conclusion that the “reasonable efforts” provision contained in Section 12.1 of the Stockholders’ Agreement, should be interpreted as requiri ng “all reasonable steps.” Compare ABA M ERGERS AND A CQUISITIONS C OMMITTEE , M ODEL S TOCK P URCHASE A GREEMENT WITH C OMMENTARY 212 (2d ed. 2010) (identifying a deal practitioner ascribed hierarchy of efforts clauses as placing “reasonable efforts” below “reaso nable best efforts” and above “commercially reasonable efforts”), and Akorn , Inc. , 2018 WL 4719347, at *87

– 88 (quoting same), with Akorn , Inc. , 2018 WL 4719347, at *87

– 88 (interpreting a “commercially reasonable efforts” clause and a “reasonable best effor ts” clause as each requiring that the obligor “take all reasonable steps” based on the high court’s interpretation in a similar context: “Referring to [two different efforts clauses], the high court stated that ‘covenants like the ones involved here impose obligations to take all reasonable steps to64

As applied here, Section 12.1 requires Alphonso to take “all reasonable steps” “to ensure that the rights granted under this Agreement are effective and that the Parties enjoy the benefits of this Agre ement.” 286 No party has argued that there is ambiguity about what these words mean. Nonetheless, it is appropriate to take a deeper dive into the meaning of these words as they are used in this context as “[t]his Court often looks to dictionaries to

ascer tain a term’s plain meaning.” 287 Here, the terms “ensure,” “effective,” “enjoy,” and “benefits” are relevant.

“ Ensure” means:

● Merriam

- Webster Dictionary : To “guarantee.” 288 ● American Heritage Dictionary : “To make sure or certain[.]” 289

solve problems and consummate the transaction.’”) (quoting Williams Companies, Inc. , 159 A.3d at 272).

286 JX0050. Section 12.1 also includes language that limits the “reasonable efforts” obligation to those acti ons which fall “within the requirements of applicable law.” I interpret this unambiguous language to mean that the efforts requirement is specifically bounded by what is lawful to do. In other words, the efforts clause does not require Alphonso to carry out any acts that would have the effect of breaking the law. This language is designed to be a ceiling

—used to define the outer limits of the obligation

— not a floor. Compare id. § 12.1, with A DAMS , supra note 2 7 7, at 431.

287 In re Solera Ins. Coverage App eals , 240 A.3d 1121, 1132 (Del. 2020) ; Thermo Fisher Sci. PSG Corp. , 2023 WL 2771509, at *17 (“Under well

- settled case law, Delaware courts look to dictionaries for assistance in determining the plain meaning of terms which are not defined in a contract.”) (quoting Lorillard Tobacco Co. v. Am. Legacy Found. , 903 A.2d 728, 738 (Del. 2006)).

288 Ensure , The M ERRIAM

- W EBSTER D ICTIONARY (2022) [ hereinafter M ERRIAM

W EBSTER ]

.

289 Ensure , A M
. H ERITAGE C OLLEGE D ICTIONARY (3d ed. 1993) [hereinafter A M
. H ERITAGE ]

.65

● Oxford American Dictionary : To “make certain that (something) shall occur or be the case[.]” 290 “Effective” means:

● Black’s Law Dictionary : “[I]n operation at a given time[,]” and “[p]roductive; achieving a result[.]” 291 ● Merriam

- Webster Dictionary : “[P]roducing a d ecisive or desired effect[,]” “being in effect[,]” and “ready for service or action.” 292 ● American Heritage Dictionary : “Having an intended or expected effect[,]” “[o]perative; in effect[,]” “[e]xisting in fact; actual[,]” and “[p]repared for use or action[ .]” 293 ● Oxford American Dictionary : “[S]uccessful in producing a desired or intended result” or “operative[.]” 294 “Enjoy” means:

● Black’s Law Dictionary : “To have, possess, and use (something) with satisfaction; to occupy or have the benefit of (property).” 295 ● Merriam

- Webster Dictionary : “[T]o have for one’s benefit or use.” 296 ● American Heritage Dictionary : “To have the use or benefit of[.]” 297 ● Oxford American Dictionary : To “possess and benefit from[.]” 298

290 Ensure , N EW O XFORD A M
. D ICTIONARY (3 d ed. 2010) [hereinafter O XFORD A M .]

. 291 Effective , B LACK ’ S L AW
.

292 Effective , M ERRIAM

- W EBSTER
. 293 Effective , A M
. H ERITAGE
. 294 Effective , O XFORD A M
. 295 Enjoy , B LACK ’ S L AW
. 296 Enjoy , M ERRIAM

- W EBSTER
. 297 Enjoy , A M
. H ERITAGE
. 298 Enjoy , O XFORD A M
.66

“Benefit” means:

● Black’s Law Dictionary : “The advantage or privilege something gives; the helpful or useful effect something has[,]” and “the profit that moves to the promisee[.]” 299 ● Merriam

- Webster Dictionary : “[A]dvantage” or a “useful aid[.]” 300 ● American Heritage Dictionary : “Something that promotes or enhances well

- being; an advantage[,]” or a “[h]elp; aid[.]” 301 ● Oxford American Dictionary : “[A]n advantage or profit gained from something[.]” 302 Together, these definitions add color to the obligation Alphonso undertook when it entered the Stockholders’ Agreement. Alphonso undertook the obligation to “take all reasonable steps” to “ make certain” Andrades and Sarma’s Director

- Designation Right granted in Section 10.2(b) is “operative; in effect” and “productive,” such that And rades and Sarma “possess” or “have for [their]

. . . use” a right that is “helpful,” “useful,” and “advantage[ous].” 303 But that is not the end. The picture gets even clearer when considering how Delaware courts have applied the “all reasonable steps” obl igation when addressing efforts clauses.

299 Benefit , B LACK ’ S L AW
. 300 Benefit , M ERRIAM

- W EBSTER
. 301 Benefit , A M
. H ERITAGE
. 302 Benefit , O XFORD A M
. 303 Supra nn.2 88

– 30 2

.67

2. Application: Clarity While the requirement to take “all reasonable steps” does not “mean everything possible under the sun[,]” 304 it does include certain basic requirements. Plaintiffs quote Hexion Specialty Chemicals, Inc. v. Huntsman Corp. for the proposition that, at bottom , “[a] party breaches a ‘reasonable best efforts’ provision when it ‘pursue[s] another path designed to avoid’ an outcome.” 305 And indeed, this is encompassed by the notion that one might even breach an efforts clause by his passive acts which fail to sati sfy the affirmative obligation contained in the efforts clause. Prior “decisions of this court have found that a party breached an efforts provision [by] making no effort to sell or market the product [which he was obligated to do under an efforts clause] .” 306 In recent years, Delaware courts have begun to examine two specific factors. To determine “whether a party has breached an efforts clause in a transaction agreement, ‘this court has looked to whether the party subject to the clause (i) had reasonable grounds to take the action it did and (ii) sought to address problems with its counterparty.’” 307

304 See Akorn, Inc

. , 2018 WL 4719347, at *87 (quoting Alliance Data Sys. Corp. v. Blackstone Cap. P’r V L.P. , 963 A.2d 746, 763 n.60 (Del. Ch. 2009 ), aff’d , 976 A.2d 170 (Del. 2009)).

305 Plaintiffs’ Post

- Trial Opening Br. at 43 ( citing 965 A.2d 715, 749 (Del. Ch. 2008)).

306 ConMed , 2022 WL 2387802, at *36 (citing Pegasystems, Inc. v. Carreker Corp. , 2001 WL 1192208, at *9 (Del. Ch. Oct. 3, 2001)).

307 Id. at *35; see also Snow Phipps Grp., LLC , 2021 WL 1714202, at *42; Ako r n , Inc. , 2018 WL 4719347, at 91.68

In Williams Companies, Inc. v. Energy Transfer Equity, L.P. , the Delaware Supreme Court recounted the Hexion court’s observation that when facing solvency con cerns, “a reasonable response to such concerns might have been to approach the [seller’s] management to discuss the issue and potential resolutions of it .” 308 And when the solvency concern grew, “the court observed that the buyer ‘was then clearly obligate d to approach [the seller’s] management to discuss the appropriate course to take to mitigate’ the solvency concerns.” 309 This interpretation of Hexion is broader than the trial court read it to be. 310 The trial court in Williams explained that in Hexion , a buyer had undertaken an obligation to use “reasonable best efforts” to secure financing. 311 The trial court in Williams sought to distinguish Hexion on the grounds that in Hexion the buyer “actively and affirmatively torpedoed its ability to finance.” 312 But in Williams , the trial court found there to be an “absence of any evidence to show that [the obligor] caused [the non

- occurrence of a

308 159 A.3d at 272 (alteration in original).

309 Id. (alteration in original).

310 Id.

311 Williams Companies, Inc. v. Energy Transfer Equity, L.P. , 2016 WL 3576682, at *18 (Del. Ch. June 24, 2016), aff’d , 159 A.3d 264 (Del. 2017).

312 Williams Companies, Inc. , 159 A.3d at 272.69

condition necessary for closing].” 313 The high court found this focus improperly narrow because the efforts clauses im posed affirmative obligations, not a negative obligation that can be satisfied merely by not sabotaging a contractual condition. Certainly, “actively torpedo[ing]” a condition is one way to determine that a party has breached an efforts clause, but it is not the only way. 314 The threshold is not so high. Instead, even the failure to take actions a party is contractually obligated to use its efforts to take can give rise to a breach. 315
3. Reasonable Efforts In The Face Of An Express Contract Right In Defendants’ Pretrial Brief, they assert in passing in a single sentence that Section 10.5(c) provides the CEO the right to terminate non

- executive

- officer employees. 316 Defendants have also argued that a party need not give up its contract rights in the face of a competing obligation arising from an efforts clause. 317 Although Defendants made this

313 See id. at 273; Williams Companies, Inc. , 2016 WL 3576682, at *5 (“[T]he Merger Agreement includes a condition to closing that Latham provide ETC and Williams a written opinion” referred to as “the 721 Opinion

. ”).

314 Compare Williams Companie s, Inc. , 159 A.3d at 267, 272

– 273 (finding the trial court’s reading of Hexion and efforts clauses was not wrong per se and was erroneous only because it was “unduly narrow” since the trial court focused on whether the obligor had acted to cause the non

- oc currence of a condition and did not also consider whether it breached by failing to take steps to cause the condition to occur), with Williams Companies, Inc. , 2016 WL 3576682, at *5.

315 Williams Companies, Inc. , 159 A.3d at 272

– 63.

316 Dkt. 167 Defendants’ Pretrial Br. at 40.

317 The argument Defendants raise suggests the actual harm to such an interpretation is that it would alter the parties’ contractual rights by requiring the parties to use reasonable efforts to preserve a right even after the contract no longer required them to. Here, I again70

argument as to the Board, one might expect such an argument also to apply to a right that Defendants assert Section 10.5(c) grants the CEO. I need not reach this issue as to the Board since this analysis assumes Defendants’ starting point

— that Section 12.1 does not apply to the Board. It is questionable as to whether I even ne ed to address the issue here as to Sexton since Defendants also do not raise this argument as to any perceived right of the CEO to terminate employees. 318 Nonetheless, I address it briefly. In making their argument as to the Board, Defendants cite Akorn, I nc. v. Fresenius Kabi AG for the proposition that efforts clauses “d[o] not require either side of the deal to sacrifice its own contractual rights for the benefit of its counterparty.” 319 Defendants’ also quote Vintage Rodeo Parent, LLC v. Rent

- a - Center, Inc. : A party’s obligation to use commercially reasonable efforts must be cabined by its bargained

- for contractual rights. If an agreement to use commercially reasonable efforts to comply with obligations in a contract means that a party cannot exercise its bargained

- for right to terminate that contract, that bargained

- for right would be illusory. 320

note that Defendants have the sequence backwards. Alphonso was obligated to use reasonable efforts in the first instance to maintain the right in an effective and operative state. It does not alter the contract. It is quite literally a requirement provided in the contract’s express terms.

318 See Defendants’ Post

- Trial Answering Br. at 37

– 40.

319 2018 WL 4719347, at *91.

320 2019 WL 1223026, at *22 (Del. Ch. Mar. 14, 2019) (footnote omitted).71

At first glance, these passages might seem support ive of Defendants’ argument. Closer examination, however, shows this not to be so. In Akorn and Vintage Ro deo , the Court’s concern was whether a party’s contract rights are rendered illusory. 321 It is, of course, the most basic of principles that “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 third party.” 322 “Delaware courts read contracts as a whole, and interpretations that are commercially unreasonable or that produce absurd results must be rejected.” 323 When “read[ing] a contract as a whole . . . we will give each provision and term effect, so as not to render any part of the contract mere surplusage.” 324 This means

321 The Court in the cited cases focuses on the effectiveness of contract termination rights. Such rights can presumably only be used one time. Thus, by saying that the right cannot be used, one would in effect be rejecting the only use the right provides

— to terminate. This is why preventing the exercise of the right would mean to “sacrifice” the right in a manner that would render it, in effect, illusory.

322 Osborn ex rel. Osborn v. Kem p , 991 A.2d 1153, 1159 (Del. 2010).

323 Manti Hldgs., LLC v. Authentix Acq. Co., Inc. , 261 A.3d 1199, 1211 (Del. 2021); see also Merck & Co. v. Bayer AG , 2023 WL 2751590, at *6 (Del. Ch. Apr. 3, 2023) (quoting Manti Hldgs., LLC , 261 A.3d at 1211), aff’d , 202 3 WL 7777218 (Del. Nov. 16, 2023); IMO Ronald J. Mount 2012 Irrevocable Dynasty Tr. U/A/D Dec. 5, 2012 , 2017 WL 4082886, at *4 (Del. Ch. Sept. 7, 2017) (stating that the Court’s “task is to construe the contract according to the plain meaning of its terms, remaining mindful that [its] construction of each term must make sense when considering the contract as a whole”).

324 Osborn , 991 A.2d at 1159.72

that “[w]e will not read a contract to render a provision or term ‘meaningless or illusory.’” 325
Neither Zenith nor Alphonso , how ever, hold any express right to terminate the Director

- Designation Right. Indeed, Section 10.2(b) sets forth no right at all for LGE or Alphonso. Instead, it references a condition on the Director

- Designation Right. 326 Elsewhere, I note that Section 10.5 (c) of the Stockholders’ Agreement addresses the right of the CEO to “implement and effect” the “termination of employment” of “non

- executive officer employees of the Corporation in accordance with [a] human resources and labor policy [

. ] ” 327 That is fine a s far as it goes, but it is a basic tenet of contract law that I must give meaning to contracts by interpreting them as a whole. 328 Section 12.1 imposes a frankly small obligation on Alphonso, and that limited obligation, which Alphonso voluntarily underto ok, can hardly be said to have rendered the right to terminate employees “illusory.” Indeed, the CEO could terminate any Alphonso employee. Only when seeking to terminate Andrades and/or Sarma, however, was the CEO required to use reasonable efforts firs t under Section 12.1.

325 Id.

326 Although I need not consider any evidence beyond the plain text of the agreement here, I nonetheless no te that the record suggests the Designation Condition was inserted to serve an entirely different purpose than the one Defendants now assert. See supra n.48.

327 JX0050.

328 Osborn , 991 A.2d at 1159.73

Although tempering the CEO’s employee termination “right” comes nowhere near rendering the “right” ineffective or illusory, the same cannot be said for Defendants’ reading of Plaintiffs’ rights under the Stockholders’ Agreement. Defendants seek to read the Directo r - Designation Right as, in essence, an illusory right. Or, at least, a right that LGE and Alphonso could terminate at their election. 329 But that is not what the parties bargained for. 330 The Stockholders’ Agreement’s plain terms also belie Defendants’ rea ding. In applying Section 12.1 to temper the CEO’s use of his termination “right,” I must read the contract as a whole. Perhaps the CEO did hold some express employee termination right conferred by Section 10.5(c). Even were it so, Alphonso agreed to be bound by a specific standard of conduct regarding the treatment of Andrades and Sarma’s Director

- Designation Right. Defendants’ own argument reads the second sentence of Section 12.1 as referring to rights related to the Common Directors, the effectivene ss of which necessarily requires the operational existence of the Director

- Designation Right. 331 Reading the Stockholders’

329 Defendants’ reading also would appear to render the enti re Stockholders’ Agreement terminable at LGE’s option. Compare JX0050 § 13.8, and JX0050 § 13.1, with JX0050 § 10.2(b). See infra nn.3 6 1

– 6 2

.

330 It is also appropriate to consider commercial reasonableness and a document’s logic when interpreting a contract. See Osborn , 991 A.2d at 1159, 1160

- 61 (addressing request “to interpret the contract, contrary to both the plain meaning of the document and logic, and to reach an absurd, unfounded result”); Manti Hldgs., LLC , 261 A.3d at 1211; Merck & Co. , 2023 WL 2751590, at *6; IMO Ronald J. Mount 2012 Irrevocable Dynasty Tr. U/A/D Dec. 5, 2012 , 2017 WL 4082886, at *4.

331 Defendants modify the text of that sentence to make this point: “ [T] he Stockholders’ Agreement provided for ‘the nomination and election of the [Common]74

Agreement so as to render no provision surplusage and no rights to be illusory or meaningless requires rejecting Defendants’ reading of the Stockholders’ Agreement. Here, unlike in Akorn, Inc. and Vintage Rodeo Parent, LLC , the CEO’s employee termination “right” is not rendered illusory, nor is Alphonso asked to “sacrifice” the contract “right” to terminate employees. Instead, it is Defendants’ reading that would render the Director

- Designation Right an illusory or meaningless right

— a reading which I must reject. 332
D. Alphonso Breached Its Obligation To Use “Reasonable Efforts” To Ensure That Andrades And Sarma’s Director
- Designation Rig ht Remained Effective As noted above, Sexton acted for Alphonso when he terminated Andrades and Sarma. In so doing, he caused Alphonso to breach its obligation under Section 12.1. In the face of Alphonso’s affirmative obligation to take “all reasonable s teps,” Sexton failed to take any steps toward this obligation. Worse, and much like in Hexion , Sexton took steps in the opposite direction. As noted above, Sexton was brought in as an eleventh

- hour substitute for Sareen. Sareen previously agreed to ser ve as Alphonso’s interim CEO but backed out on November

directors[.]’” Defendants’ Post

- Trial Answering Br. at 39 (citing JX0050 § 12.1) (second alteration in original).

332 See Osborn , 991 A.2d at 1159

– 61; O’Brien v. Progressive N. Ins. Co ., 785 A.2d 281, 287 (Del. 2001) (“Contracts are to be interpreted in a way that does not render any provisions ‘illusory or meaningless.’”); Dermatology Assocs. of San Antonio v. Oliver St. Dermatology Mgmt. LL C , 2020 WL 4581674, at *29 n.284 (Del. Ch. Aug. 10, 2020) (“The cardinal rule of contract construction is that, where possible, a court should give effect to all contract provisions.”) (quoting Sonitrol Hldg. Co. v. Marceau Investissements , 607 A.2d 1177, 1184 (Del. 1992)).75

30, 2022. 333 Sareen explained to Hyoung

- Saeyi Park that “he won’t sleep well being a person who stabs their back, and he can’t really do this.” 334 On December 1, 2022, LGE “shift[ed] to plan B”

— offer ing Sexton the interim CEO position. 335 After a vetting process that consisted of a one

- hour conversation with Wasinger, the job was his. 336 Sexton’s role in all of this was simple and, indeed, plainly set forth in LGE’s draft offer letter. 337 Sexton’s job duties required him to “[r]emove two key holders (Ravi Narayan Sarma and Richard Andrades).” 338 Contrary to Jo’s trial testimony that Sexton was a “market industry veteran[] that . . . could help the Alphonso business,” 339 the preponderance of the evidence compels the unfortunate conclusion that LGE executives selected, and the LG

- Affiliated Directors appointed, Sexton for the interim CEO role because LGE viewed him as fully tractable. 340 The record demonstrates that Sexton also had significant personal i ssues that interfered tremendously with his ability to perform the role of interim CEO. Even on his

333 See JX0465 at 2; JX0456.

334 JX0465 at 2.

335 See JX0458.

336 TT 643:4

– 11, 649:14

– 23 (Wasinger).

337 See JX0445 at 8.

338 JX0445 at 8; see also JX0640 175:10

– 13 (Sexton).

339 TT 690:2

– 691:7 (Jo).

340 See, e.g. , JX0548 at 9 (“dumb and easy to control”).76

first day ( i.e. , D

- Day), for reasons I need not get into here, Sexton was “unable to speak in meetings and dozed off several times. He was a zombie.” 341 And after two days, Sexton was “already a bomb.” 342 The unrefuted contemporaneous evidence demonstrates that the Board appointed Sexton as a warm body to do the dirty work that it could not. Sexton’s own testimony at his deposition suggests that he had n o basis for terminating Andrades and Sarma other than blindly following the LG

- Affiliated Directors’ instructions. 343 The preponderance of the evidence compels the conclusion that Sexton gave little or no regard to Alphonso’s obligation to take “all reason able steps” to ensure that Andrades and Sarma enjoy the benefit of the rights granted to them in the Stockholders’ Agreement. 344 Despite being aware of the Stockholders’ Agreement, Sexton appears never even to have considered whether Alphonso had obligations to Andrades or Sarma before terminating them. But that does not mean that the obligation was not owed. When Sexton terminat ed Andrades and Sarma, he acted for Alphonso to deprive them of their Director

- Designation Rights. 345 Acting for Alphonso and as CEO, Sexton

341 JX0594; JX0548 at 6

– 7.

342 JX0548 at 7.

343 JX0640 169:10

– 16 (Sexton).

344 See id.

345 It is of no significance that this action was taken based on the Board’s direction because Sexton acted for Alphonso in breaching a corporate obligation. Defendants’77

acted at the LGE

- controlled Board’s bidding for the benefit of another party under the Stockholders’ Agreement ( i.e. , Zenith/LGE) because they “want[ed] a return on their investment.” 346 At a minimum, this thoughtless termination breached Alphonso’s contractual obligation under Section 12.1 to “take all reasonable steps” to “make certain” Andrades and Sar ma’s Director

- Designation Right remained “operative; in effect” and “productive,” such that Andrades and Sarma “possess” or “have for [their] . . . use” a right that is “helpful,” “useful,” and “advantage[ous].” 347 But Alphonso not only failed to take “all reasonable steps,” the overwhelming weight of the evidence, and certainly a preponderance, compels the conclusion that Alphonso took no steps and made no efforts to maintain Andrades and Sarma’s bargained

for right. Worse than taking no steps to ensure th e right, Alphonso triggered the Designation Condition and deprived them of the right entirely. In contexts like this, Delaware courts have previously examined two factors to determine whether an efforts clause has been breached. 348 Logic might dictate that where one undertakes an affirmative contractual duty to protect and give effect to a counterparty’s

arguments make abundantly clear their view that the efforts clause was a separate and in dependent obligation binding Alphonso specifically.

346 JX0235.

347 Supra nn.288

– 302.

348 ConMed , 2022 WL 2387802, at *35 (applying test to efforts clause related to a buyer’s post

- acquisition obligations under a stock purchase agreement).78

right, the failure to take any steps or use any efforts to do so necessarily requires a finding of breach. But I need not leave it to logic.

1. Reasonable Grounds The first factor requires courts to consider “whether the party subject to the [efforts] clause (i) had reasonable grounds to take the action it did.” 349 This question is not about whether the Board had a right or justification to terminate the exe cutive officers. The Board was not bound by Section 12.1. Instead, this question is about whether Alphonso had reasonable grounds to terminate Andrades and Sarma. I conclude that it did not. To reach this conclusion, I must consider the action taken an d the context in which it was taken. Here, the action is obvious. Alphonso

— owing Andrades and Sarma a specific and affirmative obligation to undertake reasonable efforts to ensure the effectiveness of the Director

- Designation Right

— terminated them and cau sed the failure of the Designation Condition. The preponderance of the evidence suggests that Sexton was well aware of the effect the terminations would have on Andrades and Sarma’s contractual rights. Starting in May 2022, Jo told Sexton of his plan to take control of Alphonso, “remove [Chordia] from whatever role,” and “[b]ring in new upper management.” 350 In addition to credible trial testimony regarding Sexton’s involvement, Sexton’s own deposition is telling. 351

349 Id

. ; see also Snow P hipps Grp., LLC , 2021 WL 1714202, at *42; Ako r n , Inc. , 2018 WL 4719347, at *91.

350 JX0253; JX0640 50:3

– 12 (Sexton).

351 See JX0640.79

After accepting the job offer in Decem ber 2022, Sexton was “brought under the cloak . . . and told that . . . they were going to remove the top management.” 352 Even from the express terms of his offer letter, Sexton understood that he was being brought in to “[m]ake staffing decisions for the company that are not within the exclusive right of the Board.” 353 Sexton also understood that he was being asked to terminate Andrades and Sarma

— whose employment “was not within the rights of the board, but were within the rights of the CEO.” 354 And, the week before D

- Day, Sexton met in person with the LGE team at LGE’s office. 355 There, the LGE team showed Sexton documents and explained Project Wall

- E and the events that would transpire on D

- Day. 356 The preponderance of evidence demonstrates that Sexton u nderstood his role in D

Day, the plan to oust the founders, and that firing Andrades and Sarma was a part of that plan. 357 Sexton was also aware of the Stockholders’ Agreement and the Board’s deliberation as to whether it would terminate the agreement

. 358 But even if Sexton did not

352 Id. 82:1

– 7 (Sexton).

353 Id. 119:4

– 121:14 (Sexton).

354 Id. 123:3

– 14 (Sexton).

355 Id. 81:23

– 84:22 (Sexton).

356 Id.

357 See, e.g. , id. 169:10

– 21 (Sexton).

358 Id. 142:2

– 4 (Sexton) (Sexton was told about it “[b]ecause [he] was joining as interim CEO”).80

actually know that terminating the two remaining Key Holders would terminate their Director

- Designation Right, Alphonso would be no less responsible for breaching its corporate obligation. As Defendants argue, Alphonso is the party that owed the obligation under Section 12.1. 359 By terminating Andrades and Sarma, Alphonso picked winners and losers under the Stockholders’ Agreement. The terminations triggered the Designation Condition, which terminated their Director

- Designation Right. Opposite its obligation under Section 12.1, Alphonso joined the invasion

— “actively and affirmatively torpedo[ing]” 360 the right that it explicitly promised to “ensure” the operability of for Andrade and Sarma’s benefit. But the damage to Andrades and Sarma’s rights does not end there. Without the Director

Designation Right, LGE

- controlled actors can unilaterally modify or amend the Stockholders’ Agreement to postpone the Key Holders’ realization of economic value from their Liq uidity Rights. 361 And they can unilaterally terminate the Stockholders’ Agreement

359 Defendants’ Post

- Trial Answering Br. at 37

– 38.

360 Williams Companies, Inc. , 159 A.3d at 272 (quoting Williams Companies, Inc. , 2016 WL 3576682, at *18).

361 See JX0050 §§ 13.8 (“This Agreement may be amended, modified or terminated (other than pursuant to Subsection 13.l above) and the observance of any term hereof may be waived (either generally or in a particular instance and either re troactively or prospectively) only by a written instrument executed by (a) [Alphonso], (b) the Investor, and (c) the Employee Key Holder Majority ( for the avoidance of doubt, such execution by the Employee Key Holder Majority shall not be required if no Ke y Holder serves as an officer or employee of [Alphonso] at such time ).”) (emphasis added), 1.23 (“‘Investor(s)’ means the Persons named on Exhibit A hereto, each Person to whom the rights of an Investor are assigned pursuant to Subsection 13.9, each Person who hereafter becomes a81

at their option. 362 Alphonso destroyed the rights Andrades and Sarma bargained for and gave LGE rights it had not. This charts onto the Williams Court’s description of He xion . On D

- Day, Sexton, as interim CEO, exceeded what the parties had discussed pre

- signing as the “nuclear option”

— i.e. , terminating C

- level officers

— and instead pushed the button to detonate an even more severe “nuclear option”

— i.e. , terminating the Dir ector

- Designation Right. 363 In doing so, Alphonso did not just fail to act to ensure Andrades and Sarma’s continued enjoyment of rights under the Stockholders’ Agreement. 364 Instead, like the Williams Court’s description of Hexion , Alphonso “actively and a ffirmatively torpedoed” 365 the Director

- Designation Right, in unequivocal breach of its obligations under Section 12.1.

signatory to this Agreement pursuant to Subsection 13.9 and any one of them, as the context may require.”), Exhibit A (identifying Zenith as the sole “Investor[]”).

362 See JX0050 § 13.1 (“Term and Termination. (a) Term. This Agreem ent shall continue in force so long as [Alphonso] shall exist, unless terminated earlier pursuant to Subsection 13.l(b) (the ‘Term’). (b) Termination. This Agreement and all restrictions on the Transfer of Shares created hereby shall terminate on the occ urrence of any of the following events: (i) The bankruptcy or dissolution of [Alphonso]; (ii) Any one Stockholder becomes the owner of all of the Shares which are then subject to this Agreement; or (iii) The execution of a written instrument by (x) [Alphon so], (y) LGE and (z) the Employee Key Holder Majority . For the avoidance of doubt, such execution by the Employee Key Holder Majority shall not be required if no Key Holder serves as an officer or employee of [Alphonso] at such time .”) (emphasis added).

363 JX0023 at 4.

364 I note that such a failure could be sufficient grounds on its own to constitute a breach of an affirmative obligation under an efforts clause. Williams Companies, Inc. , 159 A.3d at 273.

365 Id. at 272.82

And it did so at the behest of an interested counterparty to the Stockholders’ Agreement

— LGE, acting through Zenith. To be clear, the Bo ard had the right to terminate the executive

- officer Key Holders. 366 And Chordia and Kodige certainly gave the Board many good reasons to do so. I have considered their conduct and the effect it should have on the Board’s ability to terminate the executiv e - officer Key Holders. There is an extensive record of their unprofessional behavior, including a host of denigrating emails to LGE executives, blatant failure to observe the Board’s exclusive authority to hire executive officers like Matta, use of the “L G” name, and conflicts involving the data privacy audit and stock option issues. 367
I need not recount those events here. The Board had reason, and an express bargained

- for contract right, to terminate the executive

- officer Key Holders. But the Board also had no obligation to use reasonable efforts to ensure the Key Holders’ enjoyment of the rights granted under the Stockholders’ Agreement. Alphonso, on the other hand, had this exact obligation. And instead of even considering its obligations or any alte rnative paths forward, Sexton pulled the trigger. The context surrounding Andrades and Sarma’s employment is also relevant. When Andrades and Sarma first began working for Alphonso, they were at

- will employees. 368

366 As the argument goes, the Board was n ot bound by the obligation in Section 12.1.

367 See supra Section I.C.

368 TT 388:12

– 389:9 (Andrades); TT 399:18

– 21 (Sarma).83

But subsequent to the establishment of th e at

- will employment relationship, the parties entered into the Stockholders’ Agreement. 369 Andrades and Sarma bargained for certain rights under that agreement

— including the Director

- Designation Right and Alphonso’s promise to use reasonable efforts to en sure their rights are effective and that Andrades and Sarma are able to enjoy the benefits of the agreement. 370 Given that the rights were conditioned on employment, which was a condition within Alphonso’s control, Alphonso committed itself to use reasonab le efforts in that regard to ensure the rights were effective. Part of considering whether an obligor had reasonable grounds to take the action it did, requires considering the alternative courses of action available to it and whether it attempted to res olve the issues. This is the second factor that courts look to when determining whether a party breached an obligation arising from an efforts clause. 371

2. Active Attempts To Resolve The second factor requires courts to consider “whether the party subject to the [efforts] clause . . . (ii) sought to address problems with its counterparty.” 372 Here, there were many less drastic alternatives to terminating the remaining Key Holders. After the Board had terminated the executive

- officer Key Holders, the Employee

369 JX0050.

370 See id. §§ 10.2(b), 12.1.

371 See ConMed , 2022 WL 2387802, at *35; see also Snow Phipps Grp., LLC , 2021 WL 1714202, at *42; A ko r n , Inc. , 2018 WL 4719347, at *91.

372 ConMed , 2022 WL 2387802, at *35; Snow Phipps Grp., LLC , 2021 WL 1714202, at *42 (Del. Ch. Apr. 30, 2021); Ako r n , Inc. , 2018 WL 4719347, at *91.84

Key Holder Majority consisted of the holder of the majority of Alphonso shares then held by Andrades and Sarma. 373 They alone held the entire right to designate all Common Directors. 374 This left Sexton and Alphonso with many different options

— none of whic h were considered. For example, Sexton could have asked Andrades and Sarma to appoint new Common Directors. Sexton could have even explained LGE’s perceived problems with Chordia and Kodige. Or, instead of firing them and depriving them of their rights, Sexton could have waited to see if Andrades and Sarma would designate different Common Directors once they could wield the right on their own and the prior Common Directors were no longer Alphonso employees. Sexton also could have negotiated with them or investigated any other alternative. As noted previously, the credible evidence and trial testimony demonstrate that Andrades and Sarma were open to working with Alphonso and LGE. Both Andrades and Sarma were highly cooperative as individuals and as val ued employees. Indeed, before Sareen withdrew his acceptance of the CEO role, he was adamant about keeping Sarma on his team after D

- Day. 375 Hyoung

- Saeyi Park similarly sought to bring Sarma back to Alphonso and discussed his return as a consultant. 376 Even after being terminated, both

373 JX0050 §§ 10.2(b), 6.2.

374 See id.

375 See JX0455 at 1; TT 638:18

– 639:19 (Wasinger).

376 TT 396:13

– 398:20 (Sarma).85

Sarma and Andrades continued to help the teams they had worked with during their employment. 377 Credible trial testimony also demonstrates that each participated extensively in the knowledge transfer process and were cooperative far in excess of what one might have anticipated given the circumstances under which they had just been terminated. 378 In fact, Alphonso only became aware of the need for a knowledge transfer process when Andrades

— while still in his termination meeting with Sexton

— voluntarily raised the question of how he should pass

- off software modules and code that only he had worked on and understood. 379
Terminat ing these remaining Key Holders to remove Chordia and Kodige from the Board without exploring any less drastic alternatives was a manifestly unreasonable course of action. In Williams , the high court noted that in Hexion , when concerns began to arise, “a reasonable response to such concerns might have been to approach [those toward whom efforts were owed] to discuss the issue and potential resolutions of it .” 380 And that is how reasonable actors tend to do things. But here, there is not a shred of evidenc e demonstrating that Alphonso or Sexton gave any consideration to Andrades or Sarma’s rights, much less interacted with them in any meaningful way prior to their terminations. On the contrary,

377 See TT 396:13

– 398:20 (Sarma); TT 381:19

– 383:11 (Andrades).

378 See TT 396:13

– 398:20 (Sarma); TT 381:19

– 383:11 (Andrades).

379 TT 381:19

– 383:11 (Andrades).

380 Williams Companies, Inc. , 159 A.3d at 272.86

the record suggests that Sexton hardly knew who Andrades or Sa rma were when he fired them. He only knew about them because LGE had tasked him with their terminations and only knew their roles at Alphonso because he had reviewed an organization chart in advance. 381 The evidence overwhelmingly supports the conclusion that Sexton terminated Andrades and Sarma at LGE’s behest to terminate the Director

- Designation Right. 382 The Court’s conclusion based on the facts and arguments at issue in Williams also compels a similar finding. There, the Court highlighted the trial co urt’s recognition of evidence that an obligor: [D]id not direct [its law firm] to engage earlier or more fully with [the counterparty]’s counsel, failed itself to negotiate the issue directly with [the counterparty], failed to coordinate a response amon g the various players, went public with the information that [its counsel] had declined to issue the 721 Opinion, and generally did not act like an enthusiastic partner in pursuit of consummation of the [transaction]. 383 Based on this evidence, the C ourt found the trial court to have erred in analyzing whether the obligor had breached the obligations arising from the efforts clauses. 384 Here too, the preponderance of evidence demonstrates numerous alternative and less drastic measures that Alphonso and/or Sexton could have attempted but gave no

381 See , e.g. , JX0640 171:1

– 24, 179:1

– 23 (Sexton).

382 TT 538:17

– 539:9 (Edward Lee).

383 Williams Companies, Inc. , 159 A.3d at 273.

384 Id.87

consideration to. By beginning with the most drastic option, Defendants forewent any hope of addressing the issues in proportional and measured increments. Furthermore, when reviewing the second factor, Delaware courts refer to “the party subject to the clause” as the one that must seek “to address problems with its counterparty.” 385 But here, Defendants do not argue that Alphonso sought to address any issues with Andrades and/or Sarma. At best, Alphonso’s LGE

- co ntrolled Board sought to address some of the issues with other Key Holders. There are two reasons why these “efforts” fail to satisfy the efforts clause. First, these actions were only taken with regard to persons to whom reasonable efforts were not owed ( i.e. , Chordia and Kodige ). Second, Defendants’ own argument is that for the purpose of interpreting the obligations in the Stockholders’ Agreement, the Board and Alphonso are distinct actors. But the reciprocal follows. That is, if Alphonso’s obligati ons under the Stockholders ’ Agreement do not obligate the Board, then the acts taken by the Board should not be read as satisfying Alphonso’s obligations under the Stockholders ’ Agreement. In sum, I conclude that Alphonso did not have reasonable grounds to carry out its terminations of Andrades and Sarma in the way that it did, and Alphonso undeniably failed to take any steps or make any attempts to resolve the issues with Andrades and/or Sarma. Thus, Alphonso breached its obligation to use reasonable effo rts and take all reasonable steps “to ensure that the rights granted under this Agreement are effective” and Andrades

385 ConMed , 2022 WL 2387802, at *35; accord Ako r n , Inc. , 2018 WL 4719347, at *91.88

and Sarma “enjoy the benefits” of the rights provided in the Stockholders’ Agreement. Accordingly, and as explained below, I find the Des ignation Condition excused and that Andrades and Sarma step into the shoes of Employee Key Holders under the Stockholders’ Agreement. * * * Given the analysis above, I do not need to reach the implied covenant or Schnell . I acknowledge, however, the significant issues raised under those arguments and facts relevant thereto. For example, Plaintiffs proved by a preponderance of the evidence th at Project Wall

- E was undertaken for the purpose of eviscerating the Key Holders’ liquidity rights and the limited protections they had negotiated of those rights. Plaintiffs proved that throughout LGE’s planning for D

- Day, its intention was to fire all K ey Holders for the express purpose of terminating the Director

- Designation Right and then terminating the Stockholders’ Agreement altogether. Although the question of termination was disputed at trial, the evidence overwhelmingly demonstrates that it was only a question of “when” Zenith and LGE would terminate the Stockholders’ Agreement and not “if” they would. 386 Having sat through the trial and assessed the credibility of each witness carefully, I conclude that at the time the LG

- Affiliated Directors in itiated D

- Day, they had decided to terminate the Stockholders’ Agreement sometime thereafter. 387 And, after having

386 JX0505 at 1; see also supra n. 207

. 387 See supra n. 207

.89

determined to launch D

- Day ( i.e. , the “nuclear option”), LGE attempted to backfill justifications for many of its termination decisions. 388 The evidence demonstrates that many of those justifications were pretextual and, indeed, did not apply to several of the terminated executive

- officer Key Holders. None of the reasons provided applied to Andrades or Sarma. 389
These facts are certainly uncomfortable. But they are also insufficient to find a breach of the implied covenant, at least as it relates to the executive

- officer Key Holders. I have already found a breach of the Stockholders’ Agreement’s express terms as to Andrades a nd Sarma. Thus, I need not address the implied covenant as to them. For the sake of completeness, however, I briefly address the implied covenant arguments to the extent they concern the Board’s terminations of the executive

- officer Key Holders. When app lying the implied covenant, in its “gap filler” capacity, Delaware courts “first must engage in the process of contract construction to determine whether there is a gap that needs to be filled.” 390 Indeed “the implied covenant of good faith and fair dealin g is recognized only where a contract is silent as to the issue in dispute.” 391 In making this

388 See, e.g. , JX0402 at 2 (“I believe the key decision we made today was who we will be terminating, and we need to back up our rationale for such termination.” “Set our direction toward termination of all key share holders.”).

389 See JX0651 331:20

– 332:9 (Edward Lee)

. 390 Allen v. El Paso Pipeline GP Co. , 113 A.3d 167, 183 (Del. Ch. 2014 ) (citations omitted), aff’d , 2015 WL 803053 (Del. Feb. 26, 2015).

391 AQSR India Priv., Ltd. v. Bureau Veritas Hldg., Inc ., 2009 WL 1707910, at *11 (Del. Ch. June 16, 2009).90

determination, courts must assess “whether the language of the contract expressly covers a particular issue, in which case the implied covenant will not apply, o r whether the contract is silent on the subject, revealing a gap that the implied covenant might fill.” 392 Even “[w]here the contract is silent, ‘[a]n interpreting court cannot use an implied
covenant to re

- write the agreement between the parties, and shou ld be most chary about implying a contractual protection when the contract could easily have been drafted to expressly provide for it.’” 393 “[T]he implied covenant will not serve as a means to provide contractual protections that parties ‘failed to secure for themselves at the bargaining table.’” 394 It “only applies to developments that could not be anticipated, not developments that the parties simply failed to consider.” 395 In some instances, a contract may indeed be silent as to a term, but only because the parties negotiated over the matter and determined to reject the relevant term or otherwise not address the matter in the agreement. “The most obvious reason a term would not appear in the parties’ express agreement is that the parties simply rejected that term ex ante when

392 Allen , 113 A.3d at 183.

393 Oxbow Carbon & Mins. Hldg., Inc. v. Crestview

- Oxbow Acq., LLC , 202 A.3d 507 (Del. 2019).

394 S’holder Representative Serv. LLC v. Albertsons Companies, Inc. , 2021 WL 2311455, at *8 (Del. Ch. June 7, 2021).

395 Nemec v. Shrader , 991 A.2d 1120, 11 26 (Del. 2010).91

they articulated their contractual rights and obligations.” 396 This might arise where “the parties . . . considered the term, and perhaps [after] some give

- and

- take dickering, the parties agreed the term should not be made part of t heir agreement. They thus rejected the term by purposefully omitting the term.” 397 This is the case here, at least as to the executive

- officer Key Holders. The parties bargaining history on this point is telling. 398 The bargaining history indicates that the parties considered employment contract terms and sought a CEO termination veto right. 399 And, after LGE rejected the CEO termination veto right, Beotra exchanged emails with Hahm. One such email explained Beotra’s understanding that “LG controls the b oard and hence all the decisions that need simple board majority

- CEO hire/fire/comp, operating plan, LG funding, additional debt etc.” 400 Beotra reiterated this understanding in a subsequent email and expressly identified that LGE might seek to terminate the CEO for a variety of reasons. Beotra stated that LGE may seek to terminate C

- level officers if there

396 Allen v. El Paso Pipeline GP Co., L.L.C. , 2014 WL 2819005, at *11 (Del. Ch. June 20, 2014).

397 Id. (alteration and omission in original).

398 Nationwide Emerging Managers, LLC v. Northpointe Hldg., LLC , 112 A.3d 878, 897

– 98 (Del. 2015) (“By necessity, any argument by a party that another party breached an implied term invites consideration of evidence of the parties’ bargaining history.”).

399 See JX0012 at 2; JX0014 at 6; JX0020 at 41.

400 JX0022.92

is a “[f]alling out on strategy with key employees

- In case of any disagreement with CEO/key employees LG has the right to prevail.” 401
This Court is “most chary” about implying terms in an agreement, and doubly

- so when the concept was raised and discarded in the course of negotiations. It cannot be said that this is a circumstance in which no party contemplated the potential need for employment contr acts or the possibility that the LG

- dominated Board could terminate the executive

- officer Key Holders to further LGE’s interests in the absence of such contracts. Indeed, the record shows that this concept was specifically raised during the course of
nego tiations, including during the course of negotiations over the right of the LG

dominated Board to effectuate such terminations unilaterally. Having anticipated these points and having determined not to secure terms at the bargaining table to address them, the executive

- officer Key Holders can find no refuge now in the implied covenant’s gap

filling function. “Beyond its gap filling function, the implied covenant applies ‘when a party to the contract is given discretion to act as to a certain subject and i t is argued that the discretion has been used in a way that is impliedly proscribed by the contract’s express terms.’” 402 Here, contrary to being impliedly proscribed by the Stockholders’ Agreement’s express

401 JX0023 at 1

– 3. Read in the context of the Be otra’s ongoing conversation with Hahm, it is evident that the parties were referring to “C

- level officers” and Beotra’s references to the CEO were illustrative. See id. at 4.

402 SerVaas v. Ford Smart Mobility LLC , 2021 WL 3779559, at *10 (Del. Ch. Aug. 25, 2021) (quoting Oxbow Carbon , 202 A.3d at 504 n.93).93

terms, the Board terminated the executive

- office r Key Holders pursuant to an express contract term. “The Supreme Court has maintained that a contractual gap is not necessary to state a claim for breach of the implied warranty where one party acted arbitrarily or unreasonably, thereby frustrating the fr uits of the bargain[.]” 403 But “[w]hen determining the parties’ reasonable expectations, the court analyzes ‘whether the parties would have bargained for a contractual term proscribing the conduct that allegedly violated the implied covenant had they fores een the circumstances under which the conduct arose.’” 404 Here, again, the analysis is rerouted to the parties’ understanding at the time of contracting. As the above analysis of the “gap

- filling” function demonstrates, the Key Holders understood that the Board could unilaterally terminate the executive

- officer Key Holders. Given this understanding, Plaintiffs fail to show by a preponderance of the evidence that the parties would have agreed to meaningful limitations on the Board’s ability to terminate th e executive

- officer Key Holders. 405

403 Haney v. Blackhawk Network Hldg., Inc. , 2016 WL 769595, at *8 (Del. Ch. Feb. 26, 2016) (internal quotation marks omitted). Delaware courts interpret the “fruits of the bargain” language as based on th e parties’ reasonable expectations. Baldwin v. New Wood Res. LLC , 283 A.3d 1099, 1118 (Del. 2022) (“The party asserting the implied covenant has the burden of proving ‘that the other party has acted arbitrarily or unreasonably, thereby frustrating the fru its of the bargain that the asserting party reasonably expected.’”).

404 Baldwin , 283 A.3d at 1118.

405 The parties spilled significant ink on Plaintiffs’ arguments concerning asserted limitations on termination of at

- will employment. The Stockholders’ Agreement, however, is a separate agreement and subject to implied covenant analysis under its unique ter ms and negotiating history. Even setting this aside, I note that Plaintiffs’ arguments here focus largely on the asserted pretextual nature of Exhibit A ( i.e. , the purported rationale for the executive

- officer Key Holders’ terminations). Unlike the cases Plaintiffs cite, this is not a94

Schnell is also unavailing. Plaintiffs raise this argument “counterfactually” if there “were no breach of contract.” 406 Given this, I note only that “ our ‘ case law is indicative of a healthy inclination on the part of the judiciary to employ the Schnell principle of legal but inequitable’ only sparingly[.]” 407 And indeed, “[a]lmost all of the post

- Schnell decisions involved situations where boards of directo rs deliberately employed various legal strategies either to frustrate or completely disenfranchise a shareholder vote.” 408 Defendants argue that the situations described in the foregoing sentence from Coster are very different from circumstances presented in this case. Having concluded that Alphonso breached the Stockholders’ Agreement, I need not delve into this complex area of our law further in what would likely be dicta, at best, given the counterfactual posture in which Plaintiffs raise their argument

.

circumstance in which an employer is claimed to have den ied compensation by pretextually designating the at

- will employee’s termination as “for cause.” See Plaintiffs’ Post

- Trial Opening Br. at 53 (citing Sheehan v. Assured Partners, Inc. , 2020 WL 2838575 (Del. Ch. May 29, 2020); Smith v. Scott , 2021 WL 1592463 (Del. Ch. Apr. 23, 2021) ) . Indeed, I question whether the Board needed to state a reason for terminating the executive Key Holders at all. The pretextual nature of m uch of Exhibit A unquestionably impairs my credibility assessment of the LGE witnesses, but I do not conclude that it triggers any of the very limited at

- will employment termination exceptions identified in Pressman

. See Lord v. Souder , 748 A.2d 393, 400 (Del. 2000) (discussing E.I. DuPont de Nemours & Co. v. Pressman , 679 A.2d 436 (Del. 1996) )

.

406 Plaintiffs’ Post

- Trial Opening Br. at 54.

407 In re WeWork Litig. , 250 A.3d 976, 996 (Del. Ch. 2020).

408 Coster v. UIP Companies, Inc. , 300 A.3d 656, 666

– 67 (Del. 2023) (quoting Stroud v. Grace , 606 A.2d 75, 91 (Del. 1992)).95

E. Remedy Alphonso breached the reasonable efforts obligation in Section 12.1. This breach by non

- performance excuses the Designation Condition. With the Designation Condition excused, the December Consent is rendered invalid.

1. The Designation Condition I s Excused When considering the appropriate remedy in circumstances of breach like this, “Delaware has adopted the framework set forth in the Restatement (Second) of Contracts.” 409 The Restatement provides that “[w]here a party’s breach by non

performance c ontributes materially to the non

- occurrence of a condition of one of his duties, the non

- occurrence is excused.” 410 This is sometimes referred to as the Prevention Doctrine. 411 But “the prevention doctrine ‘only applies .

. . where the lack of cooperation constitutes a breach . . . of a duty imposed by the terms of the agreement itself or of a duty imposed by a term supplied by the court.’” 412 Plaintiffs have demonstrated by a preponderance of the evidence that the obligation imposed on Alphonso by Section 1 2.1 is the sort requiring some affirmative action and

409 In re Anthem

- Cigna Merger Litig. , 2020 WL 5106556, at *90 ; see also Williams Companies, Inc. , 159 A.3d at 273 (citing Restatement (Second) of Contracts § 245 cmt. b (1981)).

410 Restatement (Second) of Contracts § 245 (1981).

411 See Snow Phipps Grp., LLC , 2021 WL 1714202, at *52.

412 Id. at *53 n.576 (omissions in original) (quoting Restatement (Second) of Contracts § 245 cmt. a (1981))

.96

cooperation, the failure of which can give rise to a breach of contract. Plaintiffs also showed that Alphonso breached its contract obligation under Section 12.1. Specifically, Alphonso breached by fa iling to use reasonable efforts to ensure the effectiveness , and Andrades and Sarma’s continued enjoyment of , the benefit of the Director

- Designation Right. This is a breach by non

- performance. The question turns to whether the breach “materially contribu ted” to the non

occurrence of what Defendants serially characterize as a “condition precedent.” 413 “A breach ‘contributed materially’ to the non

- occurrence of a condition if the conduct made satisfaction of the condition less likely.” 414 Here, the condition required that at least one Key Holder remain an Alphonso officer or employee. 415 It is not disputed that Sexton, acting for Alphonso and thus owing Andrades and Sarma the obligation to use reasonable efforts, terminated them. In doing so, Sexton also ter minated the Director

- Designation Right. 416 At the very least, this made

413 See, e.g. , Post

- Trial Oral Argument Tr. 167:16, 169:23

– 170:5.

414 Snow Phipps Grp., LLC , 2021 WL 1714202, at *52 (quoting In re Anthem

- Cigna Merger Litig. , 2020 WL 5106556, at *91).

415 JX0050 § 10.2(b).

416 To the extent it is relevant, I recognize the “one of his duties” language in the Restatement’ s articulation of the Prevention Doctrine. Here, Alphonso has an affirmative duty under Section 12.1 to use reasonable efforts to ensure that the rights granted in the Stockholders’ Agreement are effective. This includes Andrades and Sarma’s Director

Des ignation Right. And indeed, Defendants have expressly asserted that Section 12.1’s second sentence relates to the Common Directors and rights related thereto. By implication, their argument required Alphonso to use its reasonable efforts to “ensure” the effectiveness of the Director

- Designation Right. But the Director

- Designation Right is97

the satisfaction of the condition “less likely,” but, practically speaking, it eliminated the right in its entirety. Although Sexton and Alphonso breached their obligations, neither h as argued that Sexton’s acts for Alphonso did not materially contribute to the non

- occurrence of the condition. 417 And indeed, Sexton’s acts were the foreseeable and the “but for” cause of the Designation Condition’s non

- occurrence. Deliberate acts to sin k a ship, while not necessary, can be “sufficient to warrant application of the prevention doctrine.” 418 Here, it is probable that Sexton acted with the deliberate intention of “sinking the ship.” But even if he did not, “the relevant question is limited t o whether a party’s breach ‘contribute[d] materially to the non

- occurrence of a condition.’” 419 Thus, it does not require “the court to analyze the subjective intent of the breaching party when conducting

conditioned on the non

- occurrence of Andrades and Sarma’s employment termination. It follows that the contractual duty to use reasonable efforts to ensure the Director

Designation Right is also conditioned on the non

- occurrence of the employment terminations. Thus, by failing to use reasonable efforts, Alphonso materially contributed to the non

- occurrence of the condition on which one of its duties is predicated.

417 On ce the breach has been shown, the burden shifts to the breaching party to show that the breach did not “materially contribute” to the failure or non

- occurrence of the condition. Here, this is a burden that neither Alphonso nor Sexton have carried. See Wi lliams Companies, Inc. , 159 A.3d at 273 (“[O]nce a breach of a covenant is established, the burden is on the breaching party to show that the breach did not materially contribute to the failure of the transaction.”) (citing Restatement (Second) of Contract s § 245 cmt. b (1981)); Snow Phipps Grp., LLC , 2021 WL 1714202, at *52 (quoting In re Anthem

- Cigna Merger Litig. , 2020 WL 5106556, at *91).

418 Snow Phipps Grp., LLC , 2021 WL 1714202, at *54.

419 Id. at *53 (quoting Restatement (Second) of Contracts § 245 (198 1) ).98

this inquiry. Nor have cases applying th[e prevention] doctrine required the court to undertake such an analysis.” 420 Defendants argued this issue at the post

- trial hearing. 421 Contrary to the relevant standard, Defendants asserted that by terminating the Key Holders, “[i]t’s not as though anything that defendants have done make that condition incapable of being satisfied.” 422 Thus, “this isn’t a circumstance which the prevention doctrine contemplates where satisfaction of a condition has been rendered impossible by the defendants’ contract.” 423 But as I have already noted, neither Delaware nor the Restatement look to whether a party’s
acts caused the impossibility of the condition. Instead, they look to whether the party’s

non - performance made the satisfaction of a condition “less likely.” 424 Here, Plaintiffs have satisfied this requirement and Defendants have not shown otherwise. These fi ndings excuse the Designation Condition. Accordingly, I read the Director

- Designation Right in Section 10.2(b) of the Stockholders’ Agreement as no longer subject to the Designation Condition. As it would have been had Alphonso performed its Section 12.1 obligation, Andrades and Sarma step back into the shoes of Employee Key

420 Id.

421 Post

- Trial Oral Argument Tr. 169:23

– 170:14.

422 Id.

423 Id.

424 Snow Phipps Grp., LLC , 2021 WL 1714202, at *52 (quoting In re Anthem

- Cigna Merger Litig. , 2020 WL 5106556, at *91).99

Holders, and the Employee Key Holder Majority is thus the majority holder of Alphonso’s Capital Stock held by Andrades and Sarma. Although neither party has raised the issue, I acknow ledge that there is an exception to the prevention doctrine where a party assumed the risk of prevention. That is, “‘[t]here is no prevention claim where the contract, in effect, authorizes prevention’ by allocating the risk of the condition’s nonoccurren ce.” 425 This exception “generally applies in two situations. The first is when a contract ‘uses explicit language to authorize prevention.’ Courts have recognized explicit authorizing language including ‘for any reasons whatsoever,’ ‘regardless of the ci rcumstances giving rise to such condition,’ or ‘nothing [therein] requires’ the agreed

- upon condition precedent be consummated.” 426 This application is not relevant here. “The second [application arises] ‘when contract terms condition the consummation of a transaction upon the approval of the other party, or subject one party to the discretion, satisfaction, or decision of the other party or a third

- party.” 427 Although this latter application might seem more apt for the present facts, it is also unavailing. As noted above, 428 the extent to which the Stockholders’ Agreement can be read as conferring any right on Alphonso’s CEO to terminate employees is tempered by

425 Murphy Marine Servs. of Delaware, Inc. v. GT USA Wilmington, LLC , 2022 WL 4296495, at *13 (Del. Ch. Sept. 19, 2022) (footnote omitted).

426 Id. (alteration in original) (footnotes omitted) (quotation marks omitted).

427 Id.

428 Supra Section II.C.3.100

the requirement to use reasonable efforts to ensure the rights granted therein. In other words, the Stockholders’ Agreement never gave the CEO unfettered discretion. It included an express limit on the exercise of the termination discretion to the extent such exercise could be seen to interfere with the other rights granted to the parties in the St ockholder Agreement. Accordingly, neither Andrades nor Sarma can be seen to have assumed the risk of prevention.

2. The December Consent Is Invalid After Zenith believed the Key Holders to be properly terminated on December 16, 2022, it executed the Decembe r Consent. 429 The December Consent stated the following: “pursuant to Section 10.2(c) and Section 10.3(a)(ii) of the Stockholders’ Agreement, Directors Ashish Chordia, Raghu Kodige, and Lampros Kalampoukas are removed from the Board.” 430 Section 10.2(c) pro vides: “Any vacant director seats not subject to designation in accordance with Subsection 10.2(a) or Subsection 10.2(b) above shall be appointed by the holders of Capital Stock entitled to vote in accordance with applicable law and the Restated Certificat e.” 431 Section 10.3(a)(ii) provides: Each director shall serve until his or her successor is elected and qualified or until his or her earlier resignation or removal. Each Stockholder also agrees

429 See JX0563.

430 Id. at 2.

431 JX0050.101

to vote, or cause to be voted, all Shares owned by such Sto ckholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that: (a) no director elected pursuant to Subsection 10.2(a) or (b) of this Agreement may be removed from of

fice unless . . . (ii) the Person(s) originally entitled to designate or approve such director or occupy such Board seat pursuant to Subsection 10.2(a) or (b) is no longer so entitled to designate or approve such director [.] 432 The validity of the December Consent thus depends on those entitled to appoint the Common Directors under Section 10.2(b), being “no longer so entitled to designate or approve such director[.]” 433 Since I have found that the Designation Condition was excused and Andrades and Sarma stepped into the shoes of acting Employee Key Holders, it follows that the requirements of Section 10.3(a)(ii) were not satisfied and the December Consent must be deemed invalid. I recognize the impracticality of returning Chordia, Kodige, and Kala mpoukas to the Board since their terms have already expired. 434 But the Director

- Designation Right is

a continuing right under the Stockholders’ Agreement. Accordingly, I find it appropriate for the majority holder of Alphonso ’s Capital Stock presently he ld by Andrades and Sarma to select the directors to fill the seats properly allocable to the Common Directors. Defendants have argued that it would be improper to return certain Key Holders to the Board since they now work for a competitor. But even if this were true , it is not clear

432 Id. (emphasis added).

433 JX0050 § 10.3(a)(ii).

434 Indeed, the parties debated at significant length the question of appropriate and practical remedies in the event of a finding of breach.102

why this requires precluding their membership on the Board, should Andrades and Sarma so choose. Our high court has explained that there is “‘no dilution’ of the duty of loyalty when a director ‘holds dual or multiple’ fidu ciary obligations.” 435 If they were to act inconsistent with their fiduciary duties, they would expose themselves to fairly obvious civil liability consequences. That being said, I strongly encourage Andrades and Sarma to give consideration to whom they wi ll select as Common Directors

— taking into account the events described herein. III. CONCLUSION The foregoing compels judgment in Plaintiffs’ favor. Andrades and Sarma step into the shoes of Employee Key Holders under the Stockholders’ Agreement, the Director

Designation Right remains operative, and the Designation Condition is excused. The parties are directed to confer on a form of implementing order that includes a process for Andrades and Sarma to designate Common Directors and to file such proposed form o f order within three business days.

435 See Frederick Hsu Living Tr. v. ODN Holding Corp. , 2017 WL 1437308, at *28 (Del. Ch. Apr. 1 4, 2017), as corrected (Apr. 24, 2017). (“‘If the interests of the beneficiaries to whom the dual fiduciary owes duties are aligned, then there is no conflict.’ But if the interests of the beneficiaries diverge, the fiduciary faces an inherent conflict of interest. ‘There is no ‘safe harbor’ for such divided loyalties in Delaware.’”) (citations omitted).