United States Court of Appeals 

For the First Circuit 

No. 19-1856 

GREGORY KELLY, 

Plaintiff, Appellant, 

v. 

RIVERSIDE PARTNERS, LLC, a Massachusetts Corporation; 

STEVEN F. KAPLAN, individually, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

 Colin R. Hagan and Shlansky Law Group, LLP on brief for 

appellant. 

 Daniel C. Winston, John C. Calhoun, and Choate, Hall & Stewart 

LLP on brief for appellees. 

July 6, 2020 
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LYNCH, Circuit Judge. Plaintiff Gregory Kelly was the 

President of TelJet Longhaul, LLC ("TelJet"), a company that 

defendant Riverside Partners, LLC ("Riverside") sought and 

successfully directed one of its portfolio companies to acquire. 

Defendant Steven Kaplan was a General Partner at Riverside. A 

General Partner at Riverside is an employee, not an equity owner 

or managing member. In the face of considerable documentation of 

the acquisition, Kelly brought suit in federal court alleging that 

he had an oral side agreement under which Kaplan and Riverside 

("the defendants") would pay Kelly $1 million if the portfolio 

company acquired TelJet. Then the defendants did not pay him after 

the acquisition occurred. 

In response to Kelly’s breach-of-contract claim, the 

defendants denied any such side deal existed. They also 

counterclaimed for indemnification for breach of certain 

representations and warranties Kelly had made. After discovery, 

the district court entered summary judgment for defendants, not 

reaching the issue of whether such an oral side agreement existed, 

and holding that regardless Kelly was in breach of his warranties 

and representations and awarded the defendants attorneys' fees of 

$250,000 and interest. Kelly appealed. 

We take the case as presented to us, including the waiver 

of arguments by Kelly. On that basis, we affirm. 
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I. 

A. Facts 

1. The Relevant Parties and Entities 

In fall 2010, Riverside, a Boston-headquartered private 

equity firm, identified TelJet1 as a potential acquisition for its 

portfolio company Tech Valley Holdings, LLC ("Tech Valley"). 

Vermont Fiberlink, LLC and TelJet, Inc. owned and were the members 

of TelJet. Tech Valley wholly owned TVC Albany, Inc. ("TVC"). 

TVC was the sole member of and exclusively managed TJL Acquisition 

Company, LLC (“TJL Acquisition”). TVC created TJL Acquisition 

specifically to acquire TelJet with it. 

Riverside employees controlled the Board of Managers of 

Tech Valley and the Board of Directors of TVC. Kaplan was the 

Chairman of both these Boards. He also had the authority to sign 

agreements for TJL Acquisition in which he exercised TJL 

Acquisition's rights, powers, and privileges as to both the Asset 

Purchase Agreement ("APA"), the contract which outlined the terms 

of the purchase of TelJet, and the TelJet transaction ("the 

Transaction") itself. 

2. The TelJet Transaction and Execution of the APA 

In 2011, Ian Blasco, a Riverside General Partner, and 

Kaplan met with Kelly, then the President of TelJet, and the owners 

1 TelJet provided a fiber optic communications network and 

telecommunications services. 
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of TelJet's parent companies to discuss investing in TelJet. 

Blasco and Kaplan also met with Kelly to discuss the possible 

acquisition of TelJet by Tech Valley and Kelly's post-acquisition 

role. Kelly later testified that, during one of these discussions, 

"Kaplan offered [him] a million dollars to guide the sale . . . 

[payable] if [Tech Valley was] the successful winner to acquire 

the company." Kelly alleges that Kaplan offered this sum on behalf 

of Riverside, which would supply the payment. 

On December 14, 2012, Kelly, other TelJet officers, and 

TelJet shareholders executed a Letter of Intent ("the Letter") 

with Kaplan and Riverside. The Letter outlined non-binding terms 

of Tech Valley's acquisition of TelJet. TVC was designated as the 

bidding entity for the acquisition. The Letter was signed by 

Kaplan and addressed as being from Riverside (on behalf of Tech 

Valley).

On March 27, 2013, Kelly, Kaplan, and TelJet 

shareholders signed the APA, which sold TelJet's assets to Tech 

Valley and TVC. The Transaction closed on June 28, 2013. After 

the closing, Kelly began work for TVC pursuant to the APA. 

On August 22, 2014, Kelly resigned from TVC. On 

September 12, 2014, he rejected a separation agreement from TVC 

and did not release any claims. 
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3. The APA Parties and Affiliates 

The parties to the APA were defined as the "Selling 

Entities," the "Sellers," the "Purchaser," and the "Parent." The 

Selling Entities were TelJet; Vermont Fiberlink, LLC; and TelJet, 

Inc. The Sellers were Kelly and three individuals, Scott Pidgeon, 

Kenneth Pidgeon, and Alan Pidgeon, who were TelJet shareholders 

and owners of Vermont Fiberlink, LLC. 

The APA originally defined "Purchaser" as TJL 

Acquisition, a wholly owned subsidiary of TVC. TVC, TelJet, and 

TelJet Inc. executed an Amendment to the APA, which assigned the 

rights and obligations of TJL Acquisition to TVC and defined the 

"Purchaser" as TVC alone. Kelly, Kaplan, and Kenneth Pidgeon 

signed this agreement. The APA defined the "Parent" as Tech 

Valley.

The APA defined "Affiliates" using the definition in 

Rule 405 of the Securities Act of 1933, as amended: that is, "a 

person that directly, or indirectly through one or more 

intermediaries, controls or is controlled by, or is under common 

control with [a party to the APA]." 17 C.F.R. § 230.405. Rule 

405 further defines "control" as "the possession, direct or 

indirect, of the power to direct or cause the direction of the 

management and policies of a person, whether through the ownership 

of voting securities, by contract, or otherwise." Id. 
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4. The APA Representations and Warranties 

Article 2 of the APA contains certain representations 

and warranties of the Sellers. It states in the relevant part: 

The execution, delivery and performance of 

this Agreement and the other agreements . . . 

will not result in any violation of, be in 

conflict with, constitute a default under, or 

cause the acceleration of any obligation or 

loss of any rights under any Legal 

Requirement, agreement, contract, [or] 

instrument . . . to which the Seller is a 

party or by which the Seller is bound. 

Article 3 contains additional warranties of the Sellers 

and Selling Entities. This includes Section 3.23(f), which states: 

"The consummation of the Transactions contemplated by this 

Agreement will not . . . increase the amount of compensation or 

benefits due to any individual." 

5. The APA Indemnification, Choice of Law, and Forum 

Selection Provisions 

Article 9 contains the APA's indemnification provisions. 

Section 9.1 provides for an eighteen-month survival period for 

"action[s] for a breach of the representations and warranties 

contained [in the APA]," except for claims arising out of Article 

2 (and several other irrelevant provisions), "which shall survive 

indefinitely after the Closing." Section 9.4 provides that the 

Sellers will severally indemnify the Purchaser and its Affiliates 

"against all Losses arising out of or relating to . . . any breach 

or violation of the representations or warranties of such Seller 
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in ARTICLE 2" and provides that the Selling Entities and Sellers 

will jointly and severally indemnify the Purchaser and its 

Affiliates against all losses arising out of or relating to the 

breach or violation of other representations or warranties. The 

APA defines "Losses" as "claims, liabilities, obligations, costs, 

damages, losses and expenses (including reasonable attorneys' fees 

and costs of investigation) of any nature." 

Section 9.3 requires that claims for indemnification 

exceed $50,000 and caps the maximum recovery. But the section 

also provides that "claims based upon fraud or for breach of the 

Uncapped Representations [i.e., the representations and warranties 

contained in Article 2] shall not be subject to [these] limits."2 

 Article 10 states that the APA "shall be governed by and 

construed in accordance with the internal laws of the State of 

Delaware" and "[a]ny judicial proceeding arising out of or relating 

to [the APA] shall be brought in the courts of the State of 

Delaware." 

2 On October 8, 2013, Tech Valley and TVC gave Notice of 

Claims for Indemnification against TelJet; Vermont FiberLink, LLC; 

and the Pidgeons (the "TelJet Parties"). These parties settled 

this claim on July 31, 2014. Tech Valley and TVC, "on behalf of 

themselves and each of their respective subsidiaries, 

predecessors, successors and assigns," released any additional 

claims against the TelJet Parties and their "shareholders, equity 

holders, . . . managers, [and] officers," among others. 
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B. Procedural History 

On August 19, 2016, Kelly brought suit in Massachusetts 

federal court against Kaplan and Riverside for (1) breach of 

contract against Riverside; (2) fraud against both defendants; (3) 

quantum meruit against Riverside; (4) promissory estoppel against 

Riverside; (5) unfair or deceptive acts or practices against 

Riverside; (6) aiding and abetting fraud against Kaplan; and (7) 

civil conspiracy by concerted action against Kaplan. 

 On January 27, 2017, Riverside and Kaplan brought a 

counterclaim for indemnification under Article 9 of the APA against 

Kelly. In response, on February 17, 2017, Kelly brought a 

counterclaim for breach of the July 31, 2014 settlement agreement. 

 On August 24, 2017, the defendants moved for summary 

judgment on all claims and counterclaims, and Kelly moved for 

summary judgment on the defendants' counterclaim. 

On December 19, 2017, the district court granted summary 

judgment in favor of Riverside and Kaplan on all claims and on the 

counterclaims.3 It also requested further briefing on damages. 

On February 28, 2018, the district court held a hearing on damages 

and requested further briefing on attorneys' fees. 

 On July 25, 2019, the district court issued a Memorandum 

and Order, in which the court outlined its reasoning and awarded 

3 The court also denied a motion to strike that Kelly had 

brought earlier, but Kelly does not challenge this on appeal. 
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damages of $250,000 (as well as pre- and post-judgment interest) 

to Riverside. 

First, the court held that Kelly had waived enforcement 

of the APA's forum selection clause by bringing suit in 

Massachusetts, and dismissing the counterclaim would be 

"unreasonable and unjust . . . since the full course of discovery 

and several rounds of motion practice ha[d] proceeded in [the 

district] court." 

Next, the district court concluded that Kaplan and 

Riverside were Affiliates of the Purchaser, and so could bring 

indemnification claims under the APA. The court concluded that 

(1) Kaplan and Riverside controlled TVC and TJL Acquisition, and 

(2) Kaplan, Riverside, TVC, and TJL Acquisition were under the 

common control of David Belluck, Riverside's sole equity owner and 

managing member. 

The district court concluded that the existence of 

Kelly's "undisclosed, oral side-deal with Riverside to be paid a 

$1 million signing bonus" would breach Article 2 (Section 2.1) and 

Article 3 (Section 3.23(f)). The court stated that the side-deal 

"conflicted with" the warranty in Section 2.1 against the APA 

"caus[ing] the acceleration" of any obligation and the warranty in 

Section 3.23(f) that the APA would not "increase the amount of 

compensation or benefits due to any individual." 
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The district court then held that the counterclaim for 

indemnification was based on breaches of Articles 2 and 3, and 

that each breach was based on fraud. Because a claim based on a 

breach of Article 2 or based on fraud is excepted from the 

indemnification and survival limits, the district court rejected 

Kelly's arguments that the indemnification counterclaim should be 

dismissed for not reaching the $50,000 indemnification threshold 

and for being time-barred. 

The district court then concluded the counterclaim was 

ripe. The court found the harm to Kaplan and Riverside 

"sufficiently probable to allow a declaratory judgment on the duty 

to indemnify before the question of [their] liability was 

resolved." 

The district court held that the indemnification 

counterclaim served as a complete defense to all of Kelly's claims 

and that he would owe attorneys' fees to the defendants.4 

Finally, the district court calculated damages. 

Although Riverside incurred over $900,000 in attorneys' fees and 

costs, it paid $250,000 (the deductible under its insurance 

policy).5 The district court concluded that the APA limited Losses 

4 The district court also concluded that the previous 

settlement agreement and release of claims did not apply to the 

defendants and the indemnification counterclaim. Kelly does not 

challenge this on appeal. 

5 Riverside paid for Kaplan's attorneys' fees. 
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(as the term is defined in the APA) by the amount recovered under 

insurance policies and that Riverside's attorneys' fees were 

reasonable. The court awarded $250,000 to the defendants as well 

as pre- and post-judgment interest. 

On August 23, 2019, Kelly timely appealed. 

II. 

A. Standard of Review 

We review the district court's grant of summary judgment 

de novo. Hightower v. City of Boston, 693 F.3d 61, 70 (1st Cir. 

2012). Because the parties filed cross-motions for summary 

judgment, we "'view each motion, separately,' in the light most 

favorable to the non-moving party, and draw all reasonable 

inferences in that party's favor." OneBeacon Am. Ins. Co. v. 

Commercial Union Assurance Co. of Can., 684 F.3d 237, 241 (1st 

Cir. 2012) (quoting Estate of Hevia v. Portrio Corp., 602 F.3d 34, 

40 (1st Cir. 2010)). 

B. Kelly Waived Enforcement of the Forum Selection Clause by 

Bringing Suit in Massachusetts 

Kelly argues that the defendants' indemnification 

counterclaim should be dismissed under the APA's forum selection 

clause. Kelly contends that he did not waive the clause by filing 

in Massachusetts. We disagree. 

 Delaware law applies to interpreting the APA's forum 

selection clause. See FPE Found. v. Cohen, 801 F.3d 25, 32 (1st 
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Cir. 2015) (applying the governing state contract law to interpret 

a forum selection clause). Delaware law requires that a court 

interpret broadly the phrase "arising under or relating to." ASDC 

Holdings, LLC v. Richard J. Malouf 2008 All Smiles Grantor Retained 

Annuity Tr., C.A. No. 6562-VCP, 2011 WL 4552508, at *5 (Del. Ch. 

Sept. 14, 2011) (unpublished). "[A]ny issues that 'touch on 

contract rights or contract performance' should be subject to the 

exclusive jurisdiction agreed to under that clause." Id. (quoting 

Parfi Holdings AB v. Mirror Image Internet, Inc., 817 A.2d 149, 

155 (Del. 2002)). 

 Kelly's breach-of-contract claim clearly relates to the 

APA. It touches on both rights to indemnification in the APA and 

the performance of the APA. The defendants' indemnification, 

estoppel, and waiver defenses all relate to contractual rights in 

the APA. Kelly's entire claim relies on the performance of the 

APA: he could not bring a claim for breach of contract without 

performing the side agreement, i.e., completing the Transaction 

and performing the APA. See Huffington v. T.C. Grp., LLC, 637 

F.3d 18, 22 (1st Cir. 2011) (holding that a forum selection clause 

in a subscription agreement covered claims arising from 

misrepresentations about a "purchase [that] could not have been 

made without the agreement"). 

 Kelly brought suit in Massachusetts, and that 

constituted waiver. See FPE Found., 801 F.3d at 29 (stating that 
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a party may waive "through its conduct" a right to arbitrate); see 

also Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 (1974) ("An 

agreement to arbitrate before a specified tribunal is, in effect, 

a specialized kind of forum-selection clause . . . ."). His 

argument to us that he would be excused from that waiver under 

Delaware law was not presented to the district court and so cannot 

be raised for the first time on appeal. Arrieta-Gimenez v. 

Arrieta-Negron, 859 F.2d 1033, 1037 (1st Cir. 1988). 

C. Riverside and Kaplan Were Affiliates of the Purchaser(s) 

Kelly argues that Riverside and Kaplan lack standing to 

bring an indemnification claim because they are not Affiliates of 

the Purchaser, TJL Acquisition.6 Although there is some dispute 

about whether the Purchaser subject to the analysis is TJL 

Acquisition, or its parent company TVC, this is immaterial: TVC 

wholly owns and controls TJL Acquisition, so the Affiliates of TVC 

are also the Affiliates of TJL Acquisition. In consequence, we 

need not decide whether TJL Acquisition or TVC was the Purchaser. 

 The defendants directly controlled TJL Acquisition and 

TVC. Kaplan was the Chairman of the Board of both TVC and Tech 

Valley and "at all times orchestrated and controlled the decisions 

of those companies as to whether and on what terms to sign the 

APA, purchase the TelJet assets, and enter into employment terms 

6 Kelly and the defendants agree that Riverside and Kaplan 

were not parties to the APA. 
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with Mr. Kelly." "Kaplan . . . was specifically authorized to 

sign agreements for TJL Acquisition exercising all of TJL 

Acquisition’s rights, powers, and privileges with respect to the 

APA and the TelJet transaction." Indeed, Kaplan signed the APA on 

behalf of both Tech Valley and TJL Acquisition. This degree of 

control over TJL Acquisition and TVC, especially over the 

Transaction at issue, clearly shows Kaplan was an Affiliate. See 

SEC v. Platforms Wireless Int'l Corp., 617 F.3d 1072, 1088 (9th 

Cir. 2010) ("[T]he explicit power to direct the specific share 

transfers at issue establishes control . . . ."). Kaplan averred 

under oath that "Riverside through its employees thereby 

controlled the Board and company decisions of both Tech Valley and 

TVC" and "controlled and orchestrated the negotiation of the terms 

of the APA and TelJet transaction on behalf of Tech Valley, TVC 

and TJL Acquisition." 

Further, Tech Valley's LLC Agreement states that Tech 

Valley is "exclusively" managed by its Board. Its Board is 

comprised of Managers, and any Manager who is also an employee of 

Riverside is defined as a "Riverside Manager." The LLC Agreement 

states that, even if the Riverside Managers comprise less than a 

majority of Tech Valley's Board, they "shall be deemed to have a 

sufficient number of votes to constitute a majority of the Board."7 

7 Kelly's argument that the LLC Agreement limits these 

Managers to take only certain actions relies on a misreading of 
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Kelly argues that this evidence is insufficient to show 

control.8 But he offers conclusory assertions, misstatements of 

the record, and irrelevant arguments that fail to challenge 

Kaplan's testimony or the control shown by the LLC Agreement. An 

entity need not have complete and exclusive control over another 

entity to control it under Rule 405; "multiple persons can exercise 

control simultaneously." Id.9

D. The Defendants' Indemnification Claim is Ripe 

 Kelly argues that the defendants' indemnification claim 

is not ripe because the underlying dispute has not been resolved. 

Not so. 

The ripeness of indemnification claims is a question of 

federal law. See Valentin v. Hosp. Bella Vista, 254 F.3d 358, 363 

the Agreement and so is meritless. 

8 Kelly also makes a meritless argument that, because 

there was an unsigned signature block on the Assignment Agreement 

for TJL Acquisition, TJL Acquisition never assigned its rights and 

obligations in the APA to TVC. So, Kelly contends, because TJL 

Acquisition dissolved before Kelly filed the complaint and TVC 

never acquired any rights, the defendants were not Affiliates of 

TJL Acquisition at the appropriate time. But this would mean that 

TVC never purchased TelJet, which no party has ever asserted and 

would preclude Kelly's alleged entitlement to the $1 million 

payment. Kelly has not sufficiently developed this argument to 

address this contradiction, and so he has waived it. See United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 

9 Because the defendants have shown that they directly 

controlled TJL Acquisition and TVC, we need not address whether 

these parties and entities were under the common control of 

Belluck. 
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(1st Cir. 2001). To determine ripeness, we look to "both the 

fitness of the issues for judicial decision and the hardship to 

the parties of withholding court consideration." Mangual v. 

Rotger-Sabat, 317 F.3d 45, 59 (1st Cir. 2003) (quoting Abbott Labs. 

v. Gardner, 387 U.S. 136, 149 (1967)). Under the Bankers Trust 

test, we determine whether these prongs are met by looking to the 

likelihood indemnification liability would exist, whether the 

damages would be high, the liable party's ability to pay, and the 

likelihood another insurance policy would cover the damages. 

Bankers Tr. Co. v. Old Republic Ins. Co., 959 F.2d 677, 680-82 

(7th Cir. 1992); see also Molex Inc. v. Wyler, 334 F. Supp. 2d 

1083, 1087 (N.D. Ill. 2004). 

Kelly does not challenge the Bankers Trust analysis on 

the merits, and instead erroneously argues that Delaware law 

governs this issue.10 He has waived any argument as to ripeness 

under the applicable federal law. See Pignons S.A. de Mecanique 

v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983). 

10 Further, the Delaware law to which he cites does not 

necessarily bar indemnification suits before the underlying action 

is decided. See, e.g., Ladenburg Thalmann Fin. Servs., Inc. v. 

Ameriprise Fin., Inc., C.A. No. N16C–05–086 WCC CCLD, 2017 WL 

685577, at *8 (Del. Super. Ct. Jan. 30, 2017) (unpublished) ("In 

the context of indemnification, claims will 'not typically ripen 

until after the merits of an action have been decided . . . .'" 

(emphasis added) (quoting Yellow Pages Grp., LLC v. Ziplocal, LP, 

C.A. No. N13C–10–225 JRJ CCLD, 2015 WL 358279, at *4 (Del. Super. 

Ct. Jan. 27, 2015) (unpublished))). 
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E. Kelly Waived the Argument that the APA Does Not Allow for 

Indemnification of Attorneys' Fees Between Parties and 

Affiliates 

 Kelly next argues that Delaware law requires an 

agreement to "unequivocally provide" that the indemnification of 

attorneys' fees applies to "first-party litigation" and the APA 

does not expressly provide for attorneys' fees in "first-party 

litigation." So, Kelly argues, he is not liable for attorneys' 

fees to the defendants, whom he contends are "first-parties." We 

need not address the merits of this argument, because Kelly has 

waived it. 

 Despite multiple hearings and rounds of briefing on the 

merits and on damages, Kelly did not raise this argument in the 

district court. He merely argued that Riverside had failed to 

show it had actually paid any legal fees and later that the fees 

alleged were unreasonable. In consequence, this argument is 

waived. See United States v. Nygren, 933 F.3d 76, 88 n.3 (1st 

Cir. 2019). 

F. Based on Kelly's Waivers, the Indemnification Claim Provides 

a Complete Defense to Kelly's Claims and Indemnification of 

Attorneys' Fees 

Kelly argues that the district court erred in granting 

summary judgment and awarding attorneys' fees because it did not 

determine whether he breached his warranties before addressing the 

merits of the indemnification claim. We reject the argument, again 

for waiver reasons. 
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There were several, at least two, clauses on which the 

defendants argued Kelly was liable for indemnification. Kelly's 

initial brief to this court only argues about one of the possible 

sources of the violation and not the other. This is insufficient 

argument for us to conclude the district court erred in finding 

breach.11 

Kelly waived any argument that the side agreement did 

not breach Article 2 by "be[ing] in conflict with" Section 3.23(f), 

because the side agreement would "increase the amount of 

compensation . . . due to [Kelly]." Kelly represented in Article 

2 that the APA would not "be in conflict with" any other agreement 

and represented in Section 3.23(f) that the Transaction would not 

"increase the amount of compensation or benefits due to any 

individual." Kelly does not argue in his initial brief that the 

side agreement would not conflict with Section 3.23(f) and so does 

not accordingly breach Article 2. Kelly has waived any such 

argument. Pignons S.A. de Mecanique, 701 F.2d at 3. 

This breach of Article 2 entitles the defendants to 

uncapped indemnification, which would cover all damages Kelly 

11 Further, Kelly's argument in his reply brief that 

Article 2's "in conflict with" clause cannot apply to Article 3 

representations is insufficiently developed. Zannino, 895 F.2d at 

17. 
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could be awarded and attorneys' fees. Kelly's only arguments to 

the contrary are meritless12 or waived.13

Kelly argues that the indemnification claim cannot 

accrue without a determination of breach, which is absent here 

because the existence of the side agreement has not been 

established. He contends that the district court improperly 

granted summary judgment against him "for believing that he had an 

extrinsic agreement with [the defendants]." Although the 

indemnification claim provides a complete defense to Kelly's 

claims, his argument also implies that the district court could 

not award attorneys' fees without determining whether the side 

deal existed. 

Kelly did not adequately present this argument to the 

district court, and so he has waived it. Arrieta-Gimenez, 859 

F.2d at 1037. The defendants' counterclaim asserts that Kelly 

12 Kelly contends that the APA caps his indemnification 

liability at $1,804,585 and that his damages could exceed this 

cap. But a breach of Article 2 is not subject to this cap, and so 

his argument lacks merit. 

13 Kelly has doubly waived his argument that he has an 

"unclean hands" defense against indemnification, as it is not in 

Kelly's initial brief or sufficiently developed. Pignons S.A. de 

Mecanique, 701 F.2d at 3; Zannino, 895 F.2d at 17. He has also 

waived his argument indemnification here would be "repugnant to 

the public policy of Delaware," J.S. Alberici Constr. Co. v. MidWest Conveyor Co., 750 A.2d 518, 520 (Del. 2000), because he did 

not argue it in his initial brief, Pignons S.A. de Mecanique, 701 

F.2d at 3. 
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breached his warranties "[b]y failing to disclose his belief or 

intention to later assert [the existence of the side agreement]." 

The defendants argued to the district court that their 

indemnification counterclaim was a complete defense to Kelly's 

claims and that the APA required Kelly to pay their "attorneys' 

fees in defense of this case, under any outcome." They stated 

that if Kelly proved his claims, he would have to show the 

existence of the side agreement, which breaches his warranties. 

Even if Kelly lost on his claims, the defendants argued, he would 

"still owe[] indemnity because he nevertheless admit[ted] he 

breached the warranties in the APA by signing the APA while 

believing he had an alleged . . . side-deal with Riverside." 

Kelly did not address this argument in his memorandum in 

opposition to the defendants' motion for summary judgment. Nor 

did Kelly clearly address this argument in other summary judgment 

briefings or at the summary judgment hearing.14 

14 The defendants argue that Kelly waived the argument that 

the district court improperly concluded Kelly breached the 

agreement by holding a "belief that he had a side-deal." Kelly 

argues that he did raise this point before the district court. 

But the pages he cites perfunctorily argue that the defendants 

could not "circumvent the survival clause by phrasing their breach 

of warranty claim as fraud," and do not clearly address the 

"belief" argument. Although Kelly baldly asserts that this 

"belief" argument is "without merit" in his Memorandum of Law in 

Support of His Motion for Summary Judgment, he does not clearly or 

adequately address the issue. 
- 21 - 

G. The Indemnification Claim was Timely 

Under the plain language of the APA, claims based on 

breaches of Article 2 survive indefinitely. Kelly's only arguments 

that the indemnification claim was time-barred rely on his earlier 

arguments that he did not breach Article 2 (or breach Section 

3.23(f) fraudulently). We have already determined that the 

indemnification claim arises out of Kelly's breach of Article 2, 

and so it was timely. 

III. 

 On the bases stated, we affirm.