IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

SHAREHOLDER 

REPRESENTATIVE SERVICES LLC, 

solely in its capacity as Representative 

of the former stockholders of 

ADVANTAGE HEALTHCARE 

HOLDINGS, INC., 

Plaintiff,

v.

HPI HOLDINGS, LLC,

Defendant.

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C.A. No. 2022-0166-PAF

MEMORANDUM OPINION

Date Submitted: January 9, 2023

Date Decided: April 26, 2023

Richard L. Renck, Michael B. Gonen, DUANE MORRIS, LLP, Wilmington, 

Delaware; Michael P. Gallagher, DUANE MORRIS, LLP, Philadelphia, 

Pennsylvania; Attorneys for Plaintiff Shareholder Representative Services LLC.

Lisa A. Schmidt, Matthew W. Murphy, Nicole M. Henry, RICHARDS, LAYTON 

& FINGER, P.A., Wilmington, Delaware; David P. Whittlesey, Jacob Fields, 

SHEARMAN & STERLING LLP, Austin, Texas; Attorneys for Defendant HPI 

Holdings, LLC.

FIORAVANTI, Vice Chancellor
This is a breach of contract case involving a dispute over whether the 

purchaser of a business must make post-closing payments to the selling stockholders. 

This opinion addresses one aspect of the dispute—whether the selling stockholders 

are entitled to a $6 million earn-out payment. That payment is conditioned upon the 

surviving company entering into an agreement to make up for the potential loss of 

one of its major customers. The surviving company entered into an agreement that 

maintained the relationship with that customer. Thereafter, the selling stockholders 

demanded payment of the earn-out. The buyer refused, contending that the 

agreement did not meet the specific criteria necessary to trigger the earn-out 

payment. Plaintiff, representing the former stockholders of the seller, has alleged 

that the buyer’s refusal to pay the earn-out is a breach of the purchase agreement. 

The buyer has moved to dismiss that claim. Applying well-established canons of 

contract construction, the court concludes that the language of the earn-out provision 

is not ambiguous and that the buyer’s motion must be granted. 
2

I. BACKGROUND

Unless otherwise specified, the facts recited in this Memorandum Opinion are 

drawn from the Verified Amended Complaint (the “Complaint”) and documents 

integral thereto.1

A. The Parties

On September 30, 2021, HPI Holdings, LLC (“HPI” or “Defendant”) entered 

into a merger agreement (the “Merger Agreement”)2 to acquire AdvantEdge 

Healthcare Holdings, Inc. (the “Company”), a Delaware corporation engaged in the 

medical billing business. The Company was the surviving entity in a merger with a 

wholly owned subsidiary of HPI. Among the Company’s operating subsidiaries is 

AdvantEdge Healthcare Solutions, Inc. (“AHS”).3

 Plaintiff, Shareholder 

Representative Services LLC (“Plaintiff”), is a party to the Merger Agreement and 

is the representative of the former stockholders of the Company, each of whom sold 

their shares of the Company to HPI in the transaction.

4

 

1 Dkt. 15 (“Compl.”). The Complaint incorporates by reference exhibits attached to the 

first-filed complaint. Dkt. 1. These exhibits will be cited as “Ex.” References to the 

parties’ briefs refer to the briefs filed in support of or opposition to the motion to dismiss 

the Complaint. See Dkts. 23, 27, 30. 

2 Ex. A (“Merger Agreement”). 

3 The Complaint alleges that the Company did business as AdvantEdge Healthcare 

Solutions or “AHS.” Compl. at 1. 

4 Merger Agreement § 10.1.
3

During the merger negotiations, one of AHS’s customers, Brevard Physician 

Associates (“BPA”), notified AHS that BPA intended to terminate its “Service 

Agreement” with AHS.5

 The Service Agreement contained a provision that 

permitted termination for convenience after a 90-day notice period, or a 180-day 

period for the anesthesia division.6

Following the consummation of the merger, $375,000 was deposited into an 

escrow account for adjustments to the purchase price resulting from a post-closing 

computation of working capital. Another $16,800,000 was placed into escrow for 

potential earn-out payments.7

 The parties’ disputes in this case are based on the 

release of funds from these escrow accounts. This opinion addresses only the dispute 

over the earn-out payment. 

B. The Earn-Out

The conditions to payment of the earn-out and the calculations of the earn-out 

amounts are contained in Exhibit D to the Merger Agreement. Under the agreement, 

Plaintiff would receive the full $16.8 million earn-out payment if the Company

5 Id. ¶ 13. BPA followed up in writing on October 7, 2021, specifying that the termination 

would become effective on December 31, 2021. Id. ¶ 32. See also Def.’s Opening Br. Ex. 

1 (“Service Agreement”). 

6 Id. ¶ 13.

7 Id. ¶ 21. 
4

entered into qualifying agreements with Indiana University Health, Inc. (“Indiana”)

and BPA after the merger closed.

8

 

Following the closing of the merger, the Company signed an agreement with 

Indiana, and Plaintiff received a $10.8 million payment from the escrowed funds.

9

 

Payment of the remaining $6 million in the earn-out escrow was contingent on the 

signing of a new or amended agreement with BPA that met specific criteria.

10 Those 

terms are explained in Section 2(c) of Exhibit D to the Merger Agreement, which 

states, in pertinent part, that Plaintiff would be paid $6 million:

If BPA (A) signs a new agreement with any Group Company or an 

Affiliate of [HPI] with substantially the same economic terms as the 

Company’s existing agreement with BPA but without the early 

termination clause contained therein, (B) signs an amendment to the 

Company’s existing agreement with BPA that removes the early 

termination clause contained therein or (C) signs a new agreement with 

any Group Company or an Affiliate of [HPI] satisfactory to [HPI] in its 

sole discretion after the Closing.

11

On December 22, 2021, BPA and AHS executed a document titled: 

“Agreement to Amend Service Agreement” (the “December Agreement”).12 This 

8 Exhibit D also provides for partial earn-out payments based on certain financial metrics 

in the event that qualifying agreements were not reached with both Indiana and BPA. That 

provision is not pertinent to the disposition of this motion.

9 Compl. ¶ 27. 

10 Merger Agreement § 2.9(a)(iii). 

11 Id. Ex. D § 2(c). Group Company means any subsidiary of the Company, including

AHS. Merger Agreement at 8; id. sched. 3.1.

12 Compl. ¶ 35; Ex. C at 5 (“December Agreement”). 
5

one-page document was negotiated by AHS employee J. Paul O’Haro in consultation 

with HPI’s CFO Lori Llewllyn and CEO Pranil Vadgama.13 The December 

Agreement incorporated the existing 36-page Service Agreement except as 

“affected, modified or changed” by the December Agreement.14 The December 

Agreement: (1) specifies that it would last no less than one year, with automatic 

annual renewals, (2) provides for a new fee schedule, (3) eliminates fee-related 

penalties and quarterly performance incentives, and (4) suspends BPA’s prior right 

to terminate at any time with 90 days’ notice until September 30, 2022, thus pushing 

the early termination option out for a year.15 

On December 23, 2021, David H. Langsam, AHS’s CEO, sent a letter to HPI 

which attached a copy of the December Agreement and stated that it satisfied Section 

2(c)(C), triggering the $6 million earn-out payment. The letter stated that the 

contract was a “new agreement” that was “satisfactory” to HPI, as evidenced by the 

countersignature of HPI’s wholly owned subsidiary, AHS.

16 On January 17, 2022, 

HPI responded with a letter denying that the December Agreement satisfied the 

13 Compl. ¶ 34. 

14 See December Agreement (“All terms and conditions of the agreement not affected, 

modified or changed by virtue of this Amendment shall remain in full force and effect.”). 

15 Id. 

16 Compl. ¶ 39; Ex. C at 3. 
6

conditions for the earn-out payment.17 On January 25, 2022, Plaintiff sent a more 

detailed letter to HPI explaining why the December Agreement was a “new 

agreement” that satisfied Section 2(c)(C).18 The letter asserted that HPI had

manifested its approval of the contract through communications among AHS and 

HPI personnel, including HPI’s CEO.

19 Plaintiff pointed out that the December 

Agreement removed BPA’s ability to terminate the contract for the first year, but did 

not contend that this change would justify payment under Section 2(c)(B) as an 

amendment that removed the early termination provision.

20 Plaintiff now argues in 

the alternative that the December Agreement is an amendment that satisfies 2(c)(B). 

HPI disputes that the December Agreement satisfies either condition and has not 

released the remaining $6 million from the earn-out escrow. 

C. Procedural History

Plaintiff initiated this action on February 18, 2022.21 Plaintiff filed the 

operative amended complaint on May 27, 2022.22 The Complaint contains three 

counts. Count I alleges that HPI’s failure to release the $6 million earn-out after 

17 Compl. ¶ 41; Ex. D. 

18 Ex. E.

19 Compl. ¶¶ 43–44; Ex. E. 

20 Ex. E. 

21 Dkt. 1. 

22 Dkt. 15. 
7

receiving notice of the December Agreement breached the Merger Agreement. 

Count II asserts a breach of contract claim for failure to pay amounts that Plaintiff 

contends are owed under the working capital adjustment. Count III seeks a 

declaratory judgment that Plaintiff is entitled to distributions from the amounts held 

in escrow. 

Defendant moved to dismiss the Complaint on June 13, 2022.

23 Defendant’s 

motion sought dismissal of the Complaint for lack of subject matter jurisdiction, 

arguing that the parties were required to arbitrate the claims under the dispute 

resolution mechanism in the Merger Agreement. It also moved to dismiss the 

Complaint under Court of Chancery Rule 12(b)(3) for improper venue. 

Alternatively, Defendant sought dismissal of Count I under Court of Chancery Rule 

12(b)(6) for failure to state a claim upon which relief can be granted. 

The court heard argument on the motion to dismiss on November 7, 2022.24 

On November 22, 2022, the court denied the motion without prejudice and ordered 

the parties to confer on a schedule for discovery into issues relating to the dispute 

resolution mechanism.

25 On January 9, 2023, the parties filed a letter informing the 

court that Defendant was withdrawing its motion to dismiss the Complaint under 

23 Dkt. 16. 

24 Dkt. 44. 

25 Dkts. 41, 43. 
8

Court of Chancery Rules 12(b)(1) and 12(b)(3).26 The parties’ letter indicated that 

the parties disagreed as to whether the court’s denial of the motion to dismiss

extended to Defendant’s motion to dismiss Count I on the merits.

27 The court’s 

ruling on the motion to dismiss focused on the Rule 12(b)(1) and 12(b)(3) motions, 

effectively deferring decision on the motion to dismiss under Rule 12(b)(6) until the 

court was assured that it had subject matter jurisdiction to proceed. Now that the

Defendant has withdrawn its defenses of lack of subject matter jurisdiction and 

improper venue, a decision on the Rule 12(b)(6) motion is ripe for consideration.

II. ANALYSIS

Count I of the Complaint claims that HPI’s failure to release the $6 million

earn-out payment after receiving notice that BPA and AHS had signed the December 

Agreement breached the Merger Agreement. Plaintiff argues that the December 

Agreement is a new agreement, which triggers the earn-out payment under Section 

2(c)(C).28 Alternatively, Plaintiff argues the December Agreement is an amendment 

that removed the early termination clause therein, thus triggering the earn-out 

payment under Section 2(c)(B).29 Defendant argues that the December Agreement 

does not satisfy either of those provisions. 

26 Dkt. 45. 

27 Id.

28 Compl. ¶ 40.

29 Id. ¶¶ 40, 43, 53. 
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A. Standard of Review

On a motion to dismiss for failure to state a claim under Court of Chancery 

Rule 12(b)(6):

(i) all well-pleaded factual allegations are accepted as true; (ii) even 

vague allegations are well-pleaded if they give the opposing party 

notice of the claim; (iii) the Court must draw all reasonable inferences 

in favor of the non-moving party; and ([iv]) dismissal is inappropriate 

unless the plaintiff would not be entitled to recover under any 

reasonably conceivable set of circumstances susceptible of proof.

Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (internal citations and 

quotation marks omitted); accord Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. 

Hldgs. LLC, 27 A.3d 531, 536 (Del. 2011). “[A] trial court is required to accept only 

those ‘reasonable inferences that logically flow from the face of the complaint’ and 

‘is not required to accept every strained interpretation of the allegations proposed by 

the plaintiff.’” In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 

2006) (quoting Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001)). 

“Moreover, a claim may be dismissed if allegations in the complaint or in the 

exhibits incorporated into the complaint effectively negate the claim as a matter of 

law.” Malpiede, 780 A.2d at 1083.

“In order to survive a motion to dismiss for failure to state a breach of contract 

claim, the plaintiff must demonstrate: first, the existence of the contract, whether 

express or implied; second, the breach of an obligation imposed by that contract; and 

third, the resultant damage to the plaintiff.” VLIW Tech., LLC v. Hewlett-Packard 
10

Co., 840 A.2d 606, 612 (Del. 2003). The motion before the court turns on the 

construction of the contracts at issue.

“The proper construction of any contract . . . is purely a question of law.” 

Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 

(Del. 1992). “‘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.’” Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 

2010) (quoting NBC Universal v. Paxson Commc’ns Corp., 2005 WL 1038997, at 

*5 (Del. Ch. Apr. 29, 2005)); accord Salamone v. Gorman, 106 A.3d 354, 367–68 

(Del. 2014). When a contract’s language is clear and unambiguous, the court will 

give effect to the plain meaning of the contract’s terms and provisions. Osborn, 991 

A.2d at 1159–60. The contract is to be read as a whole, giving effect to each term 

and provision, so as not to render any part of the contract mere surplusage. Id. at 

1159. The court may also look to the grammatical construction of a contract 

provision to determine its plain meaning. ITG Brands, LLC v. Reynolds Am., Inc., 

2017 WL 5903355, at *6 (Del. Ch. Nov. 30, 2017).

Because any ambiguity must be resolved in favor of the nonmoving party, the 

defendant is not entitled to dismissal under Rule 12(b)(6) unless the construction of 

the contract on which their theory of the case rests is the “only reasonable 

construction as a matter of law.” Kahn v. Portnoy, 2008 WL 5197164, at *3 (Del. 
11

Ch. Dec. 11, 2008) (quoting VLIW Tech., 840 A.2d at 615). Ambiguity exists when 

a contractual provision is reasonably susceptible to different interpretations. 

Vanderbilt Income & Growth Assocs. v. Arvida/JMB Managers, Inc., 691 A.2d 609, 

613 (Del. 1996). “A contract is not rendered ambiguous simply because the parties 

do not agree upon its proper construction.” Rhone-Poulenc, 616 A.2d at 1196. 

B. Is the December Agreement a New Agreement or an Amendment?

The first question before the court is whether the December Agreement is a 

“new agreement” or an “amendment” under Section 2(c) of Exhibit D to the Merger 

Agreement. “As is the Delaware way, I turn to the words the parties agreed to in 

their contract as the best evidence of their intent.” Pearl City Elevator, Inc. v. 

Gieseke, 2021 WL 1099230, at *12 (Del. Ch. Mar. 23, 2021). 

Despite the repeated references to the December Agreement as an amendment 

to the Service Agreement, Plaintiff contends that two features of the December 

Agreement create ambiguity that cannot be resolved on a motion to dismiss. First, 

Plaintiff contends that titling the document “Agreement to Amend Service 

Agreement” injects confusion into the categorization of the December Agreement 

under Section 2(c) of the Merger Agreement. Second, Plaintiff argues that the 

December Agreement supplants certain provisions in the Service Agreement. 

Neither argument has merit.
12

Plaintiff’s strained attempt to find ambiguity in the title of the December 

Agreement ignores the clear intent of the parties and the plain language of the 

document. The titling of the December Agreement as an “Agreement to Amend” 

does not create ambiguity. The Service Agreement specifies that any amendments 

must be in writing and signed by both parties.30 Like any other amendment to a 

contract, it must be agreed to by both parties and supported by consideration. See 

Cont’l Ins. Co. v. Rutledge & Co., Inc., 750 A.2d 1219, 1232 (Del. Ch. 2000) (“Any 

amendment to a contract, whether written or oral, relies on the presence of mutual 

assent and consideration.”). That the December Agreement is labeled an agreement 

to amend cannot reasonably be understood to mean that the parties intended it to be 

a new agreement.

Plaintiff conveniently focuses on the title of the document but ignores the 

remainder of the agreement. The December Agreement begins, “THIS SECOND 

AMENDMENT OF SERVICE AGREEMENT (‘Amendment’), entered into on 

December 22, 2021 (‘Amendment Date’), modifies the Service Agreement between 

Brevard Physician Associates (‘Client’) and AdvantEdge Healthcare Solutions, Inc. 

(‘AHS’) dated July 1, 2016, (‘Agreement’).”31 The parties to the December 

30 Service Agreement § 19(f).

31 December Agreement. 
13

Agreement, including AHS, consistently called the December Agreement an 

amendment:

This Amendment shall be incorporated into and become a part of the 

[Service] Agreement, and all references to the Agreement shall include 

this Amendment. All terms and conditions of the Agreement not 

affected, modified or changed by virtue of this Amendment shall 

remain in full force and effect. In the event of a conflict between the 

terms and conditions of this Amendment and the terms and conditions 

of the Agreement, the terms and conditions of this Amendment shall 

govern.32

The structure of the December Agreement also unambiguously reflects that 

the contracting parties intended to create an amendment to the Service Agreement, 

not a new agreement. An amendment is an agreement made subsequent to an 

existing agreement which alters or adds to the existing agreement. Black’s Law 

Dictionary defines an amendment as: “A formal and usu[ally] minor revision or 

addition proposed or made to a statute, constitution, pleading, order, or other 

instrument; specif[ically], a change made by addition, deletion, or correction; 

esp[ecially], an alteration in wording.” Amendment, Black’s Law Dictionary (11th 

ed. 2019).33 Thus, by definition, an amendment requires that the thing being 

amended to continue to exist. In re Flint Water Cases, 2021 WL 4898196, at *4 

32 Id. 

33 Likewise, Black’s Law Dictionary defines “amend” as “to correct or make usu[ally] 

small changes to” or “[t]o change the wording of; specif[ically] to formally alter . . . by 

striking out, inserting, or substituting words.” Amend, Black’s Law Dictionary (11th ed. 

2019). 
14

(E.D. Mich. Oct. 20, 2021) (“The definition and common usage of the term 

‘amendment’ presupposes that a contract already exists.”); see also Joyce v. DLA 

Piper Rudnick Gary Cary LLP, 888 N.E.2d 658, 663 (Ill. App. Ct. 2008) (“[E]ach 

amendment merely modified those terms that differed from the prior agreement, yet 

did not alter the force and effect of the unaltered terms.”). In essence, the key feature 

of an amendment is that it makes changes to an existing agreement. 

By contrast, a new agreement is not contingent on the presence of an existing 

agreement. Black’s Law Dictionary defines “new” as having “recently come into 

being” or “[b]eginning afresh.” New, Black’s Law Dictionary (11th ed. 2019). 

Rather than making changes an existing agreement, a new agreement allows the 

parties to craft their contractual relationship from scratch. Cf. Acierno v. Branmar, 

1976 WL 3, at *2 (Del. Ch. Feb. 19, 1976) (noting that “the new agreement 

contemplated an entirely new arrangement for consummating the purposes of the 

earlier agreement” despite being titled as an amendment). 

The December Agreement provides that “This Amendment shall be 

incorporated into and become a part of the Agreement, and all references to the 

Agreement shall include this Amendment.”34 The fact that the December Agreement 

is incorporated into the Service Agreement and does not displace it confirms that it 

34 December Agreement. 
15

is an amendment. The December Agreement is a one-page document that “modifies 

the Service Agreement between Brevard Physician Associates (‘Client’) and 

AdvantEdge Healthcare Solutions, Inc. (‘AHS’) dated July 1, 2016, 

(‘Agreement’).”35 It expressly rescinds the termination of the Service Agreement 

that BPA delivered a few months earlier, reviving the prior agreement.

36 It alters a 

few existing provisions, including the fee rates, term, and responsibilities of the 

parties.37 Plaintiff argues that these changes reflected “material new terms” that 

constitute a new agreement.38 Plaintiff cites no authority to support this argument. 

The one-page December Agreement provides no independent terms for the provision 

of services. The December Agreement modifies a few terms of the Service 

Agreement but acknowledges that all unaltered terms of the 36-page Service 

Agreement continue to be in effect. It expressly provides that “All terms and 

conditions of the Agreement not affected, modified or changed by virtue of this 

Amendment shall remain in full force and effect.”39

That structure is incompatible with the assertion that the December 

Agreement is a “new agreement.” The parties made clear their intent to modify, 

35 December Agreement. 

36 Id. § A. 

37 Id. 

38 Pl.’s Opp’n Br. 31. 

39 December Agreement. 
16

rather than to replace, the Service Agreement, both through the words that they used 

to describe the document itself and the function of its modifications on the parties’ 

existing contractual relationship. In name and by nature, the December Agreement 

is an amendment, not a new agreement. 

Plaintiff’s attempt to cast the December Agreement as a new agreement 

instead of an amendment ignores the language that the parties used in Section 2(c) 

of Exhibit D to the Merger Agreement. Section 2(c) provides for payment of the 

earn-out in the event of a qualifying new agreement with BPA (§ 2(c)(A) and § 

2(c)(C)) or an amendment to the existing agreement with BPA (§ 2(c)(B)). “Under 

well-settled canons of construction, the expression of one thing is the exclusion of 

another and each word should be given meaning and effect by the court.” Obsidian 

Fin. Gp., LLC v. Identity Theft Guard Sols., Inc., 2021 WL 1578201, at *8 (Del. Ch. 

Apr. 22, 2021). Under this canon, the separate reference to “new agreement” and 

“amendment” in the Merger Agreement are separate terms that are intended to have 

different meanings. If the contracting parties viewed “amendment” and “new 

agreement” as synonymous terms, there would have been no reason to reference 

them separately. Thus, the December Agreement is not a new agreement as 

contemplated by Section 2(c). Accordingly, Plaintiff has failed to state a claim for 

breach of Section 2(c)(C) of Exhibit D to the Merger Agreement.
17

C. Does the Amendment Remove the Early Termination Clause in the 

Service Agreement?

Having determined that the December Agreement is an amendment, the court 

next turns to whether the December Agreement “removes the early termination 

clause contained” in the existing Service Agreement.40 The Service Agreement with 

BPA contained a section titled “Term” that read: 

The initial term of this Agreement will be for three (3) years (the “Initial 

Term”) from the Effective Date. This Agreement will automatically 

renew for successive additional two (2) year terms. On July 1, 2017, or 

at any time thereafter, either party may terminate this agreement 

without cause by providing the other party written notice of at least 

ninety (90) days.41

Under the December Agreement, the “Term” section “is modified by adding the 

following paragraph:”

Notwithstanding the foregoing, the term of the Agreement shall 

continue until December 31, 2022 (“Amendment Term”) and 

automatically renew annually thereafter. After September 2022, either 

party may provide the other with at least ninety (90) days advance 

written notice of termination of this Agreement without cause. This 

applies to all of CLIENT’s Divisions.42

Plaintiff argues that this new term provision “entirely supplants” the previous 

provision and requires the contract to continue until at least September 30, 2022, 

effectively removing the early termination provision. Defendant counters that the 

40 Merger Agreement, Ex. D § 2(c)(B).

41 Service Agreement § 2. 

42 December Agreement § B. 
18

December Agreement retains the early termination clause contained in the Service 

Agreement and therefore cannot trigger the earn-out under Section 2(c)(B). 

The December Agreement does not delete and replace the prior term 

provision. This differs from other sections of the Service Agreement, which the 

December Agreement expressly deleted and replaced with new terms. For example, 

the December Agreement provides that “Schedule A of the Agreement is modified 

by deleting the fee table and replacing it with” a new table.43 By contrast, the 

December Agreement provides that “Section 2 (‘Term’) of the Agreement is 

modified by adding the following paragraph.”44 Reading the contract as a whole and 

the term provision in context, the December Agreement unambiguously

supplements, rather than supplants, the term provision of the Service Agreement. 

In function, this supplement alters the previous term provision, suspending 

BPA’s early termination right until at least December 31, 2022. But it does not 

remove the termination provision. Instead, after December 31, 2022, BPA may still 

terminate the Service Agreement on the same terms provided under the original 

Service Agreement: without cause, in writing, and with ninety days advance notice. 

To remove is not an ambiguous phrase. “To remove” in this context means to 

43 Id. § D. 

44 Id. § B. 
19

eliminate, to delete, or to take out.45 The December Agreement did not remove the 

early termination provision. Rather, it only delayed BPA’s ability to exercise its 

early termination right until a later date. 

Accordingly, the December Agreement does not satisfy Section 2(c) and does

not trigger Defendant’s obligation to release the earn-out payment. 

III. CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss Count I for failure 

to state a claim under Rule 12(b)(6) is hereby GRANTED, with prejudice. 

45 See Remove, Dictionary.com, https://www.dictionary.com/browse/remove (last visited 

Apr. 26, 2023) (defining remove as “to move from a place or position,” “to take away, 

withdraw, or eliminate,” or “to get rid of; do away with; put an end to.”); Remove, 

Merriam-Webster, https://www.merriam-webster.com/dictionary/remove (last visited Apr. 

26, 2023) (defining remove as “to change the location, position, station, or residence of” 

or “to get rid of.”).