Tag: Advancement

Chancery Court Holds that Subsidiary must Advance Legal Fees to Parent Company to Cover Costs from Separate Suit by Subsidiary Against Parent Company

By Scott E. Waxman and Mick G. Pence

In International Rail Partners, LLC v. American Rail Partners, LLC, C.A. No. 2020-0177-PAF (Del. Ch. November 24, 2020) plaintiffs International Rail Partners LLC, Boca Equity Partners LLC, Patriot Equity LLC, and Marino (“Plaintiffs”) and defendant American Rail Partners LLC. (“Company”) both filed motions for judgment on the pleadings. The Delaware Court of Chancery (“Court”) granted the Plaintiffs’ motion that sought advancement of expenses incurred while defending an action filed against them by the Company in the Delaware Superior Court. The Court held that the parties’ Limited Liability Company Agreement (“LLC Agreement”) unambiguously provided that the Company must advance the Plaintiffs’ fees incurred in defending the Superior Court action.

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Court Dismisses Contractual Claims for Advancement and Indemnification

By: Scott E. Waxman and Marissa Leon

In Nathan Brick v. The Retrofit Source, LLC, et al. (C.A. No. 2020-0254-KSJM), the Court of Chancery in the State of Delaware (the “Court”) dismissed claims for advancement and indemnification by a former officer of an automobile lighting products supplier.

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Words Matter: Chancery Court Holds that Indemnification Provision in Equity Purchase Agreement Does Not Cover Advancement of Expenses for Officer Conduct Unauthorized by the Board

By: Annette Becker and Adrienne Wimberly

In Computer Science Corporation v. Eric Pulier, et al., C.A. No. 11011-CB (Del. Ch. June 27, 2019), the Delaware Court of Chancery denied Plaintiff Computer Sciences Corporation’s (“CSC”) motion for partial summary judgement seeking to recover a portion of funds advanced to a former officer of ServiceMesh, Inc. (an entity CSC had acquired) for legal expenses incurred in defending a separate action. The Court held that based on its interpretation of the plain language of the indemnification provision in the relevant acquisition agreement that the indemnification provision was not broad enough to encompass the advancement of legal expenses in question.

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Chancery Court Preserves Advancement for Corporate Officers Despite Exclusive Remedies and Seller Release Provisions in Stock Purchase Agreement

By Whitney Smith and Dean Brazier

In Mark S. Davis, et al. v. EMSI Holding Company, C.A. No. 12854-VCS (Del. Ch. May 3, 2017) the Delaware Chancery Court granted a motion for summary judgment brought by former officers of the defendant (“EMSI”) seeking advancement of legal fees for their defense in a related action, EMSI Acquisition, Inc. v. Contrarian Funds, LLC, et al., C.A. No. 12648-VCS (Del. Ch. May 3, 2017).  In granting the motion, the Court considered whether the plaintiffs had waived or released their right to advancement in the exclusive remedies provision or the seller release provision of the Stock Purchase Agreement (“SPA”) entered into in connection with the sale of EMSI.  The Court concluded that the SPA provisions did not waive or release the officers’ right to advancement of defense costs under EMSI’s bylaws and a sufficient nexus existed between the plaintiffs’ role as former officers and the claims in EMSI Acquisition requiring their defense.

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