   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

THERMOPYLAE CAPITAL                      )
PARTNERS, L.P. and M. SCOTT              )
CONLEY,                                  )
                                         )
                  Plaintiffs,            )
                                         )
      v.                                 ) C.A. No. 10619-VCG
                                         )
SIMBOL, INC., JOSHUA L. GREEN,           )
PAUL B. CLEVELAND, WILLIAM               )
ERICSON, MOHR DAVIDOW                    )
VENTURES, MDV IX, L.P., TAKASHI          )
SUNADA, ITOCHU CORPORATION,              )
JOHN ASHBURN, MARTIN L.                  )
LAGOD, FIRELAKE STRATEGIC                )
TECHNOLOGY FUND, II, L.P.,               )
FIRELAKE INVESTORS FUND, II,             )
L.P., FIRELAKE CAPITAL                   )
MANAGEMENT LLC, and JOHN                 )
BURBA,                                   )
                                         )
                  Defendants.            )


                        MEMORANDUM OPINION

                      Date Submitted: October 28, 2015
                       Date Decided: January 29, 2016

Sidney S. Liebesman, Lisa Zwally Brown, and Chad Flores, of MONTGOMERY,
McCRACKEN, WALKER & RHOADS, LLP, Wilmington, Delaware, Attorneys for
Plaintiffs.

Peter J. Walsh and Tyler J. Leavengood, of POTTER ANDERSON & CORROON
LLP, Wilmington, Delaware; OF COUNSEL: Matthew Rawlinson and James H.
Moon, of LATHAM & WATKINS LLP, Menlo Park, California, Attorneys for
Defendants Martin Lagod, Firelake Strategic Technology Fund, II, L.P., Firelake
Investors Fund, II, L.P., and Firelake Capital Management LLC.
Rudolf Koch, Susan M. Hannigan, and Matthew D. Perri, of RICHARDS, LAYTON
& FINGER, P.A., Wilmington, Delaware, Attorneys for Defendants Takashi Sunada
and Itochu Corporation.

Elena C. Norman, James M. Yoch, and Lakshmi A. Muthu, of YOUNG CONAWAY
STARGATT & TAYLOR, LLP, Wilmington, Delaware; OF COUNSEL: J. Daniel
Sharp, of CROWELL & MORING LLP, San Francisco, California, Attorneys for
Defendants Mohr Davidow Ventures, MDV IX, L.P., Joshua L. Green, Paul B.
Cleveland, and William Ericson.

Patricia R. Urban, of PINCKNEY, WEIDINGER, URBAN & JOYCE LLC,
Greenville, Delaware; OF COUNSEL: Alan J. Stone and Hailey DeKraker, of
MILBANK, TWEED, HADLEY & McCLOY LLP, New York, New York, Attorneys
for Defendants John Ashburn and John Burba.

Patricia L. Enerio and Aaron M. Nelson, of PROCTOR HEYMAN ENERIO LLP,
Wilmington, Delaware, Attorneys for Defendant Simbol, Inc.




GLASSCOCK, Vice Chancellor
      The Plaintiffs here are M. Scott Conley—a founder and stockholder of

Simbol, Inc., (“Simbol” or the “Company”)—and stockholder Thermopylae Capital

Partners, LP (“Thermopylae”), an entity that Conley controls. This matter involves

a dilution claim by the Plaintiffs. They allege that the Simbol board, as directed by

a controller of the corporation, Defendant Mohr Davidow Ventures (“MDV”), and

aided by other defendants, breached fiduciary duties to the common stockholders by

issuing stock to the CEO; and that that stock was ill-gotten, in that it was acquired

by Simbol from a former CEO who was contractually bound by a right of first refusal

in favor of the Plaintiffs, which the ex-CEO breached in selling the stock back to the

Company. This transaction, according to the Plaintiffs, was wrongfully dilutive of

their interests. The Plaintiffs also allege that those controlling Simbol authorized a

reduction of the share price for a preferred stock offering, in a way the Plaintiffs

contend diluted their ownership.      In addition, the Plaintiffs allege much past

wrongdoing by MDV and other defendants in the many years since Simbol’s

founding, which they contend demonstrates the controlling nature of MDV’s interest

in Simbol. The Plaintiffs, however, conceded at oral argument that those earlier

incidents alleged wrongs to the Company, which they have not attempted to pursue

derivatively. The Plaintiffs therefore seek redress here only for the dilution claims.

      The matter is before me on motions to dismiss. Because the claims brought

are direct, the Plaintiffs are held only to the low notice pleading standard of Rule


                                          1
12(b)(6). The complaint was brought without full recourse to document production

available under Section 220 of the Delaware General Corporation Law (“DGCL”).1

The Plaintiffs have pleaded a complaint that omits pertinent facts to which they

would have been entitled as stockholders under Section 220.                  The complaint

therefore tests the limits of “reasonable conceivability” under Rule 12(b)(6), by

asking that I speculate as to fundamental facts necessary for the Plaintiffs to prevail.

The situation the Plaintiffs describe excites equitable antennae, because at least some

of the directors had dual loyalties to the Company and to those with whom it

transacted. Nonetheless, for the following reasons, I find the Plaintiffs’ complaint

deficient, and dismiss the action, without prejudice to any stockholder availing itself

of the tools at hand to bring a properly pled derivative action, should that prove

appropriate.

                                   I. BACKGROUND2

       The following facts are taken from the Plaintiffs’ Verified Complaint. They

go far beyond the two transactions that are alleged to give rise to liability here, and

include earlier transactions that, according to the Plaintiffs, demonstrate MDV’s

control of Simbol and willingness to use that control for its own benefit.



1
  The Plaintiffs made a Section 220 demand on Simbol but did not litigate the matter when faced
with Simbol’s allegedly incomplete document production, instead relying on what they contend is
“more than sufficient detail in this complaint.” See Oral Argument Tr. 57:6–17.
2
  The facts, drawn from the Plaintiffs’ Verified Complaint (the “Complaint” or “Compl.”), are
presumed true for purposes of evaluating the Defendants’ Motions to Dismiss.

                                              2
       A. The Parties

        Plaintiff M. Scott Conley is a “substantial” common stockholder of Simbol,

holding 444,400 shares.3 He served on Simbol’s board of directors (the “Board”)

from in or about January 2012 to in or about December 2012,4 and served as “COO

and senior most executive” to Simbol as of January 15, 2013.5 Conley and non-party

Luka Erceg are the co-founders of Simbol.6 Plaintiff Thermopylae is another

“substantial” common stockholder of Simbol, holding 666,600 shares, and is

controlled by Conley.7

       Defendant Simbol is a Delaware corporation with its principal place of

business in Pleasanton, California.8 Defendants Joshua Green, Paul B. Cleveland,

William Ericson, Martin L. Lagod, Takashi Sunada, John Burba, and John Ashburn

are all current or former Board members (collectively, the “Director Defendants”).

Green is a general partner of Defendant Mohr Davidow Ventures (“MDV”) and


3
  Compl. ¶¶ 1, 10. I note that this is around 1% of the total 45,954,905 shares of common stock
that are authorized under Simbol’s 2012 Amended and Restated Certificate of Incorporation.
Transmittal Aff. of James M. Yoch, Jr., Ex. A (“Am. and Restated Cert. of Incorp.”), at Art. IV.
The Amended and Restated Certificate of Incorporation is incorporated by reference and integral
to the Complaint, as the Plaintiffs’ claims are based in part on the contents therein. See Trenwick
Am. Litig. Trust v. Ernst & Young, L.L.P., 906 A.2d 168, 188 (Del. Ch. 2006) (“In evaluating the
complaint, the court may also consider the unambiguous terms of those documents incorporated
by reference in the complaint . . . .”). The Complaint does not allege the total number of
outstanding common shares or the total number of stockholders with holdings in Simbol.
4
  Compl. ¶ 10.
5
  Id. at ¶ 95.
6
  Id. at ¶¶ 1, 10, 23.
7
  Id. at ¶ 9. Thermopylae is described as “a limited partnership in which Conley is involved.” Id.
at ¶ 1.
8
  Id. at ¶¶ 1, 11.

                                                3
served on the Board “at all material times,” allegedly representing MDV’s interests.9

Cleveland served on the Board from in or about February 2012 to in or about

December 2012, allegedly representing MDV’s interests, and previously was a

general partner and the chief operating officer of MDV.10 Ericson served on the

Board from in or about January 2013 to in or about February 2013, allegedly

representing MDV’s interests, and is a general partner of MDV.11 Lagod is a

managing director and co-founder of Defendant Firelake Capital Management LLC,

and served on the Board from in or about May 2011 to in or about January 2012,

allegedly representing the interests of Firelake Capital Management LLC and the

other Firelake entitles controlled by it.12 Sunada has been at “all material times” a

member of the Board, serves as the Chief Financial Officer of Simbol, and

previously served as a manager for Itochu Corporation (“Itochu”).13 Burba joined

the Board in or about August 2013 and currently serves as Simbol’s President and

Chief Executive Officer.14 Finally, Ashburn joined the Board in or about December

2013 and serves as the Chief Legal Officer of Simbol.15

        Defendant MDV is a Delaware limited partnership and venture capital firm



9
  Id. at ¶ 12.
10
   Id. at ¶ 13.
11
   Id. at ¶ 14.
12
   Id. at ¶ 16.
13
   Id. at ¶ 18.
14
   Id. at ¶ 20.
15
   Id. at ¶ 21.

                                         4
with its principal place of business in Menlo Park, California.16 MDV operates

through various limited partnerships, including Defendant MDV IX, L.P. (“MDV

IX”), a Delaware limited partnership and preferred shareholder of Simbol that is

controlled by MDV.17 (MDV and MDV IX are collectively referred to as “MDV.”)

MDV holds a majority of Simbol’s Series A preferred stock.18

       Defendants Firelake Strategic Technology Fund, II, L.P. and Firelake

Investors Fund, II, L.P. are Delaware limited partnerships and preferred stockholders

of Simbol, both under the control of Defendant Firelake Capital Management LLC,

a Delaware limited liability company headquartered in Palo Alto, California

(collectively, “Firelake”).19 Firelake was founded in 2002 and invests in early-stage

venture capital companies focused on cleantech and renewable energy. 20

       Non-party Itochu,21 a preferred stockholder of Simbol, is a multinational

corporation headquartered in Tokyo, Japan that operates various businesses,

including importing and exporting and international trading of metals, minerals,

energy, and other goods and services.22

       B. Facts


16
   Id. at ¶ 15.
17
   Id.
18
   Id.
19
   Id. at ¶ 17.
20
   Id.
21
   The Plaintiffs voluntarily dismissed Itochu from this action on October 28, 2015, prior to oral
argument.
22
   Compl. ¶ 19.

                                                5
       Simbol was founded in 2007 by Conley and Erceg, and specializes in

sustainable materials technology.23 Looking to take advantage of the increasing

need for lithium in the production of electronic vehicles, Conley and Erceg

developed a business model for extracting lithium and other valuable battery metals

from geothermal brine using an environmentally friendly production process.24

Simbol commenced operations in July 2008.25

               1. The Series A Financing

       In February 2008, five months before officially commencing operations,

Simbol participated in the CleanTech Forum in San Francisco, California26—an

annual gathering of clean tech entrepreneurs, venture capital firms, investors, and

policy makers from around the world—where it was awarded the CleanTech Group

Most Promising Technology Award.27 While at this conference on behalf of Simbol,

Conley and Erceg first met Green and began discussing a potential investment by

MDV in Simbol.28 This and subsequent conversations over the next few months

culminated in Simbol’s Series A round of financing.29 The financing was led by

MDV and Firelake, with other individual investors participating, and was completed



23
   Id. at ¶¶ 1, 23.
24
   Id. at ¶¶ 24–25.
25
   Id. at ¶ 26.
26
   Id. at ¶ 27.
27
   Id.
28
   Id. at ¶ 28.
29
   Id. at ¶ 29.

                                           6
in July 2008, raising a total $6.7 million and resulting in a post-money valuation of

Simbol of approximately $14 million.30 With their investments, MDV and Firelake

retained the right to make further investments in Simbol on a pro rata basis to prevent

dilution from any later rounds of financing (the “Pro Rata Rights”), and Green

became a member of the Board.31 The funds raised in the Series A Financing were

used to start the development of Simbol’s processes for extracting lithium and

producing lithium carbonate.32

               2. The Series B Financing

       Between July 2008 and June 2010, Simbol continued to meet and exceed

operational milestones, garnering the interest of another potential investor, Itochu.33

During the latter part of 2009, Itochu began having discussions with Simbol about

making an investment in the Company,34 and in June 2010, after months of diligence,

Itochu led Simbol’s Series B capital raise of $35 million—itself investing

approximately $17 million—with the participation of other existing investors,

including MDV and Firelake.35



30
   Id. at ¶¶ 30, 33. The Complaint omits the amount of each investor’s contribution and the number
of Series A Preferred shares held by each investor, alleging only that MDV holds the “majority”
of Simbol’s Series A stock. Id. at ¶ 30.
31
   Id. at ¶ 32.
32
   Id. at ¶ 30.
33
   Id. at ¶¶ 34–35.
34
   Id. at ¶ 35.
35
    Id. at ¶ 36. The Complaint does not allege the number of Series B shares held by, or the
percentage of Simbol’s total equity owned by, any individual investor.

                                                7
       At the anticipated close of the Series B financing, Simbol had a pre-money

valuation of approximately $53 million.36 Though the $35 million already raised

exceeded Simbol’s planned $28 million target,37 Board members disagreed over

whether to keep the financing open.38 The Plaintiffs allege that Green and Lagod

insisted that Simbol required another “venture-styled investor,” and so should seek

further investment,39 while Erceg recommended to the Board that it close the Series

B round.40 Ultimately, the Series B round was extended in May 2011 with a new

goal of raising $66 million in capital to support Simbol’s operations.41                    This

continuation of the Series B round has “extended over the past 43 months” leading

up to the filing of this lawsuit, without attracting the investment capital required to

close the round.42

               3. The Eramet Financing

       In early 2011, Eramet, S.A. (“Eramet”), a French multinational mining and

metallurgy company, expressed interest in investing in Simbol.43 After the Series B


36
   Id. at ¶ 37.
37
   Id. at ¶ 38.
38
   Id. at ¶¶ 39–40.
39
   Id. at ¶ 39. The Complaint alleges that Lagod and Green were “personally concerned that given
the current levels of investment, Itochu would exert too much control over Simbol at MDV and
[Firelake’s] expense,” but provides no support for this contention. Id. Presumably the Pro Rata
Rights bargained for by MDV and Firelake in connection with the Series A financing gave them
the means to prevent Itochu’s investment from diluting their respective interests in Simbol.
40
   Id. at ¶ 38.
41
   Id. at ¶¶ 40, 43. In October 2012, Itochu and MDV contributed 10% of this amount, $6.6 million,
at $5.50 per share. Id. at ¶ 85.
42
   Id. at ¶¶ 40, 43.
43
   Id. at ¶ 41.

                                                8
round of financing was extended in May 2011, Erceg, as CEO, was directed by the

Board to attempt to negotiate financing with Eramet.44 By August, a term sheet had

been negotiated, with a proposed investment by Eramet of $42 million in equity

($20.4 million at $3.50 per share and $21.6 million at $4.50 per share) and a

construction loan of $50 million from Itochu (the “Eramet Financing”).45 The

Plaintiffs allege that the Eramet Financing would have resulted in Simbol’s post-

money valuation of $180 to $240 million, “based on a series of three investment

tranches,” and would have been “accretive to all shareholders.”46 The Plaintiffs

allege that “Eramet was the only new investor capable of making the requisite size

of investment and could rapidly close [on the] final Series B investment in

Simbol,”47 and that this fact was “well known” to Green and Lagod.48

       The Plaintiffs further allege that MDV and Firelake became concerned that

Eramet would conspire with Itochu to dilute their investments in the Company,

leading them to coordinate efforts to collapse the Eramet Financing.49 By way of

example, the Plaintiffs highlight that Eramet sought a right of “co-sale”50 from all of

Simbol’s key investors and stockholders and that, while Green had once supported



44
   Id. at ¶ 43.
45
   Id. at ¶ 44.
46
   Id. at ¶ 46.
47
   Id. at ¶ 41.
48
   Id. at ¶ 43.
49
   Id. at ¶ 42.
50
   The right of “co-sale” is not further explained in the Complaint.

                                                 9
this provision, he retracted this position “so as to further undermine and prevent the

closing of the Eramet financing,”51 and because he “reasoned that MDV’s own

ability to achieve liquidity would be impaired.”52

       Between August and September 2011, Erceg repeatedly counseled the Board

to move forward with the Eramet Financing, given Simbol’s then-urgent need for

additional capital.53 The Plaintiffs allege that Erceg’s advice was met with threats

from Green and MDV to “block the transaction based on their own self-interests,”54

and a warning from Green to the Board that it should not vote for the Eramet

Financing without first obtaining approval from MDV. 55 The Plaintiffs allege that,

though MDV and Firelake retained their Pro Rata Rights during this period—which

would enable them to prevent any dilution resulting from an investment by Eramet—

it was their fear that they would not be able to contribute equity in the future that

drove their opposition to the Eramet Financing.56

       The Complaint also describes several alleged machinations by Green to




51
   Compl. ¶ 42.
52
   Id. at ¶ 60.
53
   Id. at ¶¶ 48–52. For example, the Board Book for the September 2, 2011 Board meeting,
prepared by Erceg, disclosed that “[w]alking from the Eramet deals kills Simbol” and explained
that the Eramet Financing “would meet the Company’s Series B financing objectives and provide
a runway to the Company’s Series C financing for the building of a commercial plant.” Id. at ¶
50. The Complaint does not allege, however, that the Board was ever called upon to vote on any
investment proposal involving Eramet.
54
   Id. at ¶ 48.
55
   Id. at ¶ 58.
56
   Id. at ¶ 60.

                                             10
destabilize Simbol and its Board during this period. First, the Plaintiffs allege that

Green sought Erceg’s termination as CEO at the Board’s September 15, 2011

meeting by accusing him of failing to meet certain corporate milestones.57 Next, the

Plaintiffs allege that Green “willfully manipulated the Board by arguing for a

continuation of utilizing corporate funds to make progress while simultaneously

act[ing] to block” any financing by Eramet.58 Green and MDV’s goal, the Plaintiffs

allege, was to choke Simbol financially so that the Company would be forced to

obtain additional financing from MDV under terms unfavorable to Simbol and its

stockholders.59 Finally, the Plaintiffs assert that Green orchestrated a series of events

to pit Lagod against Erceg. For example, during the Eramet Financing negotiations,

Green sent a proposed term sheet pursuant to which Lagod was removed from the

Board, but indicated to Lagod that Erceg was behind the action.60 This led “to

immense levels of distrust amongst the members of the Board such that the board

became dysfunctional” and failed to formally vote on the Eramet Financing.61

       In October 2011, to exploit the worsening financial condition of Simbol,

MDV allegedly submitted a proposal to Itochu demanding that it work with MDV


57
   Id. at ¶ 53. These accusations related to the timing of an initial public offering of Simbol stock
and the failure to close the Series B financing. Id.
58
   Id. at ¶ 47.
59
   Id. I note that this argument runs contrary to MDV’s alleged “fear” that lack of liquidity would
prevent it from exercising its Pro Rata Rights, described above. See supra note 56 and
accompanying text.
60
   Id. at ¶ 55.
61
   Id.

                                                11
and Firelake to remove Erceg as CEO, wipe out the other stockholders, and invest

an additional $10 million or, in the alternative, that it purchase MDV’s and

Firelake’s equity interests for $245 million (or $635 million if certain metals were

found at Simbol’s production facility).62 By November 2011, Erceg’s relationship

with MDV and Firelake had deteriorated, leading Erceg to accuse MDV and Firelake

of bad faith, hindering Simbol’s ability to raise capital, and acting in their own self-

interest rather than in the best interests of the Company.63

               4. The “Extorted Rights”

       The Plaintiffs allege that from late 2011 until March 2012, Green and MDV

continued to act in a manner “damaging to all other shareholders,” and that in March

2012, they forced the Company and other shareholders into an agreement giving

MDV and Firelake more favorable terms with respect to their investments in the

Company (the “Extorted Rights”).64 These Extorted Rights were secured through

the execution of “a series of corporate documents and agreements on March 13, 2012

and the filing of an Amended and Restated Certificate of Incorporation [“Amended

Certificate”] for Simbol filed with the Delaware Secretary of State on the same day

relating to the Proposed B2/B3/B4 Financing.”65 Besides the Amended Certificate,


62
   Id. at ¶ 57. The Complaint alleges that a failure to agree to either of these options would lead
MDV and Firelake to “exact a recapitalization of Simbol” and to “force out all shareholders,
including Itochu.” Id.
63
   Id. at ¶ 61.
64
   Id. at ¶ 63.
65
   Id. at ¶ 67.

                                                12
the Complaint references two specific agreements executed on March 12, 2012 as

noteable: an Amended and Restated Voting Rights Agreement and a Right of First

Refusal Agreement (“ROFR”).66 Conley was party to, and voluntarily executed,

both of these agreements.67 At the time, the Board consisted of Conley, Erceg,

Green, Cleveland, and Sunada.68

       The series of agreements executed that day granted two “Extorted Rights” to

MDV and Firelake. The “Put Option” granted MDV and Firelake the right to “[s]ell

their stock to Simbol at their original purchase price with an eight percent (8%)

simple return for a thirty (30) day[] period immediately after formal commercial

operations date of the first lithium production plant.”69 The “Blocking Right”

allowed MDV and Firelake to “[v]eto any financing that was valued at a pre-money

valuation less than $300 million, all subsequent to an Eramet financing.”70

       The Plaintiffs allege that only after securing these rights did MDV and



66
   Id.
67
   Id. at ¶¶ 96, 104.
68
   Id. at ¶ 67. I note, however, that the Complaint subsequently alleges that the “three remaining
directors” on the Board after the December 2012 resignations of Cleveland and Green were unable
to act for “lack of a quorum,” so presumably the Board was composed of at least six directors. See
8 Del. C. § 141(b) (“A majority of the total number of directors shall constitute a quorum for the
transaction of business unless the certificate of incorporation or the bylaws require a greater
number”). Additionally, the Amended and Restated Voting Rights Agreement, incorporated by
reference in the Complaint, indicates that the Board was to consist of seven directors. See Itochu
and Sunada Defs’ Opening Br., Ex. A (the “Voting Agreement”), at § 2(e). Nonetheless, the
Complaint fails to allege the size of the Board.
69
   Compl. ¶ 68.
70
   Id. The Complaint does not allege that MDV or Firelake attempted to exercise these alleged
rights, or that the conditions precedent to their exercise ever occurred.

                                               13
Firelake allow the Company to engage in sincere discussions with Eramet; however,

by this time the original Eramet Financing deal had expired, and any subsequent deal

would have to be renegotiated.71 The Company’s financial condition “continued to

stress and the urgency in getting new investors increased significantly.” 72 The

Company began considering investments from alternative sources and approved the

engagement of Byron Capital Markets Ltd. to serve as a financial advisor to

Simbol.73 Eramet, though it continued to express interest in Simbol, ultimately

found that the Extorted Rights were, in Plaintiffs’ words, “too complicated” and

failed to close any financing.74

       In October 2012, Itochu and MDV made a $6.6 million equity contribution at

a price per share of $5.50.75 The Plaintiffs allege that, as a requirement to close,

MDV demanded additional amendments to the Extorted Rights, “whereby [Firelake]

was granted the same rights though [Firelake] had not contributed to the B1, B2 or

B3 rounds of financing,” and that such amendments were detrimental to Simbol and

its stockholders.76




71
   Id. at ¶ 69.
72
   Id. at ¶ 72.
73
   Id. at ¶¶ 72, 74.
74
   Id. at ¶¶ 74–75.
75
   Id. at ¶ 85.
76
   Id. The Complaint does not further describe this “furtherance of exacting terms” or explain how
Firelake’s rights changed between March and October 2012.

                                               14
               5. The Bridge Loans and Other Financing

       In December 2011, Simbol accepted a $5 million bridge loan from Itochu (the

“First Itochu Bridge”) in order to delay insolvency.77 Then, in November 2012,

Simbol began negotiations regarding another $5 million debt facility with Itochu to

close by the end of the year (the “New Itochu Bridge Facility”).78 At that time, the

Company’s “cash position worsened to the point of insolvency.”79 The closing of

the New Itochu Bridge Facility was delayed, however, by Cleveland’s permanent

and Green’s apparently temporary resignations from the Board in December 2012,

which left the Board without the quorum necessary to approve a financing.80 Due to

its growing and urgent need for cash, Simbol was forced to sell approximately 80

metric tons of high purity lithium carbonate warehoused in Brawley, California to

Itochu at a price roughly 50% below the market rate.81

       The Plaintiffs allege that, sometime prior to the close of the New Itochu

Bridge Facility, Itochu and MDV “unilaterally re-priced” two series of stock, the




77
   Id. at ¶ 62.
78
   Id. at ¶¶ 85–86.
79
   Id. at ¶ 79.
80
   Id. at ¶ 87. The Plaintiffs allege that Green and Cleveland tendered their resignations in “an
attempt to reduce their personal liability as Simbol directors and MDV’s concomitant liability so
that Green and Cleveland could continue to act in MDV’s sole interest as a shareholder.” I note
that the Complaint is internally inconsistent with respect to Green’s tenure on the Board; it states
here that Green resigned in December 2012, but notes elsewhere that Green served on the Board
“at all material times,” including in July 2013, after his purported resignation. See id. at ¶¶ 12,
116.
81
   Id. at ¶ 91.

                                                15
Series B1 Preferred and the Series B2 Preferred from $4.50 and $5.50 per share,

respectively, to $3.50 per share.82 The Plaintiffs allege that this re-pricing resulted

in a loss of value of $2.00 per share and dilution, due to the issuance of further shares

to account for the re-pricing.83 Finally, the Plaintiffs assert that MDV “denied”

Simbol management an opportunity to discuss the New Itochu Bridge Facility with

“funding investors.”84

       The New Itochu Bridge Facility ultimately closed in March 2013.85 The

Plaintiffs allege that, in connection with this bridge facility, MDV and Itochu also

entered into a side agreement, under which MDV assigned its right to select a second

Board designee to Itochu, thereby “granting Itochu control of the Board” and

“circumventing the Voting Agreement” entered into in March 2012, which requires

the majority of common stockholders to expressly agree to any amendment of the

Voting Agreement.86

       In May 2013, Simbol again borrowed $5 million from various parties,

including Itochu, MDV, Firelake, an entity called “WS Investment Company,” and

others, to extend the Company’s operations.87 Finally, between June and August

2013, “Simbol granted a restructuring of approximately $11.8 million in debt held


82
   Id. at ¶ 99.
83
   Id.
84
   Id. at ¶ 93.
85
   Id. at ¶ 97.
86
   Id, at ¶¶ 96–98.
87
   Id. at ¶ 101.

                                           16
by Itochu and MDV at a 90% conversion to the current $3.50 per share conversion

price,” with the result that “the outstanding debt held the right to convert at $0.35

per share.”88 This transaction is not further explained in the Complaint. The

Plaintiffs allege only that this debt financing “did not alleviate nor provide the

needed cash to continue the operations of Simbol and, instead, placed the Company

in a further precarious financial condition.”89 Additionally, the Complaint does not

allege that either Itochu or MDV exercised this alleged right to convert debt to

equity, and does not seem to bring a claim for relief on this ground.

               6. The Erceg Settlement and Right of First Refusal

       In March 2012, Simbol and certain investors—including MDV, Itochu,

Firelake, Erceg, and the Plaintiffs—executed a Right of First Refusal Agreement

(the “ROFR”) in connection with the Proposed B2/B3/B4 Financing.90 Pursuant to

the ROFR, any investor transferring Simbol shares must provide advance written

notice of the transfer, and then “Significant Holders,” defined to include the

Plaintiffs, “shall have the right to purchase a portion of the Offered Shares equal to

such Significant Holders’ ROFR Pro Rata Portion . . . .”91 Section 5 of the ROFR

provides that “[a]ny attempt by any Seller to Transfer any Shares in violation of any




88
   Id. at ¶ 102.
89
   Id. at ¶ 103.
90
   Id. at ¶ 104.
91
   Id. at ¶¶ 105–06.

                                         17
provision of this Agreement will be void.”92

       The Plaintiffs allege that, due to the actions of MDV and Green (not further

described in the Complaint), Erceg was forced to resign as CEO and Director of

Simbol in January 2013.93 In July 2013, Simbol settled claims (also undescribed)

asserted by Erceg (the “Erceg Settlement”).94 At least Sunada, Nishio, and Green

allegedly sat on the Board at the time.95 As a part of the settlement, Erceg transferred

his 2,109,468 shares of Simbol common stock (the “Erceg Shares”) back to the

Company, but neither he nor Simbol provided a transfer notice to the Plaintiffs.96

The Plaintiffs assert that, because they did not receive a transfer notice from the

investor, as required under the ROFR, the transfer was void.97 They assert further

that this failure to act in accordance with the ROFR was part of a larger scheme to

defraud key common stockholders, including the Plaintiffs, of “special rights and

economic benefits.”98 The Plaintiffs insist that they are not “asserting a claim for

breach of contract against any party,” but rather are alleging that the breach of the




92
   Id. at ¶ 107.
93
   Id. at ¶ 94.
94
   Id. at ¶ 108. The bases of Erceg’s claims against Simbol are not identified and are allegedly
confidential pursuant to the terms of the Erceg Settlement. See Oral Argument Tr. 59:3–18.
95
   Compl. ¶ 116. I note again, however, that it is unclear, based on the Complaint, whether Green
or others sat on the Board in January 2013. See supra notes 68, 80.
96
   Compl. ¶ 108.
97
   Id. at ¶ 109.
98
   Id. at ¶ 112.

                                               18
ROFR is relevant to “the Defendants’ scheme to breach their fiduciary duties.”99

       Also in connection with the Erceg Settlement, “Itochu and MDV made equity

contributions or conversion notes in Simbol.”100 The Plaintiffs allege that these

equity contributions “further diluted Plaintiffs’ ownership interest in Simbol which

could have been averted had the parties settled the claims individually.”101

               7. Issuance of Shares to Burba

       Erceg’s replacement, John Burba, was hired at some time in or before April

2013.102 Burba holds approximately 2,274,200 common shares of Simbol, of which

174,200 were granted “as a result of activities related to the licensing of technology

to Simbol prior to Burba’s appointment as CEO.”103 The remaining approximately

2,100,000 shares that Burba was granted, the Plaintiffs stress, almost exactly equals

the number of shares that were transferred by Erceg back to Simbol as a part of the

Erceg Settlement, which are described as “void” immediately upon their transfer.104


99
   Id. at ¶ 109 n.1. At Oral Argument, the Plaintiffs conceded that the duty to provide notice of the
transfer under the ROFR rested with Erceg, and not Simbol, but argued that, because the
Defendants knew there was a right of first refusal that should have been offered to Conley, they
breached their fiduciary duties by not “proceed[ing] according to the contract, in furtherance of
[their] scheme to dilute Mr. Conley and to minimize his voting power.” Oral Argument Tr.
63:13–20.
100
    Compl. ¶ 116.
101
    Id. No further information is provided about the magnitude, circumstances, or effect of these
equity contributions.
102
    Id. at ¶ 100.
103
    Id. at ¶ 110.
104
    Id. I note that it would be the transaction, not the shares of stock, which arguably became void
due to Erceg’s contractual breach. There is no allegation identifying when Burba received these
shares, though he must have received them prior to August 9, 2013, the date on which Burba voted
the shares in favor of his appointment to the Board. See id. at ¶ 115.

                                                19
The Complaint treats the 2.1 million shares Burba received as if they were the Erceg

Shares—though it never expressly states as much—by, for example, alleging that

the shares issued to Burba were void for Erceg’s failure to comply with the ROFR,

and that the “entire scheme to ultimately put those shares in Burba’s hands evidenced

a conspiracy to defraud common stockholders, including the Plaintiffs.”105 Burba

was placed on the Board by a written consent of the common stockholders dated

August 9, 2013, which consent was based necessarily on Burba voting his own

shares in favor of his appointment to the Board.106 This action was taken, the

Plaintiffs allege, despite the fact that Burba knew the written consent relied upon the

“void” Erceg Shares, and therefore was an improper, ultra vires act by the

Company.107

       The Plaintiffs allege that Simbol transferred these 2,100,000 shares to Burba

to help “effect a change in control of the majority common voting structure

beneficial to the preferred shareholders at the expense of key common stockholder[s]

including Plaintiffs.”108 Finally, the Plaintiffs assert that the failure to act in

accordance with the ROFR was part of a conspiracy to improperly enrich and

empower Burba without regard to the rights of Simbol stockholders.109



105
    See id. at ¶ 112 (emphasis added).
106
    Id. at ¶ 115.
107
    Id.
108
    Id. at ¶ 111.
109
    Id. at ¶ 112.

                                          20
               8. Other Factual Allegations

       The Complaint contains various other factual allegations that are not easily

linked to the alleged damages to the Plaintiffs. For example, the Plaintiffs allege

that between July and August of 2012, Green caused “executive insubordination” by

encouraging Simbol’s Vice President of Business Development to pursue financing

from DuPont.110 The Plaintiffs also allege that the Board failed to perform proper

due diligence in hiring Burba as CEO, pointing to his previous performance results

at Molycorp, Inc. prior to joining Simbol.111 They allege that Itochu thwarted

potential investments in Simbol by Chinese firms that held dominant positions in the

Chinese lithium market relative to Itochu.112 And, finally, the Plaintiffs allege

conflicts of interest of the Company’s outside corporate counsel, who are not parties

to this action.113

       C. Procedural History

       The Plaintiffs filed a Verified Complaint on February 2, 2015 asserting (1) a

breach of fiduciary duty claim against the Director Defendants and MDV;114 and (2)

aiding and abetting a breach of fiduciary duty claim against Firelake, Itochu, and

MDV. In response, the Defendants filed four Motions to Dismiss, and full briefing


110
    Id. at ¶¶ 76–77.
111
    Id. at ¶ 114.
112
    Id. at ¶¶ 81–83.
113
    Id. at ¶¶ 118–22.
114
    To the extent the Complaint purports to plead a breach of duty claim against Simbol itself, it
must be dismissed; Simbol does not owe any Plaintiff fiduciary duties.

                                               21
of the motions followed. I heard oral argument on October 28, 2015 (the “Oral

Argument”), at which time I reserved judgment. This Opinion resolves those

motions.

                  II. STANDARD OF REVIEW AND STANDING

       The standard of review under Court of Chancery Rule 12(b)(6) is well-settled.

The Court will grant a motion to dismiss for failure to state a claim where the

complaint does not assert sufficient facts that, if proven, would entitle the plaintiff

to relief.115 In its analysis, the Court must

       accept all well-pleaded factual allegations in the Complaint as true,
       accept even vague allegations in the Complaint as “well-pleaded” if
       they provided the defendant notice of the claim, draw all reasonable
       inferences in favor of the plaintiff, and deny the motion unless the
       plaintiff could not recover under any reasonably conceivable set of
       circumstances susceptible of proof.116

However, the Court need not “accept conclusory allegations unsupported by specific

facts or . . . draw unreasonable inferences in favor of the non-moving party.”117

       The Complaint surveys the actions of the parties over the course of an almost

eight-year period, spanning the formation of the Company, its financing, the

beginning of its financial woes, and the installation of a new CEO. The Complaint




115
    Lucas v. Hanson, 2014 WL 7235462, at *2 (Del. Ch. Dec. 19, 2014).
116
    Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 (Del. 2011)
(citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).
117
    Price v. E.I. duPont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing Clinton v.
Enter. Rent–A–Car Co., 977 A.2d 892, 895 (Del. 2009)).

                                              22
then asserts two counts—one for breach of fiduciary duty against the Director

Defendants and MDV; and the other for aiding and abetting a breach of fiduciary

duty against Firelake, Itochu, and, in the alternative to Count I, against MDV—

seeking in relief an accounting to the Plaintiffs for “all damages suffered and to be

suffered by [the Plaintiffs] as a result of the wrongs complained of,” and costs of the

action.

       In Count I of the Complaint, the Plaintiffs list twelve ways in which MDV

and the Director Defendants allegedly breached their fiduciary duties, primarily

concerning three events: the Company’s efforts to obtain financing from Eramet in

or around May 2011 through April 2012; the March 2012 adoption of the Amended

and Restated Certificate of Incorporation and related documents, which the Plaintiffs

have termed the “Extorted Rights”; and the Erceg Settlement and issuance of shares

to Burba. In their respective Motions to Dismiss, the Director Defendants, MDV,

and Firelake argue that the Plaintiffs’ claims are derivative in nature and that, as the

Plaintiffs have neither sought corrective action from the Company nor pled demand

futility, the Complaint should be dismissed for failure to comply with Court of

Chancery Rule 23.1.118 The Plaintiffs have insisted, however, that they seek relief


118
    Court of Chancery Rule 23.1 imposes “stringent requirements of factual particularity” on a
plaintiff pursuing a derivative suit, Brehm v. Eisner, 746 A.2d 244, 254 (Del. 2000), requiring the
plaintiff to “allege with particularity the efforts, if any,” made to obtain corrective action from the
corporation “and the reasons for the plaintiff’s failure to obtain the action or for not making the
effort,” Ct. Ch. R. 23.1. The plaintiff must show, with particularity, that demand on the board to
take corrective action was either wrongfully refused or futile. White v. Panic, 783 A.2d 543, 550

                                                 23
only for direct harm to them.119

       Under Delaware law, whether a claim is derivative or direct “turn[s] solely on

the following questions: (1) who suffered the alleged harm (the corporation or the

suing stockholders, individually); and (2) who would receive the benefit of any

recovery or other remedy (the corporation or the stockholders, individually).”120

“Although each question is framed in terms of exclusive alternatives (either the

corporation or the Stockholders), some injuries affect both the corporation and the

stockholders” and in such a case, the plaintiffs may choose to sue individually.121

       Claims based on the diminution in value of the stock held by plaintiffs are

generally derivative in nature.122 However, the Delaware Supreme Court recognized

a limited exception to this rule—on which the Plaintiffs rely here—in Gentile v.

Rossette.123 Recognizing the “dual character of dilutive issuances,”124 the Court held

in Gentile that “[t]here is . . . at least one transactional paradigm—a species of

corporate overpayment claim—that Delaware case law recognizes as being both




(Del. 2001).
119
    See Oral Argument Tr. 9:10–12 (“We are pursuing [the claims] as direct. We are not arguing—
we’re not arguing that demand is excused.”).
120
    Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del. 2004) (emphasis in
original).
121
    Carsanaro v. Bloodhound Tech., Inc., 65 A.3d 618, 655 (Del. Ch. 2013) (citations omitted).
122
     See Feldman v. Cutaia, 951 A.2d 727, 733 (Del. 2008) (“Where all of a corporation’s
stockholders are harmed and would recover pro rata in proportion with their ownership of the
corporation’s stock solely because they are stockholders, then the claim is derivative in nature.”).
123
    906 A.2d 91 (Del. 2006).
124
    Carsanaro, 65 A.3d at 657.

                                                24
derivative and direct in character.”125 The Court explained:

                 A breach of fiduciary duty claim having this dual character arises
          where: (1) a stockholder having majority or effective control causes the
          corporation to issue “excessive” shares of its stock in exchange for
          assets of the controlling stockholder that have a lesser value; and (2)
          the exchange causes an increase in the percentage of the outstanding
          shares owned by the controlling stockholder, and a corresponding
          decrease in the share percentage owned by the public (minority)
          shareholders. Because the means used to achieve that result is an
          overpayment (or “over-issuance”) of shares to the controlling
          stockholder, the corporation is harmed and has a claim to compel the
          restoration of the value of the overpayment. That claim, by definition,
          is derivative.
                 But, the public (or minority) stockholders also have a separate,
          and direct, claim arising out of that same transaction. Because the
          shares representing the “overpayment” embody both economic value
          and voting power, the end result of this type of transaction is an
          improper transfer—or expropriation—of economic value and voting
          power from the public shareholders to the majority or controlling
          stockholder. For that reason, the harm resulting from the overpayment
          is not confined to an equal dilution of the economic value and voting
          power of each of the corporation's outstanding shares. A separate harm
          also results: an extraction from the public shareholders, and a
          redistribution to the controlling shareholder, of a portion of the
          economic value and voting power embodied in the minority interest. As
          a consequence, the public shareholders are harmed, uniquely and
          individually, to the same extent that the controlling shareholder is
          (correspondingly) benefited. In such circumstances, the public
          shareholders are entitled to recover the value represented by that
          overpayment—an entitlement that may be claimed by the public
          shareholders directly and without regard to any claim the corporation
          may have.126

This Court has suggested that, under this limited exception, standing will exist “if a



125
      Gentile, 906 A.2d at 99.
126
      Id. at 99–100.

                                             25
controlling stockholder [stands] on both sides of the transaction,” or “if the board

that effectuated the transaction lacked a disinterested and independent majority.” 127

However, standing will not exist “if there is no reason to infer disloyal expropriation,

such as when stock is issued to an unaffiliated third party, as part of an employment

compensation plan, or when a majority of disinterested and independent directors

approves the terms.”128 That is, “[t]he expropriation principle operates only when

defendant fiduciaries (i) had the ability to use the levers of corporate control to

benefit themselves and (ii) took advantage of the opportunity.”129

       The Plaintiffs acknowledged at the Oral Argument that the alleged wrongful

acts leading up to the Erceg Settlement are derivative in nature, but insist that these

acts are nonetheless significant as evidence of an overarching “scheme” to bring

Simbol to the brink of disaster, which scheme ultimately resulted in the direct harm

for which the Plaintiffs now seek relief.130 Because of the atypical way in which this




127
    Carsanaro, 65 A.3d at 658.
128
    Id.
129
    Id. at 658–59.
130
     See Oral Argument Tr. 68:13–20 (The Court: “Your argument is these investors were
fiduciaries for the company who engaged in the scheme and used their power over a period of
years to advance their own interest, to the detriment of the company and its stockholders, and that
entire scheme and its execution is what is the breach of duty, the actionable breach of duty?
Plaintiffs’ Counsel: “Yes, Your Honor.”); id. at 69:1–4 (Plaintiffs’ Counsel: “So I will say that up
until the Erceg settlement, there are breaches of fiduciary duty. They are derivative in nature.
What changes is with the Erceg settlement. Now, I think an argument can be made that some of
the acts prior to the Erceg settlement could be—could be direct claims. I’m not—I don’t even have
to go there for purposes of today, or in the future.”).

                                                26
Complaint was drafted131—and the slew of breaches of fiduciary duty alleged in the

Complaint that the Plaintiffs have conceded are derivative in nature—the direct harm

allegedly suffered by the Plaintiffs is quite difficult to discern from the face of the

Complaint. The Plaintiffs clarified at Oral Argument, however, that the direct harm

to the Plaintiffs allegedly resulted from: (1) the re-pricing of shares by Itochu and

MDV, and (2) the Erceg Settlement and the issuance of shares to Burba.132 I

therefore examine these two transactions for breaches of fiduciary duty, in light of

the overarching factual history pled.133

                                        III. ANALYSIS

       Before turning to the relief sought, I first consider those causes of action

notably not asserted here for relief. The Complaint alleges that Erceg violated the



131
     Unlike the typical complaint alleging a breach of fiduciary duty by a company’s board
members—which would center on a particular transaction, and the various board members’
failures to satisfy their fiduciary duties with respect to that transaction—the Complaint here
suggests that it is a scheme to advance the Defendants’ interests, consisting of events over a period
of years, that caused actionable detriment to Simbol and the Plaintiffs’ interests.
132
    Oral Argument Tr. 69:9–18 (“Where the direct harm comes into play is when MDV begins to
effectuate its plan to rid themselves of the founders, and did it with Erceg and with the
settlement. . . . They bring in Burba to replace Erceg, an MDV guy. You know, selected by MDV.
And that’s where the direct harm begins to take place, when they transfer the 2.1 million shares.”);
id. at 74:2–9 (“And the only other element of the direct harm related to the transaction, as alleged
in the complaint, is the repricing of the stock in early 2013. Again, this was all around the same
time, in 2013, when MDV and Itochu repriced shares, issued it to themselves at $2.50 a share when
the stock had been priced at $4.50 and 5.50 a share.”).
133
    Because, prior to the Plaintiffs’ clarification at Oral Argument, they seemed to be alleging
actionable breaches of duty pre-dating the Erceg Settlement of 2013, the briefing concentrated
heavily on the defenses of laches, waiver, and acquiescence with regard to these earlier
transactions. Because the Plaintiffs now concede that these earlier transactions give rise only to
claims on behalf of the Company, for which they do not seek redress, I have not considered the
defenses described in this footnote further.

                                                27
ROFR agreement, giving the Plaintiffs a contract claim against Erceg, but they have

chosen not to pursue that claim here. They also allege what appears to be intentional

interference with that contract right, by various Defendants, but have specifically

eschewed pursuing a recovery in contract, or specific performance of the contract.

Finally, they have alleged many actions they describe as breaches of duty to the

Company, by a controller and a captured Board, but they have forgone a derivative

action in vindication of those wrongs, choosing instead to pursue a pair of direct

dilution claims. With that in mind, I turn to the analysis of those claims the Plaintiffs

have chosen to present.

        A. Re-pricing of Simbol Stock

       The first instance of alleged direct harm for which the Plaintiffs seek relief is

the “re-pricing” of Simbol Stock. The Plaintiffs allege only that,

       [p]rior to the closing of the New Itochu Bridge Facility, Itochu and
       MDV colluded to re-price the company stock in a self-interested and
       dilutive transaction at the expense of the Company’s other
       shareholders. Itochu and MDV unilaterally re-priced two series of
       stock, the Series B1 Preferred and the Series B2 Preferred from $4.50
       and $5.50 per share, respectively, to $3.50 per share. This action
       described in the Exchange Agreement (“Exchange”) favored Itochu and
       MDV exclusively and was presented under the auspices of an
       inducement to invest. The control of Simbol’s Board granted the re-
       pricing that resulted in a loss of value of $2.00 per share, and dilution
       due to the issuance of further shares to account for the re-pricing.134



134
   Compl. ¶ 99. With respect to the relief sought, the complaint is similarly non-specific; it seeks
accounting for “all” damages, incurred or future, arising from all allegations of wrongdoing.

                                                28
The New Itochu Bridge Facility “concluded in March 2013,” indicating that the

re-pricing occurred at some time between January and March 2013. The Complaint

references Board action but does not explain when that Board meeting took place.

At Oral Argument, the Plaintiffs clarified that this claim should be treated as direct

because “they diluted Mr. Conley’s value of the stock by issuing—repricing and

issuing themselves stock at a significantly discounted amount.”135

       Under Delaware law, at the motion to dismiss stage of a proceeding, the Court

must deny the motion unless, drawing all reasonable inferences in favor of the

plaintiff, the plaintiff could not recover under “any reasonably conceivable set of

circumstances susceptible of proof.”136 For the “reasonableness” part of the standard

to have meaning, a complaint, in this context, that omits necessary facts available

pre-discovery to a plaintiff—relying instead on mere conclusory assertions—cannot

survive a motion under Rule 12(b)(6).137 I find that this claim for relief is properly

dismissed under the “reasonable conceivability” standard, as the Complaint alleges

insufficient facts to allow me to both understand the claim being asserted and to

conclude that, assuming those facts as true, Simbol was controlled by MDV or that

a majority of the Directors lacked independence or disinterest with respect to the



135
    Oral Argument Tr. 74:13–15.
136
    Central Mortg. Co., 27 A.3d at 537 (citing Savor, 812 A.2d at 896–97) (emphasis added).
137
    See generally In re Morton’s Restaurant Grp., Inc. S’holders Litig., 74 A.3d 656 (Del. Ch.
2014) (finding that conclusory allegations of the exercise of actual domination and control by
minority stockholder insufficient to withstand motion to dismiss under Rule 12(b)(6)).

                                             29
repricing.

      A factually sparse Complaint such as this—“sparse” in the sense that it omits

many pertinent facts, which presumably were available to stockholders, leaving the

Court to speculate as to these facts or attempt to supply them through conclusory

allegations—in essence invites the Court to both state a claim and then analyze it. I

presume that the claim runs as follows: MDV, as controlling stockholder, controlled

the corporate machinery of Simbol with respect to the pricing of certain series “B”

offerings, and conspired with Itochu to use that machinery to create and reap the

benefit of an option to purchase preferred shares below market price. Finally, these

actions resulted in the issuance of additional shares to acquire the financing

undertaken in the offering, diluting the interest of the Plaintiffs. If this is in fact the

Plaintiffs’ claim, the Plaintiffs have properly asserted it as a direct claim; 138 to find

that such a cause of action has been adequately pled, however, would require me to

assume the existence of many facts not alleged in the Complaint. The Complaint,

for example, is silent as to precisely when the alleged re-pricing took place. The

Complaint does indicate that the Board membership and size were in flux throughout

this period. It does not provide how many Board members were authorized by




138
  See generally Gentile, 906 A.2d 91. Of course, the same scenario presents a wrong to the
Company, which a stockholder could pursue derivatively as well.

                                            30
Simbol’s bylaws, or who sat on the Board at the time of the re-pricing.139 It fails to

disclose whether the decision to allow the re-pricing was put to a vote of the Board,

and if so, how the Directors voted. Conversely, if the re-pricing was done pursuant

to a contractual right held by MDV, the Complaint omits to state when the Board

granted that right, and why that decision was wrongful. In addition, the Complaint

fails to explain the relationship between the various classes of shares,140 or how the

re-pricing was dilutive to the common stockholders, among other facts that would

aid my analysis.141

       Most critically, the Plaintiffs have failed to allege facts that, if true,

demonstrate that MDV is a controlling stockholder, and without such a showing,

MDV cannot be held liable for a breach of fiduciary duty under Count I. Under

Delaware law, a “shareholder owes a fiduciary duty only if it owns a majority interest

in or exercises control over the business affairs of the corporation.”142                         “A

shareholder will be considered ‘controlling’ if it either owns more than 50% of the


139
    The Complaint alleges only that the re-pricing took place prior to the close of the New Itochu
Bridge Facility in March 2013. Compl. ¶¶ 97, 99; Oral Argument Tr. 74:2–9. From my
examination of the Complaint, I assume that Green and Sunada sat on the Board during this whole
time period, but it is unclear if the Board also included Ericson, Nishio, or both, as well. I note,
again, that the Complaint suggests that the number of directors called for by the Company’s bylaws
is at least six, and that the Voting Agreement suggests that the Board had seven seats. See supra
note 68.
140
    These facts would aid in a determination of whether, for example, an additional issuance of
preferred shares had a substantial or merely de minimis effect on the Plaintiffs’ ownership interests
in Simbol.
141
    I list these factual lacunae not to imply that any one alone is a fatal defect, but to put what is
pled in context.
142
    Ivanhoe Partners v. Newmont Mining Corp., 535 A.2d 1334, 1344 (Del. 1987).

                                                 31
voting power of the company, or exercises ‘actual control’ over the board of

directors during the course of a particular transaction.”143 With respect to the control

requirement, “[t]he bare conclusory allegation that a minority stockholder possessed

control is insufficient.”144 Rather, “the Complaint must contain well-pled facts

showing that the minority stockholder ‘exercised actual domination and control

over . . . [the] directors.’”145 To survive a motion to dismiss, these facts must

“demonstrat[e] actual control with regard to the particular transaction that is being

challenged.”146

       The Complaint does not allege that MDV holds a majority of the shares. It

alleges only that MDV “held and controlled a majority of Simbol’s Series A

preferred stock.”147 As the Complaint is silent as to the relationship between the

Series A and other classes of stock, and to the voting rights of each, there is no

allegation or reasonable inference that MDV was a majority stockholder. Therefore,

I can only find that MDV owed a fiduciary duty if I determine that it exercised

control over the corporate machinery with respect to the transaction at issue.

       The focus of that analysis is on allegations of actual control—not merely




143
    Zimmerman v. Crothall, 62 A.3d 676, 699–700 (Del. Ch. 2013) (citations omitted).
144
    Morton’s Rest. Grp., 74 A.3d at 664–65 (citation omitted).
145
    Id.
146
    In re KKR Fin. Holdings LLC S’holder Litig., 101 A.3d 980, 991 (Del. Ch. 2014).
147
     Compl. ¶ 15 (emphasis added).

                                             32
potential control.148 This prong applies only to stockholders “who, although lacking

a clear majority, have such formidable voting and managerial power that they, as a

practical matter, are no differently situated than if they had majority voting

control.”149 “[T]he minority blockholder’s power must be so potent that independent

directors . . . cannot freely exercise their judgment . . . .”150 Without allegations

regarding the number of directors at the time of the transaction, their identity, facts

showing control by MDV, and details regarding the terms of the transaction itself, I

am unable to find sufficient allegations that MDV controlled the corporate

machinery and used it to enrich itself.151

       The Plaintiffs do not rely on specific allegations of control of the corporate

machinery here; instead, they point to MDV’s contractual rights as providing

leverage over the company. They assert that that MDV acquired “blocking rights”

in connection with its Series A preferred stock, and that such blocking rights “put

MDV in a controlling position over the Company.”152                     Under Delaware law,

however, contractual rights held by a non-majority stockholder do not equate to

control, even where the contractual rights allegedly are exercised by the minority


148
    See In re Sea-Land Corp. S’holders Litig., 1987 WL 11283, at *5 (Del. Ch. May 22, 1987) (“As
this Court has previously recognized, the potential ability to exercise control is not equivalent to
the actual exercise of the ability.”) (citation omitted) (emphasis in original).
149
    In re PNB Holding Co. S’holders Litig., 2006 WL 2403999, at *9 (Del. Ch. Aug. 18, 2006).
150
    Morton’s Rest. Grp., 74 A.3d at 665 (citation omitted).
151
    The Complaint does specifically allege that Green was a fiduciary for MDV, and thus had
divided loyalties. It makes conclusory allegations about other directors, as well.
152
    Compl. at ¶ 8.

                                                33
stockholder to further its own goals. For example, in Superior Vision Servs., Inc. v.

ReliaStar Life Ins. Co.153 an investor company, ReliaStar, a 44% stockholder, was

accused of breaching controlling-stockholder fiduciary duties because it exercised a

contractual right in a stock purchase agreement to block the corporation, SVS, from

paying dividends.154 Despite the plaintiff’s allegation that ReliaStar withheld its

consent in bad faith “in order to strong-arm individual stockholders or SVS to further

its own agenda,” this Court dismissed the breach of fiduciary duty claim, holding

that the Court would not impose additional duties on ReliaStar that had not been

negotiated in the contract, and that ReliaStar’s contractual rights did not transform

it into a “controlling shareholder.”155 That is, a stockholder does not become a

controlling stockholder merely by “exercise[ing] a duly-obtained contractual right

that . . . limits or restricts the actions that a corporation otherwise would take.”156

The Plaintiffs here have alleged the existence of a contractual right, which permitted

MDV to restrict corporate action, thus giving it leverage over the Board. Holding,

even exercising, this right does not make MDV a controller owing fiduciary duties

to the Plaintiffs.157


153
    2006 WL 2521436 (Del. Ch. Aug. 25, 2006).
154
    Id. at *1–2.
155
    Id. at *1, *5.
156
    Id. at *5.
157
    The Complaint does not allege that MDV controlled the Board at the time the blocking rights
were granted. The Complaint alleges that the Board consisted of Plaintiff Conley together with
Erceg, Green, Cleveland, and Sunada at this time. Compl. ¶ 67. Green and Cleveland are the only
two members of the Board who are alleged to have any connection to MDV.

                                              34
      Put another way, a stockholder who—via majority stock ownership or through

control of the board—operates the decision-making machinery of the corporation, is

a classic fiduciary; in controlling the company he controls the property of others—

he controls the property of the non-controlling stockholders.           Conversely, an

individual who owns a contractual right, and who exploits that right—even in a way

that forces a reaction by a corporation—is simply exercising his own property rights,

not that of others, and is no fiduciary.

      It is, of course, conceivable that MDV was a fiduciary controller at the time

of the re-pricing transaction, assuming it had achieved control or influence over a

majority of directors through non-contractual means, such as affiliation or aligned

self-interest. If such had been adequately pled, the burden would be on MDV and

those directors to establish the entire fairness of the transaction. It is not reasonably

conceivable, however, based upon the non-conclusory facts pled, that such control

in fact existed. The Complaint is simply insufficient in this regard.

      To the extent these allegations also attempt to assert a claim against the

Director Defendants sitting on the Board at the time of the re-pricing, this claim fails

as well. Under Delaware law, the business judgment rule establishes a “presumption

that in making a business decision the directors of a corporation acted on an informed

basis, in good faith and in the honest belief that the action taken was in the best




                                           35
interests of the company.”158 This presumption can be rebutted if the plaintiff

“shows that the directors breached their fiduciary duty of care or of loyalty or acted

in bad faith.”159 The allegation that a director was appointed by a stockholder to the

board, alone, is not enough to defeat this presumption.160 Green and Ericson,

through their positions as both general partners of MDV and members of the Simbol

Board, had dual loyalties to Simbol and MDV. However, without knowing the

complete composition of the Board at the time of the alleged re-pricing,161 I cannot

determine the effect of those dual loyalties—that is, whether a majority of the

Directors were not independent and disinterested.

       Thus, because the Plaintiffs have failed to include key facts, including those

which, if true, demonstrate that MDV was a controlling stockholder with respect to

the re-pricing transaction or that a majority of the directors involved with the re-

pricing were not independent and disinterested, I dismiss this claim in Count I as to

MDV and, to the extent these allegations assert a claim against various Directors, as

to those Director Defendants as well.

       I note that the Plaintiffs, in their papers and at Oral Argument, relied heavily


158
    Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984), overruled in part on other grounds by Bream
v. Eisner, 746 A.2d 244, 253 (Del. 2000).
159
    In re Walt Disney Co. Deriv. Litig., 906 A.2d 27, 52 (Del. 2006).
160
    See In re W. Nat. Corp. S'holders Litig., 2000 WL 710192, at *15 (Del. Ch. May 22, 2000)
(“The fact that a company's executive chairman or a large shareholder played some role in the
nomination process should not, without additional evidence, automatically foreclose a director's
potential independence.”).
161
    See supra note 139.

                                              36
on this Court’s decision in Carsanaro v. Bloodhound Technologies, Inc.162 To me,

however, the depth of pleading here stands in stark contrast to that in Carsanaro.

The action in Carsanaro was brought by a founder, common stockholder, and former

CEO of Bloodhound Technologies, Inc., Mr. Carsanaro. After two rounds of venture

capital financing, Carsanaro was ousted as CEO and removed from board. Three

more rounds of financing followed, the terms of which were not shared with

Carsanaro, and which were conducted without contacting third parties or canvassing

the market. In connection with the final round of financing, an investor proposed to

purchase 30,000,000 shares of preferred stock. To keep the conversion rights of this

preferred stock equivalent, the company’s directors approved a 10-for-1 reverse split

of the company’s outstanding common stock and filed an amended and restated

charter authorizing the preferred shares. In so doing, the board did not adjust the

conversion prices of the earlier rounds of preferred shares to account for the reverse

split, thereby making the conversion rights for the newest shares ten times more

valuable than those held by the founders. The company then entered into separate

agreements with certain other investors to protect them from the dilution. When the

company was ultimately acquired, the Plaintiffs learned, for the first time, that as a

result of the several rounds of financing and the failure to adjust the preferred stock

conversion prices in connection with the reverse split, that the aggregate ownership


162
      65 A.3d 613 (Del. Ch. 2013).

                                          37
interest of all the common stockholders had been diluted significantly.

      The Court, in addressing the plaintiffs’ claims regarding the final two rounds

of financing, found that the plaintiffs had overcome the business judgment rule’s

presumption of loyalty by alleging facts supporting a reasonable inference that there

were not enough independent and disinterested individuals among the directors

making the decision to comprise a board majority. The Court also found that the

plaintiffs had properly asserted a claim that the Company did not comply with the

statutory requirements of Sections 242(b)(1) and 228 of the DGCL in adopting the

reverse split and amended and restated charter. The Court then held that these claims

were not barred by laches, though brought outside the analogous statute of

limitations period, because the terms of the financings and the reverse stock split

were either not publicly available or not available to a stockholder exercising

reasonable diligence. It was only after the sale of the company, the Court held, that

the series of fiduciary breaches became apparent to the plaintiffs and other common

stockholders.

      The case before me now is distinct from Carsanaro on several key grounds.

In Carsanaro, the plaintiffs identified discrete actions that were taken by the board

that caused dilution—the various rounds of financing after the founders were ousted

from the board, and the reverse stock split—and pled the directors involved in each

interested transaction and facts which, if true, demonstrated that they were


                                         38
controlled. Conversely, here, it is impossible for me to determine the complete

composition of the Board at the time of the alleged direct harms, or even the number

of directors composing the Board. Just as fundamentally, as discussed above, the

Plaintiffs have failed to plead sufficient facts surrounding the alleged dilutive direct

harm—there is nothing which, if true, demonstrates that sufficient re-priced shares

were taken up, compared with those authorized before the re-pricing, so as to cause

dilution of the Plaintiffs’ holdings. The Plaintiffs appear to rely on the purported

“scheme” of MDV to oust the Company’s ownership, bring the Company to the

brink of disaster, then wrest control for itself, as a means of lowering their pleading

burden regarding the distinct, direct harms for which they seek relief.163 However,

the Court’s recognition of an overarching series of events that ousted the founders

in Carsanaro did not lessen the plaintiffs’ pleading burden; the Court analyzed the

composition and decision-making of the board with respect to each series of

financing alleged to have constituted a breach of fiduciary duty, finding only that the

lack of transparency to the common stockholders regarding the board’s actions in


163
    See Oral Argument Tr. 78:16–21 (“It’s a series of events. It’s not ‘Here’s the action.’ It is a
series of actions that led to the ultimate knife, and in Carsanaro it was the sale of the company. In
this case, Your Honor, it’s the Erceg settlement leading to the Burba shares, which diluted the
plaintiff’s.”); id. at 68:9–20 (“So just so I understand, there’s no discrete act here that you’re able
to say to me, ‘This is a controlling shareholder using its rights to enter or do some transaction or
deal that has caused damage to the company.’ Your argument is these investors were fiduciaries
for the company who engaged in the scheme and used their power over a period of years to advance
their own interest, to the detriment of the company and its stockholders, and that the entire scheme
and its execution is what is the breach of duty, the actionable breach of duty?” “Yes, Your
Honor.”).

                                                 39
this series of transactions weighed in favor of equitable tolling of the statute of

limitations analogous to the laches defense. Here, conclusory allegations of a

“scheme” are insufficient, and do not excuse the Plaintiffs from their burden of

properly stating a claim upon which relief may be granted.

       B. The Erceg Settlement and the Issuance of Shares to Burba

       I turn next to the allegations surrounding the Erceg Settlement and the

subsequent issuance of shares to Burba,164 which the Plaintiffs urge me to consider

as one dilutive transaction. The Plaintiffs have alleged that, “[o]n March 13, 2012,

Simbol and certain investors, including MDV, Itochu, [Firelake], Erceg and

Plaintiffs, executed a Right of First Refusal Agreement . . . in connection with the

SPA (the Proposed B2/B3/B4 Financing).”165 Under the terms of this agreement, “a

transferring investor was required to provide advance written notice of a transfer of

Simbol shares (the “Transfer Notice”),”166 and “Significant Holders”—defined to

include Plaintiffs—“shall have the right to purchase a portion of the Offered Shares

equal to such Significant Holders’ ROFR Pro Rata Portion on the same terms and

conditions as specified in the Transfer Notice.”167 Section 5 of the ROFR provides

that “[a]ny attempt by any Seller to Transfer any Shares in violation of any provision



164
    See id. at 69:9–12 (“Where the direct harm comes into play is when MDV begins to effectuate
its plan to rid themselves of the founders, and did it with Erceg and with the settlement.”).
165
    Compl. ¶ 104.
166
    Id. at ¶ 105.
167
    Id.

                                              40
of this Agreement will be void.”168

       “In July 2013, Simbol settled claims asserted by Erceg (the “Erceg

Settlement”),” pursuant to which Erceg transferred his approximately 2,108,468

shares of Simbol common stock (the “Erceg Shares”) back to Simbol.169 At the time,

the Board consisted of Sunada, Nishio, and Green.170 No other facts surrounding the

Erceg Settlement are alleged,171 except that, as a part of the Erceg Settlement,

“Itochu and MDV made equity contributions or conversion notes in Simbol to settle

the claims,” which contributions “further diluted Plaintiffs’ ownership interest in

Simbol which could have been averted had the parties settled the claims

individually.”172 The Plaintiffs allege that, in transferring his shares pursuant to the

Erceg Settlement, “Erceg had an obligation under the ROFR to inform Plaintiffs of

the transfer of his shares in sufficient detail to permit Plaintiffs time to contemplate

exercising their rights to purchase, on a pro rata basis, their interest of the Erceg

Shares.”173 They assert that, “[d]espite the failure to give Plaintiffs notice under the

ROFR, Erceg and Simbol closed the sale of the Erceg Shares” and that, “[b]ecause

Plaintiffs did not receive a Transfer Notice as required, the transfer was, by operation



168
    Id. at ¶ 107.
169
    Id. at ¶ 108.
170
    Id. at ¶ 116. But see supra note 68.
171
    The bases of Erceg’s claims against Simbol are not identified and are allegedly confidential
pursuant to the terms of the Erceg Settlement. See Oral Argument Tr. 59:3–18.
172
    Compl. ¶ 116.
173
    Id. at ¶ 109.

                                              41
of the ROFR, void.”174

       The Plaintiffs further allege that, due to the actions of MDV and Green, Erceg

was forced to resign as CEO and Director of Simbol in January 2013,175 and that

“[b]y April 2013 . . . the Board had recently hired a new CEO, John Burba.”176

“Burba holds approximately 2,274,200 common shares of Simbol,” of which

“174,200 shares were granted as a result of activities related to licensing of

technology to Simbol prior to Burba’s appointment as CEO.” 177 The remaining

approximately 2,100,000 common shares sold or transferred to Burba, the Plaintiffs

stress, “represented almost exactly the number of Erceg Shares which became void

immediately upon the transfer from Erceg to the Company.”178 “After becoming

Simbol’s CEO, Burba was placed on the Board by way of a written consent of

common stockholder dated August 9, 2013. The written consent was based in large

part on Burba voting his own shares in favor of the appointment to the Board.”179

       The Plaintiffs urge me to examine this series of events as a single

transaction—a scheme designed specifically to dilute Conley’s interest in Simbol

and to reduce the influence of the founders, Conley and Erceg.180 The Plaintiffs’


174
    Id.
175
    Id. at ¶ 94.
176
    Id. at ¶ 100.
177
    Id. at ¶ 110.
178
    Id.
179
    Id. at ¶ 115.
180
    I note that, standing alone, the allegations regarding the Erceg Settlement fail to state a direct
dilutive claim. The Plaintiffs attempted to salvage this claim, arguing in response to my question

                                                 42
cause of action, as I understand it, is this: MDV, aided by various members of the

Board, conspired to defraud certain of the common stockholders and consolidate

control of Simbol by, first, failing to disclose Erceg’s breach of the ROFR in selling

his shares back to Simbol and, second, taking those shares thus improperly returned

to the Company and issuing them to Burba, a new CEO, who was beholden to or

controlled by MDV in some (unknown) manner.181 In other words, all of these

actions were part of a scheme to put Erceg’s shares with an individual friendly to

MDV and to dilute the Plaintiffs’ ownership interests in Simbol. Again, it is



at Oral Argument as to how the allegations regarding Erceg’s failure to give notice under the ROFR
constitutes a breach of fiduciary duty claim, rather than a contract claim, that “the breach of
fiduciary duty is in the defendants knowing that there’s a right of first refusal, that it should have
been offered to Mr. Conley to have his right to exercise his right of first refusal, and they
intentionally did not proceed according to the contract, in furtherance of this scheme to dilute Mr.
Conley and to minimize his voting power,” presumably by issuing the shares to Burba. Oral
Argument Tr. 63:13–20.
181
    See Compl. ¶¶ 5, 111–12, 132. I note two other claims related to the Erceg Settlement and
Burba share issuance that were not specifically asserted as direct dilution claims at Oral Argument.
First, the Plaintiffs allege that “Burba had knowledge that the written consent included the void
Erceg Shares to vote himself on the Board. Green and MDV knew the Erceg Shares were void but
still allowed Burba to vote those shares to get himself on the Board. Consequently, Burba’s
placement on the Board was an ultra vires act by the Company and improper.” Id. at ¶ 115. To
the extent the Plaintiffs still pursue this claim, I find that these allegations form the basis for a
derivative claim, for which demand futility should have been pled. See SEPTA v. Volgenau, 2012
WL 4038509, at *3 n.17 (Del. Ch. Aug. 31, 2012) (“Any harm from a director’s ultra vires action
during a corporation’s on-going operations would likely inure to the corporation itself, and thus,
would only provide a basis for a derivative claim.” (citing Tooley, 845 A.2d at 1033)). Second,
the Plaintiffs argue, with respect to the “equity contributions” made by Itochu and MDV as part of
the Erceg Settlement, that “Itochu and MDV breached their fiduciary duties by forcing the
Company to assume liability and then investing in the Company as part of the Erceg Settlement—
thus, gaining further stock ownership at the expense of other investors while simultaneously
absolving their own liability and conspiring to defraud other parties to the ROFR in a series of step
transactions.” Compl. ¶ 117. I do not understand this allegation, and in any event, the Plaintiffs
have failed to allege facts to demonstrate that MDV owes fiduciary duties as a controlling
stockholder.

                                                 43
important to note that, although the Plaintiffs allege that Erceg violated his

contractual rights to give notice to Conley and others of the sale, the Plaintiffs have

not brought an action against Erceg, nor have they sought a contract remedy to

specifically enforce their contractual rights with respect to the allegedly “void”

shares.182 Instead, they seek only a claim for breach of duty against MDV and certain

of the Director Defendants, for not insuring that the Plaintiffs received notice and

also for reissuing the shares to the new CEO. Again, for relief, the Complaint seeks

“all” past and future damages relating to all wrongdoing alleged in the complaint as

a whole.

       Because I have found that the Plaintiffs failed to demonstrate MDV is a

controlling stockholder, as discussed above, I dismiss this claim with respect to

MDV.183 That leaves for my consideration whether the Plaintiffs have properly

stated a claim against two Director Defendants alleged to have been a part of the

Board at the time: Sunada and Green. Even considering the allegations above as a

scheme, I find that the Complaint lacks specific allegations necessary for me to

evaluate the claim. I do not know, because the Complaint fails to allege, for



182
    Or, looked at properly, to seek a declaration that the transaction is void and that the shares
remain with Erceg. See supra note 99 and accompanying text.
183
    In fact, the Plaintiffs have essentially admitted that MDV did not control the Board at the time
of the Erceg Settlement or issuance of shares to Burba. The Complaint alleges that, in March
2013, MDV and Itochu entered into a side agreement, under which MDV assigned its right to
select a second Board designee to Itochu, thereby “granting Itochu control of the Board.” Compl.
¶ 97 (emphasis added).

                                                44
example, whether Conley or any of the other contractual parties to the ROFR knew

about the repurchase of the Erceg Shares before it occurred; whether Conley, if given

notice, would have in fact repurchased shares, or to how many shares he would have

been entitled; the complete composition of the Board at the time of the issuance of

shares to Burba;184 the date on which that issuance was approved; that the shares

granted to Burba were the same shares sold back to the Company by Erceg;185 that

no treasury shares were available from which to issue shares to Burba;186 or that

Burba was controlled by or beholden to MDV.187 The Complaint only alleges that a


184
    Though the Complaint alleges that Sunada, Nishio, and Green sat on the Board at the time of
the Erceg Settlement, I presume based on earlier allegations in the Complaint that this is not the
complete composition of the Board at the time. See supra note 68. Additionally, the Complaint
does not specify the date on which Burba was awarded shares, except to suggest that the award
took place at some time between the Erceg Settlement in July 2013 and August 9, 2013, the date
on which Burba was placed on the Board by way of written consent of the common stockholders.
From these allegations, I cannot determine with certainty whether Nishio sat on the Board when
Burba was awarded the roughly 2.1 million additional shares.
185
    The Plaintiffs insisted at Oral Argument that these are the same shares, but this was not pled
clearly in the Complaint. See supra note 105 and accompanying text; Oral Argument Tr. 60:7–17
(“So here’s the take-away from the Erceg settlement, Your Honor, and the only take-away that’s
relevant here today. And that is the shares of Erceg that were transferred, eventually, to Burba.
And it’s, you know, 2.1 million shares. It’s the same shares. And we allege something, I think,
akin to that in the complaint. You don’t come up with a number of 2.1 million, you know, being
transferred from Erceg and then finding its way into Burba’s pocket. And that’s the only take-
away, Your Honor.”) (emphasis added).
186
    As I find that the Plaintiffs have not clearly alleged that Burba was in fact issued the Erceg
shares, without knowing whether the Company held any treasury stock, it is impossible to
determine whether Burba was issued the Erceg shares, which had previously been returned to the
Company (via the allegedly void Erceg Settlement), or whether the Erceg shares were merely
returned to a pool of treasury stock, from which Burba was issued distinct “issued,” but not
“outstanding,” shares, untainted by a breach of the ROFR rights.
187
    I find insufficient the Plaintiffs’ conclusory allegation that the Defendants sought to “[f]orce
out CEO who attempted to resist Defendants’ breach of fiduciary duty and replace him with one
who they knew they could control and give them what they want.” Compl. ¶ 5. Once again, I list
these absent factual allegations here to provide context, not to suggest that any one alone is
dispositive.

                                                45
Director with divided loyalties to MDV (Green) was on the Board when Burba

received the shares.188 Plaintiff could have obtained pertinent facts through an action

under Section 220, instead of suggesting that the Court speculate as to the existence

of a claim. Finally, I note that the Plaintiffs are alleged to have held the same

ownership percentage in Simbol before and after this transaction; thus, on the facts

before me, even considering the Erceg Settlement and Burba share issuance as one

nefarious transaction, it is not reasonably conceivable that the Plaintiffs suffered

dilution of their interests, although they may have lost a contractual opportunity to

increase their interests.

       Accordingly, I also dismiss this claim in Count I as to the remaining Director

Defendants for failure to state a claim.

       C. Aiding and Abetting a Breach of Fiduciary Duty

       Finally, I turn to the aiding and abetting claim in Count II. To plead an aiding

and abetting claim, a plaintiff must allege: “(1) the existence of a fiduciary

relationship, (2) a breach of the fiduciary’s duty, . . . (3) knowing participation in

that breach by the defendants, and (4) damages proximately caused by the breach.”189

In other words, an aiding and abetting claim is predicated on an underlying breach




188
    The Complaint, however, also alleges that Green had resigned prior to this point. See supra
note 80.
189
    Malpiede v. Townson, 780 A.2d 1075, 1096 (Del. 2001) (emphasis added).

                                              46
of fiduciary duties.190 Here, because I find that Count I fails to adequately allege a

breach of duty, I must also dismiss Count II for failure to state a claim.191

       D. Plaintiffs’ Request to Dismiss Without Prejudice

       At Oral Argument, the Plaintiffs asked that any dismissal be without

prejudice, to allow them to re-plead with sufficient facts to support their claims.

Rule 15(aaa) bars such a dismissal here. The Motions to Dismiss and their associated

opening briefs pointed out the fundamental pleading deficiencies here, and pointed

out that the Defendants were unclear what wrongs had been pled against them that

they must defend, as well as how direct (as opposed to derivative) claims had been

pled. The Plaintiffs at that point had the opportunity to elect to re-plead, and instead

filed an answering brief. It was not until Oral Argument that the Plaintiffs defined

clearly the transactions that they believe have caused them direct harm.

       The Plaintiffs’ election to brief and argue the Motions to Dismiss, rather than

re-plead, is binding here.

                                     IV. CONCLUSION

       The Plaintiffs have alleged numerous bad acts over the course of several years,

which conduct, they argue, has had the cumulative effect of bringing the Company



190
    See Globis Partners, L.P. v. Plumtree Software, Inc., 2007 WL 4292024, at *15 (Del. Ch. Nov.
30, 2007) (stating that a valid claim for aiding and abetting a breach of fiduciary duty requires a
primary fiduciary to have breached its duty).
191
    See Weil v. Morgan Stanley DW, Inc., 877 A.2d 1024, 1039 (Del. Ch. 2005) (dismissing aiding
and abetting claim where the underlying breach of fiduciary duty claim failed to state a claim).

                                                47
to the brink of financial disaster and which, in two instances, have harmed the

Plaintiffs individually as well as the Company. These allegations, if true, will go

unremedied here. I am consoled, however, by the fact that any stockholder may still

bring a derivative suit if, after pursuing the rights granted to her under Section 220,

she can properly state a claim. For the foregoing reasons, I grant the Defendants’

Motions to Dismiss. An appropriate order accompanies this Memorandum Opinion.




                                          48
   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

THERMOPYLAE CAPITAL                       )
PARTNERS, L.P. and M. SCOTT               )
CONLEY,                                   )
                                          )
                  Plaintiffs,             )
                                          )
      v.                                  ) C.A. No. 10619-VCG
                                          )
SIMBOL, INC., JOSHUA L. GREEN,            )
PAUL B. CLEVELAND, WILLIAM                )
ERICSON, MOHR DAVIDOW                     )
VENTURES, MDV IX, L.P., TAKASHI           )
SUNADA, ITOCHU CORPORATION,               )
JOHN ASHBURN, MARTIN L.                   )
LAGOD, FIRELAKE STRATEGIC                 )
TECHNOLOGY FUND, II, L.P.,                )
FIRELAKE INVESTORS FUND, II,              )
L.P., FIRELAKE CAPITAL                    )
MANAGEMENT LLC, and JOHN                  )
BURBA,                                    )
                                          )
                  Defendants.             )

                                  ORDER

     AND NOW, this 29th day of January, 2016,

     The Court having considered the Defendants’ Motions to Dismiss, and for the

reasons set forth in the Memorandum Opinion dated January 29, 2016, IT IS

HEREBY ORDERED that the Motions to Dismiss are GRANTED.

SO ORDERED:

                                          /s/ Sam Glasscock III

                                          Vice Chancellor
