  IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ACELA INVESTMENTS LLC, ACELA             )
FIRST INVESTMENTS LLC, ACELA NEW         )
INVESTMENTS LLC, and DR. STEFAN          )
AIGNER,                                  )
                                         )
          Plaintiffs,                    )
                                         )
    v.                                   )   C.A. No. 2018-0558-AGB
                                         )
RAYMOND DIFALCO and MANISH               )
SHAH,                                    )
                                         )
          Defendants,                    )
                                         )
    and                                  )
                                         )
INSPIRION DELIVERY SCIENCES, LLC         )
and INSPIRION DELIVERY                   )
TECHNOLOGIES, LLC,                       )
                                         )
       Nominal Defendants.               )
RAYMOND DIFALCO,                         )
                                         )
          Counterclaim and Third-Party   )
          Plaintiff,                     )
                                         )
    v.                                   )
                                         )
DR. STEFAN AIGNER,                       )
                                         )
          Counterclaim Defendant,        )
                                         )
    and                                  )
                                         )
INSPIRION DELIVERY SCIENCES, LLC,        )
                                         )
          Third-Party Defendant.         )
                       MEMORANDUM OPINION

                       Date Submitted: April 20, 2020
                        Date Decided: April 27, 2020

Peter B. Ladig and Brett M. McCartney, BAYARD, P.A., Wilmington, Delaware;
Attorneys for Acela Investments LLC, Acela First Investments LLC, Acela New
Investments LLC, and Dr. Stefan Aigner.

Carmella P. Keener, COOCH AND TAYLOR, P.A., Wilmington, Delaware;
William T. Reid IV, Michael Yoder, Jordan L. Vimont, and Ryan M. Goldstein,
REID COLLINS & TSAI LLP, Austin, Texas; Attorneys for Raymond DiFalco and
Manish Shah.

Donna L. Culver, MORRIS, NICHOLS, ARSHT & TUNNELL LLP, Wilmington,
Delaware; Attorney for Liquidating Trustee Derek C. Abbott.




BOUCHARD, C.
          In May 2019, the court appointed a liquidating trustee to wind up the affairs

of Inspirion Delivery Services, LLC (“IDS” or the “Company”). On April 3, 2020,

after hiring advisors and conducting a lengthy sale process, the liquidating trustee

filed a motion requesting court approval to sell substantially all of the Company’s

assets to OHEMO LIFE SCIENCES INC. (“OHEMO”). Two of IDS’s principals

who made a last minute bid to acquire the assets themselves objected to the motion.

For the reasons explained herein, the court grants the liquidating trustee’s motion.

I.        BACKGROUND

          The factual background and procedural history of this litigation is discussed

in detail in this court’s post-trial memorandum opinion dated May 17, 2019

(“Opinion”).1 The court recites below only those facts directly relevant to the court’s

consideration of the liquidating trustee’s motion for entry of an order approving the

sale of substantially all of the Company’s assets to OHEMO pursuant to an asset

purchase agreement dated March 31, 2020 (the “OHEMO Agreement”).

          A.     The Players

          IDS is a Delaware limited liability company that develops abuse-deterrent

pharmaceutical products.2 It was formed as the successor to an entity called

Inspirion Delivery Technologies, LLC (“IDT”), which was co-founded by Stefan



1
    Acela Invs. LLC v. DiFalco, 2019 WL 2158063 (Del. Ch. May 17, 2019).
2
    Id. at *2.
                                            1
Aigner, Raymond DiFalco, and Manish Shah.3 IDS owns the technology for two

FDA-approved abuse-deterrent opioids: MorphaBond and RoxyBond.4

          Most of the funds that paid for the development of MorphaBond and

RoxyBond came from the predecessor of Trygg IDT I Holdings Corporation

(“Trygg”), a joint venture between private equity firm Lindsay Goldberg LLC and

Norwegian industrial development company Aker AS.5 Trygg and its predecessor

invested over $45 million in IDT, and Trygg is currently a major investor in IDS.6

          B.       The Sale Order

          IDS’s LLC agreement contains a bespoke governance structure that failed to

resolve deadlocks that developed between, on the one hand, Aigner, and on the other

hand, DiFalco and Shah, who were aligned with each other.7 That governance

structure included the presence of an “independent representative” named Hafid

Touam.8 For the reasons detailed at length in the Opinion, the court concluded that

it was not reasonably practicable to carry on the business of IDS in conformity with

its LLC agreement, that judicial dissolution of the Company was warranted under



3
    Id.
4
    Id. at *4.
5
    Id. at *2.
6
    Id. at *4-5.
7
    Id. at *1-2.
8
    Id. at *6-7.
                                           2
6 Del. C. § 18-802, and that the court would appoint a liquidating trustee under

6 Del. C. § 18-803 to wind up the Company’s affairs.

          On May 24, 2019, the parties jointly proposed that the court appoint Derek C.

Abbott, Esquire, of Morris, Nichols, Arsht & Tunnell LLP, to serve as the liquidating

trustee (the “Liquidating Trustee).9 On May 31, 2019, the court entered an order

appointing Abbott as the Liquidating Trustee (the “Sale Order”).10

          The Sale Order provides that “the Liquidating Trustee shall have full control

and dominion over the dissolution and liquidation of IDS.” 11 It also spells out that,

subject to obtaining court approval, the Liquidating Trustee was authorized to

dispose of the assets of IDS in a transaction that could be structured in whatever

form the Liquidated Trustee determined to be in the best interest of IDS, including

selling the Company as a going concern or selling its assets (including its intellectual

property and license rights) individually or collectively:

          [T]he Liquidating Trustee is authorized and empowered with the sole
          and exclusive authority to . . . to identify and marshal the assets of IDS
          and dispose of those assets in the manner the Liquidating Trustee
          determines is in the best interest of IDS and designed to maximize the
          value of IDS, including by creating and implementing a sales process
          for IDS’s assets (including its intellectual property and rights under any
          license agreements), in such manner or form as the Liquidating Trustee
          decides in his or her sole discretion, whether selling IDS as a going
          concern, selling its assets individually or collectively, a merger

9
    Dkt. 144; Dkt. 146.
10
     Sale Order ¶ 1 (Dkt. 149).
11
     Id. ¶ 4.
                                              3
          transaction, membership unit purchase transaction, redemption,
          business combination, asset sale, auction, or any other transaction
          structure or form (which sale process shall be approved by the Court
          after application by the Liquidating Trustee).12

          In July 2019, the Liquidating Trustee retained Locust Walk Partners LLC and

Locust Walk Securities (together, “Locust Walk”), a life sciences investment

banking firm, to advise him and to assist in conducting a sale process.13 The founder

and Chief Executive Officer of Locust Walk is Geoff Meyerson.14

          The Liquidating Trustee subsequently filed a motion describing the steps of a

proposed sale process that would target “firms active in the abuse-deterrent opioid

space, firms active in the broader pain space, and global specialty pharmaceutical

firms that have indicated an interest in expanding into the United States

pharmaceutical market.”15 The proposed sale process contemplated receiving “best

and final offers” by December 1, 2019, and entering into any “binding and definitive

agreements by December 31, 2019.”16 The court entered an order approving the

proposed sale process,17 which was unopposed.18



12
     Id. ¶ 5.
13
     Abbott Decl. ¶ 8 (Dkt. 186); Meyerson Decl. ¶¶ 1-2 (Dkt. 188).
14
     Meyerson Decl. ¶ 1.
15
     Mot. for Approval of Process for Sale ¶ 8 (Dkt. 173).
16
     Id. ¶¶ 10-12.
17
     Dkt. 177.
18
     Dkt. 176.
                                              4
          C.       Daiichi Terminates its Licensing and Supply Agreement

          On September 4, 2019, Daiichi Sankyo, Inc. (“Daiichi”) terminated its

licensing and supply agreement with IDS (the “Daiichi Agreement”).19 Under that

agreement, which had been in place since October 2016, Daichii (i) agreed to

commercialize MorphaBond and co-promote MorphaBond and RoxyBond and

(ii) was obligated to “make royalty and milestone payments to IDS.”20

          Termination of the Daiichi Agreement, which became effective on March 4,

2020,21 resulted in a critical loss of revenues for the Company. For the first half of

2018, the Company’s sole revenues consisted of approximately $2.9 million in

payments from Daiichi while its expenses were approximately $7.4 million.22 As of

trial, in December 2018, IDS expected to have negative cash flow of approximately

$6 million for all of 2018 and a cash balance of approximately $4.1 million by the

fourth quarter of 2019, assuming the Daiichi Agreement remained in place.23




19
     Abbott Supp. Decl. ¶ 3 (Dkt. 204).
20
     Acela, 2019 WL 2158063, at *8.
21
  Mot. for Order Approving Sale Hr’g Tr. (April 20, 2020) (“Tr.”) 12-13; see also Acela,
2019 WL 2158063, at *8 n.90.
22
     Acela, 2019 WL 2158063, at *15 n.187.
23
     Id. at *15.
                                             5
         D.     IDS Enters an Interim Supply Agreement with Cerovene

         On September 12, 2019, IDS entered into an interim supply agreement with

Cerovene, Inc. (“Cerovene”) pursuant to which Cerovene agreed to provide an

ongoing supply of MorphaBond to IDS (the “Cerovene Supply Agreement”).24

Cerovene, which is co-owned by DiFalco and Shah, previously served as a

development partner for MorphaBond and RoxyBond.25

         On December 6, 2019, Cerovene sent the Company a notice of breach under

the Cerovene Supply Agreement for failure to pay invoices that were “due and

owing.”26 On March 12, 2020, Cerovene terminated the agreement.27 According to

Cerovene, IDS owes it at least $1.86 million for batches of MorphaBond it made,

certain fixed fee commitments, and third-party costs and expenses.28

         E.     The Sale Process Conducted by Locust Walk

         In October 2019, Locust Walk sent a “teaser” to “approximately eighty-one

entities that might be potential acquirers” of IDS, which included both financial and

strategic prospective buyers.29 The teaser described the Company and its business



24
     DiFalco Decl. ¶ 9 (Dkt. 196); see Saia Decl. Ex. 2 (Dkt. 195).
25
     Acela, 2019 WL 2158063, *2.
26
     Saia Decl. Ex. 7.
27
     Id.; Saia Decl. ¶ 17; DiFalco Decl. ¶ 11.
28
     DiFalco Decl. ¶ 12; Saia Decl. ¶ 17.
29
     Meyerson Decl. ¶ 4.
                                                 6
and stated that “multiple structures” for a transaction were being explored: “IDS is

currently seeking a strategic partnership / acquisition (exploring multiple structures)

for the ongoing commercialization of MorphaBond . . . and RoxyBond.”30

           During the following weeks, Locust Walk initiated calls with and sent process

letters to eleven prospective acquirers who expressed an interest in acquiring IDS.31

The process letters solicited non-binding indications of interests on or before

December 1, 2019, which were to include, among other things, the bidder’s desired

transaction structure.32 Locust Walk ultimately received non-binding indications of

interest from five parties, each of which executed confidentiality agreements that

allowed them to access IDS’s data room and to participate in diligence calls with

Locust Walk and members of IDS’s senior management.33

           During the sale process, the Liquidating Trustee met numerous times with key

stakeholders of the Company and held weekly status update calls to which they were

invited.34 These stakeholders included Aigner, DiFalco, Shah, Trygg, and/or their

representatives.35 The Liquidating Trustee offered each of these stakeholders “the



30
     Meyerson Supp. Decl. ¶ 2 (Dkt. 205); id. Ex. A, at 2.
31
     Meyerson Supp. Decl. ¶ 3.
32
     Id. ¶¶ 3-4.
33
     Meyerson Decl. ¶ 6; Meyerson Supp. Decl. ¶ 4.
34
     Abbott Decl. ¶ 11.
35
     Id.
                                               7
opportunity to execute confidentiality agreements allowing them to receive

confidential information identifying those entities invited to participate in the

process and the identities of those parties that submitted indications of interest and

the terms thereof.”36 Cerovene and its counsel were invited to participate in those

calls but they “rarely attended” and “declined to execute the confidentiality

agreements to enable them to receive information regarding the identity of the

bidders.”37

           Although the sale process overseen by Locust Walk generated five indications

of interest, the Liquidating Trustee was unable to reach definitive terms for a

transaction with anyone before the contemplated December 31, 2019 deadline.

           F.    The Liquidating Trustee Secures a Bid from OHEMO

           The Liquidating Trustee continued his efforts to pursue a transaction in 2020.

He realized during this period that the only parties who were meaningfully interested

in pursuing a transaction were the stakeholders that had previously invested in IDS,

i.e., Trygg, Cerovene and its principals (DiFalco and Shah), Aigner and Touam and,

through them, Galephar Pharmaceutical Research, Inc. (“Galephar”).38




36
     Abbott Supp. Decl. ¶ 5.
37
     Id.
38
     Abbott Decl. ¶ 11; Acela, 2019 WL 2158063, *10.
                                              8
           During March 2020, the Liquidating Trustee or his advisors urged each of the

stakeholders “weekly if not daily to make a concrete bid as quickly as possible, as

IDS’s resources were being depleted with no systematic and regular source of further

revenue.”39 The Liquidating Trustee explained to each of them that “following

execution of an acceptable bid and receipt of a deposit, [he] would shop that bid to

the others for forty-eight hours and then seek this Court’s approval of such bid.”40

           On March 2, 2020, William Reid, counsel for DiFalco and Shah,41 requested

that the Liquidating Trustee send him a confidential disclosure agreement for “a

potential purchase of IDS’ assets.”42 On March 27, at which point the Liquidating

Trustee was “very close” to entering into an agreement with OHEMO, DiFalco sent

an email to the Liquidating Trustee requesting access to IDS’s data room for the

purpose of “partaking in a possible purchase of IDS.”43           That same day, the

Liquidating Trustee advised DiFalco that he was “very, very late to the process” and

that the Liquidating Trustee “expected to sign a deal as early as the following




39
     Abbott Decl. ¶ 11.
40
     Id.
41
     Reid Decl. ¶ 3 (Dkt. 195).
42
     Abbott Supp. Decl. ¶ 6; id. Ex. A.
43
     Abbott Supp. Decl. ¶ 7; id. Ex. B.
                                             9
Monday [i.e., March 30] against which [DiFalco] would have an opportunity to

bid.”44

           On Saturday, March 28, Reid sent the Liquidating Trustee a text message

advising that his clients intended to “put in a bid this week for IDS” and inquired

whether there was a deadline.45 The Liquidating Trustee responded that he intended

to “sign up the first acceptable deal and then shop it to others for 48 hours,” after

which he would file a motion seeking court approval.46 Reid replied, “[l]et’s talk

after you circulate the ‘acceptable deal.’”47

           On March 31, 2020, IDS entered into the OHEMO Agreement, with the

Liquidating Trustee signing on behalf of IDS, and received a $750,000 deposit from

OHEMO.48 OHEMO’s president, Arthur Deboeck, is the principal of Galephar,49 a

pharmaceutical company based in Puerto Rico that Aigner tried to use as a




44
     Abbott Supp. Decl. ¶ 7; id. Ex. B.
45
     Abbott Supp. Decl. ¶ 8; id. Ex. C.
46
     Abbott Supp. Decl. Ex. C.
47
     Id.
 Abbott Decl. ¶¶ 12, 14; see Mot. for Order Approving Sale (“Mot.”), Ex. A (“OHEMO
48

Agreement”) (Dkt. 185).
49
     DiFalco Decl. ¶ 15.
                                          10
commercial manufacturer for IDS in the past.50 Aigner and Touam were the

principal representatives that negotiated on behalf of OHEMO.51

          Under the OHEMO Agreement, OHEMO agreed to purchase substantially all

of IDS’ intellectual property and other business assets for an upfront payment of

$4 million in cash and royalties payments to IDS equal to 10% of the net sales of

RoxyBond through the earlier of (i) the last valid patent claim covering RoxyBond

or (ii) until such time as IDS has received $10 million of royalty payments.52

          Section 7.1(e) of the OHEMO Agreement provides that OHEMO may

terminate the agreement if IDS has not filed for court approval of the transactions

specified therein by 6 p.m. on the third business after OHEMO makes a deposit in

the amount of $750,000 with an escrow agent, i.e., April 3.53 This provision created

the 48-hour window for the Liquidating Trustee to attempt to secure a topping bid.

Section 2.7 provides that IDS “shall not accept a competing bid from another party,

if such other party is not similarly obligated to make a deposit with the Escrow Agent

of at least [$750,000] on the date of execution of such party’s purchase agreement.”54



50
     Acela, 2019 WL 2158063, at *10, *25.
51
   Abbott Decl. ¶ 12. According to OHEMO’s counsel, Aigner is not an officer or
stockholder of OHEMO but he served as a consultant to OHEMO. Tr. 61.
52
  Abbott Decl. ¶¶ 12-13; OHEMO Agreement §§ 1.1 (definition of “Royalty Product”),
2.1, 2.5(a), 2.5(b).
53
     OHEMO Agreement § 7.1(e).
54
     Id. § 2.7.
                                            11
         G.     Cerovene Seeks to Make a Topping Bid

         At 5:54 p.m. on March 31, 2020, the Liquidating Trustee sent an executed

copy of the OHEMO Agreement to DiFalco and Reid via email with a note

encouraging them “to bid against it.”55 The Liquidating Trustee sent a similar email

that evening to Trygg, “which had also expressed an interest in bidding for IDS’s

assets.”56

         At 6:58 p.m. on March 31, Locust Walk also sent a copy of the OHEMO

Agreement to DiFalco via email along with instructions for submitting a topping bid:

         Interested parties must: (1) submit a signed APA that represents a
         higher and better offer, as interpreted by the Liquidating Trustee, to the
         company; and (2) transfer the greater of $750K or 10% of the bid
         deposit to an Inspirion-designated escrow account by close of business
         on Thursday, April 2nd.57

Within hours after the OHEMO Agreement was executed, Locust Walk also

contacted the eighty-one potential acquirers it solicited at the outset of the sale

process, offering them a final opportunity to submit a superior bid in accordance

with the terms quoted above.58




55
     Reid Decl. Ex. 1.
56
     Abbott Supp. Decl. ¶ 9.
57
     Meyerson Supp. Decl. ¶ 6; id. Ex. D.
58
     Meyerson Supp. Decl. ¶ 6.
                                            12
          At 3:59 p.m. on April 2, Michael Yoder, counsel for DiFalco and Shah,59 sent

an email to the Liquidating Trustee stating that “we should be getting you a signed

APA from Cerovene later today.”60 At 4:55 p.m. on April 2, Yoder sent the

Liquidating Trustee via email a copy of an asset purchase agreement between IDS

and Cerovene (the “Cerovene APA”) and a redline comparing it to the OHEMO

Agreement.61 Yoder’s cover email stated that the changes between the OHEMO

Agreement and the Cerovene APA “were fairly minor” and requested wire transfer

instructions for the escrow deposit.62 Yoder’s cover email also stated that the

attached agreement was “signed,” but it was not.63 Cerovene did not send the

required wire transfer to the escrow agent at any time on April 2.

          The Cerovene APA states that Cerovene would deliver at closing $4.1 million,

but $1.85 million of that amount would come in the form of a credit bid to discharge

the debt IDS owes Cerovene under the Cerovene Supply Agreement.64                 The

Cerovene APA contains the same royalty provision as the OHEMO Agreement

except that the royalty cap was increased from $10 million to $15 million.65


59
     Yoder Decl. ¶ 3 (Dkt. 195).
60
     Id. ¶ 6; id. Ex. 2.
61
     Yoder Decl. ¶ 6; id. Ex. 3 at 2 (“Cerovene APA”).
62
     Yoder Decl. Ex. 3 at 1.
63
     Yoder Decl. ¶ 6; see Cerovene APA.
64
     Cerovene APA §§ 2.5(a), 2.5(b).
65
     Compare Cerovene APA § 2.5(c) with OHEMO Agreement § 2.5(b).
                                             13
         At 7:37 a.m. on April 3, a representative of Locust Walk sent Yoder an email

stating that IDS would not evaluate Cerovene’s offer for the following reasons:

          Cerovene failed to post the deposit by the stated deadline of end of
           business on Thursday, April 2nd

          Cerovene failed to provide proof of financial wherewithal, and
           Cerovene has claimed near insolvency status the whole case

          The bid was not higher and better, and assignment involved an
           unspecified entity

          The lack of a deposit and executed APA entails higher closing risk.66

Later on April 3, Yoder forwarded to the Liquidating Trustee an email Shah sent to

Yoder at 3:16 p.m. on April 2, to which was attached a signature page for the

Cerovene APA that Shah had signed on April 2 on behalf of Cerovene.67 Yoder

noted in his forwarding email that he “just realized that this did not come through in

[his] transmission yesterday for some reason.”68 At 3:34 p.m. on April 3, Reid sent

the Liquidating Trustee an email with a confirmation that Cerovene had sent

$2.3 million to his firm’s trust account on April 3 “to be used to back up [his clients’]

bid.”69 The letter asked the Liquidating Trustee to hold a telephonic auction.70



66
     Yoder Decl. Ex. 4.
67
     Yoder Decl. ¶ 8; see id. Ex. 5.
68
     Yoder Decl. Ex. 5.
69
     Reid Decl. ¶ 6; id. Ex. 2.
70
     Reid Decl. Ex. 2.
                                           14
          On April 3, 2020, the Liquidating Trustee filed a motion seeking court

approval of the OHEMO Agreement,71 to which DiFalco and Shah objected on

April 13.72

II.       ANALYSIS

          DiFalco and Shah (together, “Objectors”) assert two objections to the

proposed sale of the Company to OHEMO. Specifically, Objectors contend that

(i) the Liquidating Trustee’s rejection of their bid for failing to comply with the

bidding requirements was unwarranted and (ii) Cerovene’s offer provides more

value to IDS’s stakeholders than the OHEMO Agreement.73 Before turning to the

objections, the court will address the important threshold issue of what standard of

review applies to its consideration of the two objections.

          A.       Standard of Review

          The Sale Order, which was proposed jointly by the parties in this litigation,

expressly provides that “[a]ll actions taken by the Liquidating Trustee pursuant to

this Order . . . shall be presumed to be taken on an informed basis, in good faith, and

in the honest belief that such actions taken were in the best interests of IDS,” and

that “[a]ny actions by the Liquidating Trustee may be challenged in this Court, but



71
     Mot.
72
     Obj. (Dkt. 195).
73
     Id. ¶¶ 5-6.
                                            15
shall be subject to reversal only after a finding by the Court that the Liquidating

Trustee abused his discretion.”74 This court has adopted an abuse of discretion

standard in similar orders involving the court-ordered sale of an entity.75

         At oral argument, Objectors argued that the Liquidating Trustee’s motion

should be subject to plenary review.76 Objectors did not make this argument in their

opposition and thus waived the issue.77 In any event, applying a plenary review

standard would contravene the plain language of the Sale Order and make no sense.

         The Sale Order provides that “[a]ny actions by the Liquidating Trustee . . .

shall be subject to reversal only after a finding by the Court that the Liquidating

Trustee abused his discretion.”78       Such actions would include the Liquidating

Trustee’s decision to enter into the OHEMO Agreement and to reject the Cerovene

APA, as well as his valuation of the two bids.




74
     Sale Order ¶ 8.
75
   See, e.g., In re TransPerfect Global, Inc., 2018 WL 904160, at *14-16 (Del. Ch. Feb. 15,
2018) (applying abuse of discretion standard for court-ordered sale of a corporation), aff’d
sub nom. Elting v. Shawe, 185 A.3d 694 (Del. 2018) (TABLE); In re Supreme Oil Co.,
Inc., 2015 WL 2455952, at *6 (Del. Ch. May 22, 2015) (abuse of discretion standard for
interim decisions); In re Carlisle Etcetera LLC, 2015 WL 10371435, at *3 (Del. Ch. May
4, 2015) (same).
76
     Tr. 27.
77
 Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (issues not briefed are deemed
waived).
78
     Sale Order ¶ 8 (emphasis added).
                                            16
         It also would make little sense for the court to casually disregard the

Liquidating Trustee’s decisions and recommendations.             The parties mutually

selected the Liquidating Trustee, who serves as an agent of the court.79 He is

indisputably independent and has no personal financial interest in the outcome of the

sale process. He also possesses invaluable knowledge and insight gained over the

past ten months of his tenure as Liquidating Trustee concerning, among other things,

the Company’s operations and finances as well as the capabilities of its stakeholders.

It is for such reasons that this court routinely applies a deferential standard of review

when the action of an agent of the court is challenged and, here, the agreed-upon

standard of review in the Sale Order is abuse of discretion.

         Our Supreme Court has explained that a decision will not be overturned as an

abuse of discretion if the decision “was based upon conscience and reason, as

opposed to capriciousness or arbitrariness.”80        Stated differently, a court will

overturn a decision for abuse of discretion only if it was “arbitrary or capricious”81




79
  See 6 Del. C. § 18-803(a) (“the Court of Chancery, upon cause shown, may wind up the
limited liability company’s affairs upon application of any member or manager . . . and in
connection therewith, may appoint a liquidating trustee.”).
80
     Chavin v. Cope, 243 A.2d 694, 695 (Del. 1968).
81
  Lankford v. Lankford, 157 A.3d 1235, 1241 (Del. 2017) (citing Wright v. Wright, 49
A.3d 1147, 1150 (Del. 2012)).
                                            17
or “exceeds the bounds of reason in light of the circumstances.”82 This is the

standard the court will apply in reviewing Objectors’ two objections.

         B.       The Liquidating Trustee Did Not Abuse His Discretion in Rejecting
                  the Cerovene Bid for Failing to Comply with the Bidding
                  Requirements

         DiFalco and Shah’s first objection challenges the Liquidating Trustee’s

decision to reject the bid Cerovene submitted on April 2 for failing to comply with

the requirements for submitting a topping bid.

         It is undisputed that (i) DiFalco and Shah knew before OHEMO finalized its

bid that there would be a 48-hour deadline for submitting a topping bid and

(ii) Cerovene failed to comply with two of the requirements for submitting a topping

bid, i.e., providing an executed agreement and a deposit of at least $750,000 before

the deadline. Objectors nonetheless contend that it was “unreasonable” for the

Liquidating Trustee to insist on compliance with these requirements given that, the

day after the deadline, Cerovene (i) sent $2.3 million to its counsel’s trust account

in an effort to satisfy the deposit requirement and (ii) provided a copy of the signature

page for the Cerovene APA that Shah had signed on April 2, but which was not sent

to the Liquidating Trustee on that date.83 The court disagrees.




82
   Schultz v. Ginsburg, 965 A.2d 661, 667 (Del. 2009) (citing In re MCA, Inc., S’holder
Litig., 785 A.2d 625, 633-34 (Del. 2001)).
83
     Obj. ¶ 14.
                                           18
          As an initial matter, it is mystifying that Cerovene waited until literally the

last few minutes of a six-month process before submitting a bid. DiFalco and Shah

rationalize this delay based on their purported belief that the Liquidating Trustee was

intent on selling the Company as a going concern, which did not interest them.84 But

this belief is directly contradicted by the plain language of the Sale Order, which

expressly authorized the Liquidating Trustee to sell IDS’s assets (including its

intellectual property and license rights) individually or in whatever form he believed

would maximize IDS’s value.85 If DiFalco and Shah believed that the Company’s

intellectual property was, as they say, the “prize,”86 they were free to bid to acquire

that intellectual property at any time.

          The reality is that DiFalco and Shah chose to disengage from the sale process.

They rarely attended the Liquidating Trustee’s weekly meetings and declined to

enter a confidentiality agreement to learn important details about the sale process

that Locust Walk was conducting. And whatever may have caused their inaction

before March 2020, DiFalco and Shah had no excuse for not getting in the game that

month—or at least getting their ducks in a row—when the Liquidating Trustee urged

them and the other stakeholders to make a “concrete bid as quickly as possible” and



84
     Id. ¶ 8.
85
     See supra Part I.B.
86
     Obj. ¶ 14.
                                            19
put them on notice that they would have 48 hours to submit a topping bid after

“execution of an acceptable bid and receipt of a deposit.”87

         Under the OHEMO Agreement, OHEMO had the right to walk away from the

transaction it proposed if the Liquidating Trustee did not seek court approval of that

transaction within three business days (i.e., by April 3), and the Liquidating Trustee

could only accept a competing bid that was accompanied by a deposit of at least

$750,000 on the date of execution of a competing purchase agreement.88 DiFalco

and Shah disparage these requirements as “arbitrary technicalities,”89 but the record

suggests otherwise.

         Both the Liquidating Trustee and Meyerson attest that the bid requirements in

the OHEMO Agreement “were heavily negotiated and formed a material part of” the

transaction.90 This evidence is highly credible given that the Company had been

engaged in a sale process for six months that failed to yield any bidders and that its

financial condition was deteriorating,91 particularly with the loss of revenues from

Daiichi after it terminated its contract with the Company.92 Whoever would step


87
     Abbot Decl. ¶ 11.
88
     See supra Part I.F.
89
     Obj. ¶ 14.
90
     Abbott Supp. Decl. ¶ 10; see also Meyerson Decl. ¶ 5.
91
  Abbott Decl. ¶ 11 (noting that “IDS’s resources were being depleted with no systematic
and regular source of further revenue”).
92
     See supra Part I.C.
                                             20
forward to make a bid at this point logically would have substantial leverage to

demand tight restrictions on having its bid shopped. It thus was not arbitrary or

capricious for the Liquidating Trustee to agree to the topping bid limitations in the

OHEMO Agreement in order to secure a binding offer from OHEMO under the dire

circumstances facing the Company at that time.93

          Nor did the Liquidating Trustee abuse his discretion when he refused to

disregard the negotiated-for bidding requirements in the OHEMO Agreement in

order to consider Cerovene’s bid.94 With respect to Cerovene’s failure to post the

deposit, the Liquidating Trustee was particularly concerned because Cerovene

“repeatedly stated that it lacks the funds necessary to continue operating its

business.”95 Locust Walk, furthermore, specifically advised the Liquidating Trustee

not to extend the 48-hour deadline because of the risk of losing the OHEMO

transaction:

          Having failed to receive a qualifying bid prior to the expiration of the
          deadline, Locust Walk advised the Liquidating Trustee it was
          inadvisable to extend the deadline for submission of a qualifying bid

93
   The OHEMO Agreement does not contain a termination fee. Thus, although the
timeframe for submitting a topping bid was tight, acceptance of a topping bid would not
have required the Company to pay a breakup fee.
94
  After receiving Cerovene’s bid, and again after receiving DiFalco and Shah’s objection,
the Liquidating Trustee (directly and through counsel) sought OHEMO’s consent to enable
him to conduct a telephonic auction of IDS’s assets in order to avoid a contested hearing,
but OHEMO declined, “citing Cerovene’s failure to submit a qualifying higher and better
bid.” Abbott Supp. Decl. ¶ 12
95
     Id. ¶ 11.
                                            21
         from Cerovene due to the material risk of losing the OHEMO
         transaction for failure to abide by the terms of the APA, with no
         guarantee that the [Liquidating] Trustee would, in fact, receive a
         binding superior offer from Cerovene.96

Based on this advice and his own consideration of the matter, the Liquidating Trustee

concluded he could not consider “Cerovene’s non-qualifying bid” without putting

OHEMO’s binding offer at risk.97 This decision to protect the proverbial “bird in

hand” was not arbitrary or capricious in my view.98

         C.      The Liquidating Trustee Did Not Abuse His Discretion in
                 Determining that OHEMO’s Bid is the Better Offer

         DiFalco and Shah’s second objection challenges the Liquidating Trustee’s

determination that the OHEMO Agreement “represents the highest and best offer for

IDS’s assets.”99 There are two key differences between the terms of the OHEMO

Agreement and the Cerovene APA that bear on the respective value of those

proposals: (i) the nature and amount of the payment due at closing and (ii) the cap

on potential future royalties.100 The court will address each of these issues in turn.


96
     Meyerson Supp. Decl. ¶ 7.
97
     Abbott Supp. Decl. ¶ 10.
98
   The Objectors criticize the Liquidating Trustee and Locust Walk for not providing wire
transfer instructions “when inviting the bid.” Obj. ¶ 8. Although Objectors have a point,
Cerovene’s counsel just as easily could have requested this information after receiving the
bidding instructions from Locust Walk on March 31, but they inexplicably failed to do so
until five minutes before the deadline on April 2. See Abbott Supp. Decl. ¶ 9.
99
     Mot. ¶10.
  Objectors note that their bid also excludes “litigation claims” against Touam. Obj. ¶ 25.
100

Objectors do not explain, however, the nature of any claims IDS might have against
                                            22
                1.    Closing Payment

         Under the OHEMO Agreement, OHEMO is obligated to pay IDS $4.0 million

in cash at closing.101 The Cerovene APA provides for a “closing payment” with a

nominal value of $4.1 million consisting of two components: (i) $2.25 million in

cash due at closing and (ii) a credit bid in the amount of $1.85 million to be used to

discharge the debt IDS owes under the Cerovene Supply Agreement.102

         The Liquidating Trustee contends that the credit bid component of Cerovene’s

proposal makes it “less attractive than OHEMO’s all cash offer” “given IDS’s

current liquidity situation and the need to establish a reserve for potential claims and

anticipated wind down costs.”103 Stated differently, in the Liquidating Trustee’s

opinion, the closing payment in Cerovene’s proposal is worth less than $4 million in

cash because the $1.85 million attributable to the credit bid “may not be paid in full

depending upon IDS’ cash position at closing after the establishment of a reserve



Touam, making it impossible to ascribe a value to the Company of this aspect of their
proposal.
The Cerovene APA also expressly excludes certain equipment located at a Galephar
facility. Compare Cerovene APA § 2.2(j) with OHEMO Agreement § 2.2(j). But this
equipment, which the Liquidating Trustee contends only has “little salvage value,” also is
excluded (albeit not expressly) from the OHEMO Agreement. Abbott Decl. ¶ 17;
Meyerson Supp. Decl. ¶ 11.
101
      OHEMO Agreement § 2.5(a).
102
      Cerovene APA §§ 2.5(a), 2.5(b).
  Liquidating Trustee’s Reply ¶ 13 (Dkt. 203); Abbott Supp. Decl. ¶ 13; Meyerson Supp.
103

Decl. ¶ 8.
                                           23
and anticipated wind down costs.”104 In my opinion, the Liquidating Trustee did not

abuse his discretion in coming to this conclusion.

         As of the time of trial, in December 2018, IDS was experiencing significant

negative cash flows (approximately $6 million in 2018) and was entirely reliant on

Daiichi for revenues.105 In September 2019, when Daiichi terminated the Daiichi

Agreement, IDS’s financial position became precarious as it lost the “source of

liquidity” on which it had been “dependent.”106 Two months later, in December

2019, IDS stopped paying Cerovene, which led to the termination of the Cerovene

Supply Agreement in March 2020.107 Currently, IDS has less than $600,000 of cash

on hand108 and “does not have the financial wherewithal to continue marketing [its]

assets for sale.”109

         Given these circumstances, and given the need to establish reserves to pursue

claims (e.g., against Daiichi) as well as to wind-up the Company after the closing of

a transaction, it was reasonable in my view—and certainly was not an abuse of


104
      Meyerson Supp. Decl. ¶ 8.
105
      See supra Part I.C.
106
    Abbott Decl. ¶ 19; see also Tr. 50 (Objectors’ counsel acknowledging that IDS was
“financially distressed” at this time).
107
   Saia Decl. ¶ 17; id. Ex. 7. Objectors apparently did not terminate the Cerovene Supply
Agreement earlier as an accommodation to enable Locust Walk to market IDS with a
supply agreement in place. Obj. ¶ 8.
108
      Tr. 16.
109
      Abbott Decl. ¶ 18.
                                           24
discretion—for the Liquidating Trustee to conclude that OHEMO’s all-cash offer is

superior by discounting the credit bid component of Cerovene’s bid.110

               2.    Potential Royalties

         The OHEMO Agreement and the Cerovene APA both provide for the

payment of royalties to IDS equal to 10% of the net sales of RoxyBond through the

earlier of (i) the last valid patent claim covering the product or (ii) until such time as

IDS has received a certain level of royalty payments.111 The only difference between

the agreements is that royalty cap is $10 million in the OHEMO Agreement and $15

million in the Cerovene APA.112

         Although the royalty caps in the two proposals differ by $5 million,

determining and comparing the potential value of the royalty component in the two

proposals is far more complicated than focusing on that difference. Indeed, valuing

the royalty component of the two proposals is inherently speculative because both

OHEMO and Cerovene have never manufactured RoxyBond on a commercial scale

or tried to sell, much less actually sold, the product. Given both bidders’ lack of a


110
   Objectors contend that “the net benefit to IDS’s stakeholders of Cerovene forgiving
$1.85 million in undisputed debt is the same as $1.85 million in cash” because “Section 18-
804 of the LLC Act dictates that creditors be paid prior to equity.” Obj. ¶ 24. This misses
the point of the Liquidating Trustee’s analysis, which is that the credit bid must be
discounted because it is far from clear whether there will be sufficient proceeds for IDS to
pay all of its creditors. See Tr. 57.
111
      OHEMO Agreement § 2.5(b); Cerovene APA § 2.5(c).
112
      Compare OHEMO Agreement § 2.5(b) with Cerovene APA § 2.5(c).
                                            25
track record in commercializing RoxyBond, the Liquidating Trustee determined that

“there is a very real possibility that no future royalty stream will be paid by either

bidder,” and “almost entirely discounted the value of those potential streams.”113

         Objectors “agree that [OHEMO’s] promised royalties are worthless” but

contend that “the probability of [Cerovene] successfully manufacturing

RoxyBond . . . is far greater than zero.”114 More specifically, DiFalco and Shah

argue that Cerovene is better positioned than OHEMO to generate royalties for IDS

for essentially three reasons: (i) Cerovene’s facility in Valley Cottage, New York

“is already an FDA-approved facility for RoxyBond manufacture;” (ii) they “have

demonstrated a track record in obtaining regulatory approval and manufacturing

abuse-deterrent opioids, including RoxyBond;” and (iii) Deboeck, who is OHEMO’s

principal, “flopped in previously attempting to launch RoxyBond at Galephar”

where “that effort . . involved significant data irregularities, possible product defects,

and troubling questions regarding unaccounted-for opioid substances.”115

         With respect to Cerovene’s past experience manufacturing RoxyBond, the

trial record shows (and DiFalco’s recent declaration confirms) that Cerovene’s

experience was limited to making test batches of RoxyBond during the new drug



113
      Abbott Decl. ¶18.
114
      Obj. ¶¶ 16, 22.
115
      Id. ¶¶ 18-20.
                                           26
application process leading up to its receipt of FDA approval three years ago, in

April 2017.116 Shah confirmed at trial that Cerovene was not in a position to

manufacture RoxyBond commercially.117 DiFalco elaborated: “In RoxyBond’s

case, we’re not making it, and we never said we were going to make it. It was never

planned for us to make it.”118 And with respect to Galephar’s past experience, the

Liquidating Trustee points out that two other contract manufacturing organizations

(Patheon N.V. and Catalent Pharma Solutions, LLC) also failed to commercialize

RoxyBond “despite significant technology transfer assistance” from DiFalco.119

         In examining Cerovene’s bid, Locust Walk advised the Liquidating Trustee

that Cerovene (i) “lacks a salesforce and supporting commercial infrastructure;”

(ii) “lacks the working capital and capacity to produce both MorphaBond and

Roxy[B]ond at a commercial scale;” and (iii) “has no prior experience leading efforts

to commercialize opioids.”120 Based on his own “extensive interactions with Mr.

DiFalco while negotiating for a continued supply of MorphaBond,” the Liquidating

Trustee also had “significant reservations regarding Cerovene’s ability to act in a



116
   Acela, 2019 WL 2158063, at *4, *34; DiFalco Decl. ¶ 44 (“Mr. Shah and I, through
Cerovene, oversaw the manufacture of the RoxyBond tablets used in obtaining the
approved NDA for RoxyBond.”).
117
      Trial Tr. 600 (Shah) (Dkt. 134).
118
      Trial Tr. 753 (DiFalco).
119
      Liquidating Trustee’s Reply ¶ 16.
120
      Id. ¶¶ 14-15 (citing Meyerson Supp. Decl. ¶ 9).
                                              27
commercially reasonable fashion so as to enable it to reach an agreement with a third

party to successfully and commercialize and sell” RoxyBond.121

         Significantly, as the Liquidating Trustee observed, “Cerovene’s offer

contained a provision that would have allowed it to assign the asset purchase

agreement to an unidentified designee without the benefit of any understanding or

information regarding that entity’s financial wherewithal or ability to fulfill the

financial and other obligations required of it under the terms of the asset purchase

agreement.”122 Thus, irrespective of whatever conclusions one may reach about

DiFalco and Shah’s ability to commercialize RoxyBond successfully, the Cerovene

APA carried the additional risk that those obligations would be assigned to another

party whose ability to commercialize RoxyBond is completely unknown.

         Locust Walk, an experienced life sciences investment banking firm, 123

concluded it had “no reason to believe that Cerovene will be able to commercialize”

RoxyBond “so as to create any future downstream royalty payments to IDS,” and

that “OHEMO is more likely than Cerovene to be able to commercialize RoxyBond

in the future.”124 Based on this advice, and for the other reasons explained above,

the Liquidating Trustee did not “perceive the increased cap on future royalty


121
      Id. ¶ 16 (citing Abbott Supp. Decl. ¶ 14).
122
      Abbott Supp. Decl. ¶ 11; see Cerovene APA § 1.1 (definition of “Purchaser”).
123
      See Meyerson Decl. ¶ 1.
124
      Meyerson Supp. Decl. ¶¶ 9-10.
                                               28
payments from $10 million to $15 million to be a material improvement on the

OHEMO [Agreement].”125

         In accordance with the Sale Order, the conclusions the Liquidating Trustee

reached in evaluating the royalty component of the OHEMO and Cerovene bids

“shall be presumed to be taken on an informed basis, in good faith, and in the honest

belief that such actions were in the best interests of IDS.”126 Given the Liquidating

Trustee’s good faith consideration of the factors summarized above, furthermore, it

can hardly be said that the Liquidating Trustee was arbitrary or capricious, or

exceeded the bounds of reason, in reaching those conclusions.

                                        *****

         For the reasons explained above, no basis exists under the applicable standard

of review for the court to second guess the Liquidating Trustee’s determination that

the OHEMO Agreement provides more value to IDS than the Cerovene APA.127




125
      Abbott Supp. Decl. ¶ 15.
126
      Sale Order ¶ 8.
127
   Notably, Trygg, a major stakeholder of IDS that followed the sale process closely, did
not express to the court any disagreement with this determination. See Abbott Decl. ¶ 11.
                                           29
III.   CONCLUSION

       For the reasons explained above, the court grants the Liquidating Trustee’s

motion and approves the sale of substantially all of the Company’s assets pursuant

to the terms and conditions of the OHEMO Agreement.

       IT IS SO ORDERED.




                                        30
