  IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
SPARTON CORPORATION, an Ohio Corporation,             )
                                                      )
                  Plaintiff,                          )
                                                      )
            v.                                        ) C.A. No. 12403-VCMR
                                                      )
JOSEPH F. O’NEIL, PETER DUMANIAN, TODD                )
MOUTAFIAN, JASON LEVY, JASON SEIFERT,                 )
THOMAS J. YORKEY, WALTER E. GORDON,                   )
THOMAS W. PARKER, MARK EVANS, CARMEN                  )
GONZALEZ, HAI CAO NGUYEN, BILLY CHEN,                 )
HASSAN MALAK, PHILIP J. AGUIAR, THUY                  )
THANH THI NGUYEN, CHERYL MARIE                        )
PITTMAN-LEWIS, DANIEL T. JACKSON,                     )
JOSEPH R. WEEMS, GREGORY A. EDGMON,                   )
RICHARD N.C. MICAEL, BEN MCDERMOTT, TY                )
VAN LE, SCOTT A. ZELGEWICZ, JOSEPH P.                 )
LOEFFLER, CHRISTOPHER J. ALESSIO, AND                 )
IAN GROVER,                                           )
                                                      )
                  Defendants.                         )
                                                      )
JOSEPH F. O’NEIL, in his capacity as Representative   )
of the former Stockholders and Optionholders of       )
Hunter Technology Corporation,                        )
                                                      )
                  Counterplaintiff,                   )
                                                      )
            v.                                        )
                                                      )
SPARTON CORPORATION,                                  )
                                                      )
                  Counterdefendant.                   )


                        MEMORANDUM OPINION
                         Date Submitted: June 6, 2017
                         Date Decided: August 9, 2017
Richard M. Beck and Sean M. Brennecke, KLEHR HARRISON HARVEY
BRANZBURG LLP, Wilmington, Delaware; Joseph J. Shannon, BODMAN
PLC, Detroit, Michigan; Attorneys for Plaintiff.

William M. Lafferty, John P. DiTomo, and Zi-Xiang Shen, MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; Mark A.
Schwartz and Sandra J. Durkin, BUTLER RUBIN SALTARELLI & BOYD
LLP, Chicago, Illinois; Attorneys for Defendants.



MONTGOMERY-REEVES, Vice Chancellor.
      This action involves a merger in which Sparton Corporation (“Sparton”), the

purchaser, alleges that the merger agreement was fraudulently induced. Sparton

argues that Joseph F. O’Neil, the representative of the stockholders and

optionholders of Hunter Technology Corporation (“Hunter”), the seller, with the

assistance of the other defendants, created and presented false financial statements

during the negotiations. Based on these fabricated financials, the parties agreed to a

pre-closing estimate of Hunter’s working capital, an escrow amount, and a cap on

the post-closing adjustment of working capital.        Prior to the closing, without

Sparton’s knowledge, the defendants allegedly wrote down the accounts receivable,

returning Hunter’s working capital to its correct lower value. After the transaction,

Sparton discovered that the working capital actually was much lower than originally

thought, and the agreed-upon escrow amount was inadequate to cover the difference.

Sparton argues that defendants’ fraudulent actions caused millions in damages.

      Sparton also asserts a breach of contract claim against the stockholders and

optionholders of Hunter, alleging that Hunter’s financial statements and accounts

receivable did not accurately represent its working capital in breach of the warranties

contained in the merger agreement (the “Working Capital Claim”). Additionally,

Sparton asserts that O’Neil failed to use commercially reasonable efforts to resolve

certain liabilities that Hunter incurred before the transaction in breach of the merger

agreement (the “Specific Indemnity Claims”), and the defendants incurred but failed

                                          1
to pay certain invoices, as required under the agreement (the “Expenses Claim”). As

a result of the purported fraud and contractual breaches, Sparton alleges it has

suffered (1) $1,829,455.00 in damages representing the difference between the

inflated working capital it paid for and the working capital that actually existed at

closing; (2) unliquidated damages in the amount of fees and costs necessary to

resolve the liabilities that O’Neil promised to resolve; and (3) $100,498.70 in

damages for the invoices incurred by Hunter for which Sparton now is responsible.

      The defendants move to dismiss all claims except the Expenses Claim. The

defendants argue that the merger agreement bars both breach of contract claims

because the agreement provides exclusive remedies for the purported breaches.

Additionally, the defendants contend that Sparton has failed to state a claim for the

Specific Indemnity Claims. As to the Working Capital Claim, the agreement’s

exclusive remedy provision provides a fraud exception; but, the defendants argue

that (1) the agreement contains an anti-reliance provision; (2) the defendants did not

make any representations to Sparton in the contract regarding the veracity of the

financial statements that could form the basis for the fraud claim; and (3) Sparton

fails to meet the heightened pleading standard required to state a claim for fraud.

For the reasons discussed below, I find that the agreement bars both breach of

contract claims and that Sparton has failed to state a claim for fraud. Therefore, the

motion to dismiss is granted in its entirety.

                                           2
I.    BACKGROUND
      All facts are drawn from the First Amended Verified Complaint (the

“Complaint”) and the documents incorporated by reference therein.1

      A.     Parties and Relevant Non Parties
      Plaintiff Sparton Corporation (“Sparton”) is a company incorporated in Ohio

with its principal place of business in Schaumberg, Illinois. Non-party Hunter

Technology Corporation (“Hunter” or the “Company”) is a California corporation.

Non-party Sparton Hunter Corporation (“Merger Sub”) was Sparton’s subsidiary

formed to effectuate the merger between Hunter and Sparton, with Hunter as the

surviving wholly-owned subsidiary of Sparton.

      Defendants Joseph F. O’Neil, Peter Dumanian, Todd Moutafian, Jason Levy,

and Jason Seifert were stockholders of Hunter before the transaction (collectively,

the “Stockholders”). Defendants Thomas J. Yorkey, Walter E. Gordon, Thomas W.

Parker, Mark Evans, Carmen Gonzalez, Hai Cao Nguyen, Billy Chen, Hassan

Malak, Philip J. Aguiar, Thuy Thanh Thi Nguyen, Cheryl Marie Pittman-Lewis,

Daniel T. Jackson, Joseph R. Weems, Gregory A. Edgmon, Richard N.C. Micael,

Ben McDermott, Ty Van Le, Scott A. Zelgewicz, Joseph P. Loeffler, Christopher J.


1
      In re Morton’s Rest. Gp., Inc. S’holders Litig., 74 A.3d 656, 659 n.3 (Del. Ch. 2013).
      Here, the merger agreement between Hunter Technology Corporation, Sparton
      Corporation, Sparton Hunter Corporation, and Joseph F. O’Neil is incorporated by
      reference and attached as Exhibit A to the Complaint (hereinafter, the
      “Agreement”).

                                            3
Alessio, and Ian Grover were optionholders of Hunter before the transaction

(collectively, the “Optionholders”).

      B.     Facts

      On April 14, 2015, Sparton, Hunter, Merger Sub, and O’Neil executed a

merger agreement through which Sparton acquired Hunter (the “Agreement”).

O’Neil negotiated and executed the Agreement as the “representative, agent, proxy,

and attorney in fact (coupled with an interest) for all the Stockholders and

Optionholders for all purposes under this Agreement . . . .” 2 As a result of the

transaction, the Stockholders and Optionholders received $55,000,000.00 in

exchange for the cancellation of their shares and outstanding options. The resolution

of the pending motion to dismiss requires an examination of certain contractual

provisions of the Agreement and, in some instances, the negotiations surrounding

those provisions.

             1.      The representations and warranties
      Hunter provided the following representations and warranties in Article V of

the Agreement:

             The Financial Statements have been based upon the
             information contained in the Company’s and its
             Subsidiaries’ books and records (which are true and
             complete in all material respects, have been maintained
             consistently with past practices, and have been made
             available for inspection by Purchaser or its

2
      Agreement § 13.13(a).

                                         4
               representatives), have been prepared in conformity with
               GAAP, and present fairly in all material respects the
               financial condition and results of operations of the
               Company and its Subsidiaries as of the times and for the
               periods referred to therein. . . .3

               Except as set forth on the Developments Schedule, since
               September 30, 2014, there has not been any Material
               Adverse Change.4

Thus, the Company represented that the financial statements were based on the

Company’s books and records (which were accurate), prepared in accordance with

GAAP principles, and “present[ed] fairly in all material respects the financial

condition and results of operations of the Company.”5

      The Optionholders and Stockholders agreed to indemnify Sparton for any

losses incurred as a result of “any breach of, or any misrepresentation with respect

to, any of the representations and warranties expressly and specifically set forth in

Article V.”6     Article V includes the Company’s representation regarding the

financial statements’ accuracy.      But the indemnification provision precludes

recovery for any loss “included in the calculation of the final Allocable Amount,”




3
      Id. § 5.05.
4
      Id. § 5.06.
5
      Id. § 5.05.
6
      Id. § 11.01.

                                          5
except in the case of fraud.7 The “Allocable Amount” includes a calculation to adjust

for changes to the Company’s working capital.8

             2.        The working capital

      To account for Hunter’s working capital variation over time, the parties agreed

that they would use a pre-closing estimate of working capital based on Hunter’s

March 31, 2015 financial statements and a post-closing working capital adjustment.

Section 3.03 of the Agreement provides that at least three business days before

closing, “the Company shall prepare and deliver to the Purchaser a good faith

estimate of the Allocable Amount based on the Company’s books and records and

other information then available.”9 As discussed above, working capital is included

in the calculation of the Allocable Amount.10 If within five business days after the

final Allocable Amount is determined, the actual Allocable Amount is less than the

estimate, then the escrow agent will pay Sparton the amount of the deficiency from

the Purchase Price Adjustment Escrow Funds. Any such payments “shall be the sole

and exclusive remedy of the Purchaser for any and all claims arising under this




7
      Id. § 11.01(e).
8
      Id. § 1.01.
9
      Id. § 3.03(a).
10
      See supra Section I.B.1.

                                             6
Agreement with respect to this Section 3.03.”11 Section 13.14(b) echoes Section

3.03, adding that Sparton “agrees and acknowledges that its right to any payment

made pursuant to Section 3.03(h)(i) . . . shall be the Purchaser’s sole and exclusive

source of recovery for any amounts owing to the Purchaser pursuant to Section

3.03(h)(i), except for claims for Fraud.”12

      On April 10, 2015, Hunter, Sparton, and the Stockholders agreed to the pre-

closing estimate of working capital.          Based on this estimate and “O’Neil’s

representation that any resulting post-closing working capital adjustment would be

minimal, and at Defendant O’Neil’s insistence,”13 the parties agreed that the working

capital adjustment was capped at $750,000.00 and was the exclusive remedy for any

overstatement of the working capital, except in the case of fraud.

      Sparton alleges that before the working capital estimate was calculated,

O’Neil, with assistance from Alessio, Nguyen, Edgmon, Evans, “and others, made

non-GAAP adjustments to Hunter’s accounts receivable, thereby artificially

overstating the value of Hunter’s accounts.”14 This included “adding amounts to

invoices that were not owed to Hunter, including invoicing customers for work that


11
      Agreement § 3.03(h).
12
      Id. § 13.14(b).
13
      Compl. ¶ 54.
14
      Id. ¶ 55.

                                          7
Hunter had not yet completed and for which it did not yet have the right to payment,

and invoicing for obsolete inventory where Hunter had no right or expectation of

payment.”15 Sparton contends that between April 10 and April 13, after Sparton had

accepted the working capital estimate and agreed to the $750,000.00 escrow amount

and cap, but before closing, “Defendants O’Neil, Alessio, Nguyen, Edgmon, Evans,

and others purposefully caused Hunter to write off the overstated invoices, reverting

Hunter’s working capital to its actual, lower value.”16 Sparton alleges that “[m]any

of these adjustments were made on Sunday April 12, 2015.”17 Sparton asserts that

as a result of this conduct, “Sparton overpaid for Hunter’s working capital by

$2,579,455.00.”18

      Sparton presented O’Neil with its post-closing working capital adjustment of

$2,579,455.00, and O’Neil did not dispute the amount but rather released the entire

$750,00.00 working capital escrow amount to Sparton. Sparton then requested an

additional $550,000.00 from the indemnity escrow fund to mitigate its working

capital damages. O’Neil objected to this request, and the indemnity escrow funds

have not been released.


15
      Id. ¶ 56.
16
      Id. ¶ 58.
17
      Id.
18
      Id. ¶ 62.

                                         8
             3.      The specific indemnity schedule
      As part of the Agreement, O’Neil would “have responsibility for managing,

handling and controlling the defense, settlement or other disposition of the matters

set forth” in the Specific Indemnity Schedule.      O’Neil was obligated to “use

commercially reasonable efforts to settle on commercially reasonable terms the

matters set forth on this Specific Indemnity Schedule within 18 months of the

Closing Date.” 19 O’Neil also was to “provide Purchaser with information regarding

the process of such settlements upon Purchaser’s written request.”20 Additionally,

“if any matters remain unresolved as of September 1, 2016, at the Purchaser’s written

request, the Representative and Purchaser shall meet to discuss the planned

resolution of such remaining open matters.”21

      The indemnification provision provides the remedy for losses related to “any

of the matters set forth on the Specific Indemnity Schedule” if they “are actually

incurred prior to October 14, 2016,” but it “shall not cover potential Losses from

matters that are pending or otherwise have not been resolved prior to October 14,

2016.”22 In other words, the obligation to indemnify Sparton for the matters listed


19
      Agreement Disclosure Schedules, at 60.
20
      Id.
21
      Id.
22
      Id. § 11.01.

                                         9
on the Specific Indemnity Schedule terminates on October 14, 2016 “regardless if

any claims are still pending or the matters set forth on the Specific Indemnity

Schedule remain pending and have not been settled or otherwise resolved . . . .23 A

Specific Indemnity Claim only arises once Sparton “actually incurs any out-of-

pocket Losses indemnifiable under Section 11.01(iii) of the Merger Agreement or

there is a judgment or settlement permitted by the Merger Agreement of any matter

covered by Section 11.01(iii) of the Merger Agreement.”24 The Specific Indemnity

Claims are Sparton’s sole and exclusive remedy for losses related to matters listed

on the Specific Indemnity Schedule, except in the case of fraud.25

      The Specific Indemnity Schedule lists the matters it covers, including (a) the

California State Board of Equalization (the “SBOE”)’s determination of tax liability

in early 2014 of $1,436,968.29 plus accruing interest arising from a company Hunter

acquired in 2013; $130,000.00 in sales tax that the acquired company did not report

or remit to the SBOE; and certain unrealizable assets prepaid by Hunter, totaling

$154,577.00; and (b) the California Department of Toxic Substances Control

(“DTSC”)’s cleanup claim against 60 parties including Hunter regarding a hazardous

waste repackaging facility called Ultra-Chem. The Complaint alleges that Sparton


23
      Id. § 11.04.
24
      Id. Ex. C § 4(e)(vi).
25
      Id. § 11.02.

                                        10
remains liable for both of these unresolved claims due to O’Neil’s lack of

“commercially reasonable efforts” to resolve them.26

             4.     The anti-reliance provision

      The Agreement contains an anti-reliance provision that states as follows:

             The representations and warranties of the Company
             expressly and specifically set forth in Article V (together
             with any representations and warranties expressly and
             specifically made by the Stockholders and Optionholders
             in their respective Letters of Transmittal and Option
             Cancellation Agreements), as qualified by the Disclosure
             Schedules, constitute the sole and exclusive
             representations, warranties, and statements (including by
             omission) of any kind or nature, whether written or oral,
             expressed or implied, statutory or otherwise (including, for
             the avoidance of doubt, relating to quality, quantity,
             condition, merchantability, fitness for a particular purpose
             or conformity to samples) of any of the Company, the
             Stockholders and Optionholders, the Representative or
             any of their respective Non-Recourse Parties as to any
             matter concerning the Company, any of its Subsidiaries or
             any of their respective joint ventures or businesses or in
             connection with this Agreement or the transactions
             contemplated by this Agreement, or with respect to the
             accuracy or completeness of any information provided to
             (or otherwise acquired by) the Purchaser or the Merger
             Sub or any of their respective Non-Recourse Parties in
             connection with this Agreement or the transactions
             contemplated by this Agreement (including, for the
             avoidance of doubt, any statements, information,
             documents, projections, forecasts or other material made
             available to the Purchaser, the Merger Sub or any of their
             respective Non-Recourse Parties in certain “data rooms”
             or presentations including “management presentations”)
             and all other purported representations and warranties or

26
      Id. Disclosure Schedules, at 60.
                                         11
             statements (including by omission) are hereby disclaimed
             by the Company, the Stockholders and Optionholders, the
             Representative and each of their respective Non-Recourse
             Parties and none of the Purchaser or the Merger Sub or any
             of their respective Non-Recourse Parties shall have any
             claim with respect to their purported use of, or reliance on,
             any such representations, warranties or statements
             (including by omission). The Purchaser and the Merger
             Sub are otherwise acquiring the Company, its
             Subsidiaries, its joint ventures and their respective
             businesses on an “AS IS, WHERE IS” basis.27

Thus, Sparton agreed that it did not rely on anything outside the representations and

warranties contained in the Agreement in executing the Agreement.

      C.     Procedural History
      Sparton filed its original complaint in this action on June 2, 2016. On July

22, 2016, the Defendants filed their answer, counterclaims, and partial motion to

dismiss. On August 11, 2016, Sparton answered the Defendants’ counterclaims. On

September 14, 2016, Sparton filed the Complaint. On October 14, 2016, the

Defendants filed their answer, amended and supplemental counterclaims, and partial

motion to dismiss the Complaint. On November 7, 2016, Sparton filed its answer to

the amended and supplemental counterclaims. On June 6, 2017, this Court held oral

argument on the partial motion to dismiss the Complaint.




27
      Id. § 10.01.

                                          12
II.   ANALYSIS

      A.     Standard of Review
      The Defendants move to dismiss for failure to state a claim under Court of

Chancery Rule 12(b)(6). For the purposes of a motion to dismiss under Rule

12(b)(6),

             (i) all well-pleaded factual allegations are accepted as true;
             (ii) even vague allegations are “well-pleaded” if they give
             the opposing party notice of the claim; (iii) the Court must
             draw all reasonable inferences in favor of the non-moving
             party; and (iv) dismissal is inappropriate unless the
             “plaintiff would not be entitled to recover under any
             reasonably conceivable set of circumstances susceptible of
             proof.”28

While I must draw all reasonable inferences in the plaintiff’s favor, I need not

“accept as true conclusory allegations ‘without specific supporting factual

allegations.’”29

      B.     Sparton Fails to State a Claim for Breach of Contract
      In order to allege a breach of contract, a plaintiff must show the existence of

a contract, a breach of the contractual obligations, and damages to the plaintiff as a




28
      In re Gen. Motors (Hughes) S'holder Litig., 897 A.2d 162, 168 (Del. 2006) (quoting
      Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)).
29
      Id. (quoting In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 65-66 (Del.
      1995)).

                                          13
result of the breach.30 Sparton alleges that the Defendants breached the contractual

provisions relating to the Specific Indemnity Schedule and the working capital

estimate.

      Under the Agreement, the sole and exclusive remedy for losses relating to the

matters set forth in the Specific Indemnity Schedule are claims against the indemnity

escrow fund; but that indemnification obligation ended on October 14, 2016

“regardless if any claims are still pending or the matters set forth on the Specific

Indemnity Schedule remain pending and have not been settled or otherwise resolved

. . . .”31 Additionally, a Specific Indemnity Escrow Claim does not arise until Sparton

actually incurs out-of-pocket losses, a judgment is issued, or settlement is reached.32

      Sparton argues that it should be “excused from complying with the dispute

procedures” set out in the Agreement because “Defendants’ conduct has made exact

conformance to the Merger Agreement impossible.”33 The sum total of Sparton’s

allegations in the Complaint are that O’Neil “failed to make commercially

reasonable efforts” to resolve Hunter’s liabilities because they were not resolved by


30
      Osram Sylvania Inc. v. Townsend Ventures, LLC, 2013 WL 6199554, at *6 (Del.
      Ch. Nov. 19, 2013) (citing Bakerman v. Sidney Frank Imp. Co., 2006 WL 3927242,
      at *19 (Del. Ch. Oct. 10, 2006)).
31
      Agreement §§ 11.01; 11.02; 11.04.
32
      Id. Ex. C § 4(e)(vi).
33
      Pl.’s Opp’n Br. 17.

                                          14
October 14, 2016, and “[a]s a result, Sparton remains liable for unresolved claims

originally asserted against Hunter which Defendant O’Neil should have, and could

have, resolved using commercially reasonable efforts.”34 The Complaint provides

no details about how O’Neil did not meet this requirement or why “Defendants’

conduct has made exact conformance to the Merger Agreement impossible.”35 The

conclusory allegation that O’Neil did not use commercially reasonable efforts to

resolve the matters because the matters remain unresolved is not enough to state a

claim under Rule 12(b)(6).36 Therefore, this claim is dismissed.

      With regard to the Working Capital Claim, the Agreement in Section

3.03(h)(i)(A) provides that if the Allocable Amount determined after closing is less

than the Estimated Allocable Amount, the buyer and the representative shall “cause

the Escrow Agent to: (A) pay to the Purchaser from the Purchase Price Adjustment




34
      Compl. ¶¶ 78, 81, 103, 104, 105.
35
      Pl.’s Opp’n Br. 17.
36
      Sparton alleges facts in its briefing on this motion that do not appear in the
      Complaint. But Sparton offers no explanation for its attempt to amend the
      Complaint through its brief. “When defendants filed their motions to dismiss
      [Plaintiff] had a choice to make under Court of Chancery Rule 15(aaa). It could
      either seek leave to amend its complaint or stand on its complaint and answer the
      motion to dismiss. Having chosen the latter course of action, it is bound to the
      factual allegations contained in its complaint. It cannot supplement the complaint
      through its brief.” MCG Capital Corp. v. Maginn, 2010 WL 1782271, at *5 (Del.
      Ch. May 5, 2010).

                                          15
Escrow Funds an amount . . . equal to such deficiency.”37 The Agreement further

provides that the “payments described in Section 3.03(h)(i) shall be the sole and

exclusive remedy of the Purchaser for any and all claims arising under this

Agreement with respect to this Section 3.03.”38 Section 13.14 adds that Sparton

agrees that the “sole and exclusive source of recovery for any amounts” owed under

Section 3.03(h)(i) is its right to payment under that section, “except for claims for

Fraud.”39 Additionally, except in the case of fraud, any loss attributable to amounts

included in the calculation of the final Allocable Amount, which includes working

capital, cannot be recovered from the indemnity escrow fund.40

      Sparton does not dispute the applicability of these contractual terms and

admits that it has received the full $750,000.00 from the Purchase Price Adjustment

Escrow Fund. Sparton argues that this claim should survive the motion to dismiss

because the contract was fraudulently induced, and therefore, any contractual

limitations do not apply. This claim, thus, rises and falls with the fraud claim, which




37
      Agreement § 3.03(h)(i)(A).
38
      Id. § 3.03(h).
39
      Id. § 13.14(b).
40
      Id. § 11.01(e).

                                          16
I discuss below. As I find that Sparton has not adequately alleged a claim for fraud,

this claim also is dismissed.41

       C.     Sparton Fails to State a Claim for Fraud

       In order to state a claim for fraud, a plaintiff must allege that (1) the defendants

made a false representation or omission of fact that they had a duty to disclose; (2)

the defendants knew or believed that the representation was false or made the

representation with reckless indifference to the truth; (3) the defendants intended to

induce the plaintiff to act or refrain from acting; (4) the plaintiff acted or did not act

in justifiable reliance on the representation; and (5) the plaintiff suffered damages as

a result of the reliance.42

       Court of Chancery Rule 9(b) requires that “the circumstances constituting

fraud [] shall be stated with particularity,” while “[m]alice, intent, knowledge and

other condition of mind of a person may be averred generally.” 43 “To satisfy Rule

9(b), a complaint must allege: (1) the time, place, and contents of the false




41
       See infra Section II.C.
42
       Addy v. Piedmonte, 2009 WL 707641, at *18 (Del. Ch. Mar. 18, 2009); Abry P’rs
       V, L.P. v. F & W Acquisition LLC, 891 A.2d 1032, 1050 (Del. Ch. 2006).
43
       Ct. Ch. R. 9(b); Addy, 2009 WL 707641, at *19; Abry, 891 A.2d at 1050.

                                            17
representation; (2) the identity of the person making the representation; and (3) what

the person intended to gain by making the representations.”44

             1.       Sparton cannot rely on extra-contractual representations

      The Agreement contains an anti-reliance provision. In Delaware, “[w]e have

honored clauses in which contracted parties have disclaimed reliance on extra-

contractual representations, which prohibits the promising party from reneging on

its promise by premising a fraudulent inducement claim on statements of fact it had

previously said were neither made to it nor had an effect on it.”45 Here, Section

10.01 provides that

             the representations and warranties of the Company
             expressly and specifically set forth in Article V (together
             with any representations and warranties expressly and
             specifically made by the Stockholders and Optionholders
             in their respective Letters of Transmittal and Option
             Cancellation Agreements), as qualified by the Disclosure
             Schedules, constitute the sole and exclusive
             representations, warranties and statements (including by
             omission) of any kind or nature . . . of any of the Company,
             the Stockholders and Optionholders, the Representative or
             any of their respective Non-Recourse Parties.46




44
      Abry, 891 A.2d at 1050 (citing H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129,
      145 (Del. Ch. 2003)); see Addy, 2009 WL 707641, at *19.
45
      Abry, 891 A.2d at 1056.
46
      Agreement § 10.01.

                                         18
Thus, Sparton may only rely on “representations, warranties and statements”

included in the Agreement and in the attached documents. Sparton cannot rely on

representations made by O’Neil or anyone else before the transaction.

              2.      The indemnification limitations do not apply in cases of fraud
       Sparton points to the financial statements attached to the Agreement and

argues that the Company falsely represented that the financial statements were based

on the Company’s books and records, which are true and complete, prepared in

conformity with GAAP, and “present[ed] fairly in all material respects the financial

condition and results of operations of the Company and its subsidiaries as of the

times and for the periods referred to therein . . . .”47

       Although the Company, not the Stockholders or Optionholders, made the

pertinent representations in Article V,48 the Stockholders and Optionholders agreed

to indemnify Sparton for any “breach of, or any misrepresentation with respect to,

any of the representations and warranties expressly and specifically set forth in

Article V.”49 As discussed above, this provision contains a carve-out for any losses

stemming from amounts included in the calculation of the Allocable Amount, which




47
       Id. § 5.05.
48
       Id. § 5.05 (emphasis added).
49
       Id. § 11.01.

                                            19
includes working capital, but the limitation does not apply in the case of fraud.50

Therefore, I must determine whether Sparton has adequately alleged a claim for

fraud.

                3.    Sparton’s fraud claims fail
         Sparton’s allegations do not meet the heightened pleading standard required

to show fraud. Sparton alleges that O’Neil negotiated the Agreement on behalf of

the Stockholders and Optionholders. This included establishing the working capital

estimate that was based on the inflated accounts receivable in the financial

statements. Sparton alleges that O’Neil “fraudulently overstated Hunter’s accounts

receivable with assistance from Defendants Alessio, Nguyen, Edgmon, Evans, and

others.”51 This allegedly was done by making non-GAAP adjustments to the

accounts receivable through the addition of amounts to invoices that were not owed

to Hunter, including for work Hunter had not yet completed, for which Hunter had

no expectation of payment, or for obsolete inventory.52            Sparton asserts that

“alternately,” Defendants O’Neil, Alessio, Nguyen, Edgmon, Evans, “and others”




50
         Agreement §§ 11.01(e), 1.01; see supra Section II.B; Abry, 891 A.2d at 1061-64.
51
         Compl. ¶ 121.
52
         Id. ¶ 56.

                                            20
wrote down “existing accounts receivable in non-GAAP transactions after their full

value had already been included in Hunter’s Working Capital Estimate.”53

      These Defendants, the Complaint asserts, had an “express intent” to inflate

the value of Hunter’s assets to artificially increase the amount of the working capital

estimate. Further, O’Neil represented that a working capital escrow of $750,000.00

would cover any post-closing working capital adjustment and provided Sparton with

Hunter’s March 31, 2015 financial statements, which Sparton purportedly

reasonably relied on in executing the merger. After Sparton had agreed to the

estimate and the escrow amount, but before closing, Sparton asserts that the same

Defendants “purposefully caused Hunter to write off the overstated invoices,

reverting Hunter’s working capital to its actual lower value.”54 Thus, Sparton

alleges, it grossly overpaid for Hunter’s working capital by millions of dollars, and

O’Neil ensured that Sparton would only be able to recover $750,000.00 under the

Agreement.

      Sparton alleges that the Stockholders and Optionholders knew that Sparton

would rely on O’Neil’s representations to Sparton on behalf of Hunter, ratified

O’Neil’s fraudulent acts by accepting the merger consideration, and personally




53
      Id.
54
      Id. ¶ 58.

                                          21
benefitted from O’Neil’s fraudulent misrepresentations. Thus, Sparton argues, they

are liable for the fraud O’Neil purportedly committed in his capacity as their

representative.

      First, in order for the fraud claim to survive the motion to dismiss, Sparton is

“required to identify specific acts of individual defendants”55 and to “identify who

made any particular misrepresentation and to whom they were made.”56 Sparton

lists the names of certain Defendants “and others” and states that they “assisted”

O’Neil but does not identify who specifically did what or how they “assisted” in

allegedly misstating the invoices or financial statements. And in its briefing, Sparton

acknowledges that it cannot “yet identify the specific roles of the co-conspirators.”57

These allegations fail to satisfy Rule 9(b).

      Second, as to the details regarding the purported fraud, the Complaint alleges

that this group of Defendants “fraudulently overstated Hunter’s accounts receivable”

by “adding amounts to invoices that were not owed to Hunter.”58 Sparton contends

that this group then “caused Hunter to write off the overstated invoices, reverting


55
      Fortis Advisors LLC v. Dialog Semiconductor PLC, 2015 WL 401371, at *8 n.48
      (Del. Ch. Jan. 30, 2015) (quoting Steinman v. Levine, 2002 WL 31761262, at *15
      (Del. Ch. Nov. 27, 2002)).
56
      Id. at *8.
57
      Pl.’s Opp’n Br. 20.
58
      Compl. ¶¶ 56, 121.

                                          22
Hunter’s working capital to its actual, lower value.”59 Sparton does not identify the

invoices or the amount by which they were doctored. Also, Sparton does not allege

if these invoices were falsely created before or after the deal was negotiated. This

information is relevant here because evidence showing that the invoices were created

before the deal was negotiated would undercut Sparton’s theory that the invoices

were falsely created to boost the Company’s financials for the sale.

      Third, although knowledge may be alleged generally under Rule 9(b), if

Sparton is alleging that the Defendants knew of the purported fraud, “it must allege

sufficient facts from which it can reasonably be inferred that this ‘something’ was

knowable and that the defendants were in a position to know it.”60 Sparton points to

Osram Sylvania Inc. v. Townsend Ventures, LLC61 as an example of a case that

satisfies the pleading requirement. In Osram, the named defendants negotiated and

personally entered into the stock purchase agreement.          They also severally

represented that the financial statements were “correct and complete in all material

respects,” “prepared in accordance with the books and records” of the acquired

companies, and prepared “in accordance with GAAP.”62


59
      Id. ¶ 58.
60
      Abry P’rs V, L.P. v. F & W Acquisition LLC, 891 A.2d 1032, 1050 (Del. Ch. 2006).
61
      2013 WL 6199554, at *1 (Del. Ch. Nov. 19, 2013).
62
      Compl. Ex. A, at 26, 29, Osram, C.A. No. 8123-VCP (Del. Ch. Dec. 19, 2012).

                                         23
      After closing, the plaintiff conducted an investigation and found that the

individual defendants (1) had altered the size and nature of the company’s business

segments on the company’s financials before closing, (2) knew before closing that

two salespeople who accounted for 32% of the company’s sales forecast had

resigned, and (3) knew that the company had significant liabilities that it did not

disclose or otherwise account for in its financial statements.63 The investigation also

uncovered that the individual defendants were privy to internal e-mails sent

immediately before the closing.       The emails discussed the company’s “cash

problem” if the deal did not close imminently and suggested that the individual

defendants buy the company’s product in order to strengthen the company’s revenue

numbers during negotiations.64 The Court in Osram noted that “a mere allegation

that a defendant ‘knew or should have known’ about a false statement is not

sufficient to plead the requisite state of mind.”65 But in that case, the e-mails

“support[ed] an inference that Sellers falsely were trying to bolster the financial




63
      Osram, 2013 WL 6199554, at *3.
64
      Id.; Compl. ¶ 48(j), Osram, C.A. No. 8123-VCP (Del. Ch. Dec. 19, 2012).
65
      Osram, 2013 WL 6199554, at *14 (citing Stuchen v. Duty Free Int’l Inc., 1996 WL
      33167249, at *5 (Del. Super. Apr. 22, 1996)).

                                          24
condition of the Company” and “were knowing participants in an effort to defraud

OSI.”66

      Here, in an attempt to satisfy the knowledge requirement, Sparton alleges that

O’Neil was involved in the negotiations, and “it would make little sense to imply”

that O’Neil, as representative of the Stockholders and Optionholders, “would not

have knowledge of the financials of the company whose interest he purports to

represent.”67 Sparton also argues that “as Stockholders and Optionholders in the

Company,” the Defendants “are charged with the knowledge held by their

Representative in the transaction.”68      But, as discussed above, none of the

Stockholders or Optionholders personally represented anything as to the accuracy of

the financial statements, signaling they were not in a position to know the veracity

of the statements. Further, Sparton does not plead any particularized facts about

Defendants’ roles in the Company or any of Defendants’ relationships with

management, other than that they are Stockholders and Optionholders and that

O’Neil is the Representative of the Stockholders and Optionholders. And Sparton

fails to allege any other facts to show that any of the Defendants had the authority to

prepare either the invoices or the financial statements or that they would be in a


66
      Id.
67
      Pl.’s Opp’n Br. 20.
68
      Id.

                                          25
position to know that these documents were falsely prepared.69 Thus, the Complaint

does not allege that Defendants knew that the invoices or financial statements were

overstated or improperly recorded. As a result, Sparton fails to allege a claim for

fraud.

III.     CONCLUSION
         For the foregoing reasons, I grant Defendants’ motion to dismiss in its

entirety. All of Sparton’s claims, except the Expenses Claim, are dismissed.

         IT IS SO ORDERED.




69
         Counsel for Sparton noted at oral argument that Spartan chose “not to conduct
         informal discovery on [its] own company at this point” to discover any of these
         facts. Oral Arg. Tr. 36.

                                           26
