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Emsi Acquisition, Inc. v. Contrarian Funds, LLC

Court of Chancery of Delaware

May 3, 2017

EMSI ACQUISITION, INC., Plaintiff,
v.
CONTRARIAN FUNDS, LLC, PACIFIC LIFE INSURANCE COMPANY, PACIFIC LIFE & ANNUITY COMPANY, RELIASTAR LIFE INSURANCE COMPANY OF NEW YORK, MMD RESOURCES, LLP, MARK S. DAVIS (individually and in his capacity as guarantor of MMD RESOURCES, LLP), and ROBERT P. BROOK, Defendants.

          Date Submitted: February 7, 2017

          S. Mark Hurd, Esquire, Ryan D. Stottman, Esquire, and Lauren K. Neal, Esquire of Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, and Stephen C. Hackney, Esquire and Timothy Knapp, Esquire of Kirkland & Ellis LLP, Chicago, Illinois, Attorneys for Plaintiff.

          Rolin P. Bissell, Esquire and Paul J. Loughman, Esquire of Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware and Marshall R. King, Esquire, Lauren M.L. Nagin, Esquire, Gabriel K. Gillett, Esquire of Gibson, Dunn & Crutcher LLP, New York, New York, Attorneys for Defendants.

          MEMORANDUM OPINION

          SLIGHTS, Vice Chancellor

          Plaintiff, EMSI Acquisition, Inc. ("Plaintiff" or "Buyer"), brings this action against Defendants, Contrarian Funds, LLC, Pacific Life Insurance Company, Pacific Life & Annuity Company, Reliastar Life Insurance Company, Reliastar Life Insurance Company of New York, MMD Resources, LLP, Mark S. Davis, and Robert P. Brook (together, "Defendants" or "Sellers") to assert post-closing claims for indemnification following Plaintiff's acquisition of EMSI Holding Company ("EMSI" or the "Company") from the Defendants (the "Acquisition"). The Acquisition was memorialized in a Stock Purchase Agreement (the "SPA") which is at the heart of this dispute. It is alleged that EMSI manipulated its financial statements prior to the Acquisition in order to inflate its EBITDA and induce Plaintiff to pay substantially more for the Company than it was worth. At issue is whether Plaintiff may avoid contractual limits on recovery for indemnification claims against the Sellers when the claims are based on fraudulent representations in the SPA made by the Company. Also at issue is whether findings of an independent auditor who attempted to resolve the dispute between the parties post-closing may be "confirmed" by the Court under the Delaware Arbitration Act.

         Plaintiff asserts two counts in a Verified Complaint (the "Complaint") against Defendants: Count I for indemnification and Count II for confirmation of the auditor's award. Defendants have moved to dismiss both counts for failure to state a claim pursuant to Court of Chancery Rule 12(b)(6). For the reasons that follow, I find that the SPA is ambiguous with respect to whether the Buyer's indemnification claims against the Sellers for allegedly fraudulent contractual representations of the Company in the SPA are subject to contractual limitations on indemnification claims. Extrinsic evidence is required to interpret the relevant provisions.

         Accordingly, the motion to dismiss Count I is DENIED. The motion to dismiss Count II, however, must be GRANTED as the auditor's findings do not constitute an arbitration award that is subject to "confirmation" under the Delaware Arbitration Act.

         I. BACKGROUND

         In considering Defendants' motion to dismiss, I have drawn the facts from the well-pled allegations in the Complaint, documents integral to the Complaint and matters of which I may take judicial notice.[1] At this stage of the proceedings, all well-pled facts contained in the Complaint are assumed to be true.

         A. The Parties and Relevant Non-Parties

         Plaintiff, EMSI Acquisition, Inc., an affiliate of private equity firm Beecken Petty O'Keefe & Company, is the Buyer under the SPA. It is a Delaware corporation with its corporate headquarters in Irving, Texas.

         As noted, each of the Defendants named in the Complaint are alleged to be Sellers under the SPA. Defendant, Contrarian Funds, LLC, is a Delaware LLC with its principal place of business in Greenwich, Connecticut. Defendant, Pacific Life Insurance Company, is a Nebraska insurance company with its principal place of business in Newport Beach, California. Defendant, Pacific Life & Annuity Company, is an Arizona insurance company with its principal place of business in Newport Beach, California. Defendant, Reliastar Life Insurance Company, is a Minnesota insurance corporation with its principal place of business in Minneapolis, Minnesota. Defendant, Reliastar Life Insurance Company of New York, is a New York insurance company with its principal place of business in Woodbury, New York. And Defendant, MMD Resources, LLP, is an Arizona limited partnership with its principal place of business in Scottsdale, Arizona.

         Defendant, Mark S. Davis, is a former officer and shareholder of EMSI and a guarantor of MMD Resources, LLP's obligations under the SPA. He is named in the Complaint both in his individual capacity and as guarantor. Defendant, Robert P. Brook, is a former officer in EMSI's Healthcare Services division and a former shareholder of EMSI.

         Non-party, EMSI Holding Company, is a medical information services company which, "[a]mong other things, [] collects and codes medical records, performs in-home health assessments, and supports clinical trials and drug-testing specimen collections."[2] At the time of the Acquisition, EMSI's three main business units were Healthcare Services, Insurance Services, and Investigative Services. The Healthcare Services unit offers risk adjustment services to health plans and aids employers in drug and alcohol testing and identity verification. The Insurance Services unit aids life insurers with underwriting requirements and electronic application processing services. The Investigative Services segment offers investigative services to property, casualty and life insurance carriers.

         B. EMSI Engages in a Sales Process

         Defendants received their equity in EMSI through an out-of-court restructuring in 2005, and soon afterwards began attempting to sell their interests in the Company. This included formal sales processes in 2009 and 2012--neither of which resulted in a sale. In 2015, Defendants again decided to explore a sale of their equity in EMSI, beginning the sales process with the release of a Confidential Information Memorandum (the "CIM") on April 30, 2015. The CIM projected a rosy outlook for EMSI's future, even though this was out of line with historical trends including a decline in profitability for the most recent fiscal year.

         Plaintiff responded to the CIM in the summer of 2015 and the parties negotiated the Acquisition from July through November 2015. Throughout these negotiations, the Defendants sent interim financial projections that forecast "significant near-term growth potential."[3] Plaintiff ultimately used the reported EBITDA of $10.2 million for the trailing twelve months to price the Acquisition. Based on this reported EBITDA, Plaintiff agreed to purchase EMSI on November 3, 2015 for $85 million.

         C. The Relevant Provisions of the SPA

         The SPA recognized the distinction between the Sellers and the Company.[4]This distinction made sense given that, other than Davis and Brook, who were both Sellers and members of Company management, the other Sellers were stockholders who had received their equity in the Company through a restructuring. Based on the allegations in the Complaint, there is no indication that the "Institutional Sellers" (meaning those other than Davis and Brook) were at all involved in the management of the Company.

         The structure of the SPA is familiar to those who regularly encounter such agreements. Article I outlined the transaction and set the purchase price: $85 million with certain contemplated adjustments. Importantly, Article I also identified an adjustment for an "Escrow Amount, " $9, 562, 500, which is a feature of the parties' agreed-upon indemnification scheme.[5] Article II outlined a post-closing purchase price adjustment procedure that included, inter alia, a process whereby the parties would "jointly engage [a] Settlement Auditor" to resolve disputes regarding Net Working Capital and other identified purchase price adjustments.[6] Any purchase price adjustments determined to be due the Buyer were to be paid out of the Escrow Funds and, "for the avoidance of doubt, " the SPA made clear that "to the extent the then-remaining Escrow Funds are insufficient to pay the full amount of any such deficiency, no Seller (or other Escrow Payee) will have any liability to Buyer for such deficiency."[7]

         Article III set forth each of the Seller's representations and warranties to the Buyer. They are noticeably more limited than those provided by the Company in Article IV. Here again, this is not surprising given that the Institutional Sellers were investors in, not managers of, the Company. Article III closes with the following language:

NO ADDITIONAL REPRESENTATIONS OR WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE TRANSACTION DOCUMENTS, SUCH SELLERS EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE, OR QUALITY OF THE COMMON SHARES OR THE BUSINESS OR THE ASSETS OR THE OPERATIONS OF THE EMSI ENTITIES OR ANY OTHER MATTER, AND SUCH SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE SUITABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE COMMON SHARES, THE BUSINESS, SUCH ASSETS, SUCH OPERATIONS, OR ANY PART THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD THAT THE COMMON SHARES, THE BUSINESS, SUCH ASSETS AND SUCH OPERATIONS ARE ACQUIRED, REDEEMED, OR TERMINATED, AS APPLICABLE, 'AS IS, WHERE IS' ON THE CLOSING DATE, AND IN THEIR PRESENT CONDITION.[8]

         Article IV contains the Company's more expansive set of representations and warranties, several of which are at issue here. These included representations that the "unaudited consolidated balance sheets, statement of operations, and cash flows of the EMSI Entities for the six-month period ended September 30, 2015 . . . have been prepared in accordance with GAAP applied on a consistent basis throughout the periods covered thereby";[9] that there had been no "change[] in any significant respect in any business practice" from March 31, 2015 to the close of the Acquisition;[10] that there had been no "change in the method of accounting or cash management practices" from March 31, 2015 to the close of the Acquisition;[11] that there had been no "accelerat[ion of] the collection of or discount[ing of] any accounts receivable";[12] that there had been no "action or fail[ure] to take any action that has had, or could reasonably be expected to have, the effect of accelerating to pre-Closing periods sales to customers or others that would otherwise be expected to occur after the Closing";[13] that there had been no agreements to change either the Company's business practices or accounting methods from the time period from March 31, 2015 and the close of the Acquisition;[14] that there had been no "Company Material Adverse Effect" since March 31, 2015;[15] and that the Company Disclosure Schedule incorporated within the SPA "contains true and complete copies" of the interim financial statements.[16]

         Article IV closes with a disclaimer nearly identical to the disclaimer in Article III:

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE TRANSACTION DOCUMENTS, THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE, OR QUALITY OF THE COMMON SHARES OR THE BUSINESS OR THE ASSETS OR THE OPERATIONS OF THE EMSI ENTITIES OR ANY OTHER MATTER, AND THE COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE SUITABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE COMMON SHARES, THE BUSINESS, SUCH ASSETS, SUCH OPERATIONS, OR ANY PART THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD THAT THE COMMON SHARES, THE BUSINESS, SUCH ASSETS AND SUCH OPERATIONS ARE ACQUIRED, REDEEMED, OR TERMINATED, AS APPLICABLE, 'AS IS, WHERE IS' ON THE CLOSING DATE, AND IN THEIR PRESENT CONDITION, AND THAT BUYER SHALL RELY ON ITS OWN EXAMINATION AND INVESTIGATION THEREOF.[17]

         As an accent to the disclaimers, in Article V, the Buyer represented that it was only relying on the promises and representations contained in the SPA in a straightforward non-reliance clause:

The Buyer acknowledges that the representations and warranties of the Company and Sellers expressly contained in this Agreement constitute the sole and exclusive representations and warranties of the Company and Sellers to Buyer in connection with the Transaction Documents and the transactions contemplated thereby. Buyer acknowledges that any financial projections or other forward-looking statements provided by the EMSI Entities are for illustrative purposes only and are not and will not be deemed to be relied upon by Buyer in executing, delivering the Transaction Documents and performing the transactions contemplated thereby. Notwithstanding the foregoing, nothing in this Section 5.7 shall limit the right of Buyer to rely on the representations and warranties, covenants and agreements set forth in this Agreement or in any Schedule or Exhibit (or in any certificate delivered with respect thereto hereunder) or Buyer's right to indemnification hereunder.[18]

         The parties also negotiated a comprehensive indemnification regime within Article X of the SPA. The Seller's indemnification obligations are set forth in Section 10.2:

Subject to the other provisions of this Article X, (including, without limitation, Section 10.4), each Seller shall . . . indemnify and hold harmless . . . the "Buyer Indemnified Parties" [of which Plaintiff is a member] . . . from any and all Losses which any of the Buyer Indemnified Parties may sustain arising out of: (a) any breach of any representation or warranty of such Seller or the Company contained in this Agreement; (b) any breach of any covenant or agreement of such Seller that is contained in this Agreement . . .[19]

         The limits upon Seller's indemnification obligations are provided in Section 10.4:

Notwithstanding anything to the contrary in this Agreement (including, without limitation, Section 10.2) . . .: (b) The Buyer Indemnified Parties shall not be entitled to indemnification under Section 10.2(a) for any and all Losses unless and until the aggregate amount of all of the Losses . . . for which the Buyer Indemnified Parties would otherwise be entitled to indemnification pursuant to Section 10.2(a) exceed $450, 000 (the "Basket Amount"), in which event, subject to the terms of this Article X and the Escrow Agreement, the Buyer Indemnified Parties will be entitled to be indemnified in accordance with Section 10.2(a) for such Losses . . . in excess of the Basket Amount to the extent of, and exclusively from, any then-remaining Escrow Funds.[20]

         Section 10.4(d) further limits Seller's indemnification liability to the amount of the set-aside Escrow Funds by providing that, "[n]otwithstanding anything to the contrary in this Agreement":

The Buyer Indemnified Parties shall only be entitled to indemnification (i) with respect to Losses in respect of the representations and warranties (other than the Excluded Representations and the Specific Indemnity Items) to the extent of, and exclusively from, any then-remaining Escrow Funds . . .[21]

         Section 10.10(a) makes clear that indemnification is the exclusive remedy for a Seller's breach of a representation, warranty or covenant:

From and after Closing (except . . . in the case of claims for fraud or willful or intentional misrepresentation), the sole and exclusive remedy of the Seller Indemnified Parties and the Buyer Indemnified Parties for any breach or inaccuracy, or alleged breach or inaccuracy, of any representation, warranty or covenant under, or for any other claims arising in connection with, any of the Transaction Documents, other than specific performance, shall be indemnification in accordance with this Article X, subject to the limitations set forth herein . . .[22]

         Section 10.10(b) of the SPA then appears to carve out from this limitation "any" claim "based upon fraud":

Notwithstanding anything in this Agreement to the contrary (including . . . any limitations on remedies or recoveries . . .) nothing in this Agreement (or elsewhere) shall limit or restrict (i) any Indemnified Party's rights or ability to maintain or recover any amounts in connection with any action or claim based upon fraud in connection with the transactions contemplated hereby . . .[23]

         D. Plaintiff Discovers Fraudulent Misrepresentations in EMSI's Financial Statements and Related SPA Reps and Warranties After Closing

         EMSI's financial performance dramatically declined after the close of the Acquisition, in contrast to the bright future for the Company the Defendants had forecast throughout the sales process.[24] This prompted Plaintiff to conduct a forensic investigation which revealed "a Company that was ready to implode because of months of financial manipulation, acceleration of revenue, and recognition of sham revenue and earnings."[25] Plaintiff alleges specifically that the financial fraud was implemented through manipulation of the Company's work in progress ("WIP") model by inflating volume and prices, accelerating revenue recognition for projects the Company was not yet working on, overstating assumptions about what percentage of contracts would be completed and falsifying its progress on ongoing projects.

         As alleged in the Complaint, the Company's employees knowingly engaged in the scheme to manipulate the WIP in the ramp up to sell the Company. In June 2015, the Controller, the Executive Vice President of the Healthcare Division and the Division Controller for the Healthcare Division emailed EMSI employees about millions of dollars in WIP revenue that needed to be written off the financial statements. As instructed, EMSI employees thereafter created a new version of the Company's financials that wrote off substantial WIP. During the diligence process, however, EMSI accounting and operations employees reinstated this revenue on the books without explanation or disclosure to the Buyer. EMSI's Division Controller for the Healthcare Division was repeatedly told by the Executive Vice President of the Healthcare Division manually to override parts of the WIP model so that revenue recognition would be accelerated. When she expressed her unease with these practices, the Division Controller was told that this direction was coming from "management."[26] EMSI employees also created a fake data file in June 2015 to recognize revenue on a project that had not yet been approved by the client.

         This was part of a greater pattern where, from June 2015 until the closing, EMSI employees would routinely recognize revenue on projects that the employees knew were not approved by clients. EMSI's Executive Vice President of the Healthcare Division and the Division Controller also systematically increased completion percentages in the WIP model in August 2015 to inflate revenue and accounts receivable. When the Division Controller again expressed her view that the changes were "arbitrary and indefensible, " the CFO responded that the changes were directed by management and would remain intact.[27] The Executive Vice President of the Healthcare Division was also alerted that the same project was included twice in EMSI's financial records in October 2015, leading to the recognition of over $500, 000 in extra revenue, and yet he chose to do nothing to fix the error.

         E. The Parties Engage an Independent Auditor to Make a Net Working Capital Adjustment

         After discovering the fraud and realizing that it had received substantially less than the $41 million in working capital it had bargained for, Plaintiff promptly initiated the so-called "net working capital adjustment process" that was laid out in Article II of the SPA. In that process, Defendants conceded that EMSI's net working capital was overstated by over $4 million in the interim financial statements and returned those funds to Plaintiff, but disputed Plaintiff's contention that another $5.8 million in accounts receivable identified in the Company's financial statements could not be justified under GAAP. To resolve that dispute, as mandated by the SPA, Plaintiff initiated a formal dispute resolution process with an auditor (the "Settlement Auditor") to determine the appropriate GAAP accounting. The Settlement Auditor agreed with Plaintiff and concluded that EMSI's financial statements overstated its accounts receivable by the $5.8 million claimed by Plaintiff in addition to the $4 million net capital overage that Defendants had conceded.

         The aggregate purchase price adjustments made pursuant to the SPA totaled $9, 894, 520 (the voluntary adjustment of $4, 085, 379, plus the Settlement Auditor determination of $5, 809, 150), which exceeds the $9, 562, 500 placed in escrow. The Escrow Funds are gone.[28] Consequently, it is not disputed that if Plaintiff's claims in this action are subject to the contractual limitations set forth in the SPA, which would cap Plaintiff's recovery at the available Escrow Funds, then, as a practical matter, the claim is not viable.

         F. Procedural History

         Plaintiff initiated this action to recover the shortfall in its recovery of the Settlement Auditor's net working capital determination by having this Court "confirm" the findings as an award under the Delaware Arbitration Act and also to "recover the inflated price it paid as a result of the Company's fraud" through the indemnification provisions in the SPA.[29] Defendants promptly moved to dismiss the Complaint arguing that Plaintiff's recovery under the SPA was limited to the now-depleted Escrow Funds and that the Settlement Auditor's findings did not constitute a binding award that can be converted to a confirmed judgment under Delaware law.

         II. ANALYSIS

         A. Motion to Dismiss Standard

         In considering this motion to dismiss for failure to state a claim under Rule 12(b)(6), the standard is well settled:

(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.'[30]

         Questions involving contract interpretation can be answered on a motion to dismiss "[w]hen the language of a contract is plain and unambiguous."[31] But dismissal of a contract dispute under Rule 12(b)(6) is proper "only if the defendants' interpretation is the only reasonable construction as a matter of law."[32] If the Plaintiff has offered a reasonable construction of the contract, and that construction supports the claims asserted in the complaint, then the Court must deny the motion to dismiss even if the defendant's construction is also reasonable.[33]

         B. Plaintiff has Adequately Pled an Indemnification Claim Based on Fraud that Is Not Capped by the Escrow Funds

         Defendants offer two grounds upon which the Court must dismiss Plaintiff's indemnification claim. First, they argue that the claim is subject to the limitation within the SPA that would cap any recovery at the amount of available Escrow Funds, which both sides acknowledge are now depleted. According to Defendants, Plaintiff's contrary construction of the SPA, which would allow any claim "based upon fraud" to proceed against the Sellers without regard to the contractual limits on recovery, cannot be squared with the clear and unambiguous language of the SPA. Second, Defendants maintain that even if Plaintiff's interpretation of the SPA is reasonable, the Complaint fails to plead fraud with particularity as required by Court of Chancery Rule 9(b). For reasons explained below, at this pleadings stage, neither ground is persuasive.

         1. Abry Partners V, L.P. v. F&W Acquisition LLC and its Implications Here

         Before I turn to the specifics of this case, it is appropriate to dilate for a moment on this court's seminal opinion in Abry Partners V, L.P. v. F&W Acquisition LLC, which Defendants claim served as a road map for the provisions they bargained for in the SPA.[34] In Abry, a private equity firm purchased the shares of a publishing company from another private equity seller and thereafter sought rescission of the stock purchase agreement due to alleged fraud on the part of the company and the seller.[35] This scenario served as a platform for the court to consider the state of the law in Delaware with respect to freedom of contract, risk allocation in transactions between sophisticated parties and the consequences of fraud in the sales process. Defendants are correct that these issues are front and center in this case.

         The contract at issue in Abry contained a broad non-reliance clause. Having agreed to this provision, the court was not tolerant of the buyer's claim that the seller had made false, extra-contractual promises upon which the buyer relied when it agreed to close the transaction.[36] Under such circumstances, to allow the buyer to pursue a fraud claim based on extra-contractual representations would be tantamount to condoning the buyer's fraud in representing in the contract that it had not relied upon any representations beyond those that appeared in the agreement.[37]

         In addition to alleging extra-contractual fraud, the buyer in Abry also alleged that the seller and the company intentionally misrepresented facts in the contract. This contractual fraud, the buyer alleged, allowed it avoid the limitations in the agreement that precluded the buyer from pursuing rescission for breach of representations and warranties and capped damages for indemnification at $20 million, the amount placed in escrow to cover any post-closing claims of the buyer.[38]The seller disagreed and argued that the parties had agreed that the seller's risk for indemnification would be capped in all instances at the amount the seller had bargained for--$20 million.[39]

         After balancing Delaware's strong contractarian preferences against the well-settled public policy of this State that abhors fraud, the court concluded that, "to the extent that the Stock Purchase Agreement purports to limit the Seller's exposure for its own conscious participation of lies to the Buyer, "[40] the provision was void as a matter of law. Accordingly, the court declined to dismiss the buyer's claim of contractual fraud against the seller. But the court made clear that the claim survived because the buyer had pled facts that allowed a reasonable inference either that the seller knew that the representations and warranties made by the company were false or that the seller itself had made fraudulent representations and warranties.[41] In this regard, the court emphasized that the buyer could avoid the bargained-for limits on its remedies only if it could prove that the seller acted with an "illicit state of mind";[42]otherwise, if the buyer's proof revealed only that the company had misrepresented facts without the seller's knowledge of the falsity, then the buyer would be limited to the bargained-for indemnity claim and its associated limitations.[43]

         2. The Parties Have Offered Reasonable Competing Interpretations of the SPA

         Abry provides a solid analytical framework within which to analyze the arguments of buyers and sellers who seek to exploit the risk allocation provisions of their transactional agreements, bargained-for on a clear day but deployed in the midst of post-closing controversy. As our courts have recognized, "[d]eal-related indemnification provisions address 'post-closing risk allocation.'"[44] They serve the laudable purpose of "mak[ing] the contractual structure feasible or more attractive to the participants."[45] Parties can shift risks of loss in their indemnification schemes as is appropriate and necessary to get the deal done, and can disclaim certain claims and remedies as well.[46] But "Delaware's strong public policy ...


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