Jeff Gower v. Trux, Inc.

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
PAUL A. FIORAVANTI, JR. LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734

June 17, 2026

Seth A. Niederman, Esquire Kevin J. Mangan, Esquire
Fox Rothschild LLP Zachary Murphy, Esquire
1201 N. Market Street, Suite 1200 Womble Bond Dickinson (US) LLP
Wilmington, DE 19801 1313 N. Market Street, Suite 1200
Wilmington, DE 19801
Richard M. Beck, Esquire
Sally E. Veghte, Esquire
Caixia Su, Esquire
Klehr Harrison Harvey Branzburg LLP
919 N. Market Street, Suite 1000
Wilmington, DE 19801

RE: Gower v. Trux, Inc. et al.,
C.A. No. 2020-0996-PAF
Dear Counsel:

This letter decision resolves the pending cross-motions for summary judgment

of defendants Trux, Inc. (“Trux” or the “Company”) and Viking Venture Partners,

LLC (“Viking”), and intervenor Richard Saccone.1

1
Citations to the docket in this action are in the form of “Dkt. [#].” Because multiple
parties in this case share the surname “Saccone,” this letter decision refers to them by their
first names after initially identifying each individual by their full names. No familiarity or
disrespect is intended. Unless otherwise defined herein, exhibits submitted with Richard
Saccone’s Affidavit in Support of His Motion for Summary Judgment (Dkt. 172) are cited
as “Ex. __,” and citations to the paragraphs within his affidavit are cited as “Richard’s Aff.
¶ __.” Richard Saccone’s Amended Cross-Claims in Intervention is cited as “Cross-
Gower v. Trux, Inc. et al.,
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I. BACKGROUND

In April 2020, Viking acquired a majority of the outstanding stock of Trux

from Michael Saccone, Sr., Michael Saccone, Jr., Michael Whouley (collectively,

the “Selling Stockholders”), and Richard (the “Transaction”). Shortly thereafter,

another Trux stockholder, Jeffrey Gower, initiated this action with a complaint

alleging that Trux, Viking, and the Selling Stockholders breached a right of first

refusal and co-sale agreement governing transfers of Trux stock (the “ROFR

Agreement”).2 In June 2021, Richard intervened in the action and filed a

counterclaim seeking a declaratory judgment that the Transaction was void under

the express terms of the ROFR Agreement.3

In March 2023, the court entered a stipulated order of dismissal with prejudice

as to Gower’s claims.4 Even though Richard stipulated to that dismissal, in October

2023 he filed an amended answer and cross-claims for declaratory judgment and

Claims ¶ __,” and Richard Saccone’s Amended Answer is cited as “Richard’s Answer
¶ __.” Dkt. 143. Unless otherwise indicated, citations to the parties’ briefs are to summary
judgment briefs.
2
Dkt. 1; Ex. 2 (hereinafter the “ROFR Agreement”). The ROFR Agreement is governed
by Delaware law. Id. § 6.11.
3
Dkts. 31, 34, 39.
4
Dkt. 126.
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breach of contract (the “Cross-Claims”).5 Viking and Trux have each moved for

summary judgment, arguing that the ROFR Agreement was not breached and that,

even if it had been breached, Richard released his claims when he executed the stock

purchase agreement documenting his sale of Trux stock to Viking.6

A. The Parties

Trux is a privately held Delaware corporation that offers technology designed

to facilitate trucking services in the construction industry.7 Trux is authorized to

issue Common and Preferred Stock.8 At the time of the challenged transaction, there

was Common Stock and Series A Preferred Stock issued and outstanding.

Richard founded Trux in 2015 and served as its president, chief executive

officer, and a member of its board of directors (the “Board”) until early 2018.9

Richard owned approximately 18.55% of Trux’s then-outstanding stock on a fully

diluted basis prior to the Transaction. 10

5
Dkts. 143, 172.
6
Dkts. 206–10.
7
Dkt. 159 (“Trux’s Answer”) ¶¶ 11, 14.
8
See Ex. 1 (hereinafter the “Amended Certificate”) at 1–2.
9
Cross-Claims ¶ 9; Richard’s Aff. ¶¶ 2, 6; Trux’s Answer ¶ 9.
10
Cross-Claims ¶ 15; Dkt. 158 (“Viking’s Answer”) ¶ 15.
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Viking is a Delaware limited liability company and a wholly owned subsidiary

of Vulcan Materials Company, LLC, one of Trux’s largest customers.11 Viking

owned approximately 28.7% of Trux’s outstanding stock on a fully diluted basis

prior to the Transaction.12

The Selling Stockholders collectively owned approximately 33% of Trux’s

outstanding stock on a fully diluted basis prior to selling their shares to Viking in the

Transaction.13

B. The 2018 Viking Investment and Governing Documents

In April 2018, Viking acquired 5,338,420 shares of Series A Preferred Stock,

representing approximately 20% of Trux’s outstanding stock on an as-converted

basis.14 Concurrent with that transaction, Trux adopted the Amended and Restated

Certificate of Incorporation (the “Amended Certificate”), and Trux, its stockholders,

including Viking and Richard, entered into the ROFR Agreement.15

11
Richard’s Answer ¶ 10; Cross-Claims ¶ 10; see Viking’s Answer ¶ 10.
12
Viking’s Answer ¶ 16; Trux’s Answer ¶ 16.
13
See Richard’s Answer ¶¶ 11–13.
14
Richard’s Aff. ¶ 5; Viking’s Answer ¶ 17; Trux’s Answer ¶ 17. As part of the 2018
transaction, Richard sold 2,323,521 shares of common stock to Viking and agreed to resign
as a director and, later, as president. Richard’s Aff. ¶ 5; Viking’s Answer ¶ 18.
15
Amended Certificate at 1; see Richard’s Aff. ¶ 7; Trux’s Answer ¶¶ 19, 22; Viking’s
Answer ¶¶ 19, 22.
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The Amended Certificate defines certain events that constitute a “Deemed

Liquidation Event,” including “the sale, transfer or other disposition, in a single

transaction or series of related transactions, by the stockholders of the [Company] of

a majority of the outstanding shares of capital stock of the [Company] (determined

on an as-converted Common Stock basis).” 16 This provision features prominently

in the Cross-Claims and the parties’ cross-motions for summary judgment.

C. The ROFR Agreement

The ROFR Agreement governs three subjects that are pertinent here: how

Trux stockholders may transfer shares, the circumstances under which rights of first

refusal and co-sale apply, and the transfers that are exempt from those procedures.

The ROFR Agreement distinguishes between “Investors” and “Stockholders.”17

Viking is identified as one of four Investors and is defined individually as the

“Viking Investor,”18 possessing distinct priority rights. Viking also held Capital

Stock and therefore came within the agreement’s definition of “Stockholder.”

16
Amended Certificate § 2.3.1(c).
17
ROFR Agreement § 1.11 (defining “Investors” as “the persons named on Schedule A [of
the ROFR Agreement]”); id. § 1.23 (defining “Stockholder” as “any holder of Capital
Stock of the Company”). The definition of “Capital Stock” includes all Common Stock
and Series A Preferred Stock, plus any Common Stock issuable upon conversion of the
Series A or other convertible securities. Id. § 1.3.
18
Id. Sched. A & § 1.28.
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Richard, the Selling Stockholders, and Gower are also among those identified as

Stockholders. 19

1. The ordinary transfer process

Sections 2.1 through 2.3 establish the ordinary process for a Stockholder-

initiated transfer of Trux stock. Section 2.1(b) applies when a Stockholder proposes

to make a “Proposed Transfer.” It requires the proposing Stockholder to deliver a

Proposed Transfer Notice to the Company, Viking, the other Investors, and each

Closing Stockholder at least 60 days before the Proposed Transfer.20 The Selling

Stockholders, Richard, and Gower qualified as Closing Stockholders. 21

A “Proposed Transfer” is defined as any “assignment, sale, offer to sell,

pledge, mortgage, hypothecation, encumbrance, disposition of or any other like

transfer or encumbering of any Transfer Stock (or any interest therein) proposed by

any Stockholder.”22 Transfer Stock encompasses both Common Stock and Series A

Preferred Stock. 23 The Proposed Transfer Notice “shall contain the material terms

19
Id. Sched. B.
20
Id. § 2.1(b).
21
Id. § 1.4 (defining “Closing Stockholders” as the “holders of Common Stock as of
[April 6, 2018]”); id. Sched. B (identifying the Selling Stockholders, Richard, and Gower
as Stockholders as of April 6, 2018).
22
Id. § 1.12.
23
Id. §§ 1.3, 1.26.
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and conditions (including price and form of consideration) of the Proposed Transfer,

the identity of the Prospective Transferee, and the intended date of the Proposed

Transfer.”24

Once a Proposed Transfer Notice is delivered, the shares proceed through a

waterfall of first-refusal rights. Under Section 2.1(a), Viking has a priority right to

purchase the shares proposed to be transferred on the same terms offered to the

Prospective Transferee, subject to a 49% aggregate ownership cap (the “Viking

Ownership Threshold”). 25 If any shares remain unpurchased after Viking exercises

or declines that right, the other Investors have the next right of refusal. 26 If shares

still remain, the Closing Stockholders have a further right of refusal.27 If any shares

remain unpurchased after those rights are exercised or waived, the Company may

repurchase any of the offered shares.28 If the Company does not purchase all

24
Id. § 2.1(b). “Prospective Transferee” is defined as “any person to whom a Stockholder
proposes to make a Proposed Transfer.” Id. § 1.14.
25
Id. § 2.1(a). The ownership threshold, defined as the “Viking Investor Ownership
Threshold,” conditioned Viking’s exercise of its priority refusal right on Viking’s post-
exercise ownership not exceeding 49% of the Company on a fully diluted, as-converted
basis. Id. §§ 1.29, 2.1(a). As discussed below, the ROFR Agreement was amended to
remove the Viking Ownership Threshold in connection with the Transaction.
26
Id. § 2.2(a).
27
Id. § 2.2(c).
28
Id. § 2.2(d).
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remaining shares, Investors and Closing Stockholders that already exercised their

rights of refusal may purchase any remaining shares on offer. 29

Section 2.3 provides co-sale rights if, after completion of the right-of-first-

refusal process, shares remain available for sale to the Prospective Transferee. In

that circumstance, each Investor and Closing Stockholder may elect to participate in

the sale by selling a pro rata portion of its own shares to the Prospective Transferee

on the same terms and conditions as the original selling Stockholder. 30 The number

of shares the original selling Stockholder may sell is reduced on a one-for-one basis

for each share sold by the co-sale participants.31 In the event that co-sale rights are

exercised, Section 2.3(d) prescribes the allocation of consideration.32

2. The effect of noncompliance

Section 2.4 addresses the consequences of noncompliance with the ROFR

Agreement’s requirements that govern Proposed Transfers. This provision is the

linchpin of Richard’s Cross-Claims. A noncompliant Proposed Transfer is void and

authorizes non-breaching parties to seek relief. Specifically, Section 2.4(a) states:

29
Id. § 2.2(e).
30
Id. § 2.3(a).
31
Id. § 2.3(b).
32
See id. § 2.3(d)(i)–(ii).
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Any Proposed Transfer not made in compliance with the requirements
of this Agreement shall be null and void ab initio, shall not be recorded
on the books of the Company or its transfer agent and shall not be
recognized by the Company. Each party hereto acknowledges and
agrees that any breach of this Agreement would result in substantial
harm to the other parties hereto for which monetary damages alone
could not adequately compensate. Therefore, the parties hereto
unconditionally and irrevocably agree that any non-breaching party
hereto shall be entitled to seek protective orders, injunctive relief and
other remedies available at law or in equity (including, without
limitation, seeking specific performance or the rescission of purchases,
sales and other transfers of Transfer Stock not made in strict
compliance with this Agreement). 33

3. Viking’s protective rights in a potential Deemed Liquidation
Event

Section 2.5 gives Viking protective rights in connection with a potential

Deemed Liquidation Event. Those rights are triggered if “the Company desires to

explore a potential Deemed Liquidation Event,” or if the Company or a Stockholder

“receives an unsolicited offer or indication of interest for a Deemed Liquidation

Event.”34 In either scenario, the Company or Stockholder “shall promptly notify”

Viking by providing a “Potential Sale Notice.” 35

After receiving a Potential Sale Notice, Viking may elect to pursue a purchase

of the Company or its assets. If Viking wishes to do so, it must deliver a

33
Id. § 2.4 (emphasis added).
34
Id. § 2.5(a).
35
Id.
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“Negotiation Notice” to the Company within ten business days after receiving the

Potential Sale Notice. 36 The Negotiation Notice triggers an Exclusive Negotiation

Period requiring the Company and Viking to negotiate in good faith for at least 60

days regarding a potential purchase by Viking at a commercially reasonable

purchase price and on other commercially reasonable terms. 37 During that Exclusive

Negotiation Period, the Company may not solicit, entertain, discuss, negotiate, or

consummate any Deemed Liquidation Event or sell equity interests or other rights

in the Company to a third party. 38 If Viking exercises its negotiation right, and the

Company and Viking cannot agree on a “purchase price within the first seven days,”

they “shall obtain a third party valuation of the Company.” 39

Section 2.5 also provides Viking with matching rights if Viking does not

exercise its initial negotiation rights and the Company later reaches terms with a

third party for a potential Deemed Liquidation Event.40 In that circumstance, the

Company must provide Viking with a second notice, and Viking has 30 days to

36
Id.
37
Id.
38
Id.
39
Id. § 2.5(b).
40
Id. § 2.5(c).
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acquire the Company on the same terms and conditions as the third-party offer.41

That matching right generally terminates after three years, but extends for an

additional two years if the proposed third-party buyer is one of the Viking

competitors listed in Section 1.22 of the ROFR Agreement. 42

4. Exempted Transfers and Offerings

Section 3 is titled “Exempt Transfers.” Section 3.2 identifies two “Exempted

Offerings.” In full, Section 3.2 states:

Notwithstanding the foregoing or anything to the contrary herein, the
provisions of Section 2 shall not apply to the sale of any Transfer Stock
(a) to the public in an offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended (a “Public
Offering”); or (b) pursuant to a Deemed Liquidation Event (as defined
in the [Amended] Certificate).43

D. Viking’s 2020 Purchase of Trux’s Outstanding Stock

Between February 26 and March 14, 2020, Viking delivered three proposals

to Trux offering to purchase “all the outstanding shares [] of [Trux] capital stock

41
Id.
42
Id. §§ 1.22, 2.5(c)–(d). Viking’s rights under Subsection 2.5 terminate “in the event a
Deemed Liquidation Event occurs with respect to the Viking Investor.” Id. § 2.5(f).
43
Id. § 3.2 (emphasis added). The ROFR Agreement “shall automatically terminate upon
. . . the consummation of a Deemed Liquidation Event.” Id. § 6.1(b).
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held by all shareholders.” 44 The Trux Board rejected the first proposal,45 but

accepted the latter two proposals, delivered on March 12 and 14. The Board asked

stockholders to approve those proposals via written consents. 46 Both written

consents stated that the transaction would constitute a Deemed Liquidation Event

under the Amended Certificate. 47 The Selling Stockholders initially consented to

the March 14 proposal. 48 Richard did not execute either written consent.49

On March 27, Trux sent Richard a revised proposal it had received from

Viking to purchase Trux’s outstanding shares of capital stock. 50 The March 27

44
Exs. 3, 4, 6.
45
Trux’s Answer ¶ 36; Viking’s Answer ¶ 36.
46
Exs. 5 & 7; Richard’s Aff. ¶¶ 10, 12; Cross-Claims ¶¶ 39–40, 44–45.
47
Ex. 5 at 3 ¶ 3 (“The Transaction would constitute a Deemed Liquidation Event (as
defined in the [Amended Certificate]).”); Ex. 7 at 4 ¶ 3 (same).
48
See Ex. 7 at 2.
49
Cross-Claims ¶¶ 41, 46; Viking’s Answer ¶¶ 41, 46.
50
Ex. 8. With the revised proposal, Trux sent Richard a revised written consent (the “Third
Written Consent”). Ex. 9. The Third Written Consent purported to authorize and ratify
actions of the Company’s officers and directors concerning the March 27 proposal and
indicated that certain stockholders who had previously accepted the terms of the March 14
term sheet “hereby rescind their approval, if any, of the [p]rior [t]erm [s]heet.” Id. at 1–2.
The Third Written Consent did not indicate whether the proposed sales to Viking would
constitute a Deemed Liquidation Event, but it did state that “Viking would acquire the
issued and outstanding shares of the Company’s capital stock.” Id. at 1. In his Cross-
Claims, Richard alleges the Third Written Consent is invalid because the individual
consents were not individually dated, and he was not provided prompt notice of action by
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proposal provided stockholders with two options. Option A offered $1.18 per

share—$0.52 at closing and a deferred payment of the balance within 15 months at

Viking’s discretion; Option B offered $0.92 per share at closing. 51 The

accompanying term sheet stated that “Viking is prepared to purchase the Company”

and that the “transaction will be structured as a purchase by Viking of the

outstanding shares of capital stock.”52 The revised written consent sent with the

proposal—the Third Written Consent—also stated that “Viking would acquire the

issued and outstanding shares of the Company’s capital stock.” 53 The Selling

Stockholders and Richard accepted the March 27 proposal.54

written consent. See Cross-Claims ¶ 87 (citing 8 Del. C. § 228(c), (e)). There are no
allegations that stockholders possessing a majority of the Company’s voting power
executed the consent or that it was necessary to effectuate the Transaction. Richard does
not allege to have executed the Third Written Consent. In any event, Richard did not brief
these issues. Consequently, they are waived. See Emerald P’rs v. Berlin, 726 A.2d 1215,
1224 (Del. 1999) (“Issues not briefed are deemed waived.”); In re Tesla Motors, Inc.
S’holder Litig., 2018 WL 1560293, at *20 (Del. Ch. Mar. 28, 2018) (“Issues not properly
briefed are deemed waived.”).
51
Ex. 8 at 2.
52
Id.
53
Ex. 9 at 1.
Richard’s Aff. ¶ 16; Cross-Claims ¶ 48; see Viking’s Answer ¶ 48; see also Richard’s
54

Opening Br. 10.
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1. The ROFR Amendment

On March 31, the Selling Stockholders, together with Trux and Viking,

executed an amendment to the ROFR Agreement in connection with Viking’s

March 27 offer (the “ROFR Amendment”). 55 The ROFR Amendment removed the

Viking Ownership Threshold in Section 2.1(a), but left Viking’s priority right of first

refusal unchanged.56 It also waived the procedures governing the Investors’ ability

to exercise their rights of first refusal under Section 2.2(b). 57 Important here, the

ROFR Amendment waived the Closing Stockholders’ (including Richard’s) rights

of refusal and repurchase under Section 2.2(c), the Company’s repurchase right

55
Ex. 10; Richard’s Aff. ¶ 17; Cross-Claims ¶ 88; see also Richard’s Opening Br. 11–12.
The ROFR Agreement may be amended or waived through a written instrument executed
by the Company, Viking, and holders of a majority of the Company’s Capital Stock, which
is binding on all Stockholders. ROFR Agreement § 6.8. The Board approved the ROFR
Amendment by unanimous written consent on April 1. Ex. 12. Richard has not challenged
the ROFR Amendment.
56
Compare ROFR Agreement §§ 1.29, 2.1(a), with Ex. 10 ¶¶ 1–2.
57
Ex. 10 ¶ 2; see ROFR Agreement § 2.2(b) (“To exercise its, his or her Right of First
Refusal, an Investor must deliver an Investor Notice to the selling Stockholder, the other
Closing Stockholders and the Company within fifteen (15) days after delivery of the
Proposed Transfer Notice specifying the number of shares of Remaining Transfer Stock to
be purchased by the Company.”) (emphasis added).
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under Section 2.2(d), and the residual purchase rights under Section 2.2(e), as well

as the closing mechanics in Section 2.2(f).58

2. The Stock Purchase Agreements

On April 1, the Selling Stockholders each executed stock purchase agreements

to sell their shares to Viking. 59 On April 7, Richard executed his stock purchase

agreement (the “Stock Purchase Agreement”), accepting Option A, which provided

for payment of $5,843,180.64 for his shares. 60 The Stock Purchase Agreement is

governed by Delaware law.61 Collectively, the Transaction resulted in stockholders

selling over 53% of Trux stock to Viking, increasing Viking’s ownership to over

80%.62

The stock purchase agreements contained mutual releases. Pertinent here,

Richard released Trux and Viking from all claims “based on acts, events or

omissions occurring on or prior to [the Stock Purchase] Agreement and relating to

[Richard’s] ownership of [Trux shares] or the services by [Richard]. . . as a director,

58
Ex. 10 ¶ 3.
59
Richard’s Aff. ¶ 18.
60
Ex. 13; Richard’s Aff. ¶ 20. Unlike the Selling Stockholders and Richard, Gower did
not execute a similar agreement.
61
Ex. 13 § 8.
62
Richard’s Aff. ¶ 20; Ex. 11 at 2; Cross-Claims ¶¶ 11, 73; see Viking’s Answer ¶ 73;
Trux’s Answer ¶ 73.
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officer, employee . . . or board observer of [Trux]” (the “Seller’s Release”). 63 In

return, Viking and Trux released Richard from all claims “relating to [Richard’s]

ownership of the [s]hares or the services . . . as a director, officer, employee . . . of

[Trux].” 64 The Stock Purchase Agreement also contains a severability provision.65

II. ANALYSIS

Richard seeks an order declaring that: (1) his and the Selling Stockholders’

sales of their Trux shares to Viking are void for failure to comply with the strict

terms of the ROFR Agreement; (2) he and all Trux stockholders who agreed to sell

their shares to Viking are restored to their prior ownership positions; and (3) all stock

transactions post-dating the breaches of the ROFR Agreement are void and must be

rescinded.66 Viking and Trux seek summary judgment on the grounds that they did

63
Ex. 13 § 10.
64
Id. § 11.
65
Id. § 15 (“Should any part of this Agreement . . . be declared invalid, illegal, or incapable
of being enforced in whole or in part, such decision shall not affect the validity of any
remaining portion, which . . . shall remain in full force and effect as if this Agreement had
been executed with the invalid portion [] eliminated.”).
66
Cross-Claims ¶¶ 8, 99–100. On August 28, 2024, Richard filed another action in this
court, Saccone v. Charnley, C.A. No. 2024-0901-PAF (Del. Ch.). The Charnley action
alleges that Viking and Charnley breached the ROFR Agreement when Viking acquired
Charnley’s stock in Trux in July 2024. That action has been stayed pending resolution of
this action.
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not breach the ROFR Agreement and that Richard released his claims when he

executed the Stock Purchase Agreement that contained the Seller’s Release.

A. Standard of Review

Summary judgment may be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Ct. Ch. R. 56(a).67 Where, as here, the motions involve “[p]urely

matters of contractual interpretation,” they are “readily amenable to summary

judgment.” LaPoint v. AmerisourceBergen Corp., 2007 WL 1309398, at *3 (Del.

Ch. May 1, 2007), aff’d, 956 A.2d 642 (Del. 2008) (TABLE).

B. The Transaction Is Not Void Under the ROFR Agreement.

Richard’s declaratory judgment claim is premised upon a breach of the ROFR

Agreement. Richard alleges that the Transaction constituted a Deemed Liquidation

Event, and Viking and Trux failed to comply with the notice and negotiation

procedures under Section 2.5 of the ROFR Agreement. Richard also alleges that

Viking breached Section 2.1(b) of the ROFR Agreement by failing to provide him

with written notice of the terms and conditions of the Transaction within 60 days

67
Effective June 1, 2026, Court of Chancery Rule 56 was amended. See In re Amendments
to Rules 46, 54–65.1, 67, 69–72, 77–78, 81–83, 85–88, and 100 of the Court of Chancery
Rules, Titles VI–XII (Del. Ch. May 18, 2026) (ORDER).
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prior to the consummation of the Transaction. He contends that noncompliance with

the terms of the ROFR Agreement renders the Transaction void ab initio under

Section 2.4(a). 68

Viking and Trux argue that Richard’s motion must be denied, and that

summary judgment should be granted in their favor because the Transaction was a

Deemed Liquidation Event initiated by Viking, to which the notice requirements

delineated in Section 2.1(b) and Section 2.5 are inapplicable. They also argue that

Richard released his claims when he executed the Stock Purchase Agreement.

To resolve the competing motions, the court must construe contracts governed

by Delaware law. The court construes the contract language from the perspective of

“an objective, reasonable third party.” Osborn ex rel. Osborn v. Kemp, 991 A.2d

1153, 1159 (Del. 2010). The court will “read the agreement as a whole and enforce

the plain meaning of clear and unambiguous language.” Manti Hldgs., LLC v.

Authentix Acq. Co., Inc., 261 A.3d 1199, 1208 (Del. 2021).

The court “must read the specific provisions of the contract in light of the

entire contract.” Chi. Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166

A.3d 912, 913–14 (Del. 2017); accord Johnson & Johnson v. Fortis Advisors LLC,

68
Cross-Claims ¶¶ 6, 60, 79; Richard’s Opening Br. 30–31.
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352 A.3d 229, 265–66 (Del. 2026). “The meaning inferred from a particular

provision cannot control the meaning of the entire agreement if such an inference

conflicts with the agreement’s overall scheme or plan.” GMG Cap. Invs., LLC v.

Athenian Venture P’rs I, L.P., 36 A.3d 776, 779 (Del. 2012). “Courts should also

assure that all contract provisions are harmonized and given effect where possible.”

Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC, 284

A.3d 714, 721 (Del. 2022) (citation modified). A reading of an agreement must be

reasonable when the contract is “read in full and situated in the commercial context

between the parties.” Chi. Bridge, 166 A.3d at 926–27. But “the background facts

cannot be used to alter the language chosen by the parties within the four corners of

their agreement.” Town of Cheswold v. Cent. Del. Bus. Park, 188 A.3d 810, 820

(Del. 2018).

Richard’s Cross-Claims rise or fall on the applicability of Section 2.4. Under

Section 2.4(a), a Proposed Transfer that is “not made in compliance with the

requirements of [the ROFR] Agreement shall be null and void ab initio.”69

According to Richard, his transfers of stock to Viking and those of the Selling

Stockholders are void. As a consequence, he argues that the Seller’s Release in his

69
ROFR Agreement § 2.4(a).
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June 17, 2026
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Stock Purchase Agreement is unenforceable, and all equitable defenses are

inapplicable. 70 Richard goes so far as to contend that he could invoke his own breach

of the ROFR Agreement—several years after the Transaction—as a basis to void his

sale to Viking along with those of the other Selling Stockholders. 71

Richard’s Cross-Claims fail as a matter of law. First, the Transaction was a

series of sales of Transfer Stock pursuant to a Deemed Liquidation Event. Under

Section 3.2 of the ROFR Agreement, “the provisions of Section 2 shall not apply to

the sale of any Transfer Stock . . . pursuant to a Deemed Liquidation Event.”72

Because Richard’s voidness theory relies on the application of Section 2.4(a),

Section 3.2 forecloses his claim. Second, even if Section 3.2 did not foreclose

70
See Richard’s Opening Br. 30–31 (“Equity may neither intervene nor equitable defenses
prevail where a contract is void ab initio.” (citing CompoSecure, L.L.C. v. CardUX, LLC,
206 A.3d 807, 817 (Del. 2018); XRI Inv. Hldgs. LLC v. Holifield, 283 A.3d 581, 592 (Del.
Ch. 2022), aff’d in part, rev’d in part, 304 A.3d 896 (Del. 2023); Absalom Absalom Tr. v.
St. Gervais LLC, 2019 WL 2655787, at *4 (Del. Ch. June 27, 2019); Klaassen v. Allegro
Dev. Corp., 106 A.3d 1035, 1046 (Del. 2014)).
71
Richard insists he did not breach the ROFR Agreement and was under no obligation to
provide notice pursuant to Section 2.1(b). See Dkt. 253 (“Richard’s Supp. Br.”) 7–8;
Richard’s Reply Br. 11. Yet he argues that, if Section 2.1(b) required him to provide notice,
his failure to do so also voids the Transaction. See Richard’s Opening Br. 15–19; Richard’s
Reply Br. 11. He further argues that claims seeking declaratory relief—including his
challenge to the transfers—are categorically not subject to release or settlement. Richard’s
Supp. Br. 7–9; Dkt. 257 (“Second Oral Arg. Tr.”) at 26–27 (arguing that declaratory
judgment actions cannot be waived or subject to release).
72
ROFR Agreement § 3.2.
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June 17, 2026
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Richard’s theory, the Defendants did not breach Section 2.5 or Section 2.1(b). Third,

and finally, Richard released his claims when he executed the Stock Purchase

Agreement.

1. The Transaction constituted a Deemed Liquidation Event.

Section 3.2 renders Section 2 inapplicable to any sale of Transfer Stock

pursuant to a Deemed Liquidation Event. Richard has maintained throughout this

litigation that Viking’s acquisition of Trux stock in the Transaction constituted a

Deemed Liquidation Event under the ROFR Agreement and the Amended

Certificate. For example, in his verified Cross-Claims, Richard alleged that

“Viking’s proposal to purchase all outstanding shares of Trux in a series of related

transactions constituted a Deemed Liquidation Event.”73 This is just one of several

similar unequivocal allegations. 74 Richard took the same position in his opening

73
Cross-Claims ¶ 4.
74
See, e.g., id. ¶ 50 (“Viking’s March 27 Proposal to purchase all the outstanding shares
of Trux (and subsequent offers) constituted a[] . . . Deemed Liquidation Event” and
“triggered the Deemed Liquidation Event provisions of the Company’s ROFR
Agreement.”); id. ¶ 73 (alleging that Viking’s March 27 proposal constituted a Deemed
Liquidation Event); id. ¶ 75 (“[T]he Proposed Transfers described above constituted a
Deemed Liquidation Event” and “[a]s a Deemed Liquidation Event, these obligations fell
squarely on Trux and Viking”); id. ¶ 90 (“Trux and Viking were aware that the series of
transactions were a Deemed Liquidation Event and the ROFR Agreement’s requirements
had been violated.”). This has been Richard’s position since he filed his original cross-
claims. See Dkt. 95 ¶¶ 4, 33, 38.
Gower v. Trux, Inc. et al.,
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June 17, 2026
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brief and at oral argument. 75 The Company agreed with Richard that “there’s no

question” the Transaction was a Deemed Liquidation Event “based upon the

definition of that term” in the Amended Certificate. 76

When confronted with Section 3.2, Richard reversed course. In his reply brief,

he argued for the first time that the Transaction did not constitute a Deemed

Liquidation Event.77 Richard now contends that his sale to Viking and the sales of

the Selling Stockholders were not “pursuant to” a Deemed Liquidation Event.78

75
See, e.g., Richard’s Opening Br. 21 (“The Transaction was a Deemed Liquidation Event
because Viking acquired ownership of Trux through a ‘series of related transactions.’”);
id. at 10 (“Viking’s proposal was for ‘the sale, transfer or other disposition, in a single
transaction or series of related transactions, by the stockholders of the Corporation of a
majority of the outstanding shares of capital stock of the Corporation (determined on an
as-converted Common Stock basis),’ and so fell squarely within the definition of a Deemed
Liquidation Event.”) (quoting Amended Certificate § 2.3.1(c)); id. at 20 (“The way Viking
engineered the Transaction falls squarely within the definition of a ‘Deemed Liquidation
Event.’”); Dkt. 235 (“First Oral Arg. Tr.”) at 12 (“Viking proposed a deemed liquidation
event as it is described in the [A]mended [C]ertificate.”); id. at 13 (“This was a deemed
liquidation event.”); id. at 14 (“All of these transactions were related and, therefore, it was
a deemed liquidation event,” and “[t]here is no question that it was a deemed liquidation
event in Viking’s mind either.”); Second Oral Arg. Tr. at 4 (“[I]ndeed it was a deemed
liquidation event.”); id. at 6 (“Viking’s final proposal . . . was, in fact, a deemed liquidation
event.”); id. at 7 (“There is no question that what Viking proposed was a deemed
liquidation event.”); id. at 9 (“[T]his was a deemed liquidation event.”); id. at 29 (“[T]his
was a deemed liquidation event.”).
76
First Oral Arg. Tr. at 39–40.
77
Richard’s Reply Br. 8–11. Richard did not mention Section 3.2 in his Cross-Claims or
opening brief.
78
Richard’s Reply Br. 8–9.
Gower v. Trux, Inc. et al.,
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June 17, 2026
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Richard’s newly minted argument directly contradicts his own pleadings and

briefing, and it is contrary to the undisputed factual record.

The Amended Certificate defines a Deemed Liquidation Event as a “sale,

transfer or other disposition, in a single transaction or series of related transactions,

by the stockholders of the [Company] of a majority of the outstanding shares of

capital stock of the [Company] (determined on an as-converted Common Stock

basis).”79 Viking’s March 27 proposal sought to purchase all of Trux’s outstanding

stock that Viking did not already own. 80 After the Selling Stockholders and Richard

sold their shares to Viking in response to the March 27 proposal, Viking’s ownership

in Trux increased from approximately 28% to over 80% pursuant to a series of

related transactions in which stockholders of Trux transferred a majority of the

outstanding shares of capital stock to Viking, as determined on an as-converted

basis. 81 Richard presents no facts or any reasoned argument to suggest the

Transaction was not a Deemed Liquidation Event as defined in the Amended

79
Amended Certificate § 2.3.1(c).
80
Ex. 8 at 2.
81
Richard’s Aff. ¶ 20; Ex. 11 at 2 (reflecting Viking’s 82.2% ownership of Trux as of
April 14, 2020); Cross-Claims ¶¶ 16, 73; Viking’s Answer ¶¶ 16, 73; Trux’s Answer ¶¶ 16,
73.
Gower v. Trux, Inc. et al.,
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June 17, 2026
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Certificate. There is no material issue of fact that the sales to Viking constituted a

Deemed Liquidation Event. 82 As a result, Section 3.2 applies.

2. Section 3.2 forecloses Richard’s reliance on Section 2.4(a).

Section 3.2 of the ROFR Agreement is clear and unambiguous:

“Notwithstanding the foregoing or anything to the contrary herein, the provisions of

Section 2 shall not apply to the sale of any Transfer Stock . . . pursuant to a Deemed

Liquidation Event.”83 Section 2.4(a) is part of Section 2; therefore, Richard cannot

invoke Section 2.4(a) as a basis to void the Transaction.

Richard acknowledges that a facial application of Section 3.2 would displace

the notice requirements of Section 2. To avoid that result, Richard argues that

Section 3.2 cannot be read to displace all of Section 2 because Sections 2.1(b), 2.3,

and 2.5 also govern stock transfers or specifically reference the term “Deemed

82
See, e.g., Exs. 5 at 3 ¶ 3, 7 at 4 ¶ 3 (proposed written consents stating that the proposed
transaction “would constitute a Deemed Liquidation Event” under the Amended
Certificate); Ex. 8 at 1 (Trux’s CEO stating to Richard that the March 27 proposal was for
Viking “to acquire the capital stock of the Company.”); id. at 2 (March 27 term sheet
proposing to purchase outstanding shares of Trux); Ex. 9 at 1 (Third Written Consent
stating: “Viking would acquire the issued and outstanding shares of the Company’s capital
stock from the Stockholders.”); Ex. 11 at 2; see also Viking’s Answer ¶ 16 (“Before the
challenged transactions, Viking owned about 28.7% of Trux’s stock”); Trux’s Answer ¶ 16
(admitting same); Viking’s Answer ¶ 73 (admitting to entering into the stock purchase
agreements with the Selling Stockholders); Trux’s Answer ¶ 73 (same); Richard’s Aff. ¶ 20
(“Collectively, the other Stockholders and I purported to sell over 53% of Trux stock to
Viking, which thereafter owned over 80% of the equity.”).
83
ROFR Agreement § 3.2(b).
Gower v. Trux, Inc. et al.,
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Liquidation Event.”84 He relies on the canon that, where provisions conflict, the

specific provision controls over the general. 85 Richard’s arguments fail because no

conflict exists and the provisions can be harmonized. Merck & Co., Inc. v. Bayer

AG, 2023 WL 2751590, at *11 (Del. Ch. Apr. 3, 2023) (“[T]he general/specific

canon applies only where specific and general provisions conflict.”), aff’d, 308 A.3d

1190 (Del. 2023) (TABLE); Martin Marietta Mat’ls, Inc. v. Vulcan Mat’ls Co., 68

A.3d 1208, 1225 (Del. 2012) (“[A]ll contract provisions [should] be harmonized and

given effect where possible.”).

Section 2.1(b) is a procedural notice requirement that triggers the right-of-

first-refusal waterfall under Section 2, thereby enabling Viking, the other Investors,

and the Stockholders to exercise their sequential purchase rights. By contrast,

Section 3.2(b) displaces Section 2.1(b) once a transaction is, as here, characterized

as a Deemed Liquidation Event under the Amended Certificate. Any doubt whether

a conflict exists between these provisions is resolved by the ROFR Amendment,

which materially altered the Section 2 waterfall by removing the Viking Ownership

Threshold, waiving the Investors’ exercise procedures under Section 2.2(b), and

84
Richard’s Reply Br. 9–11.
85
Id. at 10–11 (citing DCV Hldgs., Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005);
AM Gen. Hldgs., LLC v. Renco Gp., Inc., 2020 WL 3484069, at *3 (Del. Ch. June 26,
2020)).
Gower v. Trux, Inc. et al.,
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June 17, 2026
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waiving the rights and procedures set forth in Section 2.2(c) through 2.2(f).86 Any

notice therefore would have served no practical purpose because the parties entitled

to receive notice—including Richard as a Closing Stockholder—had no remaining

purchase rights to exercise.

The reference to a Deemed Liquidation Event in Section 2.3(d)(ii) poses no

conflict, either. Section 2.3(d)(ii) is a residual allocation mechanism that applies

only if the right-of-first-refusal process has fully run its course, 87 shares remain on

offer triggering co-sale rights, and the exercise of those rights causes the transaction

midstream to constitute a Deemed Liquidation Event. 88 It ensures that, in that

limited scenario, the transaction’s consideration is allocated in accordance with the

86
Ex. 10.
87
ROFR Agreement § 2.3(a) (“[I]f any Transfer Stock subject to a Proposed Transfer is
not purchased pursuant to Subsections 2.1 and 2.2 . . . respective Investor and Closing
Stockholder may elect to exercise its Right of Co-Sale.”) (emphasis added).
88
See id. § 2.3(d)(ii) (providing that if the exercise of co-sale rights triggers “a Deemed
Liquidation Event, the terms of the Purchase and Sale Agreement shall provide that the
aggregate consideration . . . be allocated . . . in accordance with Sections 2.1 and 2.2 of
Article IV(B) of the [Amended Certificate]”).
Gower v. Trux, Inc. et al.,
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June 17, 2026
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liquidation preferences in the Amended Certificate. 89 These provisions do not

conflict, nor was Section 2.3 implicated here. 90

Sections 2.5 and 3.2 also do not conflict. First, the Transaction did not trigger

Section 2.5 because Viking itself proposed the Deemed Liquidation Event. Whether

or how those provisions would interact in a transaction that actually implicates

Section 2.5 is not presented here. In any event, even if this were a transaction that

implicated Section 2.5, the provisions can be harmonized because they address

different stages. Section 2.5 protects Viking’s ability to participate in, or displace,

a potential third-party Deemed Liquidation Event before the Company may proceed

with that transaction. 91 Section 3.2 would be implicated after the requirements of

Section 2.5 have been fulfilled. At that point, Section 3.2 applies to sales of Transfer

89
The provision ensures that, if the exercise of co-sale rights triggers a Deemed Liquidation
Event, the allocation of consideration is anchored in the Amended Certificate’s liquidation
waterfall and is not bypassed by Section 2.3(d)(i)’s co-sale allocation mechanics. Compare
id. § 2.3(d)(i), with id. § 2.3(d)(ii).
90
Richard has not explained how co-sale rights could attach to a transaction where Viking
seeks to acquire all of Trux’s outstanding shares.
91
See ROFR Agreement § 2.5(a) (requiring notice to Viking for a “potential” or
“unsolicited indication of interest for a Deemed Liquidation Event” with a third party); see
also id. § 2.5(c)–(d) (providing that only if Viking does not exercise its rights may the
Company “be free to consummate the Deemed Liquidation Event with the applicable third
party”).
Gower v. Trux, Inc. et al.,
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June 17, 2026
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Stock made pursuant to that Deemed Liquidation Event and eliminates the

applicability of “the provisions of Section 2” to those sales.

Richard does not offer any construction or interpretation of the ROFR

Agreement, let alone a persuasive one, that requires rendering Section 3.2

inapplicable. The court cannot read the provision out of the ROFR Agreement. See

In re Shorenstein Hays-Nederlander Theatres LLC Appeals, 213 A.3d 39, 56 (Del.

2019) (observing that Delaware courts interpret contracts “so as not to render any

part of the contract mere surplusage, and will not read a contract to render a provision

or term meaningless or illusory” (citation modified)); Intel Corp. v. Am. Guarantee

& Liab. Ins. Co., 51 A.3d 442, 451 (Del. 2012) (“[N]o part of an agreement should

be rendered superfluous.”); Star Am. Rail HoldCo, LLC v. Cathcart, 2024

WL 5239938, at *9 (Del. Ch. Dec. 17, 2024) (adopting as the only reasonable

interpretation of a contract the reading that “gives meaning and effect to each of the

contract’s terms” and rejecting an “interpretation [that] created multiple

inconsistencies”); see also Restatement (Second) of Contracts § 203(a) (1981)

(“[A]n interpretation which gives a reasonable, lawful, and effective meaning to all

the terms is preferred to an interpretation which leaves a part unreasonable, unlawful,

or of no effect.”).
Gower v. Trux, Inc. et al.,
C.A. No. 2020-0996-PAF
June 17, 2026
Page 29 of 38

The Transaction was a series of related sales of Transfer Stock pursuant to a

Deemed Liquidation Event. Therefore, under Section 3.2, “the provisions of

Section 2 shall not apply.” Section 2.4(a) is a provision of Section 2. The remedy

that Richard seeks—voiding the Transaction—depends entirely on the application

of Section 2.4(a).92 Because Section 3.2 renders Section 2.4 inapplicable, Richard

is not entitled to an order declaring the Transaction void ab initio. 93

3. Section 2.5 of the ROFR Agreement was not triggered or
breached.

The parties do not dispute that Viking and the Company did not follow

Section 2.5’s notice and negotiation procedures. The dispute instead concerns

whether the Transaction required compliance with those procedures. Viking and

Trux argue that Section 2.5 was not triggered because Viking initiated the Deemed

92
Viking and Trux argue that, even if Section 2.4(a) applies, the Seller’s Release remains
enforceable under the Stock Purchase Agreement’s severability clause and therefore bars
Richard’s claims. Trux’s Opening Br. 12–17; Viking’s Opening Br. 8–12. Because the
court holds that Section 2.4(a) is not applicable, it need not reach this argument.
93
This conclusion would follow even if Richard were correct that other provisions of
Section 2 somehow applied and imposed obligations that were not satisfied. Richard offers
no argument as to why or how Section 3.2 would be inapplicable to Section 2.4. At a
minimum, the inapplicability of Section 2.4 to the Deemed Liquidation Event defeats
Richard’s attempt to have the Transaction declared void ab initio.
Gower v. Trux, Inc. et al.,
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June 17, 2026
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Liquidation Event, rather than Trux or a third party. 94 The court agrees. Section 2.5

therefore cannot serve as a basis for Richard to void the Transaction.

When read in the context of the entire agreement, Section 2.5 protects Viking

when the Company or a third party pursues a potential Deemed Liquidation Event.

It is designed to protect Viking, not impose obligations on Viking vis-à-vis the

Stockholders. Section 2.5 grants Viking a suite of layered protective measures,

ensuring that Viking receives prompt notice of any potential third-party transaction

so Viking may initiate exclusive negotiations, and a second notice and matching

rights before the Company may proceed with a third-party transaction. 95

The notice and matching rights of Section 2.5 protect Viking when the

Company or a third party initiates a transaction. They are among several

components of the ROFR Agreement’s broader framework to ensure Viking’s

priority rights of first refusal for stock transfers. 96 The notice and negotiation

procedures in Section 2.5 serve no purpose when Viking itself proposes the

transaction. See E.I. du Pont de Nemours & Co. v. Shell Oil Co., 498 A.2d 1108,

94
Viking’s Opening Br. 4; Trux’s Opening Br. 12 (incorporating and adopting Viking’s
opening brief).
95
See ROFR Agreement § 2.5(a), (c)–(d).
96
See id. § 2.1(a).
Gower v. Trux, Inc. et al.,
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June 17, 2026
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1113 (Del. 1985) (recognizing a particular portion of an agreement should be

interpreted consistent with the agreement’s overall scheme or plan); Chi. Bridge,

166 A.3d at 926–27 (observing a court’s interpretation must be reasonable when

“read in full and situated in the commercial context between the parties,” as “[t]he

basic business relationship between [the] parties must be understood to give sensible

life to any contract”).

Section 2.5(a) is not triggered when Viking initiates the transaction because it

is not the Company that “desires to explore a potential Deemed Liquidation Event”;

it is Viking. 97 Nor did a Stockholder “receive an unsolicited offer” for a Deemed

Liquidation Event necessitating notice to Viking. 98 Reading Section 2.5 to apply in

the reverse posture would produce an unreasonable and commercially incoherent

result. But that is how Richard interprets Section 2.5. Richard argues that, once

Viking delivered its proposed term sheet, it was Trux that then “desire[d] to explore

a potential Deemed Liquidation Event,” triggering Section 2.5’s notice

requirements. According to Richard, Trux was required to deliver a Potential Sale

Notice to Viking, giving Viking notice of its own proposal, and Viking was then

obligated to issue a Negotiation Notice back to Trux.

97
Id. § 2.5(a).
98
Id.
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Richard’s reading isolates the first sentence of Section 2.5(a) and divorces it

from its context. See SeaWorld Ent., Inc. v. Andrews, 2023 WL 3563047, at *5 (Del.

Ch. May 19, 2023) (“Words do not exist in isolation. So contracts cannot be

construed in isolation either. Quite the opposite.”), aff’d, 314 A.3d 662 (Del. 2024)

(TABLE). Richard converts Section 2.5 from a provision designed to protect Viking

into an empty, circular notice regime untethered to any commercial purpose. See

Manti Hldgs., 261 A.3d at 1211 (“[I]nterpretations that are commercially

unreasonable . . . must be rejected.”); Bank of NY Mellon v. Commerzbank Cap.

Funding Tr. II, 65 A.3d 539, 555 (Del. 2013) (holding that construction of a contract

that “would lead to an illogical sequence of events” was not reasonable); see also

Veloric v. J.G. Wentworth, Inc., 2014 WL 4639217, at *9 (Del. Ch. Sep. 18, 2014)

(observing that the court “should avoid interpreting a term in an unreasonable way

that would yield an absurd result.”). Richard’s interpretation of Section 2.5 is not

reasonable or aligned with the provision’s intended purpose.

Because Viking initiated the Transaction that constituted the Deemed

Liquidation Event, Section 2.5 was not implicated. Therefore, Viking and Trux did

not breach Section 2.5, and that provision cannot serve as a basis to void the

Transaction.
Gower v. Trux, Inc. et al.,
C.A. No. 2020-0996-PAF
June 17, 2026
Page 33 of 38

4. Section 2.1(b) of the ROFR Agreement was not breached.

Richard alleges that Viking breached the notice obligations under

Section 2.1(b), requiring the Transaction to be declared void under Section 2.4(a).

That claim fails for two reasons. First, as discussed above, Section 3.2 eliminated

the notice obligations otherwise imposed by Section 2.1(b). Second, Richard’s claim

relies upon an unreasonable reading of Section 2.1(b).

Section 2.1(b) imposes an obligation on “[e]ach Stockholder proposing to

make a Proposed Transfer” to provide a Proposed Transfer Notice identifying the

terms and the Proposed Transferee to each Closing Stockholder. 99 The definition of

“Proposed Transfer” applies to “any assignment, sale, offer to sell, pledge, mortgage,

hypothecation, encumbrance, disposition of or any other like transfer or

encumbering of any Transfer Stock . . . proposed by any Stockholder.”100

Richard argues that Viking’s proposal to “acquire Trux stock” constituted a

“Proposal to make a Proposed Transfer,” requiring it to send a Proposed Transfer

Notice.101 But, as Richard acknowledges, Viking did not “propos[e] to make” a

99
Id. § 2.1(b).
100
Id. § 1.12.
101
Richard’s Opening Br. 16 (emphasis added); id. n.13 (arguing “[e]ach time Viking
offered to acquire Trux shares, it was required to send a Proposed Transfer Notice because
it was proposing ‘to make’ a transfer.”) (emphasis added).
Gower v. Trux, Inc. et al.,
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June 17, 2026
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“sale,” an “offer to sell,” or a “like transfer” of its Trux shares. Rather, Viking

proposed to acquire other Stockholders’ shares. A proposal to acquire shares is not

a proposal to sell shares.

Richard’s argument ignores the ROFR Agreement’s distinction between a

proposed transferor and a Prospective Transferee. If Section 2.1(b) were applicable,

Viking would have been the Prospective Transferee. Under Richard’s interpretation,

Section 2.1(b) would have required Viking, as the Proposed Transferee, to issue a

Proposed Transfer Notice to Trux, itself, each Investor, and each Closing

Stockholder identifying itself as the Prospective Transferee, expressing its intent to

acquire all of Trux’s shares, and disclosing the proposed terms, only to then issue a

second notice to that same group stating its intent to exercise its rights of first refusal

to purchase those very same shares.102 Again, this creates obligations not grounded

in the ROFR Agreement and serves no discernible purpose. Richard’s interpretation

is untenable, particularly in light of the ROFR Amendment, which waived the

exercise procedures and downstream purchase rights otherwise available to parties

subordinate to Viking in the Section 2 waterfall, rendering the corresponding notice

requirements to Closing Stockholders such as Richard otiose.

102
See ROFR Agreement § 2.1(b).
Gower v. Trux, Inc. et al.,
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Richard’s interpretation inverts the contractual roles established by

Sections 2.1(a) and 2.1(b), renders the distinction between transferor and transferee

meaningless, creates circular procedural requirements without operative effect, and

contorts the language of those provisions. See Rhone-Poulenc Basic Chems. Co. v.

Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992) (“Absent some ambiguity,

Delaware courts will not destroy or twist [contractual] language under the guise of

construing it.”); accord AT&T Corp. v. Lillis, 953 A.2d 241, 252 (Del. 2008);

Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 739 (Del. 2006).

Thus, Viking did not breach Section 2.1(b), even ignoring Section 3.2.103

103
Richard contends that the court has already determined that any failure to provide notice
under Section 2.1(b) requires that the Transaction be deemed void. See Richard’s Opening
Br. 14, 17–20; Richard’s Reply Br. 11–12. For this, he relies on the court’s decision
denying the motions to dismiss Gower’s complaint. In denying those earlier motions to
dismiss Gower’s complaint, the court concluded that the alleged failure of the Selling
Stockholders to provide Gower notice under Section 2.1(b) stated a claim for breach of the
ROFR Agreement. See Gower v. Trux, Inc., 2022 WL 534204, at *8 (Del. Ch. Feb. 23,
2022). That ruling does not control here. The motion to dismiss decision was rendered at
the pleadings stage, on different allegations, on a more limited record, and based on
different arguments. Neither the term “Deemed Liquidation Event” nor Section 3.2 was
raised in Gower’s operative complaint, the motion to dismiss briefing, or at oral argument.
The parties likewise did not address the Amended Certificate. Therefore, the prior decision
did not decide whether the challenged transaction constituted a Deemed Liquidation Event
under the Amended Certificate, how the ROFR Agreement operates when Viking initiates
a Deemed Liquidation Event, or the effect of provisions of the ROFR Agreement—
including Sections 2.1, 2.5, and 3.2—in that setting. As a consequence, the prior ruling
does not constrain the court’s analysis of Richard’s claims on the present motions. See
State v. Wright, 131 A.3d 310, 321 n.44 (Del. 2016) (“The law of the case doctrine . . . only
Gower v. Trux, Inc. et al.,
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June 17, 2026
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C. Richard Released His Claims.

When Richard accepted the March 27 proposal, he executed a Stock Purchase

Agreement. That agreement includes the Seller’s Release, which released “any and

all” claims “of every kind and nature whatsoever,” including those “based on acts,

events or omissions occurring on or prior to this Agreement” and “relating to the

Seller’s ownership of the Shares.”104

“Delaware courts recognize the validity of general releases.” Deuley v.

DynCorp Int’l, Inc., 8 A.3d 1156, 1163 (Del. 2010), cert. denied, 563 U.S. 938

(2011). “[W]here the language of the release is clear and unambiguous, it will not

lightly be set aside.” Adams v. Jankouskas, 452 A.2d 148, 156 (Del. 1982). “An

effective release terminates the rights of the party executing and delivering the

release and is a bar to recovery on the claim released.” Seven Invs., LLC v. AD Cap.,

LLC, 32 A.3d 391, 396 (Del. Ch. 2011) (citation modified).

applies to issues the court actually decided” and “usually require[s] the issue to have been
fully briefed and squarely decided in the prior proceedings,” assuming “the facts
underlying the ruling [have] not change[d].”); Kenton v. Kenton, 571 A.2d 778, 784 (Del.
1990) (“The ‘law of the case’ is established when a specific legal principle is applied to an
issue presented by facts which remain constant throughout the subsequent course of the
same litigation.”).
104
Ex. 13 § 10.
Gower v. Trux, Inc. et al.,
C.A. No. 2020-0996-PAF
June 17, 2026
Page 37 of 38

Richard’s sole argument challenging the validity of the Seller’s Release is

predicated on the Transaction and his Stock Purchase Agreement being declared

void ab initio under Section 2.4(a). As explained above, Section 2.4(a) is

inapplicable to the Transaction. As a result, the Stock Purchase Agreement is a valid

and enforceable contract.

The Seller’s Release unambiguously encompasses Richard’s claims.

Richard’s claims are predicated on alleged breaches of the ROFR Agreement in

connection with the sale of his shares and events preceding the Stock Purchase

Agreement. Those claims fall squarely within this category of released, ownership-

related claims.

Under Delaware law, the clear and unambiguous Seller’s Release is

enforceable and requires dismissal of Richard’s claims. See Seven Invs., 32 A.3d at

396 (“If the claim falls within the plain language of the release, then the claim should

be dismissed.”).

III. CONCLUSION

Richard’s motion for summary judgment is DENIED, and Defendants’

motions for summary judgment are GRANTED.
Gower v. Trux, Inc. et al.,
C.A. No. 2020-0996-PAF
June 17, 2026
Page 38 of 38

IT IS SO ORDERED.

Very truly yours,

/s/ Paul A. Fioravanti, Jr.

Vice Chancellor