Full Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE FEENEY BROTHERS EXCAVATION ) TRUST, AM FEENEY CORP, ) FALMOUTH 2011 IRREVOCABLE ) TRUST, and DENNIS 2011 ) IRREVOCABLE TRUST, ) ) Plaintiffs, ) ) v. ) C.A. No. 2025-0558-PAW ) ARTERA SERVICES HOLDCO, LLC, ) ARTERA SERVICES, LLC, ARTERA ) SERVICES MANAGEMENT ) FEEDER, LLC, and CLAYTON ) DUBILIER & RICE, LLC, ) ) Defendants. ) Submitted: April 10, 2026 Decided: July 31, 2026 Revised: August 7, 2026 MEMORANDUM OPINION Upon Defendants’ Motion to Dismiss the Amended Verified Complaint; GRANTED. Thomas A. Uebler, Esq.; and Adam J. Waskie, Esq., of McCollom D’Emilio Smith Uebler LLC; Benjamin J. Wish, Esq.; Evan A. Johnson, Esq.; and Maria T. Davis, Esq., of Todd & Weld LLP, Attorneys for Plaintiffs. Raymond J. DiCamillo, Esq.; and Austin R. Niggebrugge, Esq., of Richards, Layton & Finger, P.A.; Maeve O’Connor, Esq.; and Zachary H. Saltzman, Esq., of Debevoise & Plimpton LLP, Attorneys for Defendants. WINSTON, J.1 1 Sitting as a Vice Chancellor of the Court of Chancery by designation of the Chief Justice pursuant to In re: Designation of Actions Filed Pursuant to 8 Del. C. § 111 (Del. Feb. 7, I. INTRODUCTION Plaintiffs sold their business to defendants. In return, plaintiffs received both monetary consideration and “rollover” equity in a defendant business. Plaintiffs now assert that the rollover equity was not worth as much as they were led to believe. Plaintiffs seek to recover under theories that are both intra- and extra-contractual. None of those theories succeed. Plaintiffs’ intra-contractual theories seek representations and warranties or a guaranty of the rollover equity’s intrinsic value. But there are no such representations or guaranties in the contract. Plaintiffs’ breach of contract claim is based on recital definitions, which cannot impose obligations. Their intra- contractual fraud claim is not tied to any intra-contractual representation or warranty. And their implied covenant claim does not plead an implied duty that defendants plausibly breached. Plaintiffs’ extra-contractual fraud claim fails because the contract contains a valid disclaimer of reliance on extra-contractual representations. In the anti-reliance clause, the plaintiff “Investor” affirmatively represents that there are no representations or warranties other than those contained in a particular section of the 2025), most recently extended in the Sixth Amended Cross-Designation Order dated May 21, 2026. 2 written agreement. A buyer may not rely on extra-contractual representations that it agreed do not exist. For these reasons, and as explained further below, Plaintiffs’ complaint is dismissed. II. FACTUAL AND PROCEDURAL BACKGROUND2 A. THE TRANSACTIONS AT ISSUE, GENERALLY Brendan and Aidan Feeney (the “Feeneys”) formed Feeney Utility Services Holdco, LLC (“FUSH”), which held significant portions of the Feeneys’ utility construction business.3 In 2021, the Feeneys, through certain entities, sold their FUSH equity to one of defendants.4 The sale was effected through an Equity Purchase Agreement, which states that it was made as of May 18, 2021 (the “EPA”).5 In addition to receiving 2 The facts are drawn from the complaint and the documents incorporated therein. The Court accepts as true the well-pled facts in the complaint solely for purposes of defendants’ motion to dismiss. Unless otherwise specified, references to the “complaint” herein refer to the operative Amended Verified Complaint. D.I. 17 (hereinafter “Compl.”). The Court has not considered Exhibit 1 attached to defendants’ opening brief, see D.I. 22, because it is unnecessary to the Court’s decision. 3 Compl. ¶¶ 19, 21-22. 4 See id. ¶¶ 1, 63; Compl. Ex. A (hereinafter “EPA”) at 1-2, § 1.01(a). In addition to the Feeneys, non-parties CAI Capital Partners and DDS Companies, Inc. (through certain entities) also sold their interests in FUSH. See Compl. ¶¶ 23-24, 26; EPA 1-2, § 1.01(a). However, the fact that there were additional sellers is not material to the issues presented in the present motion. Accordingly, even where the complaint references these additional sellers, this opinion generally refers only to the Feeneys or the plaintiffs in this action. 5 See Compl. ¶ 1; EPA at 1. 3 monetary consideration, the Feeneys received “rollover” equity in one of defendants.6 The rollover equity was issued pursuant to a Rollover Agreement, dated as of May 18, 2021 (the “Rollover Agreement”).7 This action primarily concerns the value of the rollover equity. The parties, the events leading up to the EPA and Rollover Agreement, and those agreements’ terms, are described in further detail below. B. THE PARTIES Plaintiffs Feeney Brothers Excavation Trust (“Feeney Trust”) and AM Feeney Corp are the entities through which the Feeneys sold their FUSH equity in the EPA.8 They are parties to the EPA, and Feeney Trust is party to the Rollover Agreement.9 Plaintiffs Falmouth 2011 Irrevocable Trust and Dennis 2011 Irrevocable Trust are parties to the Rollover Agreement.10 They became holders of equity in one of defendants as a result of the EPA and Rollover Agreement.11 6 See Compl. ¶¶ 1, 31, 65-68, 70; see also EPA §§ 1.02, 1.04. 7 See Compl. ¶¶ 31, 68; EPA § 1.04; Compl. Ex. B (hereinafter “Rollover Agreement”) at 1. 8 See Compl. ¶¶ 7-8; EPA at 1. 9 See EPA at 1; Rollover Agreement at 1. 10 See Rollover Agreement at 1. 11 See Compl. ¶¶ 9-10. 4 Defendant Artera Services, LLC (“Artera Services”) holds a portfolio of businesses providing infrastructure services primarily to the natural gas and electric industries.12 It is party to the EPA as the “Buyer” of FUSH equity.13 Defendant Artera Services Holdco, LLC (“Artera”) is the ultimate parent of Artera Services.14 Artera is party to the Rollover Agreement, and its equity was exchanged as part of the rollover.15 Defendant Artera Services Management Feeder, LLC (“Feeder” and, with Artera Services and Artera, the “Artera Defendants”) is party to the Rollover Agreement.16 It was involved in the purchase and sale of Artera and FUSH stock pursuant to the EPA and Rollover Agreement.17 Defendant Clayton Dubilier & Rice, LLC (“CD&R”) is a private equity firm and investor in Artera.18 CD&R was actively involved in the bidding process leading up to the EPA and Rollover Agreement.19 12 See Compl. ¶ 12. 13 See EPA at 1. 14 See Compl. ¶ 31; see also EPA § 1.04. 15 See Compl. ¶¶ 1, 68; Rollover Agreement at 1-3, § 1.1. 16 See Rollover Agreement at 1. 17 See Compl. ¶ 13. 18 See id. ¶ 14. 19 See id. ¶ 28. 5 C. ARTERA BIDS ON FUSH, AND THE FEENEYS AGREE TO SELL. Beginning in late 2020, the Feeneys solicited bids from prospective buyers of FUSH.20 Of the final two bids the Feeneys considered, one was from Artera.21 Whereas the other potential purchaser offered a complete cash buyout, Artera offered a deal that included part cash and part Artera rollover equity.22 To convince the Feeneys to take the Artera deal, the complaint alleges, defendants made representations about the value of the rollover equity.23 In or around April 2021, Artera Services’ CEO and Chief Human Resources Officer, Brian Palmer and Michelle Dean, made a presentation to the Feeneys orally and via a slideshow.24 In that presentation, Palmer and Dean represented that: (i) “based upon the work of an independent third-party valuation consultant, performed on a quarterly basis,” “the current valuation of Artera stock was $160 per share;”25 (ii) “within a couple of years, Artera would undergo an initial public offering (‘IPO’),” and the Feeneys “could expect to have the value of the Artera shares double or triple 20 Id. ¶ 26. 21 Id. ¶ 27. 22 Id. ¶¶ 30-31. 23 Compl. ¶¶ 32-33. 24 Id. ¶¶ 34-35. 25 Id. ¶¶ 36, 39; see also D.I. 24 (hereinafter “Ans. Br.”) at 28 (listing alleged false statements). 6 in value around such time;”26 (iii) “the estimates for the company were that it would have $430 million in 2021 earnings before interest, taxes, depreciation, and amortization (‘EBITDA’);”27 and (iv) “Artera would use financing to fund the contemplated acquisition.”28 Plaintiffs allege these statements were false for various reasons. First, regarding the valuation and expected 2021 EBITDA, Palmer and Dean knew that an executive order issued in January 2021 would have an “extremely negative effect . . . on multiple Artera portfolio companies.”29 According to the complaint, that executive order “halted all oil and natural gas leases on public lands,” on which Artera depended.30 Second, “one of Artera’s portfolio companies, Volt Power, had an on-the-job fatality in 2019, which exposed the company to heightened regulatory risk.”31 Third, “[d]efendants did not engage an independent third-party valuation consultant on a quarterly basis who provided a $160 Artera stock price.”32 Fourth, “Artera was not planning to undergo an IPO within two years, given market 26 Id. ¶ 41. 27 Id. ¶ 44. 28 Id. ¶ 50. 29 See Compl. ¶ 46. 30 See id. ¶ 47. 31 See id. ¶ 54. 32 See id. ¶ 79. 7 conditions and other impediments.”33 Last, the disclosure that Artera would use financing to complete the acquisition was a “half-truth,” because after the acquisition, Artera’s “debt-to-income ratio would exceed 10:1 . . . which was inconsistent with a $160 per share Artera stock value.”34 The following month, plaintiffs allege, a CD&R Partner met with the Feeneys and “repeated many of the misrepresentations made by Mr. Palmer and Ms. Dean.”35 The complaint alleges that the CD&R Partner, Andrew Campelli, knew the representations were false for the same reasons outlined above.36 According to the complaint, “[u]ltimately, based upon the misrepresentations, intentional omissions, and half-truths of Artera, [the Feeneys] elected to sell their equity in FUSH to Artera rather than to the other bidder, which had offered a higher sales price.”37 D. THE EPA AND ROLLOVER AGREEMENT In June 2021, the Feeneys signed the EPA.38 That agreement provides the calculation and procedures for setting the monetary consideration to be paid for the 33 Id. ¶ 42. 34 Id. ¶¶ 50-52. 35 Compl. ¶¶ 55-56. 36 See id. ¶¶ 57-58. 37 Id. ¶ 62. 38 See id. ¶ 63. 8 sellers’ interests in FUSH.39 The “Closing Consideration” was to be calculated from a “Base Purchase Price” of $700 million.40 In lieu of receiving the full closing consideration in cash, the EPA provides, the Feeneys would receive part of it as rollover equity in Artera pursuant to the Rollover Agreement.41 The Rollover Agreement provides multiple steps through which membership interests in FUSH are exchanged for units of Artera equity.42 Those steps use several terms defined in the “Recitals” section:43 • “Contributed Units” references “a number of [membership interests in FUSH] with an aggregate value of $30,000,000.” • “Rollover Amount” references “an aggregate value of $30,000,000,” used in the context of describing the value of the Contributed Units. • “Exchange Units” references “187,500 fully vested Feeder Common Units (with an aggregate value equal to the Rollover Amount and with each Feeder Common Unit having a value of $160.00), as defined in, and having the rights, powers, preferences and obligations set forth in, the LLC Agreement[44]).”45 39 See id. ¶ 65; EPA § 1.02. 40 See EPA § 1.02(a). 41 See Compl. ¶ 67; EPA § 1.04. 42 See Rollover Agreement § 1.1. 43 See id. at 1-2. 44 “LLC Agreement” is defined to mean the limited liability company agreement of Feeder. See id. at 2. 45 Mismatched parentheses in original. 9 • “Artera Units” references “a number of fully vested Common Units (as defined in, and having the rights, powers, preferences and obligations set forth in, the Artera Agreement[46]) equal to the number of the Exchange Units with an aggregate value equal to the Rollover Amount and with each Artera Unit having a value of $160.00.” Rollover Agreement Section 1.1 sets forth the exchange steps as follows: • First, “the Contributed Units are contributed, assigned, transferred, conveyed, and delivered by [Feeney Trust47] to Feeder.”48 • Second, “immediately thereafter, the Contributed Units are contributed, assigned, transferred, conveyed, and delivered by Feeder to Artera.”49 • Third, “Feeder issues to [Feeney Trust] the Exchange Units.”50 • Fourth, “Artera issues to Feeder the Artera Units.”51 • Last, “[Feeney Trust] will be deemed to have made a capital contribution to Artera in an amount equal to the Rollover Amount with respect to the Artera Units issued hereunder.”52 46 “Artera Agreement” is defined to mean the limited liability company agreement of Artera. See id. 47 The Rollover Agreement here and in the bullets below uses the term “Investor,” defined to mean Feeney Trust. See id. at 1. 48 Id. § 1.1(a). 49 Rollover Agreement § 1.1(a). 50 Id. § 1.1(b). 51 Id. § 1.1(c). 52 Id. § 1.1(d). 10 Rollover Agreement Section 2 contains representations and warranties of Feeder and Artera. These include that “Feeder has all requisite power and authority to issue the Exchange Units and Artera has all requisite power and authority to issue the Artera Units.”53 They also include that “[t]he Exchange Units . . . . [and] [t]he Artera Units, when issued and delivered in accordance with the terms hereof, will be validly issued and free and clear of any Liens and other restrictions other than those created pursuant to this Agreement, the LLC Agreement, the Artera Agreement or otherwise in connection with the transactions contemplated hereby.”54 Section 3 contains representations and warranties of Feeney Trust. These include a Section titled “Access to Information; Sophistication; Lack of Reliance,”55 which defendants contend includes a disclaimer of reliance on extra-contractual statements and plaintiffs invoke for other purposes. That section, 3.10, is set forth fully below.56 E. FEENEY MANAGEMENT TEAM MEMBERS BUY MORE SHARES. After the EPA and Rollover Agreement were signed, around September 2021, “members of the senior Feeney management team purchased shares of Artera 53 Id. § 2.2; see also Compl. ¶ 75 (quoting part of this representation). 54 Rollover Agreement § 2.4; see also Compl. ¶ 76 (quoting part of this representation). 55 See Rollover Agreement § 3.10. 56 See infra § IV.B. 11 common unit stock at $160 per share through the Artera management equity plan.”57 The complaint alleges that “Artera marketed this [equity purchase] program to the senior management teams similarly to the way that it was marketed to [the Feeneys].”58 This included Artera “falsely assert[ing] that Artera stock was valued at $160 per share by an independent third-party valuation consultant on a quarterly basis.”59 This was false, the complaint alleges, for similar reasons as the prior representations, as well as because Volt Power had a “second on-the-job fatality of an employee,” which was a further “negative market condition[]” undermining Artera’s valuation and estimated 2021 EBITDA.60 F. A MAY 2024 PRESENTATION SHOWS ARTERA’S 2021 EBITDA, AND CD&R INVESTS IN ARTERA AT A LOWER PRICE. A few years later, the complaint alleges, defendants’ representations about Artera were revealed to be false. According to the complaint, “[o]n information and belief,” sometime following September 2023, “Artera and CD&R worked together to further leverage Artera in order to benefit other companies within CD&R’s portfolio.”61 57 Compl. ¶ 96. 58 Id. ¶ 87. 59 Id. ¶¶ 89-90. 60 See id. ¶¶ 90-95. 61 Id. ¶¶ 107, 109. 12 “A May 2024 Artera slideshow presentation . . . reveal[ed] that the actual 2021 EBITDA was actually 27% lower [than $430 million], at only $312 million” and that EBITDA further dropped in 2022.62 A slideshow presentation provided by Artera in May 2024 also indicated that Artera had refinanced its debt and “CD&R invested significant capital into Artera at $0.08 per share.”63 During a May 2024 phone call, CD&R Partner Campelli “admitted that Artera had a third-party consultant value Artera’s common stock and that consultant determined the appropriate value was at just $0.08 per share.”64 Campelli “represented that Artera’s stock price had dropped because Artera was overleveraged, with a debt to EBITDA ratio of 11:1,” although, according to the complaint, overleverage “did not explain a 99.95% drop of [Artera’s] stock value . . . in a matter of less than three years.”65 G. PROCEDURAL HISTORY Plaintiffs filed this action in May 2025.66 After defendants moved to dismiss, plaintiffs in September 2025 filed the operative Amended Verified Complaint.67 The 62 Id. ¶ 100. 63 Compl. ¶ 115. The complaint is not clear whether this was the same May 2024 presentation referenced in the prior sentence. 64 Id. ¶¶ 110-11. 65 Id. ¶¶ 112, 114. 66 See D.I. 1. 67 See D.I. 7; D.I. 17. 13 operative complaint contains three counts: Count I for breach of the EPA and Rollover Agreement;68 Count II for breach of the implied covenant of good faith and fair dealing;69 and Count III for fraud.70 Defendants filed another motion to dismiss and an opening brief, 71 plaintiffs responded with an answering brief,72 and defendants filed a reply.73 The Court heard oral argument on April 10, 2026.74 III. STANDARD OF REVIEW Upon a Rule 12(b)(6) motion, the Court: (i) accepts all well-pleaded factual allegations as true; (ii) credits vague allegations if they give the opposing party notice of the claim; (iii) draws all reasonable inferences in favor of the non-moving party; and (iv) denies dismissal if recovery on the claim is reasonably conceivable.75 68 See Compl. ¶¶ 121-24. 69 See id. ¶¶ 125-31. 70 See id. ¶¶ 132-41. 71 See generally D.I. 19; D.I. 22, Defs.’ Br. in Support of Their Mot. to Dismiss the First Am. Compl. (hereinafter “Op. Br.”). 72 See generally Ans. Br. 73 D.I. 27 (hereinafter “Reply”). 74 See D.I. 32. 75 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldg., LLC, 27 A.3d 531, 535 (Del. 2011) (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002)). 14 The Court does not, however, accept conclusory allegations unsupported by facts or draw unreasonable inferences in favor of the nonmovant.76 IV. ANALYSIS Plaintiffs’ theories of liability fit into two groups: first, those based on obligations imposed within (or implied within) a contract; second, those based on extra-contractual statements. The Court addresses each group in turn, finding that none of plaintiffs’ theories state a claim. A. PLAINTIFFS’ INTRA-CONTRACTUAL THEORIES EACH SEEK TO IMPOSE TERMS FOR WHICH PLAINTIFFS FAILED TO BARGAIN. Plaintiffs’ “intra-contractual” theories encompass their count for breach of contract, the part of their fraud count purportedly based on intra-contractual statements, and their count for breach of the implied covenant. At bottom, via each theory, plaintiffs seek representations and warranties or a guaranty that they failed to obtain at the bargaining table. Accordingly, each intra-contractual theory fails. 1. BREACH OF CONTRACT In Count I, plaintiffs contend that “[t]he Artera Defendants breached the Rollover Agreement by failing to provide the consideration they agreed to exchange for payments otherwise owed to [plaintiffs], namely $30,000,000 worth of Artera 76 Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 871 (Del. 2020) (citing Deuley v. DynCorp Int’l, Inc., 8 A.3d 1156, 1160 (Del. 2010)). 15 Units.”77 Plaintiffs do not dispute that, through the Rollover Agreement, the Artera Defendants provided them with 187,500 fully vested Feeder Common Units78 or that fully vested Feeder Common Units are the type of units the Rollover Agreement states plaintiffs would receive.79 Rather, plaintiffs claim breach on grounds that those 187,500 units did not each have an “actual value” of $160 (or $30 million collectively).80 According to plaintiffs, the “consideration” in the Rollover Agreement was units with an “actual value” of $30 million, and by providing units worth less than that, the Artera Defendants failed to provide the promised consideration.81 Plaintiffs’ theory of breach invokes the Rollover Agreement’s recital definitions.82 The term “Exchange Units” refers to “fully vested Feeder Common Units (with an aggregate value equal to the Rollover Amount [(defined to mean $30 million)] and with each Feeder Common Unit having a value of $160.00), as defined in, and having the rights, powers, preferences and obligations set forth in the LLC 77 Ans. Br. at 10. While the complaint asserts breach of both the Rollover Agreement and EPA, plaintiffs’ answering brief only argues a breach of the Rollover Agreement. See id. at 10-13. 78 See Compl. ¶ 123 (alleging that there were “187,500 units provided”). 79 See Rollover Agreement § 1.1(b) (stating that “Feeder issues to [Feeney Trust] the Exchange Units,” which refer to fully vested Feeder Common Units). 80 See Compl. ¶ 123; Ans. Br. at 10. 81 See Compl. ¶ 123; Ans. Br. at 10. 82 See Ans. Br. at 10-13. 16 Agreement).”83 Rollover Agreement Section 1.1(b) states that “Feeder issues to [Feeney Trust] the Exchange Units.”84 Under plaintiffs’ theory, this imposes an obligation on Feeder to issue to Feeney Trust the “Exchange Units” with an actual “aggregate value equal to [$30 million],” or each “a value of $160.00.” Because the units Feeder issued did not have that “actual value,” plaintiffs’ theory goes, Feeder did not issue the “Exchange Units” and thus the Artera Defendants did not provide the “consideration” promised.85 83 Rollover Agreement at 1 (mismatched parentheses in original). 84 See id. § 1.1(b). 85 See Ans. Br. at 10-13. Plaintiffs are imprecise about which part of Section 1.1 the Artera Defendants breached. Subsection (a) states that “the Contributed Units are contributed, assigned, transferred, conveyed, and delivered by [Feeney Trust] to Feeder” and that “the Contributed Units are contributed, assigned, transferred, conveyed, and delivered by Feeder to Artera.” Rollover Agreement § 1.1(a). Plaintiffs focus their argument on the definition of “Contributed Units” and cite subsection (a). See Ans. Br. at 10-11. But the Artera Defendants could not have breached the first part of subsection (a), because it does not obligate the Artera Defendants to do anything. If it imposes an obligation, it is on Feeney Trust to deliver the Contributed Units—units of FUSH—to Feeder. It is difficult to understand how the Artera Defendants could have breached an obligation on grounds that FUSH units that Feeney Trust delivered did not have the “actual value” purportedly represented in the contract. If that is a breach by anyone, it would appear to be by Feeney Trust. The second part of subsection (a) does not impose an obligation to deliver anything to plaintiffs; it only provides that Feeder will contribute the Contributed Units “to Artera.” Subsection (c) similarly provides only that Artera issues Artera Units “to Feeder,” again no obligation to deliver anything to plaintiffs. Rollover Agreement § 1.1(c). Subsection (d) provides that Feeney Trust “will be deemed to have made a capital contribution to Artera in an amount equal to the Rollover Amount with respect to the Artera Units issued hereunder.” Id. § 1.1(d). Plaintiffs do not contend that Feeney Trust was not “deemed” to have made a capital contribution to Artera in the $30 million Rollover Amount; rather, they contend that the units they received did not have an “actual value” of $30 million. See Compl. ¶ 123; Ans. Br. at 10. Because only subsection (b), concerning issuance of “Exchange Units,” plausibly imposes an obligation on a defendant to a plaintiff, the Court assumes, for the sake of discussion, that plaintiffs are claiming breach of that subsection, 17 Plaintiffs’ theory fails because it seeks to impose obligations via the recitals. “Generally, recitals are not a necessary part of a contract and can only be used to explain some apparent doubt with respect to the intended meaning of the operative or granting part of the instrument.”86 Recitals may identify the meaning of terms via definitions or “provide background and . . . offer insight into the intent of the parties.”87 But a recital may “not establish a substantive obligation.”88 And “[i]f the recitals are inconsistent with the operative or granting part, the latter controls.”89 Plaintiffs are correct that reference to the recitals is necessary to identify which units were transferred or issued in the rollover transaction.90 In identifying the units, Section 1.1 uses terms defined in the recitals.91 The recitals are also and the Court references the “Exchange Units” definition. But even if plaintiffs could claim a breach of the other subsections, the same reasoning would apply to those subsections and the defined terms they use. 86 Urdan v. WR Cap. P’rs, LLC, 2019 WL 3891720, at *13 (Del. Ch. Aug. 19, 2019) (quoting New Castle Cty. v. Crescenzo, 1985 WL 21130, at *3 (Del. Ch. Feb. 11, 1985)), aff’d, 244 A.3d 668 (Del. 2020). 87 Id. at *15 (referencing recitals to confirm which shares party sold); Hawkins v. Daniel, 273 A.3d 792, 812-14 (Del. Ch. 2022) (considering recitals to identify shares referenced and for purposes of agreement but explaining that there was “nothing in the preamble or recitals standing alone that would suggest” the party relying upon them was correct), aff’d, 289 A.3d 631 (Del. 2023). 88 Glidepath Ltd. v. Beumer Corp., 2019 WL 855660, at *16 (Del. Ch. Feb. 21, 2019); see also Llamas v. Titus, 2019 WL 2505374, at *17 (Del. Ch. June 18, 2019) (explaining that recitals “do not have the force of contractual stipulations” (quoting TA Operating LLC v. Comdata, Inc., 2017 WL 3981138, at *23 (Del. Ch. Sept. 11, 2017))). 89 Urdan, 2019 WL 3891720, at *13 (quoting New Castle Cty., 1985 WL 21130, at *3). 90 See Ans. Br. at 11. 91 See Rollover Agreement at 1-2, § 1.1. 18 necessary to understand the amount of the capital contribution Feeney Trust is “deemed to have made.”92 But plaintiffs seek to use the recitals for more. They attempt to transform the recital definitions into a guaranty or representation and warranty regarding the units’ “actual value.”93 That use of the recitals conflicts with the operative sections of the contract. In Section 3.10, Feeney Trust represented that “no representation or warranty, express or implied, whether written or oral, as to the financial condition, results of operations, prospects, properties, or business of Artera or as to the desirability or value of an investment in Artera has been made to the [Feeney Trust] by or on behalf of Artera, except for those representations and warranties expressly set forth in Section 2 of this Agreement.”94 In other words, Feeney Trust agreed that the only representations and warranties in the Rollover Agreement regarding the business or value of an investment in Artera are contained in Section 2. Feeney Trust cannot 92 See Rollover Agreement at 1-2, § 1.1(d) (providing Feeney Trust “will be deemed to have made a capital contribution to Artera in an amount equal to the Rollover Amount with respect to the Artera Units issued hereunder”). 93 See Compl. ¶ 123 (alleging breach of contract “because the actual value of the Artera Feeder Common Units (common stock) was materially less than $160”); Ans. Br. at 10 (arguing Artera Defendants breached because “the actual value of each unit was less than $160 per unit”). 94 Rollover Agreement § 3.10. 19 now maintain that there were representations and warranties in the recitals or other parts of the agreement.95 Sophisticated parties selling a business know how to make representations and warranties.96 The parties did so here, both in the EPA and Rollover Agreement.97 The EPA contains extensive representations and warranties, including about the condition of the business being purchased.98 The Rollover Agreement’s representations and warranties are more limited and do not concern Artera’s business performance or the actual value of Artera’s equity.99 The Court will not transform other parts of the Rollover Agreement into a general representation and warranty about Artera’s business prospects or a guaranty of a specific value. The cases plaintiffs cite do not support a different result. In New Castle County v. Crescenzo, reference to the recitals was necessary to identify the type of 95 Plaintiffs also reference the signature block of the “form of Rollover Subscription Agreement” attached to the Rollover Agreement. See Ans. Br. at 11-12 (providing screenshot of Rollover Agreement Ex. A); Rollover Agreement at 1 (noting that “form of Rollover Subscription Agreement” is “attached hereto as Exhibit A”). 96 See Pilot Air Freight, LLC v. Manna Freight Sys., Inc., 2020 WL 5588671, at *2 (Del. Ch. Sept. 18, 2020) (explaining that “bargained-for representations and warranties serve an important risk allocation function” in a “heavily negotiated contract that covered a large number of specific risks explicitly” (citation modified)). 97 See EPA Arts. 3-6; Rollover Agreement §§ 2-3. 98 See, e.g., EPA §§ 5.05 (concerning accuracy of financial statements), 5.06 (concerning material debts and liabilities), 5.11 (concerning contracts), 5.22 (concerning material customers). 99 See Rollover Agreement § 2. 20 sewer system permitted by an easement.100 In Creel v. Ecolab, Inc., the Court looked to the recitals as additional support for its interpretation of the agreement’s operative provisions.101 In neither case did the Court invoke the recitals to create obligations. Rather, it looked to the recitals only to the extent necessary to understand the operative provisions or as further support for the Court’s interpretation of those provisions. Here, reference to the recitals is necessary only to identify the units being transferred and the amount of the capital contribution Feeney Trust was deemed to have made, and plaintiffs’ interpretation of them would contradict, rather than support, the operative provisions. Plaintiffs resist dismissal by characterizing their claims as arising from a “fail[ure] to provide the agreed-upon consideration.”102 That characterization does not reflect a reasonable interpretation of the contract. The “consideration” was not units with an “actual value” of $30 million, as plaintiffs suggest.103 The contract does not use the term “actual value” or “intrinsic value.” Rather, the operative provisions suggest that “value” refers to the “deemed” value of the units for purposes 100 New Castle Cty., 1985 WL 21130, at *3. 101 See Creel v. Ecolab, Inc., 2018 WL 5778130, at *3-5 (Del. Ch. Oct. 31, 2018) (interpreting operative portions of agreement and related agreements and then explaining that, “[a]dditionally,” the recitals included references that further supported that interpretation). 102 See Ans. Br. at 13. 103 See id. at 10 (asserting that the consideration was units with an “actual value” of $160 each or “$30,000,000 worth of” units). 21 of Feeney Trust’s contribution. They provide that Feeney Trust “will be deemed to have made a capital contribution to Artera in an amount equal to the Rollover Amount,” not that the units Feeney Trust contributed or received had an intrinsic value of $30 million.104 Plaintiffs did not bargain to receive a certain dollar amount but to receive a specific number of units, which defendants provided. This interpretation makes sense in the context of the parties’ bargain. 105 As the complaint alleges, plaintiffs declined a higher all-cash offer for their FUSH equity, electing instead to accept a lower purchase price and equity in Artera.106 If it turned out that the units plaintiffs received were intrinsically worth more than the deemed value, or their intrinsic value later increased, plaintiffs would participate in that upside. But plaintiffs now advance an interpretation in which they could suffer no downside that, at the time of contracting, the units they received were intrinsically worth less than the $30 million deemed value. Had plaintiffs desired to receive a guaranteed cash value, they could have accepted an offer for just that. They cannot 104 See Rollover Agreement § 1.1(d) (emphasis added); cf. GC Broadway, LLC v. AN SM 1925 Broadway Hldgs., LLC, 2026 WL 539233, at *22 (Del. Ch. Feb. 26, 2026) (distinguishing between “‘deemed’ value” of contribution to LLC, which was “for calculating returns and ownership,” on one hand, and an “actual cash position” or “representation of liquidity,” on the other hand). 105 See Chi. Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166 A.3d 912, 926-27 (Del. 2017) (interpreting contract for sale of business “in full and situated in the commercial context between the parties”). 106 See Compl. ¶¶ 5, 30-31. 22 now refashion recital language to obtain a guaranty or representation that the equity they received was worth a specific dollar amount. Accordingly, Count I is dismissed. 2. INTRA-CONTRACTUAL FRAUD Plaintiffs contend, as one part of Count III, that defendants committed intra- contractual fraud.107 According to plaintiffs, “[i]n the black-and-white terms of the Rollover Agreement, the Artera Defendants misrepresented the value of the consideration they agreed to provide” by representing that the equity plaintiffs would receive had “a value of $160 per unit.”108 This claim only underscores that plaintiffs are seeking to enforce representations and warranties for which they did not bargain. As explained above, the Rollover Agreement is clear that its only representations and warranties are contained Section 2.109 In their complaint, plaintiffs reference Sections 2.2 and 2.4, which concern Artera’s “requisite power and authority” to issue units and whether units were “validly issued and free and clear of any Liens and other restrictions.”110 Neither of those sections apply. Similar to their breach of contract claim, plaintiffs’ intra-contractual fraud claim is based on the assertion that defendants misrepresented that “they were providing $30,000,000 107 See Compl. ¶ 135. 108 See Ans. Br. at 19 (citations omitted). 109 See supra p. 19 (quoting Rollover Agreement § 3.10). 110 See Compl. ¶¶ 75-76 (quoting Rollover Agreement § 2.2, 2.4). 23 of value to [p]lainitffs.”111 But whether the units had a “value” of $30 million does not bear upon whether Artera had the “requisite power and authority” to issue them or whether they were “validly issued and free and clear of any Liens and other restrictions.” Perhaps recognizing this obstacle, plaintiffs in briefing make only a passing reference to either of these representations.112 Instead, as with their breach of contract claim, plaintiffs appear to rely on the recitals and Section 1.1.113 But those provisions do not make representations that could support a fraud claim. They define terms and set forth the mechanics of the rollover exchanges. And because Feeney Trust agreed that the only representations and warranties are contained in Section 2, it cannot transform other parts of the contract, or extra-contractual statements,114 into representations and warranties for 111 See id. ¶ 135. 112 See Ans. Br. at 19 (seeming to cite Rollover Agreement § 2.4 and § 2 generally, without explaining how they apply). Plaintiffs also invoke the EPA and seem to cite other sections of the Rollover Agreement or one of its exhibits. See id. (first citing EPA §§ 1.01(b)(v), 1.04; and then citing “AC [(the complaint)], Ex. B. [(the Rollover Agreement)], at Exhibit A [(seemingly referring to the “form of Rollover Subscription Agreement” attached to the Rollover Agreement as Exhibit A)], §§ 1.04, 1(d), 2, 2.4, Exhibit A [(seemingly referring again to the “form of Rollover Subscription Agreement)]”). It is unclear how any of these provisions could constitute false representations or warranties. 113 See id. (citing Compl. ¶¶ 71-72, which reference the recitals and Section 1.1). 114 Plaintiffs suggest that Rollover Agreement Section 3.10 “incorporate[s]” extra- contractual statements into the contract such that those statements could support a claim for intra-contractual fraud. See id. at 20. The effect of Section 3.10 is further discussed below. Regardless of whether it sufficiently disclaims extra-contractual fraud claims, that section does not transform extra-contractual statements into intra-contractual statements. Neither Labyrinth, Inc. v. Urich, nor any of plaintiffs’ other authority on this point, holds otherwise. See Labyrinth, Inc. v. Urich, 2024 WL 295996, *17-19 (Del. Ch. Jan. 26, 2024) 24 an intra-contractual fraud claim.115 Thus, plaintiffs’ intra-contractual fraud claim is dismissed. 3. IMPLIED COVENANT In