Full Opinion

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE GREGORY FREIBERG, ) ) Plaintiff, ) ) v. ) C.A. No. 2026-0093-KSJM ) XONAR TECHNOLOGY INC., ) ) Defendant. ) POST-TRIAL MEMORANDUM OPINION Date Submitted: July 24, 2026 Date Decided: September 15, 2026 Andrew S. Dupre, Brian R. Lemon, Alberto E. Chávez, AKERMAN LLP, Wilmington, Delaware; Counsel for Gregory Freiberg. Tyler J. Leavengood, Megan R. Thomas, Jing Wang, POTTER ANDERSON & CORROON LLP, Wilmington, Delaware; Counsel for Xonar Technology Inc. McCORMICK, C. In January 2026, stockholders of the defendant executed written consents to remove the plaintiff from the company’s board of directors. The plaintiff filed this summary proceeding under Section 225 of the Delaware General Corporation Law challenging his removal. The complaint alleged that the company’s capitalization table inaccurately reflected the plaintiff’s common stock ownership such that the written consents were not executed by a majority of stockholders. In response, the company secured additional written consents. The company also stipulated to the plaintiff’s allegations for the purpose of narrowing these proceedings to two triable issues. To win this action, the plaintiff must prevail on both issues. One of the issues concerned whether the defendants may count the later-secured stockholder consents toward the tally. The plaintiff failed to prove that they should be excluded. Because the plaintiff failed to prove one of the two critical issues, this post-trial decision does not reach the second. The court enters judgment for the defendant. I. FACTUAL BACKGROUND Trial took place on a paper record over one half-day. The record comprises 159 trial exhibits, deposition testimony from three fact witnesses, and 14 stipulations of fact. These are the facts as the court finds them after trial.1 1 This decision cites to: C.A. No. 2026-0093-KSJM docket entries (by docket “Dkt.” number); trial exhibits (by “JX-” number); Freiberg’s trial demonstrative, Dkt. 154 (by “PDX-1”); the trial transcript, Dkt. 153 (“Trial Tr.”); and stipulated facts in Section II of the Stipulated Joint Pre-Trial Order, Dkt. 133 (“PTO”). The parties lodged the deposition transcript of Hans Hufschmid (Xonar’s Chief Executive Officer). The deposition transcript is cited by “Hufschmid Dep. Tr.” The parties also lodged written deposition testimony from Xonar stockholders Brian McFadden and Jeff McFadden. The written deposition testimony is cited by the witnesses’ first initials, last names, and “Written Dep.” A. Freiberg Joins Xonar. Xonar Technology Inc. (“Xonar” or the “Company”) develops artificial intelligence-powered event security systems.2 In 2018, Andrea Dulberg, August Nunziata, and Ira Rosenblum (collectively with Hans Hufschmid, the “Founders”), along with Brian McFadden and Jeff McFadden, owned Xonar.3 Hans Hufschmid joined the Company as chairman and CEO in 2019.4 Hufschmid led Xonar through several rounds of fundraising, including a Series A-1 in 2020, Series A-2 in 2021, and Series A-3 in 2023.5 Greg Freiberg invested in each of those rounds.6 In the spring of 2023, the parties discussed Plaintiff Gregory Freiberg coming to work at Xonar. Xonar envisioned that Freiberg would build out Xonar’s sales organization and help raise capital.7 On May 11, 2023, Freiberg proposed terms of his compensation in a text to Hufschmid: 15% vesting 4 years 1 year cliff monthly vest there after [sic], any event fully vests. 15% of current outstanding shares $2.88mm. After $5mm raise, will have approx. 12- 13%. 83(b) time vest. 2 PTO ¶ 49. 3 Hufschmid Dep. Tr. at 35:17–36:14, 38:5–8, 51:9–19. This decision refers to Brian and Jeff McFadden by their first names. The court intends no familiarity or disrespect. 4 Id. at 38:9–14, 42:12–21. 5 JX-10; JX-12; JX-15. 6 JX-9 at 10; JX-13 at 10; JX-16 at 10. 7 Hufschmid Dep. Tr. at 16:5–17:3, 20:20–21:7. 2 3% additional equity potential for $5mm external (60bps per external million) 83(b) event vest. $100K salary Board seat Management committee President & Chief Development Officer Cause clearly defined to sex harass and fraud[.]8 Later that day, Freiberg asked if the 15% of current outstanding shares he proposed was “now less than 13%” or “more like a 10%” in light of outstanding options.9 Hufschmid told Freiberg that he would get him the numbers and that the outstanding options were valued at zero because they had not vested.10 Hufschmid also told Freiberg that Xonar would “have option grants every year.”11 Freiberg and Hufschmid approached Freiberg’s proposed equity compensation differently. Freiberg fixated on potential dilution. Hufschmid tried to reorient Freiberg to dollar value based on share price. For example, on May 12, Hufschmid texted Freiberg: I know you have a focus on dilution but another way to think about this is as follows: we give you 4.35M dollars [sic] worth of shares by giving you 435,000 shares at 10 dollars representing 15% of current outstanding. The goal is to maximize that share price. If we get the share price 8 JX-19 at 7. 9 Id. at 14. 10 Id. 11 Id. at 15. 3 to 100, you get 43.5M regardless of how many shares outstanding we have.12 Freiberg responded, “Sounds great Hans.”13 Hufschmid reiterated, “Point is that if you focus on share price, dilution won’t matter,” and “we need to step away from this dilution focus. It is not helpful because it detracts from the actual value you get.”14 Quoting Hufschmid’s summation—“435,000 shares at 10 dollars representing 15% of current outstanding”—Freiberg said, “This is the agreement no? It works for me.”15 Hufschmid concurred: “435k shares, vesting over 4 years, President and Chief Development Officer, board seat . . . , 50k salary going to 100k after raise.”16 Freiberg responded with champagne emojis.17 On May 22, 2023, the parties memorialized their agreement on Freiberg’s equity compensation through a Restricted Stock Agreement, which granted Freiberg 425,067 shares of common stock.18 Freiberg was named President and Chief Development Officer and paid a $50,000 annual salary in addition to his equity compensation.19 12 JX-20. 13 JX-21 at 1. 14 Id. at 2. 15 Id. at 3. 16 Id. 17 Id. 18 JX-27 at 1.425,067 shares is 15% of 2,833,783, the exact number of Xonar’s then- outstanding shares. JX-24 at 7. 19 See, e.g., JX-032 at 31, 33. 4 B. Relationships Fray. Freiberg’s first fundraising project at Xonar was its Series A-4 offering, which closed in September 2023.20 Xonar raised approximately $4 million from outside investors, some sourced through Freiberg and some through Hufschmid.21 Hufschmid himself invested around $1 million.22 It soon became clear that the parties were not on the same page about Freiberg’s equity compensation. Freiberg remained fixated on dilution. In December 2023, Freiberg expressed concern that Xonar planned to create a pool of 400,000 options for Hufschmid and Rosenblum in which Freiberg would not be included.23 Displeased, Hufschmid thought Freiberg was angling for more equity based on his fundraising in the Series A-4. Hufschmid told Rosenblum that Freiberg “has this thing with getting 15% if he raised 5m” and thought he could have sold Hufschmid’s portion of the round to outside investors, increasing his resulting equity award to 3%.24 Hufschmid elaborated, I said at some point in June that he could get options and that [it] was possible that he could get more than 15%. He insisted that this was this year. Not true. He got 13.04% in shares pre raise. That means another 63k shares would get him to 15%. I am inclined to just do that and swallow hard. It will leave a bad taste in my mouth. He’ll probably complain that this should be based on today’s outstanding shares but we made it clear that he 20 JX-40. 21 Id.; JX-47 at 5. 22 JX-40. 23 JX-144 at 2; JX-145. 24 JX-46 at 1. 5 was not getting anti dilutions. He’ll probably challenge that too. [. . .] He said he has this anxiety because he got f[***]ed at his previous job but now I’m starting to think that he might have been the problem.25 Freiberg thought of the option pool as performance-related and separate from his entitlement based on the Series A-4. Despite being told “this has NOTHING to do with your performance,” Freiberg continued to press Hufschmid and Rosenblum, trying to sell them on his achievements.26 Hufschmid ultimately asked Freiberg to propose for discussion how Xonar might allocate the 400,000 options among Hufschmid, Rosenblum, and Freiberg.27 Freiberg sent Hufschmid screenshots of their May 11 texts about dilution and annual option grants and wrote, “I know it’s a fact of life that things change when money gets involved, but wanted you to see that this is what I was going off of when we were negotiating.”28 A few minutes later, Freiberg texted again that he had decided not to propose dividing the options because he didn’t “like how it will look and [thought] it’s unhealthy from a team perspective.”29 Discussions did not end there. On December 21, Hufschmid texted Rosenblum, “Good luck with Greg tomorrow… I am so sick of it. Rational arguments don’t make 25 Id. at 1–2. 26 JX-148 at 4. 27 JX-149 at 4. 28 JX-150 at 3. 29 Id. at 4. 6 it anymore. He twists and turns. The deal he agreed and had does not do it anymore so he wants something else.”30 According to Hufschmid, that “deal” in Freiberg’s mind was “essentially 20k options for every one million he raised (works out to 60 bp). . . . If, as he claims, he should get credit for 4M (which includes more than 2M from my investors), he would get 80k shares. I think he wants more than that.”31 Hufschmid’s assessment was correct. Freiberg later pitched three scenarios. Freiberg proposed two similar equity allocations: one, from a pool of 450,000 options, giving 112,500 to Freiberg and 337,500 to Hufschmid and Rosenblum, and another, from a pool of 600,000 options, with 150,000 to Freiberg and 450,000 to Hufschmid and Rosenblum.32 Alternately, Freiberg proposed that he “ha[ve a] total of 15% of shares outstanding on a fully diluted basis (as would be calculated in PPM if we raised capital after our year end options granted not vested) and Hans and Ira give themselves whatever amount of options they deem appropriate.”33 In all scenarios, Freiberg received a board seat by the end of 2023.34 Hufschmid reminded Freiberg that the pool was only 400,000 options and asked what happened to “the deal” for 60 basis points per $1 million Freiberg raised.35 30 JX-47 at 2. 31 Id. at 5. 32 JX-48 at 3. 33 Id. 34 Id. 35 Id. at 3–4. 7 Freiberg argued that this was separate and based on his “massive other performance this year.”36 Hufschmid was displeased with Freiberg’s proposals. He expressed that displeasure at length over email the next day, underscoring that Freiberg’s May 11 terms contemplated “3% additional equity potential for $5mm external.”37 Because Freiberg raised $1.4 million of external capital, with 3,350,000 outstanding shares, Hufschmid calculated that Freiberg was entitled to 28,140 options.38 Still, a week later, Dulberg, Xonar’s general counsel, sent Freiberg an agreement granting him 60,000 options, roughly equivalent to what Hufschmid calculated would bring Freiberg to 15% of pre-Series-A-4 outstanding shares.39 And in March 2024, Freiberg joined Xonar’s board.40 C. Conditions Worsen. For a time, tensions seem to ease. In October 2024, Xonar conducted a Series A-5 round and sold all 333,333 authorized shares at $15 per share for a total of $5 million.41 Freiberg accepted another grant of 64,000 options to purchase common stock on January 27, 2025.42 36 Id. at 4. 37 JX-49 at 2. 38 Id. 39 JX-51; JX-52; see JX-46 at 1. 40 PTO ¶ 48. 41 See JX-54 at 2, 13. 42 JX-56 at 1, 5. 8 But in August 2025, Freiberg’s relationships with the Founders again began to deteriorate. In attempts to clean up Xonar’s capitalization table before potentially seeking venture capital investment, Xonar enlisted Perkins Coie LLP to amend the company’s governance documents and convert preferred shares into common stock.43 On August 5, 2025, a Perkins Coie attorney asked Freiberg to sign a stockholder consent for that conversion and explained that, once the company obtained the requisite stockholder approvals, Freiberg’s preferred shares would be converted into the same amount of common shares.44 Xonar’s directors, except Freiberg, executed written board consents approving the conversion on August 22.45 Hufschmid, who wanted to notify investors before leaving for a festival, followed up when Freiberg had not signed several hours later.46 Freiberg responded, “Sounds good. Trying to read it in a cab! Damn I received it 20min ago can I review what I’m signing?”47 Hufschmid replied, “Read what?? You are paranoid,” and, a few minutes later, “Lemme know if I signed away some more shares to you. Important since I did not read it.”48 A few hours later, Freiberg told Hufschmid that he had retained personal counsel to advise him on the consent’s import.49 According to Hufschmid, this 43 See JX-59 at 1; Hufschmid Dep. Tr. at 118:19–119:9. 44 JX-59 at 1. 45 JX-60 at 5. 46 JX-62; Hufschmid Dep. Tr. at 114:7–23. 47 JX-62. 48 Id. 49 See JX-63; JX-64 at 2. 9 launched a “downward spiral” in their relationship.50 Freiberg’s attorney spoke to Dulberg the morning of August 26 and followed up in a record-making email, explaining that Freiberg had enlisted him to “review and explain to Greg the[] consequences” of the written consent so that Freiberg could “discharge [his] fiduciary duties.”51 Freiberg’s counsel rejected Xonar’s offer that Perkins Coie would review the documents with Freiberg, asserting that independent review “in light of management’s recent actions and hostility is both appropriate and warranted.”52 Hufschmid was livid and told Freiberg as much over text on September 3: As you head to Aspen, I want you to understand how disappointed and disgusted I am with your behavior. You have been selfish, immature and grossly damaging to Xonar. I gave you the title and the board seat, along with more than 40,000 of my own personal options – potentially worth $1.5M today – but you have not lived up to any of your responsibilities. Instead, you’ve undermined me, created severe disruption among your partners and put our fund raise in serious jeopardy. I have no interest in discussing this further until I can talk to you in person once you return. In the meantime, I will figure out how to deal with the consequences for Xonar and for you.53 Freiberg ultimately signed the consent on September 10, but tensions continued to build.54 In September, Xonar proposed revising the Founders’ Restricted Stock Agreements to grant the Founders terms that Freiberg had negotiated. On 50 Hufschmid Dep. Tr. at 113:20–114:23. 51 JX-64 at 2. 52 Id. at 3. 53 JX-65. 54 JX-60 at 5. 10 September 22, Dulberg emailed Xonar’s board advising that, after discussing with counsel, the company would revise the Founders’ stock agreements to include single- trigger change-in-control vesting, which Freiberg already had.55 Dulberg explained that the change would “provide[] greater balance among directors, . . . strengthen[] our ability to retain and incentivize our leadership team in the eyes of potential acquirers,” and ensure the “founders will be fully aligned to pursue a transaction that maximizes shareholder value.”56 Freiberg refused to sign the implementing board resolutions.57 He claimed that Perkins Coie told him existing investors would only find out about the resolutions if they made a books and records demand or “happened to participate” in the next raise.58 As a “disinterested director,” Freiberg wrote, “I believe strongly, that if we are taking an action that we are not comfortable announcing to our shareholders, that action, as a fiduciary, should not be taken.”59 Hufschmid told Freiberg that Freiberg did not understand what Perkins Coie had said and noted that Freiberg had been “missing in action” lately.60 The Founders, as Xonar’s other four directors, approved the resolutions with Freiberg absent.61 55 JX-66 at 1. 56 Id. 57 JX-67 at 1. 58 Id. at 2. 59 Id. 60 Id. at 1. 61 JX-68 at 1. 11 Freiberg served the next volley on November 19. His counsel sent Perkins Coie a draft demand from Freiberg in his capacity as a director to inspect Xonar’s books and records under 8 Del. C. § 220.62 The demand stated that Freiberg would formally serve it on November 25 if the parties could not reach agreement by then.63 The demand included an expansive preservation notice directed to Xonar and a multitude of related parties, including Perkins Coie, implicitly threatening litigation.64 Freiberg’s Section 220 demand’s description of the “potential wrongdoing” that Freiberg sought to investigate included not only the stock conversion and single- trigger disputes but also extensive gripes about Freiberg’s compensation.65 December 2025 brought two new sources of conflict. First, Xonar sought to add two directors to the board: Ayman Hindy and Bert Centofante, “two of the Company’s longest-standing and largest investors.”66 Freiberg considered both conflicted based on their connections to Hufschmid.67 Second, on December 29, Dulberg circulated to the directors proposed board and stockholder consents authorizing amendments to Xonar’s certificate of incorporation and equity plan. The amendments would increase the amount of shares available for issuance to comply with compliance “health checks” required by Xonar’s new equity management platform.68 62 JX-69 at 1, 3. 63 Id. at 1. 64 Id. at 19. 65 Id. at 3–13. 66 JX-70 at 1. 67 JX-72 at 12. 68 JX-71 at 1. 12 On December 30, 2025, Freiberg formally served his Section 220 demand, now amended to allege wrongdoing related to Hindy and Centofante’s appointment to the board and the proposed increase in authorized common shares.69 Xonar’s response was due January 7, 2026. D. Xonar Ousts Freiberg. Freiberg’s relationship with Xonar and the Founders had deteriorated irreparably. In the company’s view, not only had Freiberg failed at his job, but in pursuing his own self-interest, he also created a toxic environment that was spreading to rank-and-file employees and distracting from the company’s business.70 Thus, on January 5, 2026, the Founders, Centofante (on behalf of stockholders Thornecrest LLC-BC and Jacient LLC-BC), Hindy, and stockholder Schnell Trading executed written stockholder consents removing Freiberg from Xonar’s board (the “January 5 Consents”).71 Those who executed the consents believed that the removal was effective on January 5. The company’s bylaws permit any director to be removed without cause by the holders of a majority of shares then entitled to vote, and the stockholders who signed on January 5 represented such a majority under the signatories’ estimation. The January 5 Consents accordingly identify “Effective Date: January 5, 2026” in the 69 JX-72 at 1, 11–13. 70 See, e.g., Hufschmid Dep. Tr. at 124:7–125:9, 154:12–155:21. 71 JX-74 at 3–6. 13 header, and the resolution says it is “effective immediately.”72 Consistent with Section 228 of the DGCL, however, the preface explains, In accordance with Section 228 of the Delaware General Corporation Law . . . and the Amended and Restated Bylaws . . . of Xonar . . . the undersigned, constituting the holders of outstanding shares of capital stock of the Company having not less than the minimum number of votes that would be necessary to authorize or take the actions set forth herein at a meeting of stockholders at which all shares entitled to vote thereon were present and voted, hereby adopt the following resolutions, effective on the date as of which consents representing the minimum number of shares required to approve the actions herein have been obtained[.]73 Xonar provided notice of this action to stockholders under Section 228 the next morning on January 6.74 Dulberg’s cover email to investors stated that the actions were approved by “a majority of the Company’s stockholders.”75 On January 7, Xonar’s outside counsel responded to Freiberg’s Section 220 demand. The company stated that Freiberg was no longer a director as of January 5 and did not have standing to pursue inspection in the capacity of a director.76 Among other objections, Xonar disagreed with the substance of Freiberg’s allegations and argued that Freiberg’s true purpose for demanding inspection was “to pursue his own equity compensation and to increase the number of shares he owns.”77 72 Id. at 3. 73 Id. (emphasis added). 74 JX-75 at 1. 75 Id. 76 JX-76 at 1. 77 Id. at 1–2. 14 E. Litigation Ensues. On January 22, 2026, Freiberg commenced this expedited action against Xonar.78 Although it is replete with allegations concerning Freiberg’s many varied grievances, Freiberg’s complaint contains a single count seeking a declaration under Section 225 of the DGCL that Freiberg remains a director of Xonar.79 The Complaint alleges that the January 5 Consents were ineffective “because Xonar’s cap table is wrong, such that the stockholders who thought they held majority control to change the board do not actually hold that majority.”80 Freiberg also moved for and obtained a status quo order.81 F. The McFaddens Execute Additional Stockholder Consents. Xonar took the position that a majority of voting shares signed the January 5 Consents. In an abundance of caution, however, the signing stockholders decided to shore up the vote. They reached out to Brian and Jeff McFadden, who undisputedly owned a combined 132,158 shares of Xonar common stock as of January 5, 2026.82 On January 23, because of their tenure as investors and the size of their holdings, Hufschmid emailed the McFaddens: 78 Dkts. 1 (Compl.), 2. 79 Compl. ¶¶ 180–85. Additionally, while the lone count seeks relief under Section 225, Freiberg’s prayer for relief seeks a more expansive declaration, including that the Founders breached their fiduciary duties, that the resulting corporate actions are void or voidable, that he “has an equal right of access to the legal advice file” of Perkins Coie to Xonar, and the “correct identity of classes, series, types, and holders” of Xonar stock. Id. at 56–57. 80 Id. ¶ 18. 81 Dkts. 3, 21, 25. 82 See, e.g., JX-126 at Rows 82–94. 15 As you are aware, the stockholders of the Company previously approved, by the requisite majority, the removal of Greg Freiberg from the Board of Directors. That action has already taken effect. Greg is now challenging his removal. In light of that proceeding, we are asking a small number of additional stockholders who hold a meaningful equity stake in the Company to execute a written stockholder consent confirming the action that was already approved. Your execution of the consent would further evidence stockholder support for the Board’s composition and help reduce uncertainty and distraction for the Company at a time when management is focused on operations, customers, and long-term value creation. Attached is the stockholder consent for your review and signature. Executing the consent does not impose any new obligations on you and does not change your economic rights as stockholders; it simply confirms an action that has already been approved by a majority of the Company’s stockholders.83 Hufschmid offered Dulberg up for questions and attached the same consent used on January 5, this time with “Effective Date: January __, 2026” and blank signature lines for Brian and Jeff.84 The Docusigns sent to the McFaddens explained that, “[w]hile this has already been approved by a majority of the Company’s stockholders, we are asking you [both] to bolster support for the action.”85 Neither McFadden signed promptly, leaving Dulberg, Hufschmid, and Rosenblum to follow up. On a January 26 phone call, Jeff told Dulberg that “Brian 83 JX-79 at 1; see also Hufschmid Dep. Tr. at 183:2–14. 84 JX-79 at 1–2, 6–7. 85 JX-83 at 1; JX-84 at 1. 16 was running it by his attorney to be sure there were no potential liability issues,” though “they didn’t expect any” and thought they would likely sign “shortly.”86 Brian followed up the next day. By email, he asked Dulberg and Hufschmid for “a brief letter (or short written confirmation) from the Board stating the business purpose and confirming that granting the consent does not violate or conflict with any corporate documents or existing agreements of the Company? A simple line covering that point is perfect.”87 Dulberg responded, The business purpose of the stockholder consent is to remove Greg as a director. The other stockholders of Xonar who signed this consent believe that a change in Board composition is in the best long-term interests of the Company. Under Xonar’ [sic] Certificate of Incorporation and Bylaws, and applicable Delaware law, , [sic] holders of common stock, including each of you and each person who has already signed the consent, have the right to elect or remove directors and may do so at a shareholder meeting or by written consent in lieu of a meeting.88 Both McFaddens signed their consents (the “McFadden Consents”) on January 27.89 G. The Court Limits The Scope Of These Proceedings. Freiberg sought expansive discovery on his single claim. Through the winter and spring of 2026, Freiberg propounded expansive discovery requests. On February 13, 2026, he served 45 interrogatories, covering the preferred-to-common stock conversion, the adoption of single-trigger vesting for the other directors, Hindy and 86 JX-85 at 2; JX-153 at 1–2. 87 JX-86 at 1–2; see also JX-159 (Brian: “Good morning, sent you an email request for a simple one liner confirming corporate governance and then will be happy to sign.”). 88 JX-86 at 1. 89 JX-87 at 1, 7; JX-89 at 1, 8. 17 Centofante’s election to the board, employee option grants, potential sales of the company, and more.90 Freiberg concurrently served 66 even broader requests for production and 51 requests for admission.91 A few days later, Freiberg filed notices of intent to serve Perkins Coie and its lead partner on Xonar matters with subpoenas for documents, including the entire Xonar client file, and testimony.92 Xonar served responses and objections on March 13, asserting that Freiberg’s requests frequently sought information beyond the scope of his claim regarding the validity of his removal from the board under Section 225.93 After Freiberg refused to narrow his discovery requests, Xonar proposed a creative solution. Xonar offered to stipulate to Freiberg’s allegations as “necessary to test the vote count” for his removal.94 Xonar would agree, for this action only, that: • All Series A-1, A-2, and A-3 preferred stock “shall be treated as non- voting” and not counted for the consents; • “The purported September 2025 conversion of preferred stock into common stock shall be ignored in its entirety for purposes of determining the number of outstanding voting shares as of January 5, 2026”; and • Freiberg would “be treated as having received the full amount of common stock necessary to constitute 15% of the Company’s fully diluted equity as of January 5, 2026.”95 90 JX-95. 91 JX-96; JX-97. 92 Dkts. 35–36. Freiberg again filed notices of intent to serve Perkins Coie on March 11 and its partner on April 14, 21, and 22. Dkts. 38, 48, 55, 57. 93 JX-103; JX-104; JX-105. 94 JX-108 at 2. 95 Id. at 5–6. 18 Freiberg declined to stipulate. And after Xonar moved the court to enter a protective order adopting its stipulations, Freiberg filed three simultaneous motions to compel discovery.96 The court denied Freiberg’s motions and granted Xonar’s protective order to streamline the summary 225 proceeding (the “Protective Order”).97 The Protective Order had the effect of narrowing the action to two triable issues: First, may the court count the McFadden Consents toward Freiberg’s removal? Second, what methodology should the court use to calculate Freiberg’s share ownership?98 The court held a trial on the papers on July 10, 2026.99 The parties submitted their joint schedule of evidence on July 24, 2026.100 The parties forewent post-trial briefing and post-trial argument. II. LEGAL ANALYSIS Freiberg asks the court to declare under Section 225 that his purported removal from Xonar’s board was ineffective and that he remains a Xonar director.101 “The purpose of [S]ection 225 is to provide a quick method for review of the corporate election process to prevent a Delaware corporation from being immobilized by controversies about whether a given officer or director is properly holding office.” 102 96 JX-109; JX-111; JX-112; JX-113. 97 Dkts. 96, 97, 102 at 3:22–9:10. 98 Dkt. 102 at 6:12–7:5. 99 Dkt. 150. 100 Dkt. 156. 101 Compl. at 56. 102 Box v. Box, 697 A.2d 395, 398 (Del. 1997). 19 “A Section 225 proceeding is summary in character, and its scope is limited to determining those issues that pertain to the validity of actions to elect or remove a director or officer.”103 To obtain relief, Freiberg must show both that the court must exclude the McFadden Consents from the tally of stockholder consents in favor of his removal and that Freiberg’s share ownership is what he represents.104 Freiberg disputes that the court should have limited this action to these two issues. Freiberg asks the court to vacate the Protective Order and reopen discovery. He claims that he has been prejudiced because the Protective Order limited what he could obtain “to verify the capitalization table figures on which the Triable Issues depend.”105 This decision first denies Freiberg’s motion to vacate the Protective Order. On the merits, Freiberg repeatedly conceded that he needs to win on both triable issues to win this case.106 Freiberg bears the burden of proving by a preponderance of the evidence that he is entitled to relief.107 Because the court finds 103 Genger v. TR Invs., LLC, 26 A.3d 180, 199 (Del. 2011). 104 Dkt. 102 at 7:2–5. 105 Dkt. 123 (“Pl.’s Opening Br.”) at 66. 106 Dkt. 140 at 12:24–13:6 (“And I can be direct with Your Honor. I think we have to win on both of those issues to win. We’re right on the 50 percent. . . . But if the McFaddens[’] after-the-fact vote count comes in, I believe we will still be under 51 percent and we would lose the argument. So we have to prove both things.”); Trial Tr. at 75:17–18 (“I need to win on both issues.”); see also Dkt. 102 at 7:6–9 (Freiberg “does not dispute that he must prevail on both theories for a favorable judgment, even if all other allegations in his complaint are taken as true.”). 107 Hockessin Cmty. Ctr., Inc. v. Swift, 59 A.3d 437, 453 (Del. Ch. 2012). 20 Freiberg failed to meet his burden on the first issue, this opinion does not reach the second. A. The Motion To Vacate Is Denied. Freiberg asks the court to vacate the Protective Order and reopen discovery to allow him “to verify the capitalization table figures on which the Triable Issues depend.”108 But Xonar has stipulated to accept as true Freiberg’s version of the figures on which he seeks discovery. So that discovery would not alter the outcome of this litigation. For that reason, the Protective Order does not prejudice Freiberg. Freiberg points to very little by way of actual discovery he thinks he was denied. Other than his vague references to “documents, communications, and calculations” purportedly needed to verify the capitalization table, Freiberg says he wanted to depose Dulberg and the McFaddens.109 But Freiberg agreed to accept Dulberg’s declaration rather than deposing her, and the court gave Freiberg leave to depose the McFaddens.110 Freiberg chose to depose the McFaddens in writing because it was “easier” than doing so in person.111 He must live with that choice now. Freiberg must also accept the consequences of his decision to pursue a summary proceeding under Section 225. Freiberg argues in briefing that he is being “force[d] . . . to try claims involving fiduciary breaches, consent solicitations, undisclosed conflicts, and disputed share counts without the targeted discovery 108 Pl.’s Opening Br. at 66. 109 Id.; Dkt. 144 (“Pl.’s Reply Br.”) at 40. 110 Dkt. 152 at 16:11–17, 17:5–16. 111 Id. at 17:21–18:13. 21 needed,” but the point is that this case is far narrower. 112 In a separate action, he has asserted claims for breach of contract, fraud, tortious interference, conversion, and more against Xonar, the Founders, Hindy, and Centofante.113 In this action, however, Freiberg is trying a single, summary claim under Section 225 concerning his board removal. Freiberg wanted Section 225’s fast pace, and he got it, along with the narrow scope of proceedings that pace requires. Again, Section 225 provides “a quick method” of review to prevent a company from “being immobilized by controversies” about who is properly on its board.114 The “summary” Section 225 proceeding “is limited to determining those issues that pertain to the validity of actions to elect or remove a director or officer.” 115 “Consistent with their purpose, the court endeavors to resolve Section 225 claims on an expedited basis.”116 The Protective Order made that expedited resolution of Freiberg’s status possible, and the court declines to vacate it. B. The McFadden Consents Are Included. Freiberg advances three theories for excluding the McFadden Consents from the count of stockholder consents for his removal. He first argues that “Xonar necessarily ‘closed’ the consent period by treating Plaintiff’s removal as effective on January 5,” such that the January 5 Consents and McFadden Consents cannot be 112 Pl.’s Reply Br. at 41. 113 Freiberg v. Hufschmid, et al., C.A. No. 2026-0663-KSJM, Dkt. 2. 114 Box, 697 A.2d at 398. 115 Genger, 26 A.3d at 199. 116 Totta v. CCSB Fin. Corp., 2021 WL 4892218, at *5 (Del. Ch. Oct. 20, 2021). 22 aggregated (the “closed-meeting theory”).117 He next argues that the McFadden Consents rendered the January 5 Consents “facially defective” because the consents indicated a January 5 “effective date” (the “retroactivity challenge”).118 Finally, Freiberg contends that the Founders obtained the McFadden Consents through fiduciary breach, so those consents should be disregarded (the “fiduciary-breach contention”).119 Each theory fails. 1. The Closed-Meeting Theory Section 228 permits stockholders to take action by written consent “in lieu of [a] meeting.”120 If stockholders take action by written consent that is less than unanimous, “prompt notice” must be provided to the stockholders who have not consented and would have been entitled to notice of the foregone stockholder meeting, had one been called.121 Stockholder action may be accomplished by one or multiple consents.122 If accomplished by multiple consents, those consents need not all be signed on the same date. The statute requires that all consents be obtained and delivered within sixty days. Section 228 states that “[n]o consent shall be effective to take the corporate action referred to therein unless consents signed by a sufficient number of holders . . . 117 Pl.’s Reply Br. at 32. 118 Trial Tr. at 38:16–39:4; PDX-1 at 25. 119 Pl.’s Reply Br. at 33–39. 120 8 Del. C. § 228. 121 Id. § 228(e). 122 Id. §§ 228(a), (c). 23 to take action are delivered to the corporation . . . within 60 days of the first date on which a consent is so delivered to the corporation.”123 It is undisputed that the McFadden Consents were delivered on January 27, within 60 days of the January 5 Consents. It is also undisputed that Xonar promptly provided notice under Section 228(e) on January 6, after it received consents from what it believed was a majority of common stockholders. Freiberg asks the court to impose an additional restriction beyond Section 228’s 60-day rule and notice requirement. Freiberg argues that Xonar’s consents should be treated as “analogous to a meeting,” rather than “in lieu of” a meeting.124 In his view, Hufschmid and the others “initiated a stockholder meeting on January 5, 2026,” voted, and effectively “closed the meeting” by removing Freiberg and providing Section 228(e) notice to other stockholders the next day.125 Then, “[o]n January 27, 2026,