Benchmark Investments LLC v. Pacer Advisors, Inc.

IN THE SUPREME COURT OF THE STATE OF DELAWARE

BENCHMARK INVESTMENTS §
LLC (d/b/a KELLY BENCHMARK §
INDEXES), § No. 378, 2025
§
Plaintiff Below, § Court Below: Superior Court
Appellant, § of the State of Delaware
§
v. § C.A. No. N23C-03-171
§
PACER ADVISORS, INC., §
§
Defendant Below, §
Appellee. §

Submitted: February 4, 2026
Decided: April 30, 2026

Before SEITZ, Chief Justice; VALIHURA, TRAYNOR, LEGROW, and
GRIFFITHS, Justices, constituting the Court en Banc.

Upon appeal from the Superior Court. REVERSED AND REMANDED.

Elizabeth A. Sloan, Esquire, Emily C. Friedman, Esquire, BALLARD SPAHR LLP,
Wilmington, Delaware; Gregory M. Williams, Esquire, (argued), Jacquelyn E.
Fradette, Esquire, SIDLEY AUSTIN LLP, Washington, D.C., for Plaintiff Below,
Appellant Benchmark Investments LLC.

Michael W. McDermott, Esquire, (argued), David B. Anthony, Esquire, Zachary J.
Schnapp, Esquire, BERGER MCDERMOTT LLP, Wilmington, Delaware, for
Defendant Below, Appellee Pacer Advisors, Inc.
SEITZ, Chief Justice:

Benchmark Investments, LLC hired Pacer Advisors, Inc. to serve as an

investment advisor and servicer for Benchmark’s exchange-traded funds. Section

6(c)(i) of their agreement gave Benchmark a without-cause termination right at the

end of the term after written notice to Pacer. Also, under Section 6(c)(ii), Benchmark

could notify Pacer of “its intent to terminate the Agreement in accordance with sub-

section 6(c)(i)” and propose a reorganization of the funds.

Benchmark notified Pacer of its “intent to terminate” their agreement and

proposed a reorganization plan. After the reorganization plan was not approved,

Pacer informed Benchmark that it “accepted” Benchmark’s termination of their

agreement. Benchmark disagreed that it had terminated the agreement. It responded

that Benchmark’s notice of intent to terminate under Section 6(c)(ii) was not the

same as a notice of actual termination under Section 6(c)(i). In other words, it was

only an intent to terminate, not an actual termination.

The Superior Court held that Benchmark’s notice of intent to terminate caused

an actual termination of the parties’ agreement when the reorganization plan was not

approved. On appeal, Benchmark argues that a notice of intent to terminate is not

the same as an actual termination. We agree. The court should have granted

Benchmark’s motion for summary judgment.

2
I.

A.

Benchmark Investments, LLC, operating as Kelly Benchmark Indexes, is a

sponsor and index provider for exchange traded funds (“ETFs” or “funds”). An ETF

is an investment fund traded on stock exchanges. It allows investors to buy a basket

of assets like stocks, bonds, or commodities without purchasing each asset

individually. Businesses like Benchmark design indexes and offer ETFs to invest in

those indexes. The Benchmark funds correlate to real estate indexes.1

In November 2017, Benchmark signed an ETF services agreement with Pacer

Advisors, Inc. (“ETF Services Agreement” or “Agreement”).2 The Agreement

followed what is known as a “white label” model.3 Under a white label model, a

sponsor (like Benchmark) pays a service provider and advisor (like Pacer) to host

the sponsor’s indexes in its own funds.4 Typically, the service provider receives all

1
App. to Opening Br. at A073 [hereinafter A_] (Am. Compl., dated June 14, 2023, at 1–2
[hereinafter Compl.]).
2
A084 (Id. at 13). See generally A037–52 (Agreement).
3
Nasdaq, Inc. v. Exch. Traded Managers Grp., LLC, 431 F. Supp. 3d 176, 189 (S.D.N.Y. 2019).
4
A037–54 (Agreement). Sponsors choose this route to avoid building a costly ETF infrastructure.
Nasdaq, Inc., 431 F. Supp. 3d at 189.

3
revenue from the funds as a fee until those revenues exceed the service provider’s

expenses.5 Once the funds break even, the parties split the profits.6

A white label model also involves an independent trust and fiduciary for the

funds’ stockholders – in this case, Pacer Funds Trust.7 The Trust is separate from

Pacer Advisors. The Trust’s board oversees the funds and its advisor. It also plays

a role if the sponsor decides to reorganize the funds.

B.

Section 6 of the ETF Services Agreement addresses term and termination.

The Agreement had an initial two-year term that automatically renewed in one-year

increments unless terminated for material breach or without cause. The term

provision provides:

(a) Initial Term; Renewal.

This Agreement will remain in effect for a period of two years
from the commencement of operations of the first Fund to be organized
and operated under this Agreement (“Initial Term”) and will
automatically renew for successive periods of one year (each a
“Renewal Term” and together with the Initial Term, the “Term”) unless
and until terminated hereunder.

The termination for cause provision provides:

5
A040 (Agreement § 2(d)).
6
The Agreement provided a 50/50 profit split. Id.
7
A041–42 (Id. § 6(c)(ii)); see also 15 U.S.C. § 80a–15(a) (governing “[w]ritten contract[s] to serve
or act as investment adviser” to “registered investment company[ies]”).

4
(b) Termination for a Material Breach.

Either party may terminate this Agreement for a material breach
by the other party of this Agreement that is not cured within thirty (30)
days’ notice thereof. Termination of this Agreement will not affect the
rights and obligations of the parties arising prior to such termination,
and such rights and obligations will survive to the extent necessary to
effectuate this Agreement for periods prior to such termination.

The without cause termination provision provides:

(c) Termination Without Cause.

(i) This Agreement may be terminated without Cause by
Benchmark upon written notice to PACER Advisors, provided that
Benchmark shall not have the termination date of the License occur
before the end of the Initial Term of the Agreement unless a change of
control of PACER Advisors which terminates the investment advisory
agreement between the Trust and PACER Advisors is contemplated.

(ii) In the event that Benchmark gives notice of its intent to
terminate this Agreement in accordance with sub-section 6(c)(i),
Benchmark shall have the right but not the obligation to propose a
reorganization of the Fund or Funds formed and operating hereunder
with and into another registered investment company or series thereof.
Any such proposal shall be subject to acceptance by the Trust in the
sole discretion of the Trust’s Board. PACER Advisors agrees that,
solely for purposes of this sub-section (c)(ii), it will support any such
reorganization proposal that appears to PACER Advisors to be in the
best interest of the Fund’s (or Funds’) shareholders, provided, however,
that in the event that the Fund or Funds are reorganized into another
registered investment company or series thereof, Benchmark shall pay
for all reasonable costs associated with obtaining Board and
shareholder approval (if any), associated with such reorganization, and
shall pay to PACER Advisors an amount determined according to the
formula outlined in Exhibit “C”.

5
(iii) This Agreement shall terminate as to a Fund if the Trust’s
Board approves the termination of a Fund’s use of a Benchmark Custom
Index without Cause and the Fund is liquidated.8

To summarize, for a termination without cause, Section 6(c)(i) permits

Benchmark to terminate the Agreement “upon written notice to” Pacer, but not

“before the end of the Initial Term” or any renewal term. Under Section 6(c)(ii), if

Benchmark “gives notice of its intent to terminate the Agreement in accordance with

sub-section 6(c)(i),” Benchmark has the option to “propose a reorganization of the

Fund.” That reorganization, however, must be accepted by the Trust. In other words,

only Benchmark can terminate the Agreement without cause or give notice of its

intent to terminate and propose a reorganization. Whether reorganization occurs is

“in the sole discretion of the Trust’s Board.” Section 6 does not address what

happens to the Agreement if the Trust does not approve the reorganization.

C.

In 2019, Benchmark and Pacer amended and renewed their Agreement for

another two-year term.9 The renewal reset the term end date to May 6, 2021. Under

Section 6(c)(i), Benchmark could not terminate without cause before that date.

On November 16, 2020, the president of one of Pacer’s subsidiaries emailed

Benchmark’s founding partner, Kevin Kelly, asking for information on “a newly

8
A041–42 (Agreement § 6) (underlined emphasis in original).
9
A041 (Id. § 6(a)); A053–54 (Amend. to Agreement).

6
filed lawsuit regarding [Kelly] and Benchmark.”10 According to the email, the

lawsuit “use[d] some very strong language including the word fraud.”11 Kelly

responded the next day with a three-paragraph email. In the first paragraph, Kelly

said the lawsuit was “without merit,” but that he could not yet “provide further detail

about the filing.”12 The next two paragraphs shifted the topic to termination:

Please accept this email as written notice of Benchmark’s intent to
terminate the ETF Services Agreement without cause effective no
earlier than May 6, 2021, the end of the Initial Term, pursuant to Section
6(c)(i) of the ETF Services Agreement. Consistent with Section 6(c)(ii)
of the ETF Services Agreement, Benchmark intends to present to
PACER Advisors and the Board of the ETF Trust a proposal to
reorganize the Funds into another investment company that Benchmark
believes is in the best interests of the Funds and their shareholders.13

We would be happy to engage in discussions with you as the adviser on
a plan forward. Thank you!

On April 22, 2021, Kelly sent another email to the Pacer subsidiary’s president:

Please accept this email as advance written notice that, no earlier than
May 6, 2021 and pursuant to Section 6(c)(ii) of the ETF Services
Agreement, Benchmark intends to present to PACER Advisors and the
Board of the ETF Trust a proposal to reorganize the Funds into another
investment company. Benchmark believes that such proposal is in the
best interests of the Funds and their shareholders.14

10
A121 (Email from S. O’Hara to K. Kelly, dated Nov. 16, 2020).
11
Id.
12
A121 (Email from K. Kelly to S. O’Hara, dated Nov. 17, 2020).
13
Id.
14
A124 (Email from K. Kelly to S. O’Hara, dated Apr. 22, 2021).

7
After these emails, Pacer continued servicing the funds and collecting fees

while attempting to negotiate an extension of the ETF Services Agreement.15 But

relations between the parties soured. Benchmark claimed that Pacer “stymied” the

reorganization process and violated their Agreement by working with another index

provider to “build a replacement index” for the Benchmark funds that was “as close

as possible to the existing Indexes.”16 It also accused Pacer of violating the

Agreement by charging Benchmark for its legal costs in defending a subpoena from

Benchmark.17 Benchmark wrote: “This notice of material breach is in addition to

Benchmark’s prior notice that it was terminating the Agreement without cause and

its proposed plan of reorganization.”18 Pacer denied the allegations.19

In February 2022, Benchmark provided the reorganization plan to Pacer and

the Trust.20 Pacer informed Benchmark in early October 2022 that it would not

support the proposed reorganization because it was not “in the best interests of the

15
App. to Answering Br. at B226 [hereinafter B_] (Pacer’s Reply Br. in Support of Its Mot. for
Partial Summary Judgment as to Count I and Br. in Opp. to Pl.’s Cross-Mot. for Partial Summary
Judgment as to Count I, at 11).
16
A055 (Email from S. Scheuble to S. O’Hara, dated Apr. 26, 2021); A068 (Email from J. Ramirez
to F. Van Dorp, dated Sep. 20, 2022).
17
B042 (Letter from J. Lamson to J. Ramirez, dated Apr. 1, 2022).
18
Id.
19
B141 (Pacer’s Answer to Compl. at 32).
20
A135–36 (Letter from K. Kelly to Pacer Trustees, dated Feb. 19, 2022).

8
Funds’ shareholders and, therefore, Pacer Advisors [was] not contractually

obligated” to support it.21 On October 14, 2022, the Trust also determined that it

would not support the reorganization proposal.22

Later that same day, referring to Benchmark’s earlier emails, Pacer notified

Benchmark that it “accepted” the “Notice of Termination.”23 Pacer and the Trust set

a termination date of October 31, 2022.24 Three days later, on October 17, 2022,

Benchmark responded that it “never served a ‘notice of termination’” and that, in

any event, Pacer did not “have any right to accept or refuse such a notice.”25

Benchmark also claimed that “Pacer’s notice of ‘acceptance’ constitutes a breach”

of the Agreement.26 Litigation ensued.

D.

After a detour to the Court of Chancery, Benchmark filed an amended

complaint in the Superior Court alleging breach of contract and breach of the implied

21
A141 (Letter from J. Ramirez to T. Katsiff, dated Oct. 3, 2022).
22
A128 (Letter from J. Ramirez to J. Scott, dated Oct. 14, 2022).
23
Id.
24
A154 (Tr. of Apr. 9, 2024 Summary Judgment Hearing).
25
Benchmark Invs. LLC v. Pacer Advisors, Inc., 2024 WL 3567367, at *3 (Del. Super. July 29,
2024) [hereinafter Op.].
26
Id.

9
covenant of good faith and fair dealing.27 In cross-motions for summary judgment,

the parties asked that the court declare whether Benchmark’s emails to Pacer

terminated the Agreement.

The Superior Court granted Pacer’s motion for summary judgment.

According to the court, the difference between an “intent to terminate” in Section

6(c)(i) and a “written notice of termination” in Section 6(c)(i) was “a distinction

without a difference.”28 Pointing to Section (c)(ii)’s use of the phrase, termination

“in accordance with sub-section (c)(i),” the court reasoned that “Section (c)(ii)

plainly modifies Section (c)(i) and is thus limited by the terms of (c)(i), which

broadly states ‘written notice,’ not ‘intent to terminate.’”29

The court also held that, under Section 6(c)(i), Benchmark could terminate the

Agreement without cause by providing written notice to Pacer and not specify a

termination date.30 It reasoned that Section 6(c)(ii) modified Section 6(c)(i) by

linking the “intent to terminate” language to the written notice requirement.31 The

27
See generally A072–119 (Compl.).
28
Op. at *7.
29
Id.
30
Id. at *7–8.
31
Id.

10
court found that Section 6(c)(i) applied whether Benchmark provided immediate

notice of termination or an intent to terminate later.32

The court also found that Section 6(c)(ii) allowed Benchmark to propose a

reorganization after providing written notice of termination, but did not grant an

independent right to reorganize without a termination notice.33 Thus, when read

together, the court ruled, a termination notice under Sections 6(c)(i) needed to come

before a reorganization under 6(c)(ii).34

Finally, the court held that Exhibit C to the Agreement, addressing Pacer’s

fees post-reorganization, reinforced its reading that termination and reorganization

are separate, consecutive events.35 Exhibit C referred to Pacer’s “elect[ion] to

terminate” under subsection (ii).36 It suggested to the court that termination was a

possibility, not a requirement, and that reorganization proposals and board approvals

were independent events that might or might not occur.37 Any other reading, the

court found, would render parts of the Agreement meaningless.38

32
Id. at *8.
33
Id.
34
Id.
35
Id. at *9.
36
A051 (Ex. C to Agreement).
37
Op. at *9.
38
Id.

11
The court concluded that Benchmark’s emails served as notices of termination

under Section 6(c)(i) and that “the termination became effective when the Trust

decided on the proposal.”39 The parties and the court eventually configured the trial

court proceedings into an appealable judgment.

E.

On appeal, Benchmark argues that its November 17, 2020 and April 22, 2021

emails, which mirrored the language of subsection (ii), expressed only an intent to

terminate the Agreement at a future, unspecified date after approval of its

reorganization plan. As it argues, the Superior Court erroneously equated a “written

notice” of termination under 6(c)(i) with a “notice of intent to terminate” at an

unspecified future date under 6(c)(ii).

According to Benchmark, the court erred when it concluded that Benchmark’s

only way to propose a reorganization was to terminate the Agreement first. Such a

result makes no economic sense, Benchmark claims, because it put at risk the assets

under management attributable to Benchmark’s funds and its intellectual property if

the Trust did not approve the reorganization. At bottom, Benchmark argues that the

court erred by not treating Section 6(c)(ii) as an alternative path to terminating the

39
Id.

12
Agreement in the future that did not become effective unless Benchmark gave actual

written notice of termination.

“This Court reviews the Superior Court’s summary judgment decisions and

contractual interpretation de novo.”40 In doing so, we must “determine whether,

viewing the facts in the light most favorable to the nonmoving party, the moving

party has demonstrated that there are no material issues of fact in dispute and that

the moving party is entitled to judgment as a matter of law.”41

II.

It is settled that “[a] contract is not rendered ambiguous simply because the

parties do not agree upon its proper construction. Rather, a contract is ambiguous

only when the provisions in controversy are reasonably or fairly susceptible of

different interpretations or may have two or more different meanings.”42 The

Superior Court should have granted Benchmark’s summary judgment motion

because the ETF Services Agreement unambiguously provides that Benchmark

could give Pacer a notice of intent to terminate the Agreement and propose a

reorganization without causing a present termination. The court’s contrary reading

40
SARN SD3, LLC v. Czechoslovak Grp. A.S., 326 A.3d 1170, 1188–89 (Del. 2024).
41
State Farm Mut. Auto. Ins. Co. v. Patterson, 7 A.3d 454, 456 (Del. 2010) (quoting Brown v.
United Water Delaware, Inc., 3 A.3d 272, 275 (Del. 2010)).
42
Rhone-Poulenc Basic Chem. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992).

13
(a) fails to give meaning to the different words in subsections (i) and (ii); (b)

overreads the words “in accordance with” in subsection (ii); (c) incorrectly fixed the

termination date; and (d) results in an economic forfeiture inconsistent with the

financial relationship of the parties to the Agreement.

A.

Under Delaware law, when interpreting the same contract terms, there is a

presumption of consistent usage, meaning that “absent anything indicating a

contrary intent, the same phrase should be given the same meaning when it is used

in different places in the same contract.”43 The inverse is also true – “the use of

different language in different sections of a contract suggests the difference is

intentional—i.e., the parties intended for the sections to have different meanings.”44

The parties chose different language in each of Sections 6(c)(i) and (ii).

Section (i), addressing without cause termination, used the words “upon written

notice.” Section (ii), addressing termination and reorganization, used the words

“notice of its intent to terminate.” The difference between the word choices is

apparent – written notice means notice of an actual termination, while an intent to

43
JJS, Ltd. v. Steelpoint CP Holdings, LLC, 2019 WL 5092896, at *6 (Del. Ch. Oct. 11, 2019)
(quoting Comerica Bank v. Glob. Payments Direct, Inc., 2014 WL 3567610, at *11 (Del. Ch. July
21, 2014)).
44
Soleimani v. Hakkak, 2024 WL 1593923, at *6 n.75 (Del. Ch. Apr. 12, 2024) (quoting Williams
Cos., Inc. v. Energy Transfer LP, 2020 WL 3581095, at *12 n.123 (Del. Ch. July 2, 2020)),
aff’d, 327 A.3d 1060 (Del. 2024).

14
terminate means the actual termination is expected in the future. To terminate the

Agreement, Benchmark had to provide Pacer written notice under subsection (i) that

it was terminating the Agreement.45

Benchmark’s emails providing a “notice of its intent to terminate” under

Section 6(c)(ii) did not terminate the Agreement. To terminate, Benchmark had to

provide a further written notice under Section 6(c)(i).

B.

The Superior Court’s contrary reading relies on language in (c)(ii): “in

accordance with sub-section 6(c)(i).” But those words cannot bear the weight of the

Superior Court’s interpretation. The court held that the foregoing language turned

an “intent to terminate” under Section 6(c)(ii) into an actual termination under

Section 6c(i). As noted above, however, when the parties choose different words in

a contract, the court’s aim is to give meaning to the differences and harmonize

Sections 6(c)(i) and (ii).46

45
See, e.g., Great Hill Equity Partners IV, LP v. SIG Growth Equity Fund I, LLLP, 2020 WL
948513, at *12 (Del. Ch. Feb. 27, 2020) (“[T]he language did not require a notice of termination,
only notification of an intent to terminate.” (emphasis in original)); Portfolio BI, Inc. v. Djukic,
2024 WL 887047, at *5 (Del. Ch. Feb. 29, 2024) (finding “use of the term ‘notice’ does not mean
a ‘formal termination notice’” because “[t]he parties required this ‘formal termination notice’ in
[one document] but only required ‘notice’” in another document).
46
Thompson St. Cap. Partners IV, L.P. v. Sonova U.S. Hearing Instr., LLC, 340 A.3d 1151, 1167
(Del. 2025) (courts should interpret contract provisions “harmoniously”).

15
Here, the language differences and subsections (i) and (ii) are easily

harmonized and given meaning. Subsection (i) addresses a termination without

cause. An example of a without-cause termination notice would be: “Benchmark

notifies Pacer under Section 6(c)(i) that it terminates the ETF Services Agreement

effective at the end of the Term of the Agreement.” Subsection (ii) addresses a

different scenario whereby Benchmark expresses its intent to terminate the

Agreement under subsection (i) sometime in the future while also proposing a

reorganization.

Benchmark need not commit to an actual termination because a reorganization

is subject to third party approval. If the reorganization plan is approved, Benchmark

must give written notice of termination under subsection (i). If the reorganization is

not approved, then no termination has occurred, and the parties revert to their current

arrangement until Benchmark either terminates the Agreement under subsection (i)

or the Agreement automatically renews for another one-year term.

That is what should have happened here. Benchmark notified Pacer of its

intent to terminate the agreement under subsection (i). It then proposed a

reorganization. When the reorganization was not approved, and Benchmark did not

16
give a written notice of termination under subsection (i), the parties reverted to the

term and termination provisions of the Agreement. 47

C.

The Superior Court’s analysis also trips on the termination date issue. The

court held that “the termination became effective when the Trust decided on the

proposal.”48 But nothing in the Agreement supports the court’s termination date. On

appeal, Pacer does not defend this aspect of the court’s decision. It also has

abandoned its position below that the termination occurred when Pacer “accepted”

Benchmark’s intent to terminate. Our “no present termination” interpretation of

subsection (ii) is the only one that squares the termination date with the Agreement

– when Benchmark provides an actual notice of termination under subsection (i).

There are other problems caused by the Superior Court’s interpretation. By

treating a subsection (ii) notice as a present termination, unanswered questions arise

about standing to propose reorganization after termination, the duration of post-

termination obligations, and what happens if no proposal is presented or if Pacer

47
Exhibit C is consistent with this reading. Exhibit C set forth a compensation formula “[i]n the
event Benchmark elects to terminate . . . and in connection with such termination proposes a
reorganization . . . .” The Superior Court reasoned that language meant that a reorganization plan
must follow termination. Exhibit C applies, however, only if “Benchmark receives Board approval
for its proposal(s) . . . .” A051 (Ex. C to Agreement). It presupposes a termination because it
assumes a successful reorganization. It does not require Benchmark to terminate no matter the
outcome of the reorganization. The court’s reading of Exhibit C is inconsistent with this provision.
48
Op. at *9.

17
fails to cooperate. The Agreement has no answers to these questions because the

parties did not contemplate that a notice of intent to terminate under subsection (ii)

caused a present termination under subsection (i).

Additionally, according to Pacer, upon termination, it retains the Funds and

the assets under management, without continuing to pay Benchmark.49 The

Agreement is contrary to this outcome. Section 6 provides that Benchmark can (a)

terminate at the end of the term and walk away under 6(c)(i); (b) propose

reorganization under 6(c)(ii) with compensation to Pacer if approved; or (c) the Trust

Board can end use of the Benchmark index and liquidate the Funds under 6(c)(iii).

If Pacer supports that third termination path, 6(c)(iv) triggers compensation to

Benchmark. The Agreement does not authorize Pacer to essentially “fire”

Benchmark and continue hosting the Funds without liquidating and without paying

Benchmark. Yet that is what the Superior Court’s ruling allows.

D.

Finally, the Superior Court’s reading produces an unreasonable result. When

interpreting contracts, it is important to read the relevant provisions in the context of

49
Answering Br. 21 (“Benchmark is plainly required to first give written notice in accordance with
Section 6(c)(i) before the ‘fate’ of a Benchmark-proposed reorganization can even be considered
under Section 6(c)(ii).” (emphasis in original)); id. at 23 (saying Benchmark’s notices caused it to
“‘walk away’ and no longer provide its custom indexes for use by the Funds.”).

18
the business relationship reflected in the Agreement.50 Benchmark hired Pacer as a

service provider. Like a house sitter for a house, Pacer serviced the funds but did

not control the funds or Benchmark’s indexes. Benchmark also had exclusive

control over terminating the advisor. The parties’ arrangement makes no economic

sense if Benchmark had to terminate the Agreement before it could propose a

reorganization to replace its advisor. The reorganization was subject to approval by

the Trust. To terminate the Agreement first would mean that Benchmark’s capital

investment and future profits were lost if it sought to replace its service provider and

the Trust did not approve the reorganization. In other words, the house sitter would

end up owning the house. But that is the outcome if Section 6(c)(ii) is read to cause

a present termination under subsection (i).

III.

Benchmark provided written notice to Pacer under Section 6(c)(ii) of the ETF

Services Agreement that it intended to terminate the Agreement. Its notice did not

cause a present termination of the Agreement. Instead, it signaled an intent to

terminate at a future date. When its reorganization plan was not approved, and

50
Chicago Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166 A. 3d 912, 913–14 (Del.
2017) (“In giving sensible life to a real-world contract, courts must read the specific provisions of
the contract in light of the entire contract.”); see also Terrell v. Kiromic Biopharma, Inc., 338 A.3d
1272, 1277 (Del. 2025) (“An interpretation is unreasonable if it ‘produces an absurd result’ or a
result ‘that no reasonable person would have accepted when entering the contract.’” (quoting
Manti Holdings, LLC v. Authentix Acquisition Co., Inc., 261 A.3d 1199, 1208 (Del. 2021))).

19
Benchmark did not provide written notice of termination under subsection (i), the

parties reverted to the Agreement’s term and termination provisions. The Superior

Court’s judgment is reversed. On remand, the court should grant Benchmark’s

summary judgment motion and proceed consistent with this opinion. Jurisdiction is

not retained.

20