Kakar v. Octo Consulting Group, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ARVINDER (“SONNY”) KAKAR, )
)
and )
)
SEEMA KAKAR, TRUSTEE OF )
THE KAKAR FAMILY )
IRREVOCABLE TRUST U/T/A )
DATED DECEMBER 29, 2009 )
)
and )
)
SEVA HOLDINGS INC., )
)
Plaintiffs/ )
Counterclaim Defendants, )
)
v. ) C.A. No. N22C-01-104-PRW CCLD
)
OCTO CONSULTING GROUP, )
LLC, )
)
Defendant/ )
Counterclaim Plaintiff. )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

SEVA HOLDINGS INC., )
)
Plaintiff, )
v. ) C.A. No. 2022-0437-PRW
)
OCTO PLATFORM EQUITY )
HOLDINGS, LLC, )
)
Defendant. )
Submitted: December 22, 2025
Decided: March 31, 2026

DECISION AFTER TRIAL

Alan D. Albert, Esquire, O’HAGAN MEYER PLLC, Wilmington, Delaware; Charles
M. Sims, Esquire, Rachael L. Loughlin, Esquire, and C. Quinn Adams, Esquire,
O’HAGAN MEYER PLLC, Richmond, Virginia, Attorneys for Plaintiffs/Counterclaim
Defendants Seva Holdings, Inc., Arvinder Kakar, and Seems Kakar, Trustee.

Brian C. Ralston, Esquire, and Daniel M. Rusk, IV, Esquire, POTTER ANDERSON &
CORROON LLP, Wilmington, Delaware; Paul A. Werner, Esquire, Imad Matini,
Esquire, Hannah J. Wigger, Esquire, and Maria-Laura C. Coltre, Esquire, SHEPPARD,
MULLIN, RICHTER & HAMPTON LLP, Washington, District of Columbia; Kathryn J.
Ryan, Esquire, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP, Chicago, Illinois,
Attorneys for Defendant/Counterclaim Plaintiff Octo Consulting Group, LLC and
Defendant Octo Platform Equity Holdings, LLC.

WALLACE, J. 1

1
Sitting in C.A. 2022-0437-PRW by designation of the Chief Justice pursuant to In re
Designation of Actions Filed Pursuant to 8 Del. C. § 111 (Del. Feb. 23, 2023) (ORDER). See Ch.
D.I. 51 (Chancellor’s Designation Letter).
I. INTRODUCTION

This action arises out of several agreements signed by the parties when Octo

Consulting Group, LLC (“Octo Consulting”), a technology solutions provider,

acquired Sevatec, founded by Arvinder Kakar. Octo Platform Equity Holdings, LLC

(“Octo Platform”) is Octo Consulting’s parent (collectively, the “Octo Parties”).

Sevatec was a technology services firm that worked with several federal government

agencies. Octo Consulting purchased Sevatec through Stock Purchase Agreement

(the “SPA”). Additionally, at Closing, Mr. Kakar signed an Additional Payments

Agreement (“APA”), Employment Agreement (“EA”), Operating Agreement

(“OA”), a Side Letter Agreement, and a Non-Competition Agreement (“NCA”).

Through these contracts, Mr. Kakar continued his professional relationship with the

Octo Parties. But things went South and eventually led to these consolidated multi-

court suits.

After Closing, the Octo Parties removed the Sevatec name from the purchased

LLC that Mr. Kakar had founded. Thereafter, the parties’ relationship soured, and

Mr. Kakar no longer wanted to be a part of the new entity. This led to him breaching

the EA by neglecting his professional duties and acting unprofessionally toward

Octo members and employees. Mr. Kakar also breached his Non-Competition

Agreement by publicly filing his complaint in the Superior Court action.

Both the Octo and Kakar Parties breached the SPA after closing and failed to

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correctly follow their contractually agreed-upon processes and duties. That said,

most of the Octo Parties’ counterclaims falter because the deal simply didn’t quite

turn out as hoped—not due to any legal wrongdoing by Sevatec or Mr. Kakar—or

because proof of damages is lacking. Lastly, Octo Platform properly repurchased

Seva’s shares after Mr. Kakar’s termination and, therefore, didn’t breach the OA or

the Side Letter Agreement.

II. THE TRIAL

Trial took place over five days, during which the Court heard the in-person

testimony of:

Ned Barnes Michael Lustbader
Rebecca Cohencious Valerie Jeanne Lyons
Jeffrey Cook Michael Koltonyuk
Sujey Edward Mehul Sanghani
Megan Gifford Jiten Shah
Arvinder Kakar

The record consists of over 100 exhibits, deposition transcripts, and live testimony

from fact witnesses and expert witnesses, as well as the facts stipulated to by the

parties.2 Now, the Court determines the parties’ liabilities and the appropriate

damages, if any.3

2
This decision cites to: trial exhibits (by “JX, DX, or PX” number); the trial transcript
(“[AM/PM for 9/9 Tr.] [Date of Trial] [Last Name] Tr.”); admitted deposition transcripts ([Last
Name] Tr.”); and stipulated facts set forth in the Pre-Trial Order (“PTO”) (Super. Ct. D.I. 136).
3
In addition to the trial evidence and arguments made by counsel, the Court also now has the
benefit of the parties’ post-trial briefing. Super. Ct. D.I. 159, 160, 166, and 168.

-2-
III. APPLICABLE LEGAL PRINCIPLES AND STANDARDS

The Court has examined all exhibits submitted by the parties and considered

the testimony of all witnesses, both direct and cross, live and by deposition. During

trial, the Court applied the Delaware Rules of Evidence to the testimony and the

exhibits presented. Consistent with the Court’s knowledge of those rules and the

specific rulings the Court articulated during both pre-trial and trial proceedings, the

Court has relied only on the evidence allowed under those rules and rulings in

reaching its verdict.

As this was a bench trial, the Court is the sole finder of fact. 4 In turn, the

Court has made its own assessment of each witness’s credibility and reconciled, to

the best of its ability, any inconsistencies in the testimony and documentary

evidence.5 The Court then reviewed and applied the same instructions that it would

give a jury in these circumstances.6

The Court has remained mindful throughout its deliberations that the party

4
Pouls v. Windmill Ests., LLC, 2010 WL 2348648, at *4 (Del. Super. Ct. June 10, 2010).
5
Pencader Assoc., LLC v. Synergy Direct Mortg. Inc., 2010 WL 2681862, at *3 (Del. Super. Ct.
June 30, 2010) (“[I]n a bench trial, it is the Court’s role to resolve the conflicts in witnesses’
testimony and weigh their credibility.”); Interim Healthcare, Inc. v. Spherion Corp., 884 A.2d 513,
545-46 (Del. Super. Ct. 2005) (setting forth “the customary Delaware standard” a trial judge
applies when assessing trial testimony and evidence in a bench trial).
6
See, e.g., Del. Super. Ct. Civ. Pattern Jury Instr. 4.1 (Burden of Proof by a Preponderance of
the Evidence) (2025); id. at 4.2 (Evidence Equally Balanced); id. at 23.1 (Evidence—Direct or
Circumstantial); id. at 23.9 (Credibility of Witnesses—Weighing Conflicting Testimony); id. at
23.10 (Expert Testimony).

-3-
seeking judgment and relief on its pled claim or counterclaim must prove each

element thereof by a preponderance of the evidence.7

In reaching its verdict, the Court has considered all applicable law and each

party’s respective arguments—both oral and written—on the merits of the parties’

claims, defenses, and the weight to be accorded to witness testimony and other forms

of evidence submitted.8

IV. FINDINGS OF FACT9

It is difficult at times in the trial of certain actions to fully and cleanly

segregate findings of fact from conclusions of law. To the extent any one of the

Court’s findings of fact here might be more appropriately viewed as a conclusion of

law, that finding of fact may be considered the Court’s conclusion of law on that

7
Pouls, 2010 WL 2348648, at *4; Surf’s Up Legacy Pr’s, LLC v. Virgin Fest, LLC, 2024 WL
1596021, at *15 (Del. Super. Ct. Apr. 12, 2024), reargument denied, 2024 WL 3273427 (Del.
Super. Ct. July 2, 2024) (“A party must prove each element by a preponderance of the evidence.”).
See Grand Acquisition, LLC v. Passco Indian Springs DST, 145 A.3d 990, 994 (Del. Ch. 2016), as
revised (Sept. 7, 2016), aff’d, 158 A.3d 449 (Del. 2017) (explicating the preponderance of evidence
standard); see also Reynolds v. Reynolds, 237 A.2d 708, 711 (Del. 1967) (defining preponderance
of the evidence: “The side on which the greater weight of the evidence is found is the side on
which the preponderance of the evidence exists.”); Newark Shopping Ctr. Owner, L.L.C. v.
Saudades Grp., LLC, 2025 WL 655063, at *3 (Del. Super. Ct. Feb. 26, 2025) (same).
8
The Court may highlight certain facts and legal principles uniquely applicable to this case. But
the fact that a certain principle is expressly mentioned here does not indicate that the Court did not
consider other legal principles applicable to this case and to the parties’ claims and defenses during
its deliberations.
9
The following facts were stipulated by the parties or proven by a preponderance of the evidence
at trial.

-4-
point.10

A. THE PARTIES

Mr. Kakar formed Sevatec, Inc. in 2003.11 Mr. Kakar served as Sevatec’s

CEO until December 11, 2020.12 Before the Sevatec Acquisition, Mr. Kakar and

Seema Kakar, Trustee of the Kakar Family Irrevocable Trust U/T/A Dated

December 29, 2009 (hereinafter “The Kakar Trust”), owned Sevatec’s shares.13 As

part of the Sevatec Acquisition, Mr. Kakar and Trustee formed Seva Holdings Inc.

(“Seva”), a Delaware Corporation, to hold the membership interests of Octo

Platform that were issued to them as part of the Sevatec Acquisition.14

Octo Platform is the parent company of Octo Consulting,15 and is a Delaware

limited liability company.16 Octo Consulting’s CEO was Mehul Sanghani and Octo

Platform’s Board Chairman is Michael Lustbader.17 Mr. Sanghani founded Octo

Consulting in 2006.18 Octo Consulting Group is a Virginia limited liability

10
See Facchina Constr. Litigs., 2020 WL 6363678, at *2 n.12 (Del. Super. Ct. Oct. 29, 2020)
(collecting authority).
11
9/8 Kakar Tr. 96.
12
Id.
13
Id. at 99, 182–83. Ms. Kakar will be referred to as “Trustee.”
14
Id. at 100–01.
15
Id. at 96–97.
16
JX 56 [hereinafter “SPA”] at 1; JX 63 [hereinafter “OA”] at 1.
17
AM 9/9 Sanghani Tr. 95; 9/10 Lustbader Tr. 37, 63.
18
AM 9/9 Sanghani Tr. 95.

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company.19

B. THE SEVATEC ACQUISITION

In December 2020, Octo Consulting acquired Sevatec from Mr. Kakar and his

affiliated family entities (collectively, the “Kakar Parties”).20 As part of the

transaction, Sevatec, Inc. was converted to Sevatec, LLC.21 And the parties executed

several agreements to consummate the deal (the “Transaction Agreements”).

C. THE STOCK PURCHASE AGREEMENT

The parties entered into the Stock Purchase Agreement (“SPA”) for the

acquisition of Sevatec by Octo Platform.22 As part of the Sevatec Acquisition, Seva

was granted $30 million in Membership Units, consisting 14,400 Membership Units

of Preferred B Equity and 259,007 Membership Units of Common equity in Octo

Platform pursuant to a Rollover and Subscription Agreement dated November 30,

2020 (“R&S Agreement”), between Octo Platform, Mr. Kakar and The Kakar

Trust.23 At Mr. Kakar’s direction, a portion of the Membership Units issued to Seva

were issued to certain legacy Sevatec employees.24 This left Seva with 246,276.0873

units of Common Membership Units and 13,692.1927 units of Preferred B

19
SPA at 1.
20
9/8 Kakar Tr. 96–97; 9/8 Cohencious Tr. 10.
21
SPA at 1.
22
See generally SPA.
23
PTO ¶ F.
24
Id. at ¶ G.

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Membership Units in Octo Platform (collectively, the Common Membership Units

and the Preferred B Membership Units are referred to as “Membership Units”).25

The Sevatec Acquisition closed on December 11, 2020.26

The Kakar Trust, along with Mr. Kakar, are identified as “Shareholders” under

the SPA.27 The SPA identifies Seva as “Newco.”28

1. The Purchase Price Adjustment Process

SPA Section 1.3 provides for the Purchase Price Adjustment Process.29 Under

that process, at Closing, $1.5 million of the purchase price was placed in escrow

(“Adjustment Escrow”) pending the preparation of a Post Closing Statement.30 After

that, Sevatec had to prepare and deliver—in good faith—a Preliminary Closing

Statement for Octo.31 Then, within 90 days after the Closing Date, Octo Consulting

had to cause Sevatec to prepare and deliver the Proposed Closing Statement to

Mr. Kakar.32 And, unless Mr. Kakar notified Octo Consulting in writing that he

disagreed with the Proposed Closing Statement within 45 days of receipt (“Objection

25
Id.
26
PTO ¶ E.
27
See SPA at 1 and Signature Page.
28
See SPA at 1.
29
See generally id. at § 1.3.
30
Id. at § 1.2(c).
31
Id. at § 1.3(a)(i).
32
Id. at § 1.3(b)(i).

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Notice”), the Proposed Closing Statement became final and binding on the parties.33

The Objection Notice triggers commercially reasonable efforts to resolve the dispute

or, if that fails, submission to an independent accounting firm for resolution.34 Thus,

the Proposed Closing Statement became final and binding upon: (1) acceptance by

Mr. Kakar; (2) as agreed upon by Octo Consulting and Mr. Kakar; or (3) as

determined by the independent accounting firm.35 After becoming final and binding,

the Proposed Closing Statement “shall” be used to finally determine the Finally

Determined Adjustment Amount.36 If the Finally Determined Adjustment Amount

was greater than the Estimated Adjustment Amount, Octo had to deliver joint written

instructions to the escrow agent for the escrow agent to deliver the Adjustment

Escrow Amount.37

On March 11, 2021, Octo Consulting’s FCO, Jeffrey Cook, provided

Mr. Kakar with a preliminary closing net working capital calculation of $199,000.38

At the Octo Parties’ request, Mr. Kakar agreed to a brief extension of the 90-day

deadline to deliver the Proposed Closing Statement to Mr. Kakar. 39 Then, on April

33
Id. at § 1.3(b)(iii).
34
Id.
35
Id. at § 1.3(b)(iv).
36
Id.
37
SPA § 1.3(c).
38
9/8 Kakar Tr. 134–35; 9/11 Cook Tr. 83; DX 147.
39
9/8 Kakar Tr. 141–43.

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21, 2021, Mr. Cook sent the Proposed Closing Statement—with a closing net

working capital calculation of $233,535.39—to Mr. Kakar.40 That same day,

Mr. Kakar told Mr. Cook that he agreed with that number.41 Later, on May 4, 2021,

Octo Consulting asserted that certain payments related to the FITSS program should

be deducted from the previous calculation given to Mr. Kakar.42 Eventually, on

December 3, 2021, Mr. Kakar, through counsel, demanded that Octo Consulting pay

the net working capital calculation of $233,535.39 and release the Adjustment

Escrow.43 Octo Consulting refused.44

2. Sevatec’s Representations

Sevatec made several representations in SPA Section 3.45 Relevant to Octo

Consulting’s counterclaims is SPA Section 3.18(c), which represents that Sevatec

was in compliance with all “terms and conditions” of its existing government

contracts and bids as of November 30, 2020.46 Before Closing, Sevatec bid a

solution relating to the Contract Acquisition Lifecycle Management (“CALM”)

40
DX 215; 9/11 Cook Tr. 86–87.
41
9/8 Kakar Tr. 148–49.
42
PX 242; 9/8 Kakar Tr. 141–42.
43
JX 343.
44
9/8 Kakar. Tr. 147.
45
See generally SPA § 3.
46
See id. at § 3.18(c)(i).

-9-
Project that ultimately did not meet the contract’s requirements.47

3. The Indemnification Procedure

The parties placed $1.025 million of the purchase price into escrow

(“Indemnification Escrow”).48 Absent a claim against Sevatec under SPA Section

9.2 in the 12 months following Closing, Octo Consulting was to direct the escrow

agent to release $512,500 of the Indemnification Escrow to Plaintiffs on the one-

year anniversary of Closing.49 Then, absent an indemnity claim from Octo

Consulting in the next six months, the remaining $512,500 was to be released from

the Indemnification Escrow 18 months after Closing.50

The SPA has an indemnification section relating to certain breaches.51 The

Claim Procedure says that the Indemnified Party “shall” give written notice of any

claim and required Octo to cause Sevatec to make available to Mr. Kakar non-

privileged books, records, and personnel for Mr. Kakar to evaluate any claim.52 SPA

Section 9 further states that the indemnification provisions “shall be the sole and

exclusive remedies for breaches of the representations and warranties contained in

47
9/10 Shah Tr. 179–80.
48
SPA § 1.2(c).
49
Id. at § 9.11(a).
50
Id.
51
See generally id. at § 9.
52
Id. at § 9.4.

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[the SPA].”53

On December 10, 2021, Octo Consulting asserted a claim against Sevatec for

indemnification under SPA Section 9.2(a) for: (1) Sevatec’s alleged breach of the

representations and warranties in SPA Sections 3.18(c)(i) and (iii) relating to Octo

Consulting’s failure to achieve authorization to operate (“ATO”) within 100 days of

the October 27, 2020, start date of CALM; and (2) for an alleged Indebtedness

pursuant to SPA Section 9.4 based on Sevatec’s purported failure to pay the FITSS

Payments.54 On June 9, 2022, Octo Consulting asserted another indemnification

claim against Seva based on Seva’s alleged failure to pay certain post-closing

retention payments of $260,000, purportedly owed under SPA Section 8.6(e).55 The

Octo Parties haven’t released any of the Indemnification Escrow funds.56

4. Other SPA Payment Obligations

The SPA required the Kakar Parties to pay Octo Consulting $260,000 in the

form of the “Post-Closing Retention Bonus” to legacy Sevatec personnel and,

separately, to pay any “Indebtedness” not discharged before Closing. 57 After

Closing, Octo Consulting paid $65,000 in bonuses to eligible employees relating to

53
Id. at § 9.9.
54
JX 347; 9/8 Kakar Tr. 152.
55
DX 373.
56
9/8 Kakar Tr. 150–51.
57
SPA §§ 8.6(e) and 9.2.

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the FITSS recompete contract.58 The Kakar Parties didn’t pay the Post-Closing

Retention Bonuses or the FITSS recompete bonuses to Octo Consulting.

D. ADDITIONAL PAYMENTS AGREEMENT

Mr. Kakar stood to earn additional compensation under the Additional

Payments Agreement (“APA”) if certain legacy Sevatec accounts were renewed or

achieved certain growth and profitability metrics.59 Mr. Kakar, Trustee, and Octo

Consulting entered into the APA on November 30, 2020.60 APA Schedule A listed

existing Government Contract programs (“Recompete Programs”) for which

Mr. Kakar could earn additional compensation (“Recompete Payment”) based on

the re-award of three or more of those contracts (“Recompete Contracts”).61 To earn

a Recompete Payment, Mr. Kakar had to either: (1) win three contracts listed in

Schedule A of the APA whose pricing exceeded 80% of the Gross Profit Before

Fringe (“GPBF”) set forth in Schedule A; (2) win one or two contracts listed in

Schedule A of the APA whose pricing exceeded 80% of the GPBF set forth in

Schedule A if none of the contracts fell below 60% of the GPBF and the sum of the

contracts exceeded the 80% GPBF threshold; or (3) win two contracts listed in

58
9/11 Cook Tr. 50–51; DX 288.
59
JX 57 [hereinafter “APA”].
60
PTO ¶ L.
61
APA §§ 1(a)–(f).

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Schedule A of the APA whose GPBF together exceed $11 million.62

After agreeing to the APA, Octo Consulting won recompetes for the following

agreements:

• DOT FHWA SWES (“SWES”) (successor to FITSS II);

• DBIS III under the Alliant 2 contracting vehicle (“DBIS III Alliant
2”) (successor to DBIS Eagle 2); and

• ICAM under the Alliant 2 contracting vehicle (“ICAM Alliant 2”)
(successor to ICAM Eagle 2).63

Rebecca Cohencious, Octo Consulting’s Pricing Director, developed pricing bids

when Octo Consulting obtained a government solicitation for new work.64 Upon

Mr. Kakar’s request, Ms. Cohencious calculated the GPBF of these recompetes.65

E. THE OPERATING AGREEMENT REPURCHASE PROCESS AND
OCTO PLATFORM’S PURPORTED REPURCHASE

Also, in relation to Closing, the parties executed the Operating Agreement

(“OA”), which is the operative agreement during the period of December 11, 2020,

through the present.66 OA Section 8.1(a) says:

Any purported Transfer in violation of this Agreement shall be null and
void ab initio and [Octo Platform] shall not recognize any such Transfer
or accord to any purported transferee any rights as a Member of [Octo

62
Id. at §§ 1(a)–(f).
63
JX 390; 9/8 Kakar Tr. 171–72; 9/8 Cohencious Tr. 13–18, 29, 34, 47, 86–88.
64
9/8 Cohencious Tr. 11–12.
65
Id. at 78; JX 390.
66
PTO ¶ N.

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Platform].67

Additionally, the OA lays out a repurchase process. First, there must be a Triggering

Event.68 The Court held at summary judgment that a Triggering Event occurred.69

Then, OA Section 8.7(d) sets out that, after the pricing calculation, Octo Platform is

to deliver a “Repurchase Note for the balance of the Repurchase Price;”70 the

“Repurchase Price shall be paid against the delivery of the certificates or other

instruments” of the membership interests.71 Octo Platform is entitled to “receive

customary representations and warranties” with respect to “any securities

purchased.”72 If Seva fails to comply with the obligations under Section 8.7, Octo

Platform “may thereupon place an amount of, equal to the amount of the purchase

price to be paid . . . in escrow . . . whereupon [Octo Platform] shall be entitled to

cancel . . . and treat” the membership interests “as having been purchased.”73

Octo Platform notified Seva of its intent to repurchase Seva’s Units,

consisting of 13,692.1927 Preferred B Equity and 246,276.0873 Common Equity

67
OA § 8.1(a).
68
Id.
69
Seva Holdings Inc. v. Octo Platform Equity Holdings, LLC, 2024 WL 3982187, at *8 (Del. Ch.
Aug. 29, 2024) (Seva Holdings I).
70
OA § 8.7(d)(i).
71
Id. at § 8.7(d)(ii).
72
Id. at § 8.7(d)(iii).
73
Id.

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units (together, the “Units”) on February 14, 2022 (“Notice”).74 The Notice attached

a Unit Repurchase Agreement (“URA”), which included a general release of claims,

and an unexecuted Subordinated Promissory Note.75 Seva disputed Octo Platform’s

right to purchase its Units and threatened litigation if Octo Platform proceeded with

the repurchase.76 Seva also “dispute[ed]” that it “must sign the [URA]” because it

contained “onerous terms” that expanded Octo Platform’s rights under the OA and

were “nowhere found” in the OA.77 On April 15, 2021, Mr. Lustbader directed

Michael Koltonyuk, lead deal counsel for the Octo Parties,78 to close on the

repurchase of Seva’s Units and apply Mr. Lustbader’s electronic signature to the

promissory note.79 Seva didn’t appear at the Closing.80 And Octo Platform placed

the note in escrow on that same day with Mr. Koltonyuk.81

Also on the same day, Mr. Koltonyuk informed Seva that Octo Platform was

treating Seva’s Units as repurchased and cancelled (the “Repurchase Letter”).82 The

Repurchase Letter stated that given Seva’s “fail[ure] to deliver a countersigned copy

74
9/8 Kakar Tr. 181; JX 358.
75
JX 358.
76
9/8 Kakar Tr. 184, 187; JX 361.
77
JX 361; AM 9/9 Kakar Tr. 32.
78
9/10 Koltonyuk Tr. 93.
79
Id. at 30–31, 111.
80
Id. at 30, 110.
81
JX 366; DX 367.
82
Id.

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of the [URA],” containing the release, Octo Platform was cancelling Seva’s Units.83

F. THE LETTER AGREEMENT AND OCTO PLATFORM’S LEGACY
SEVA REPURCHASE

On December 11, 2020, Seva and Octo Platform executed a Letter Agreement

re: Assignment of certain repurchase rights, grant of board rights, modification of

repurchase and other rights (“Side Letter Agreement”).84 Under the Side Letter

Agreement, Seva retained a right to repurchase certain Repurchase Options “only if

[Seva] [wa]s a Member of [Octo Platform] at the time such Repurchase Option”

arose.85 Side Letter Agreement Schedule 1 lists twenty two Members to which the

right to repurchase applies.86

After Octo Platform’s purported repurchase and cancellation of Seva’s shares,

Octo Platform repurchased the units of several legacy Sevatec employees. These

employees include:

• Lisa Spory
• Smriti Nidhi Kesava
• Eric VamAmburg
• Jennifer Whitlow
• Aaron Lavigne
• John Hughes
• Ramin Rad87

83
JX 366.
84
PTO ¶ K.
85
JX 65 [hereinafter “Side Letter Agreement”] § 1.
86
Side Letter Agreement Schedule 1.
87
9/8 Kakar Tr. 198–204; PX 290; PX 413.

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These employees are listed in Side Letter Agreement Schedule 1.88 Octo Platform

didn’t provide notice of the legacy Sevatec employee unit repurchases to Seva or

Mr. Kakar.89

G. THE EMPLOYMENT AGREEMENT AND NON-COMPETITION AGREEMENT

Following Sevatec’s acquisition, Mr. Kakar became Octo Consulting’s Head

of Strategy and Vice Chair of the Board through the Executive Employment

Agreement (“EA”).90 Mr. Kakar and Octo Consulting executed the EA on

November 30, 2020.91 The EA provides that Mr. Kakar’s “duties and

responsibilities” were “commensurate” with his title, and he agreed to perform them

“with fidelity and loyalty” to Octo Consulting and to the best of his “ability,

experience, and talent in a diligent, trustworthy, businesslike, and efficient

manner.”92

Similarly, on the same day, Mr. Kakar signed the Non-Competition

Agreement (“NCA”), which became effective at Closing.93 Under the NCA, Mr.

Kakar was prohibited from “directly or indirectly” revealing, reporting, publishing,

88
See Side Letter Agreement Schedule 1.
89
9/8 Kakar Tr. 198–204.
90
JX 54 [hereinafter “EA”]; 9/8 Kakar Tr. 111.
91
PTO ¶ I.
92
EA § 3.
93
DX 52 [hereinafter “NCA”] at 1; PTO ¶ J.

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disclosing, or transferring any Octo Confidential Information. 94 Confidential

Information, under the NCA, includes “any information concerning the Company’s

or its Subsidiaries’ affairs or assets that is not generally available to the public.” 95

And the NCA required Mr. Kakar to not, directly or indirectly, “encourage, induce,

attempt to induce, solicit or attempt to solicit any Covered Personnel to leave the

service (whether as an employee, consultant or independent contractor) of the

Company or its Subsidiaries.”96

H. THE POST-CLOSING FALLOUT

After Closing, Mr. Kakar directed several demands to the Octo Parties.97 The

Octo Parties allowed Mr. Kakar to hire a personal assistant and undertook a branding

study to evaluate the name of the company.98 Octo Consulting’s Board hired a third-

party marketing firm to conduct the branding study and present the results to the

Board for further consideration.99 Based on the results of that branding assessment,

94
NCA § 3.4.
95
Id. at § 2.1.
96
Id. at § 3.1.
97
Mr. Kakar demanded that Octo lease office space owned by the Kakar Parties, even though
Octo had no need for the space at all, let alone amid a global pandemic that had everyone working
from home. DX 143; DX 181; 9/8 Kakar Tr. 238–40, 264–65; AM 9/9 Sanghani Tr. 39–40, 53–54;
9/10 Lustbader 15–16. Mr. Kakar also repeatedly demanded that Octo incorporate “Sevatec” into
the name of the combined company and hire his personal assistant, Carol Barbosa. 9/8 Kakar Tr.
219–25, 236–237; AM 9/9 Kakar Tr. 6; AM 9/9 Sanghani Tr. 72–74; DX 143; DX 181; DX 97;
DX 391
98
AM 9/9 Kakar Tr. 6–7; AM 9/9 Sanghani Tr. 72–74, 31–35; 9/8 Kakar Tr. 220–21; 9/10
Lustbadder Tr. 9–10.
99
9/8 Kakar Tr. 222; AM 9/9 Sanghani Tr. 34–35; 9/10 Lustbader Tr. 10–11; 9/11 Lyons Tr. 166.

- 18 -
the Board retained Octo as the go-forward name.100 Octo Consulting also declined

to lease additional space it did not need from the Kakar Parties.101

The Board’s decisions changed the dynamic between Mr. Kakar and the Octo

Parties.102 Mr. Kakar largely disengaged from his leadership role and refused to

participate in integration events, calls, meetings, and functions.103 Other Octo

members had to step up to make up for Mr. Kakar’s inactions.104

Several weeks after the deal closed, Octo Consulting received a Letter of

Concern about the CALM Project stating that it was “failing to meet the government

contractually mandated milestone.”105 After receiving the Letter of Concern, Octo

discovered the solution Sevatec had earlier bid could not meet the contract’s

requirements.106

At one meeting, Mr. Kakar accused Mr. Lustbader of having a “deceitful and

dishonest” nature, cursed and swore at Mr. Lustbader and Mr. Sanghani, and gave

them a double middle finger gesture before storming off and peeling away in his

100
9/8 Kakar Tr. 223–224; AM 9/9 Sanghani Tr. 31–36; 9/10 Lustbader Tr. 11; 9/11 Lyons Tr. 167.
101
PM 9/9 Sanghani Tr. 54; 9/10 Lustbader Tr. 16–17.
102
9/8 Kakar Tr. 242–45.
103
DX 163; DX 164; DX 204; DX 257; DX 268; AM 9/9 Sanghani Tr. 59; 9/10 Shah Tr. 152–56;
9/11 Gifford Tr. 139–141.
104
AM 9/9 Sanghani Tr. 31, 59–67; 9/10 Shah Tr. 152, 175–76; 9/11 Cook Tr. 45–46; 9/11 Lyons
Tr. 169–73; 9/11 Gifford Tr. 141–44, 146–47.
105
DX 149.
106
9/10 Shah Tr. 179–80.

- 19 -
Ferrari.107 At another meeting with Mr. Lustbader at a Maryland coffee shop,

Mr. Kakar made a public scene, slamming his hands down on the table and telling

Mr. Lustbader he felt like punching him in the face.108 After all this, the Board issued

Mr. Kakar a Notice of Material Breaches and Willful Misconduct detailing his

violations of his contractual obligations and provided Mr. Kakar an opportunity to

meet with the Board.109 Mr. Kakar didn’t meet with the Board and resigned as an

employee and Board member.110 The day after his resignation, Mr. Kakar filed a

series of public lawsuits against the Octo Parties and its executives in multiple

jurisdictions.111

V. THIS LITIGATION AND THE PARTIES’ CONTENTIONS

This litigation invokes both the Court of Chancery’s jurisdiction and the

Superior Court’s.

In the Chancery action, Seva’s remaining claims are: (1) a declaratory

judgment that Octo Platform’s purported repurchase of Seva’s Membership Units is

void because it wasn’t undertaken in conformity with the OA; (2) breach of the OA;

(3) breach of the Side Letter Agreement; (4) a constructive trust; and (5) injunctive

107
AM 9/9 Sanghani Tr. 46–50.
108
9/10 Lustbader Tr. 20–21.
109
DX 316.
110
9/10 Lustbader Tr. 24; DX 354.
111
9/10 Lustbader Tr. 25–26; see generally Super. Ct. Compl. (Super. Ct. D.I. 1).

- 20 -
relief.112 There are no counterclaims in the Court of Chancery litigation.

In the Superior Court action, the Kakar Parties’ remaining claims are:

(1) breach of the APA; (2) breach of the SPA; and (3) a declaratory judgment that

the Octo Parties’ material breach of the Transaction Agreements excuses the Kakar

Parties’ obligations under the EA and NCA or, alternatively, that those agreements

are unenforceable.113 And the Octo Parties respond in Superior Court with

counterclaims of: (1) breach of the EA against Mr. Kakar; (2) breach of the NCA

against Mr. Kakar; (3) breach of the SPA against the Kakar Parties; (4) unjust

enrichment against the Kakar Parties; and (5) a declaratory judgment that the Kakar

Parties materially breached the EA, NCA, and SPA.114

The Court held a joint trial on all these remaining claims from September 8 to

12, 2025. And the parties timely completed their post-trial briefing.

VI. ANALYSIS AND FINDINGS

The parties’ dispute arises from the contracts among them and the asserted

breaches of said agreements. A breach of contract requires (1) a contractual

112
See generally Ch. Compl.; Seva Holdings I, 2024 WL 3982187, at *12 (granting summary
judgment to Octo on Counts I and III of Ch. Compl.).
113
See generally Super. Ct. Compl.; Super Ct. D.I. 24 (Order) (stipulating to dismissal of Count I
of Super Ct. Compl.); Super Ct. D.I. 132 (Order) (stipulating to dismissal of Counts II and V of
Super. Ct. Compl.).
114
See generally Super Ct. Countercl. (Super Ct. D.I. 33).

- 21 -
obligation, (2) a breach of that obligation, and (3) resulting damages.115 The Court

will read a contract as a whole and will give each provision and term effect, so as

not to render any part of it mere surplusage.116 The Court will give effect to the plain

meaning of the clear and unambiguous terms and provisions of a contract.117 When

the contractual language is clear, the Court “will give priority to the parties’

intentions as reflected in the four corners of the agreement, construing the agreement

as a whole and giving effect to all its provisions.”118 Now, “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.” 119 And if

there is ambiguity, then the Court “may consider extrinsic evidence to resolve the

ambiguity.”120

One championing a breach-of-contract claim must establish each of its

elements by a preponderance of the evidence.121

115
Interim Healthcare, Inc. v. Spherion Corp., 884 A.2d 513, 548 (Del. Super. Ct.
2005), aff’d, 886 A.2d 1278 (Del. 2005).
116
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159 (Del. 2010) (citations omitted).
117
Id.
118
In re Viking Pump, Inc., 148 A.3d 633, 648 (Del. 2016).
119
Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1196 (Del. 1992).
120
Salamone v. Gorman, 106 A.3d 354, 374 (Del. 2014).
121
See Facchina Constr. Litigs., 2020 WL 6363678, at *14 (defining burden of proof in trial of
such claims and counterclaims) (citing Reynolds, 237 A.2d at 711 (defining preponderance of the
evidence); Oberly v. Howard Hughes Med. Inst., 472 A.2d 366, 390 (Del. Ch. 1984)); Dieckman
v. Regency GP LP, 2021 WL 537325, at *18 (Del. Ch. Feb. 15, 2021).

- 22 -
The Court begins with its analysis of Seva’s Court of Chancery claims. The

Court finds that Seva’s claims fail since Octo Platform properly repurchased Seva’s

Membership Units and, subsequently, didn’t breach the Side Letter Agreement.

Turning to the Superior Court claims and counterclaims, the Court finds that

Mr. Kakar failed to establish a breach of the APA by a preponderance of the

evidence, both parties separately breached the SPA, and Mr. Kakar breached the EA

and NCA.

A. OCTO PLATFORM’S REPURCHASE COMPLIED WITH THE OA.

Seva seeks a declaratory judgment that Octo Platform’s purported repurchase

is void ab initio because Octo didn’t comply with the OA’s repurchase process.122

According to Seva there are three issues with Octo Platform’s repurchase: (1) Octo

Platform required that Seva execute a general release before it would pay Seva the

purchase price for its Units; (2) Octo Platform did not place the full amount of the

purchase price in escrow as required by § 8.7(d)(iii); and (3) Octo Platform failed to

establish an escrow. The Court finds that Octo Platform’s repurchase was valid

under the OA.

The OA’s repurchase process is as follows:

• Octo Platform “shall be entitled to receive customary representations and

122
Ch. Compl. ¶¶ 131–38; See Holifield v. XRI Inv. Holdings LLC, 304 A.3d 896, 935 (Del. 2023)
(interpreting void ab initio language in an LLC agreement to say that noncompliant transfers shall
be void ab initio).

- 23 -
warranties” prior to any closing.123

• Octo Platform “shall pay” for “the Membership Interests” by offsetting
them against any debts, delivering a check or wire transfer “for the amount
of any cash Capital Contributions paid by such Repurchase Member,” and
then, to satisfy the remaining balance, “by delivery of a Repurchase
Note.”124

• If the “Repurchase Holder shall fail to appear at the closing” or fails to
provide such representations and warranties, “[Octo Platform] may
thereupon place an amount of, equal to the amount of the purchase price
to be paid for the Membership Interests in escrow.”125

• At that point, “[Octo Platform] shall be entitled to cancel the or other
instruments representing the Membership Interests.”126

1. Octo Platform’s request for a general release did not violate
OA § 8.7(d)(iii) because Octo Platform didn’t need the customary
representations and warranties to repurchase.

First, the Court doesn’t find that Octo Platform’s general release violated the

OA. The OA provides that Octo Platform “shall be entitled to receive customary

representations and warranties from the sellers of any securities purchased pursuant

to this Section 8.7.”127 This provision doesn’t say that Octo Platform shall receive

customary representations and warranties, just that it shall be entitled to receive

them. The OA doesn’t define the term entitled or customary. If a contract doesn’t

123
OA § 8.7(d)(iii).
124
Id. at § 8.7(d)(i).
125
Id. at § 8.7(d)(iii).
126
Id.
127
Id.

- 24 -
define terms, Delaware courts look to dictionary definitions to find the plain

meaning.128 Merriam-Webster’s Dictionary defines “entitled” as “having a right to

certain benefits or privileges.”129 As such, Octo Platform only had a right to receive

customary representations and warranties. Regardless of if a general release makes

representations and warranties customary, there is nothing preventing Octo Platform

from seeking a general release in addition to customary representations and

warranties. Accordingly, the Court finds that Octo Platform’s reading of Section

8.7(d)(iii) is more reasonable based on the plain text of the agreement.

At summary judgment the Court held that this provision was ambiguous.130

Our Supreme Court has provided ample guidance on how to determine contractual

intent:

To determine what contractual parties intended, Delaware courts start
with the text. When the contract is clear and unambiguous, we will give
effect to the plain-meaning of the contract’s terms and provisions,
without resort to extrinsic evidence. To aid in the interpretation of the
text’s meaning, Delaware adheres to the objective theory of contracts,
i.e. a contract’s construction should be that which would be understood
by an objective, reasonable third party. The contract must also be read

128
See Illinois Nat’l Ins. Co. v. Harman Int’l Indus., Inc., 2026 WL 204209, at *10 (Del. Jan. 27,
2026) (looking to both Merriam-Webster’s Dictionary and Black’s Law Dictionary to ascertain the
plain meaning of undefined contract terms); Lorillard Tobacco Co. v. Am. Legacy Found., 903
A.2d 728, 738 (Del. 2006) (“Under well-settled case law, Delaware courts look to dictionaries for
assistance in determining the plain meaning of terms which are not defined in a contract.”); see
also In re Solera Ins. Coverage Appeals, 240 A.3d 1121, 1132 (Del. 2020) (“This Court often looks
to dictionaries to ascertain a term’s plain meaning.”).
129
Entitled, Merriam-Webster’s Dictionary (last accessed March 28, 2026), https://www.merriam-
webster.com/dictionary/entitled.
130
Seva Holdings I, 2024 WL 3982187, at *11.

- 25 -
as a whole, giving meaning to each term and avoiding an interpretation
that would render any term mere surplusage. But general terms of the
contract must yield to more specific terms.

If, after applying these canons of contract interpretation, the contract is
nonetheless reasonably susceptible to two or more interpretations or
may have two or more different meanings, then the contract is
ambiguous and courts must resort to extrinsic evidence to determine the
parties’ contractual intent.131

Now with the benefit of a trial on the merits, the Court can determine which

interpretation is the more reasonable one. The Court’s goal as the factfinder is to

effectuate the parties’ intent.132 As stated, the Court finds that Octo Platform’s

reading is the more reasonable one under the OA’s plain terms. Although the more

natural reading is to be considered,133 the analysis does not end there, and the Court

considers the extrinsic evidence submitted at trial since Seva has also put forth a

reasonable interpretation.134

The scarce extrinsic evidence doesn’t tend to show that the parties believed

that a general release violated the OA. Octo Platform provided Mr. Kakar with a

draft agreement for the parties to negotiate, but Mr. Kakar objected to the repurchase

on the basis that a triggering event had not occurred and refused to participate in the

131
Sunline Commercial Carriers, Inc. v. CITGO Petroleum Corp., 206 A.3d 836, 846–47 (Del.
2019) (cleaned up).
132
AT&T Corp. v. Lillis, 953 A.2d 241, 252 (Del. 2008).
133
Vill. Practice Mgmt. Co., LLC v. West, 342 A.3d 295, 314 (Del. 2025); BitGo Holdings, Inc. v.
Galaxy Digital Holdings, Ltd., 319 A.3d 310, 323 (Del. 2024).
134
Seva Holdings I, 2024 WL 3982187, at *11.

- 26 -
repurchase process.135 Seva didn’t object to the language of the release during this

time.136 True, evidence of post-contractual actions isn’t often useful evidence when

determining what the parties thought at the time of execution. But Seva hasn’t

offered any compelling extrinsic evidence to show that its interpretation is the

correct one and “[a]lthough contemporaneous evidence is far more probative of the

shared expectations of contracting parties as a general matter, that does not mean

that a party’s subsequent conduct has no probative value.”137 And it is Seva that

bears the burden to prove its claim by a preponderance of the evidence.

Here, the evidence only shows that Seva didn’t believe that a triggering event

had occurred, not that there was any issue with the release itself. With all that, the

Court doesn’t find that Octo Platform’s release request violated the OA.

2. Octo Platform didn’t have to repurchase with cash under
OA § 8.7(d)(iii) since the OA provides for repurchase with a note.

Seva refused to provide any representations and warranties and didn’t appear

at the closing. While OA Section 8.7(d)(i) allowed Octo Platform to repurchase by

delivering and executing a promissory note to the holder, OA Section 8.7(d)(iii)

kicked in when Seva refused to provide representations and warranties and failed to

135
9/10 Koltonyuk Tr. 108–110.
136
Id. at 109.
137
Holzbaur v. Trolley Square Hosp., LLC, 340 A.3d 603, 612 (Del. Ch. 2025), aff’d sub nom.
Holzbaur v. Trolley Square Hosp. Grp., LLC, 2026 WL 261522 (Del. Feb. 2, 2026) (quotation
omitted).

- 27 -
appear at closing. When a member fails to appear at closing or otherwise has

breached its obligations under the OA, Octo Platform could still consummate the

involuntary sale of the units without delivering an executed promissory note to the

holder if Octo Platform placed “an amount of, equal to the amount of the purchase

price to be paid for the Membership Interests in escrow.”138 Octo Platform placed

the Repurchase Note in escrow.139 Seva claims it had to escrow cash. The Court

held at summary judgment that both parties had posited reasonable interpretations

of the OA’s closing requirements and the provision was ambiguous.140

The OA says “[e]very covenant, term, and provision of this Agreement shall

be construed simply according to its fair meaning and not strictly for or against any

Member.”141 Under OA Section 8.7(d)(i), Octo Platform shall pay for the

Repurchase Options by: (1) offsetting any bona fide debts owed by the Repurchase

Holder to the Company; (2) delivering to the holder of the Membership Interests a

check or wire transfer of immediately available funds for the amount of any cash

Capital Contributions paid by such Repurchase Member for the Membership Units

or equity securities subject to the Repurchase Option (not including any proceeds

from any debt offset under clause (1)) plus any principal payments made on any note

138
OA § 8.7(d)(iii).
139
9/10 Koltonyuk Tr. 111–12.
140
Seva Holdings I, 2024 WL 3982187, at *10–11.
141
OA § 13.9.

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to the Company used to purchase such Membership Units or equity, up to the balance

of the Repurchase Price, if any; and (3) delivering a Repurchase Note for the balance

of the Repurchase Price, if any.142 Conversely, OA Section 8.7(d)(iii) says:

In the event that a Repurchase Holder shall fail to appear at the closing
or shall fail to deliver the certificates or other instruments representing
the Membership Interests or other equity securities to be purchased
properly endorsed for transfer when required to do so, or shall
otherwise fail to comply with its obligations under this Agreement, the
Company may thereupon place an amount of, equal to the amount of
the purchase price to be paid for the Membership Interests in escrow
for the applicable Repurchase Holder, whereupon the Company shall
be entitled to cancel the or other instruments representing the
Membership Interests or other equity securities so purchased and to
treat the such Membership Interests as having been purchased by
Company.143

The Court reads OA Section 8.7(d)(iii) to provide an alternative route to repurchase

if the holder doesn’t want to give up its Membership Interests or doesn’t comply

with the OA’s closing process. In that scenario, which happened here, Octo Platform

could either: (1) not repurchase the Membership Interests; or (2) place an amount

equal to the purchase price to be paid in escrow.

Amount is defined as “the total number or quantity : AGGREGATE” and “the

quantity at hand or under consideration.”144 True, this alone might lend to a reading

142
OA § 8.7(d)(i).
143
Id. at § 8.7(d)(iii) (emphasis added).
144
Amount, Merriam-Webster’s Dictionary (last accessed Mar. 28, 2026), https://www.merriam-
webster.com/dictionary/amount.

- 29 -
that cash is required because the OA says the “amount of, equal to the amount the

purchase price.”145 But again, the Court reads agreements as a whole, giving

meaning to each term and avoiding an interpretation that would render any term

mere surplusage. To complete the previous quote, OA Section 8.7(d)(iii) states that

amount of, equal to the amount the purchase price to be paid . . . in escrow.”146 And

OA Section 8.7(d)(i) clearly says that Octo Platform shall pay by delivering a

Repurchase Note for the balance of the Repurchase Price.147 The OA directs

payment with a Repurchase Note and there is no clear language in the OA that

overrides this requirement. Accordingly, the Court finds that Octo Platform’s

interpretation, based on the OA’s text, is the more reasonable one.

Looking at the extrinsic evidence, again, Seva never objected to the

Repurchase Note as a form of payment when Octo Platform notified Seva that it was

repurchasing and cancelling Seva’s shares.148 Indeed, Seva didn’t even raise this

specific purported problem with the repurchase in its initial complaint. 149 Seva

hasn’t proffered any convincing evidence showing that the parties thought, at the

time of execution, that the repurchase had to be completed with cash. Thus, Octo

145
OA § 8.7(d)(iii).
146
Id.
147
Id. at § 8.7(d)(i) (emphasis added).
148
9/10 Koltonyuk Tr. 109–119.
149
Ch. Cmpl. ¶¶ 74–75 (Ch. D.I. 1).

- 30 -
Platform was allowed to repurchase the units by placing a Repurchase Note in

escrow.

3. Octo Platform could place the Note in escrow with deal counsel.

Lastly, the Court doesn’t find that a breach of the OA as a result of Octo

Platform placing the executed promissory note in escrow with deal counsel—Mr.

Koltonyuk—rather than a third party and without a formal escrow agreement

between the parties. The OA provides that Octo Platform had to place an amount

equal to the amount of the purchase price in escrow.150 No doubt, escrow can be

placed with a neutral third party that did not serve as deal counsel with a separate

escrow agreement signed by both parties. But the OA doesn’t mandate this.151

And the OA doesn’t define escrow.152 “An escrow is essentially a written

instrument deposited with a third party which, by its terms, dictates a legal obligation

when deposited by a grantor or depositor until the happening of some specified event

or the performance of some condition whereby the written instrument will be

delivered to some grantee.”153 And “[a] written promise is delivered in escrow by

the promisor when he puts it into the possession of a person other than the promisee

without reserving a power of revocation and manifests an intention that the

150
OA § 8.7(d)(iii).
151
See generally OA.
152
See generally id.
153
Batchelor v. Alexis Properties, LLC, 2018 WL 5919683, at *7 (Del. Super. Ct. Nov. 13, 2018).

- 31 -
document is to take effect according to its terms upon the occurrence of a stated

condition but not otherwise.”154 The OA doesn’t lay out an escrow process, and the

Court will not “rewrite the contract” to create mandatory escrow requirements that

are not apparent under Delaware law.155 The OA only required Octo Platform to

place the amount in escrow, not for the parties to place the amount in escrow

together.156 This is different from language in the SPA that does require a specific

form of escrow process and agreement.157 As such, there is no requirement that the

parties had to jointly agree to an escrow contract or that Mr. Koltonyuk couldn’t

serve as an escrow agent under the OA. Once more, the Court finds that Octo

Platform’s interpretation is the more reasonable one based on the OA’s text.

Looking again at the limited extrinsic evidence, Mr. Koltonyuk testified that

it is the “default and routine” practice in corporate transactions for deal counsel to

154
RESTATEMENT (SECOND) OF CONTRACTS § 103(1) (A.L.I. 1981).
155
Nemec v. Shrader, 991 A.2d 1120, 1126 (Del. 2010).
156
OA § 8.7(d)(iii).
157
See SPA § 1.2(c):
At the Closing, the Buyer shall deposit on behalf of the escrow beneficiaries in an
escrow account with U.S. Bank National Association as escrow agent (the “Escrow
Agent”), pursuant to the terms and conditions of an escrow agreement in the form
attached hereto as Exhibit E, subject to such reasonable modifications as shall be
agreed to by the Escrow Agent and the Parties thereto (the “Escrow Agreement”),
by wire transfer of immediately available funds, an amount equal to (i) $1,025,000
(the “Indemnification Escrow Amount”), plus (ii) $1,500,000 (the “Adjustment
Escrow Amount” and together with the Indemnification Escrow Amount, the
“Escrow Amount”).

- 32 -
hold executed documents in escrow.158 Seva didn’t object to the form of escrow in

its responses to Octo Platform’s notices.159 The little extrinsic evidence again tends

to show that Octo Platform could place the note in escrow with Mr. Koltonyuk.

Accordingly, the Court finds that when Seva failed to deliver customary

representations and warranties or appear at closing, OA § 8.7(d)(iii) gave Octo

Platform the discretion to proceed with the repurchase of Seva’s Units, but only

pursuant to that Section’s requirements. That Section required Octo Platform to put

the amount to be paid in escrow before it could cancel Seva’s Units and treat them

as repurchased. Octo Platform obliged. Thus, its repurchase of Seva’s Units was

proper and was not void ab initio under the OA.160 The Court enters judgment for

Octo for Chancery Counts II and IV.

B. BECAUSE OCTO PLATFORM’S REPURCHASE IS PROPER,
OCTO PLATFORM DID NOT BREACH THE SIDE LETTER AGREEMENT.

On that same note, Octo didn’t breach the Side Letter Agreement since Octo

Platform purchased and cancelled Seva’s shares. Under the Side Letter Agreement,

while it remained a member, Seva had the right to repurchase the units that Seva had

transferred to the Legacy Sevatec Employees upon the termination of their Octo

158
9/10 Koltonyuk Tr. 115–16.
159
Id. at 109–121.
160
OA § 8.1(a) (“Any purported Transfer in violation of this Agreement shall be null and void ab
initio and the Company shall not recognize any such Transfer or accord to any purported transferee
any rights as a Member of the Company.”).

- 33 -
Consulting employment.161 But as established, Octo Platform properly repurchased

Seva’s units and, thusly, Seva had no longer had a right to repurchase. Accordingly,

the Court enters judgment in Octo’s favor on Chancery Count V.

C. SEVA IS NOT ENTITLED TO EQUITABLE RELIEF.

Counts VI and VII of Seva’s Verified Complaint seek equitable relief in the

form of a constructive trust and injunctive relief. Since Seva’s Chancery claims fail,

it isn’t entitled to equitable relief.

International Business Machines, Inc. (“IBM”) purchased Octo Platform in

November 2022.162 As a result, the Court of Chancery issued a Status Quo Order

that reserved certain funds in escrow relating to the IBM purchase for the purposes

of this litigation.163 Since judgment is entered in favor of Octo Platform on all

remaining Court of Chancery claims, the Court orders that Octo Platform is entitled

to disburse the proceeds from the IBM Transaction, from the funds presently held in

escrow pursuant to the Status Quo Order entered by the Court (“Reserved Funds”).

Judgment is entered in Octo’s favor on Chancery Counts VI and VII.

D. MR. KAKAR HAS FAILED TO ESTABLISH A BREACH OF THE APA.

While Mr. Kakar has established that the awarded recompetes are qualifying

161
Side Letter Agreement § 1.
162
PX 380.
163
Ch. D.I. 41 (Order).

- 34 -
Recompete Contracts, he has not established that the Recompete Contracts met the

GPBF threshold. Octo contends that ICAM Alliant 2 is a “bridge” rather than a

“recompete” because it was “issued on a sole-source basis” as a “stop-gap” while

the government “put together its recompete process.”164 But there is nothing in the

APA that requires there to be a competitive recompete process for a contract award

to qualify as a Recompete Contract under the APA.165 Thus, SWES, DBIS III Alliant

2, and ICAM Alliant 2 are all qualifying Recompete Contracts.

That said, the Court does not find that Mr. Kakar has demonstrated by a

preponderance of the evidence that the Recompete Contracts met the GPBF

threshold required under the APA. Mr. Kakar’s primary evidence that the

Recompete Contracts met the threshold is an Excel sheet prepared by Octo’s former

Director of Pricing Rebecca Cohencious.166 Before entering the values into the

Excel sheet, Mr. Kakar told Ms. Cohencious that the target number was $1.643

million.167 When Ms. Cohencious first plugged the values into the Octo pricing

program, she did not reach $1.643 million.168 With the required and optional

Contract Line Item Numbers (“CLINs”) inputted into the calculation,

164
Octo Br. ¶¶ 79–80.
165
See generally APA §§ 1(a)–(f).
166
JX 390.
167
Cohencious Tr. 78.
168
Id. at 77–78.

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Ms. Cohencious’ calculation fell short of Mr. Kakar’s target.169 To reach $1.643

million, Ms. Cohencious added the assumption that “we worked the 70 percent of

the balance of the optional CLINs.”170 Ms. Cohencious added this assumption to

reach the target Mr. Kakar gave her, and without that target, she would not have met

the threshold GBPF with only the default assumptions from the Octo pricing

program. True, the APA provides for the expected GBPF numbers and is not based

on actual GBPF numbers the contracts eventually made.171 But even using the

correct expected GBPF, Ms. Cohencious was unsure if the threshold was met.

Indeed, Ms. Cohencious stated to Mr. Kakar:

So overall there’s no question we’ve met and exceeded the Target GP
threshold in terms of total dollars. However, there is uncertainty with
the SWES TOs because we only meet the minimum Required GP when
assuming that all of the priced Optional NTE values are funded in full
in the first year and that Octo is performing 70% of those full NTE
values. I split out the Optional NTE values into those against which we
made assumptions in the pricing process, and the balance of the NTE
value. Even when counting the Optional CLIN LOE that we assumed
in our internal pricing models this past summer, we only get to
$1.305M. To meet and exceed the $1.643M requirement I’ve added
the assumption that we work 70% of the balance of the Optional NTE
CLIN values. So I think we need the actuals and forecast data for
2021/2022 for these SWES TOs at this point to better understand how
we compare to the $1.643M. There were staffing changes within the
required CLINs post-award, plus I don’t know how much funding
Octo’s received for the Optional CLINs.172

169
Id. at 77–79.
170
Id. at 78; JX 390.
171
APA § 1(b).
172
JX 390.

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Based on this, the Court finds that Mr. Kakar has failed to establish by a

preponderance of the evidence that the Recompete Contracts met the expected GBPF

threshold. Even Ms. Cohencious was unsure if the threshold was met, and she was

only adding in assumptions to reach that number because Mr. Kakar told her that

there was a target number. And there was no follow-up with Mr. Kakar and Ms.

Cohencious discussing the assumptions she used or if Mr. Kakar provided her with

“the actuals and forecast data for 2021/2022 for these SWES TOs at this point to

better understand how we compare to the $1.643M.”173 Had she not known about

the target, the Court finds that Ms. Cohencious’ calculation would not have met the

threshold, and this calculation is Mr. Kakar’s best evidence on his earnout claim.

Because of the uncertainties of Ms. Cohencious’ calculation, Mr. Kakar has failed

to prove a breach of the APA. Judgment is entered in favor of Defendant on

Plaintiff’s Superior Court Count III.

E. BREACH OF CONTRACT UNDER THE SPA

The parties assert competing claims for breach of the SPA. The Kakar Parties

assert that Octo Consulting breached the SPA by failing to pay the net working

capital of $233,535.39, refusing to release the Adjustment Escrow, and refusing to

173
Id.

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release the Indemnification Escrow.174 Octo Consulting counters that the Kakar

Parties breached the SPA by breaching the representations and warranties in SPA

Sections 3.18(c)(i) and (iii) with respect to CALM, failing to indemnify Octo

Consulting for the FITSS Payments, and failing to indemnify Octo Consulting for

additional employee retention payments in the amount of $260,000.175

a. Seva has proved a breach of the Purchase Price Adjustment Process
(Superior Court Complaint Count IV).
Seva insists that Octo Consulting breached the SPA by failing to order the

escrow agent to pay Seva the Estimated Adjustment Amount.176 The Court holds

that Seva has demonstrated that Octo Consulting breached the SPA by failing to do

so.

Again, Mr. Cook, provided Mr. Kakar with a preliminary closing net working

capital calculation of $199,000.177 At Octo Consulting’s request, Mr. Kakar agreed

to a brief extension of the 90-day deadline to deliver the Proposed Closing

Statement.178 Then, Mr. Cook sent the Proposed Closing Statement—with a closing

net working capital calculation of $233,535.39—to Mr. Kakar.179 That same day,

174
See generally Super. Ct. Compl.
175
See generally Super. Ct. Countercl.
176
Super. Ct. Compl., ¶ 132 (D.I. 1).
177
9/8 Kakar Tr. 134–35; 9/11Cook Tr. 83; DX 147.
178
9/8 Kakar Tr. 141–43.
179
DX 215; 9/11 Cook Tr. 86–87.

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Mr. Kakar told Mr. Cook that he agreed with that number.180 Later, Octo Consulting

asserted that certain payments related to the FITSS program should be deducted from

the previous calculation given to Mr. Kakar.181

Octo Consulting contends that the parties never agreed on an adjustment

amount, so it was not required to instruct the escrow agent to deliver funds to

Mr. Kakar from escrow. But the SPA doesn’t require a bilateral acceptance by both

parties. Under the SPA’s Purchase Price Adjustment Process, the Proposed Closing

Statement became final and binding upon: (1) acceptance by Mr. Kakar; (2) as

agreed upon by Octo Consulting and Mr. Kakar; or (3) as determined by the

independent accounting firm.182 So under the first pathway to finality, Mr. Kakar

could unilaterally accept the Proposed Closing Statement upon receipt, which he did

relating to the $233,535.39 price.183 And Octo Consulting later proposing a change

to its earlier calculation, after acceptance by Mr. Kakar, doesn’t revoke Mr. Kakar’s

valid acceptance. Moreover, continued discussions about networking capital doesn’t

change the fact that Mr. Kakar accepted the Proposed Closing Statement calculation

delivered to him as part of the Purchase Price Adjustment Process.184 As a result,

180
9/8 Kakar Tr. 148–49.
181
PX 242; 9/8 Kakar Tr. 141–42.
182
SPA § 1.3(b)(iv) (emphasis added).
183
9/8 Kakar Tr. 148–49.
184
9/11 Cook Tr. 88–89.

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the Court finds that Mr. Kakar has demonstrated a breach of the SPA’s Purchase

Price Adjustment Process by Octo Consulting and is entitled to the Adjustment

Escrow amount and the net working capital calculation amount of $233,535.39, both

with prejudgment interest.185 Judgment is entered in the Kakar Parties’ favor in

Superior Court Count IV.

b. The Indemnification Claim Procedure does not foreclose
Octo Consulting’s SPA Counterclaims.

Seva says that Octo Consulting can’t recover under its SPA breach

counterclaims because Octo Consulting didn’t comply with the SPA’s

indemnification Claim Procedure. Indeed, Octo Consulting neither provided Mr.

Kakar SPA Section 9.4’s required information nor made a claim against the Policy

as required by SPA Section 9.7(d).186 As recently instructed by our Supreme Court,

“‘[f]or a condition to effect a forfeiture, it must be unambiguous. If the language

does not clearly provide for a forfeiture, then a court will construe the agreement to

avoid causing one.’”187 There, the Court held that a specific section of a merger

185
See In re Bremerton Cellular Tel. Co. Litig., 328 A.3d 330, 353–54 (Del. Ch. 2024)
(recognizing that prejudgment interest is awarded as a matter of right, is computed from the date
payment is due, and, in the absence of an express contractual rate, is calculated using the legal rate
of 5% over the Federal Reserve discount rate including any surcharge as of the time from which
interest is due).
186
9/8 Kakar Tr. 153.
187
Thompson St. Capital Partners IV, L.P. v. Sonova United States Hearing Instruments, LLC, 340
A.3d 1151, 1172 (Del. 2025) (quoting QC Holdings, Inc. v. Allconnect, Inc., 2018 WL 4091721,
at *7 (Del. Ch. Aug. 28, 2018)).

- 40 -
agreement contained an express condition precedent that provided for a forfeiture

upon noncompliance.188

The SPA contains no such clear language that gives rise to a forfeiture for

noncompliance. The SPA only gives the party a procedure and provides that it is the

sole and exclusive remedy for certain breaches.189 It doesn’t contain any

consequences for noncompliance.190 As a result, the Court holds that the SPA

indemnification claim procedure contains no unambiguous condition precedent that

requires the forfeiture by Octo Consulting for failure to comply.

c. Octo Consulting’s CALM representation breach counterclaim fails
since Octo Consulting has not shown that the representation was false
at Closing.

Octo Consulting claims that the Kakar Parties misrepresented the state of

Contract Acquisition Lifecycle Management (“CALM”) project in SPA Section

3.18(c). The Kakar Parties represented to Octo Consulting in the SPA that Sevatec

was in compliance with all “terms and conditions” of its existing government

projects and bids as of November 30, 2020.191 In support of its counterclaim, Octo

188
Id. That condition precedent read “[Sonova] shall have no right to recover any amounts
pursuant to Section 9.2 unless the Purchaser notifies the Members’ Representative in writing of
such Claim pursuant to Section 9.3 on or before the Survival Date.” Id.
189
See SPA § 9.9.
190
See Thompson St. Capital Pr’s, 340 A.3d at 1174–76 (opining that the merger agreement
contained a condition precedent because it defined the consequences for noncompliance).
191
SPA § 3.18(c).

- 41 -
Consulting points to a post-Closing dispute over unpaid invoices for work that

Unison performed under CALM.192 But Octo Consulting’s evidence of unpaid

invoices only points to post-Closing unpaid invoices from 2021.193 And Octo

Consulting agrees that “[i]n entering the SPA, the Kakar Defendants represented to

Octo that Sevatec was in compliance with all ‘terms and conditions’ of its

government projects and bids as of November 30, 2020.”194 Sevatec only

represented and warranted “as of the date of the [SPA] and as of the Closing Date.”195

Both of which pre-date any evidence of invoices that were only due after such dates.

Unpaid invoices after the effective date of the SPA’s representations and warranties

goes beyond what was represented in that agreement.

The same goes for the letter of concern Octo Consulting received after

Closing.196 In the letter dated March 12, 2021, Kimberly Hampel informed Sevatec

that the period of performance for CALM started on October 27, 2020, and as such,

the 100-day period of performance ended on February 4, 2021.197 Again, this is post-

Closing, and Sevatec was still in compliance with its CALM obligations for the

192
Shah Tr. 168–171; DX 115.
193
DX 115-003 (“The items on the Jan 31 [2021] invoices which are not in dispute are now
overdue.”).
194
Super Ct. Countercl., ¶ 231.
195
SPA Art. 3.
196
DX 149.
197
DX 149-001.

- 42 -
purposes of the SPA’s representations and warranties. The fact that Sevatec’s

proposed solution to achieve ATO within the 100-day timeline may have ultimately

been unachievable doesn’t mean that Sevatec was in breach at Closing. Too, Sevatec

didn’t represent and warrant that it would achieve all contract deliverables in the

future, only that it was not in breach as of Closing. For these reasons, the Court

finds that Octo Consulting failed to prove a breach of the SPA’s representations and

warranties.

d. Octo Consulting’s Post-Closing Retention Bonus Payment
counterclaim succeeds while its Indebtedness counterclaim falls short.

According to Octo Consulting, the Kakar Parties breached the SPA by

refusing to indemnify Octo Consulting for: (1) employee retention bonuses;

(2) additional incentive payments related to contracts awarded after Closing; and (3)

losses related to the Kakar Parties’ misrepresentations about the CALM Project. As

stated, there was no misrepresentation about the CALM Project. So, the Court only

analyzes the retention bonuses and the additional incentive employee payments.

To start, under the SPA’s Indemnifications Provision, the Kakar Parties are

obligated to pay “any Indebtedness not paid and discharged in full at or prior to the

Closing or not otherwise taken into account as a reduction of the Purchase Price.”198

The Indemnification Provision also catches “all obligations of [Sevatec] to make

198
SPA § 9.2(c).

- 43 -
payments . . . with respect to the Post-Closing Retention Bonus Payments.”199 SPA

Section 8.6(e) provides that Sevatec had to pay Octo $260,000, which was to be

disbursed as retention bonuses to legacy Sevatec personnel 18 months after closing

in May 2022.200 This is the Post-Closing Retention Bonus Payment.201

With this, the Kakar Parties are on the hook for the Post-Closing Retention

Bonus Payments. Octo Consulting paid this amount; Sevatec did not.202 Thus, the

Kakar Parties liable for the $260,000 Post-Closing Retention Bonus Payment Octo

Consulting.

On the other hand, the SPA’s Indemnification Provision does not cover the

$65,000 relating to the additional incentive payment paid by Octo under the FITSS

contract. The FITSS contract wasn’t awarded before Closing and, likewise, wasn’t

discharged in full prior to Closing.203 This doesn’t fall within the SPA’s

Indemnification Provision and isn’t recoverable by Octo Consulting. As such,

judgment is entered in favor of Octo on Superior Court Counterclaim III—but only

as to the Post-Closing Retention Bonus Payment.

199
Id. at § 9.2(g).
200
Id. at § 8.6(e).
201
Id.
202
9/11 Cook Tr. 56–57; DX 373.
203
9/11 Cook Tr. 97–98.

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e. Octo Consulting’s SPA breaches do not excuse the Kakar Parties
from paying the Post-Closing Retention Bonus Payment.

While they suggest otherwise, Octo Consulting’s material breach of the SPA

doesn’t excuse the Kakar Parties from paying the Post-Closing Retention Bonus

Payment.

“A party may be excused from performing if the other party is in material

breach.”204 Materiality of a breach is “determined by ‘weighing the consequences

in light of the actual custom of men in the performance of contracts similar to the

one that is involved in the specific case.’”205 This occurs when the party’s failure is

“so fundamental to a contract that the failure . . . defeats the essential purpose of the

contract or makes it impossible for the other party to perform the contract.”206

204
Est. of Buller v. Montague, 2020 WL 996883, at *3 (Del. Super. Ct. Mar. 2, 2020).
205
Carey v. Est. of Myers, 2015 WL 4087056, at *20 (Del. Super. Ct. July 1, 2015), aff’d, 132
A.3d 749 (Del. 2016) (citing Preferred Inv. Services v. T & H Bail Bonds, 2013 WL 3934992, at
*21 (Del. Ch. July 24, 2013)).
206
Shore Invs., Inc. v. Bhole, Inc., 2011 WL 5967253, at *5 (Del. Super. Ct. Nov. 28, 2011),
amended by 2012 WL 2337793 (Del. Super. Ct. Apr. 9, 2012), and judgment entered, (Del. Super.
Ct. 2012), aff’d in part, rev’d in part, 67 A.3d 444 (Del. 2013), and judgment entered, (Del. Super.
Ct. 2012), and aff’d in part, rev’d in part, 67 A.3d 444 (Del. 2013) (quoting 23 Williston on
Contracts § 63:3 (4th ed. 2021)). “Delaware courts have adopted the factors set forth in the
Restatement of Contracts to consider the materiality of a breach, including: ‘(a) the extent to which
the injured party will be deprived of the benefit of which he reasonably expected; (b) the extent to
which the injured party can be adequately compensated for the part of that benefit of which he will
be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer
forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his
failure, taking account of all of the circumstances including any reasonable assurances; and (e) the
extent to which the behavior of the party failing to perform or to offer to perform comports with
standards of good faith and fair dealing.’” Roberts v. Moffa Constr. Co. LLC, 2024 WL 5184100,
at *3 (Del. Super. Ct. Dec. 20, 2024) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 241 (AM.
LAW INST. 1981)).

- 45 -
“Conversely, a slight breach by one party, while giving rise to an action for damages,

does not terminate the obligations of the injured party under the contract.”207

It is also well-settled that a party may not refuse to perform its contractual

obligations after a material breach while simultaneously retaining the benefits of a

contract.208 “‘When there has been a material failure of performance by one party

to a contract . . . the [other] party has the choice to continue to perform under the

contract or to cease to perform, and conduct indicating an intention to continue the

contract in effect will constitute a conclusive election, in effect waiving the right to

assert that the breach discharged any obligation to perform.’”209

Here, in response to Octo Consulting’s notice of claim relating to the SPA’s

Indemnification Provisions, Mr. Kakar’s counsel responded by imploring Octo

Consulting to comply with the SPA’s Indemnification Process and demanded that

Octo Consulting release the Indemnification Escrow.210 Through this, the Kakar

Parties indicated an intention to continue the contract by pressing for Octo

Consulting to follow the indemnification process and for release of the escrow fund.

Too, the Kakar Parties are not seeking to rescind the SPA. So Sevatec is still

207
Est. of Myers, 2015 WL 4087056, at *20.
208
Post Holdings, Inc. v. NPE Seller Rep LLC, 2018 WL 5429833, at *5 (Del. Ch. Oct. 29, 2018).
209
Id. (quoting 23 Williston on Contracts § 43:15 (4th ed. 2021)).
210
PX 349.

- 46 -
responsible for paying the Post-Closing Retention Bonus Payment.211

F. MR. KAKAR BREACHED THE EA, BUT NOT BY HIS MANAGEMENT OF THE
UNISOM INVOICES.

Octo Consulting purports that Mr. Kakar’s post-Closing conduct breached his

EA. The Court is in some agreement with that.

The EA provides that Mr. Kakar’s “duties and responsibilities” were

“commensurate” with his title, and he agreed to perform them “with fidelity and

loyalty” to Octo and to the best of his “ability, experience, and talent in a diligent,

trustworthy, businesslike, and efficient manner.”212 Again, if a contract doesn’t

define terms, Delaware courts look to dictionary definitions to find the plain

meaning. The EA doesn’t define “commensurate.”213 Merriam-Webster’s

Dictionary defines commensurate as “corresponding in size, extent, amount, or

degree : PROPORTINATE” and “equal in measure or extent : COEXTENSIVE.”214

Thus, the Court finds that the EA required Mr. Kakar to act in a manner

corresponding in degree and equal in extent to that of a Vice Chair and Head of

Strategy, and, in that capacity, act with fidelity and loyalty.

211
See Post Holdings, 2018 WL 5429833, at *5 (holding that, by utilizing indemnification process
and seeking funds in escrow, buyers indicated an intention to continue the contract).
212
EA § 3.
213
See generally EA.
214
Commensurate, Merriam-Webster’s Dictionary (last assessed Mar. 28, 2026),
https://www.merriam-webster.com/dictionary/commensurate.

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After Octo Consulting’s Board decided to not go forward with the Sevatec

name, Mr. Kakar operated in his role with little engagement215 and largely abdicated

his duties as a Vice Chair.216 He refused to participate in integration events, calls,

meetings, and functions.217 Moreover, during meetings, Mr. Kakar gave a double

middle finger gesture to board members and once told Mr. Lustbader that he felt like

punching him.218 This is not acting like a Vice Chair in a businesslike or efficient

manner. Based on these actions during his employment, Mr. Kakar breached the

EA.

That said, Mr. Kakar’s decisions regarding Unisom didn’t breach the EA.

Octo Consulting asserts that Mr. Kakar’s “draconian” stance regarding the Unison

payments violated the EA because he was putting his interest in obtaining an earnout

over Octo’s interests and long-term business.219 But the EA doesn’t govern how

Mr. Kakar had to manage contracts post-Closing. The EA says that Mr. Kakar

understood that Octo Consulting’s strategic plan was to build “a substantially larger

organization through merger and acquisition over a period of time.”220 Obtaining

215
DX 143; DX 181; 9/8 Kakar Tr. 242–43; 9/9 Sanghani Tr. 54, 71–72.
216
9/9 Sanghani Tr. 31, 59, 65; 9/10 Shah Tr. 152; 9/11 Cook Tr. 45–46; 9/11 Lyons Tr. 169–70,
173.
217
DX 163; DX 164; DX 204; DX 257; DX 268; 9/9 Sanghani Tr. 59; 9/10 Shah Tr. 152, 154–56;
9/11 Gifford Tr. 139–41, 145–46.
218
9/9 Sanghani Tr. 46–50; 9/10 Lustbader Tr. 20–21.
219
9/10 Shah Tr. 171.
220
EA § 3.

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new companies through mergers and acquisitions is different from managing

existing contracts. Besides assigning Mr. Kakar duties and responsibilities

commensurate with Vice Chair and Head of Strategy, the EA doesn’t spell out any

express management duties.221 If anything, the APA provides that former Sevatec

Executive Vice President Chuck Schefer, in his capacity as head of the business unit,

was in charge of these management decisions.222 Moreover, Octo hasn’t shown by

a preponderance of the evidence that Mr. Kakar took his stance in relation to Unisom

solely to increase his chance of earning an additional payment. Mr. Kakar disagreed

with how certain payments were to be made, and this largely took place before the

fallout over the merged company’s name.223 After Octo Consulting disagreed with

Mr. Kakar’s decisions over figuring out the Unisom payments issue, Octo

221
See EA § 3.
222
See APA § 3(a):
Subsequent to the Closing and so long as any portion of the Additional Payment
still may be earned hereunder, all of the respective businesses of the Buyer and the
other Subsidiaries of the Platform Parent associated with GSA, DHS and USPTO
will be managed as part of the Business under the primary direction of Mr. Schefer
(for as long as Mr. Schefer remains an employee of the Platform Parent or its
Subsidiaries) in his capacity as the head of the business unit of the Buyer that
includes the Business and subject to such ordinary course of business internal
personnel, supervision, management and control policies and procedures instituted
by the Buyer’s executive management with respect to the scope of authority of, and
decisions of a similar nature made by, the managers in charge of the Buyer’s other
business units, including the review and approval of such decisions by the Buyer’s
Chief Financial Officer and Chief Operating Officer, subject to the Representative’s
authority and similar rights set forth herein and in the Employment Agreement.
223
Compare DX 115’s February 2021 dates with DX 143’s and 181’s dates in March 2021.

- 49 -
Consulting talked with Unisom and paid the invoices without Mr. Kakar.224 The

Court finds that the issue that incited Mr. Kakar’s breaches was the name change,

and this motivated his professional disassociation with Octo Consulting and his

unprofessional conduct that breached the EA.

Octo Consulting seeks to recover wages paid to Mr. Kakar and his personal

assistant during the time when Mr. Kakar shirked his duties.225 But this isn’t the

proper remedy. It is well-settled Delaware law that damages for a breach of contract

are expectation damages.226 “When determining expectation damages, courts

determine an amount that will give the injured party ‘the benefit of its bargain by

putting that party in the position it would have been but for the breach.’” 227 Unless

separation was possible, Mr. Kakar still would have been paid his wage to

compensate him for his work—substandard or not.

“The general measure of damages for an employee’s breach of an employment

contract is the additional cost, if any, incurred by the employer in obtaining a

substitute performance, that is, in hiring another to perform services equivalent to

those promised but not performed by the breaching employee, though additional

recovery may be allowed if the additional damages were foreseeable when the

224
9/10 Shah Tr. 170–78.
225
9/11 Cook Tr. 46–56; DX 372; DX 391.
226
Leaf Invenergy Co. v. Invenergy Renewables LLC, 210 A.3d 688, 695 (Del. 2019).
227
Id. (citing Genencor Int’l, Inc. v. Novo Nordisk A/S, 766 A.2d 8, 11 (Del. 2000)).

- 50 -
parties entered the contract.”228 “In absence of a special agreement, an employer

may not recover back wages or equivalent drawings paid during the period of

completed employment.”229 The EA doesn’t have a special provision providing for

the return of wages.230 Octo Consulting hasn’t provided, and the Court is unaware

of, any Delaware caselaw allowing an employer to recoup wages paid to an

employee after a breach of an employment contract. As such, a return of wages paid

to Mr. Kakar and his personal assistant that Octo Consulting allowed Mr. Kakar to

hire isn’t recoverable.

A return of wages and the alleged CALM Project and Unisom

mismanagement is what Octo Consulting’s expert relied on in calculating the

damages owed to Octo Consulting.231 Yet these damages aren’t due, and Octo

Consulting hasn’t demonstrated any other damages with the requisite certainty.232

228
24 Williston on Contracts § 66.13 (4th ed. 2025).
229
Id.; see also Lumentum Operations LLC v. nLIGHT, Inc., 2024 WL 4107691, at *3 (W.D. Wash.
Sept. 6, 2024) (collecting cases to say “[i]n absence of a special agreement, an employer may not
recover back wages or equivalent drawings paid during the period of completed employment.”).
230
See EA § 12 (providing that Octo may be entitled to injunctive relief but not for return of wages
or any other specific form of damages for a breach by Mr. Kakar like liquidated damages).
231
9/12 Barnes 21–24; DX 288; DX 372; DX 391.
232
See Winklevoss Capital Fund, LLC v. Shaw, 2024 WL 3888757, at *9 (Del. Ch. Aug. 21, 2024):
Plaintiffs bear the burden of proving damages. The quantum of proof required to
establish the amount of damage is not as great as that required to establish the fact
of damage, but the court may not award damages based on mere speculation or
conjecture where a plaintiff fails adequately to prove damages. That does not mean
a party must prove damages with scientific precision. Where the amount of
damages is unclear, responsible estimates of damages that lack mathematical
- 51 -
“Even if compensatory damages cannot be or have not been demonstrated, the

breach of a contractual obligation often warrants an award of nominal damages.”233

Due to the flaws in Octo Consulting’s methodology, it failed to demonstrate its

damages for this claim in a manner that the Court is confident it can make a

responsible estimate thereof. Resultingly, the Court finds that Octo Consulting is

entitled to nominal damages in the amount of one dollar for its breach-of-EA

counterclaim. Judgment is entered in Octo’s favor on Superior Court Counterclaim

Count I.

G. OCTO CONSULTING IS ENTITLED TO AN AWARD OF REASONABLE ATTORNEYS’
FEES AND COSTS UNDER THE EA SINCE IT IS THE PREVAILING PARTY FOR THE
CLAIMS MADE THEREUNDER.

Delaware law adheres to the “American Rule,” which requires litigants

themselves to defray the cost of being represented by counsel.234 Litigants are

responsible for paying their own counsel fees absent statutory authority or a

contractual provision requiring it.235 This general rule and its exceptions apply to

actions at law, significantly limiting the Court’s authority to order payment of

certainty are permissible so long as the court has a basis to make such a responsible
estimate.
(quotations omitted).
233
Ivize of Milwaukee, LLC v. Compex Litig. Support, LLC, 2009 WL 1111179, at *12 (Del. Ch.
Apr. 27, 2009) (citing Palmer v. Moffat, 2004 WL 397051, at *4 (Del. Super. Ct. Feb. 27, 2004)).
234
Duncan v. STTCPL, LLC, 2020 WL 829374, at *15 (Del. Super. Ct. Feb. 19, 2020).
235
Id.

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attorney’s fees.236

All that said, the Court will generally enforce an agreement to shift fees.237

And absent “qualifying language that fees are to be awarded claim-by-claim or on

some other partial basis, a contractual provision entitling the prevailing party to fees

will usually be applied in an all-or-nothing manner.”238 In an all-or-nothing case,

the Court will determine which party prevailed by analyzing which party

predominated in the litigation.239

The EA contains a fee-shifting provision that covers EA Sections 8 and 9.240

The fee-shifting provision says that if Octo Consulting is the prevailing party in an

action to enforce those sections, Octo Consulting is “entitled to its reasonable

attorneys’ fee and costs incurred in such action.”241 This fee-shifting provision only

applies to the prevailing party in enforcing the EA, not this entire litigation.

While Octo Consulting is successful on demonstrating a breach of the EA by

Mr. Kakar for his actions after the company name-change kerfuffle, it has not shown

a breach arising from the Unisom invoices or that it is entitled to a return of wages

236
Id.
237
Navient Solutions, LLC v. BPG Office Partners XIII Iron Hill LLC, 2023 WL 3120644, at *16
(Del. Super. Ct. Apr. 27, 2023).
238
Id. (quoting AFH Hldg. & Advisory, LLC v. Emmaus Life Scis., Inc., 2014 WL 1760935, at *2
(Del. Super. Ct. Apr. 16, 2014)).
239
Navient Solutions, 2023 WL 3120644, at *16.
240
EA § 12.
241
Id.

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from Mr. Kakar.242 Mr. Kakar withdrew his claims for any Octo Consulting breaches

of the EA.243 To achieve predominance in the litigation, “a litigant should prevail

on the case’s chief issue.”244

In the norm, whether a party has prevailed is determined by looking at the

outcome of the substantive issues, not damages.245 Here, while not succeeding on

each sub-claim within its breach-of-contract counterclaim, Octo Consulting still has

demonstrated a breach. And on the EA breach, Mr. Kakar’s disassociations and

professional misconduct is the chief issue. Consequently, the Court finds that Octo

Consulting prevailed on its chief issue of its breach-of-EA counterclaim and is

entitled to reasonable fees and costs for litigating said counterclaim.246

H. OCTO CONSULTING’S UNJUST ENRICHMENT COUNTERCLAIM FAILS AS THE
EA COVERS THE ACTIONS THAT GIVE RISE TO THAT COUNTERCLAIM.

Octo Consulting submits that Mr. Kakar was unjustly enriched when he and

242
See Bako Pathology LP v. Bakotic, 288 A.3d 252, 281 (Del. 2022) (collecting cases of trial
courts finding a prevailing party when party prevails on the chief issue, even when not winning on
every issue at trial).
243
Super. Ct. D.I. 133.
244
2009 Caiola Family Tr. v. PWA, LLC, 2015 WL 6007596, at *33 (Del. Ch. Oct. 14, 2015)
(internal quotation omitted).
245
Winklevoss Capital Fund, 2024 WL 3888757, at *21; see also Ivize of Milwaukee, 2009 WL
1111179, at *14 (finding that although the plaintiff “did not prove its damages with the required
certainty, it did” prove breach of contract and so it prevailed in the substance of the litigation).
246
See Surf’s Up Legacy Partners, LLC v. Virgin Fest, LLC, 2025 WL 3232923, at *7 (Del. Super.
Ct. Nov. 19, 2025) (“Put another way, a fee-shifting condition only shifts fees arising from claims
covered by the provision. If the claims are covered and the provision includes prevailing party
language, then the Court will apply the all-or-nothing approach to the covered claims.”) (emphasis
in original).

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his personal assistant were compensated for work Mr. Kakar refused to perform.247

But “‘[a] claim for unjust enrichment is not available if there is a contract that

governs the relationship between the parties that gives rise to the unjust enrichment

claim.’”248 And, indeed, Octo Consulting has pled its unjust enrichment

counterclaim as distinct and alternative to its breach-of-contract counterclaims.249

Because the EA covers all the conduct complained-of here and Octo Consulting is

successful on this breach-of-EA counterclaim, Octo Consulting’s counterclaim for

unjust enrichment fails. Judgment is entered in the Kakar Parties’ favor on Superior

Court Counterclaim IV.

I. MR. KAKAR BREACHED THE NCA BY PUBLICLY FILING CONFIDENTIAL
INFORMATION IN HIS COMPLAINT, BUT NOT BY CONGRATULATING A LEGACY
SEVATEC EMPLOYEE FOR A NEW JOB.

The NCA prevented Mr. Kakar from disclosing Confidential Information,

which included Octo Consulting’s details of customer or consultant contracts and

operational methods.250 That notwithstanding, Mr. Kakar publicly filed a complaint

247
Octo Br. ¶¶ 99–101.
248
Textron Inc. v. Endurance Am. Ins. Co., 346 A.3d 639, 653 (Del. Super. Ct. 2025) (quoting
Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872, 891 (Del. Ch. 2009)); see also Everphone, Inc. v.
Go Tech. Mgmt., LLC, 2023 WL 7996560, at *10 (Del. Super. Ct. Nov. 17, 2023); Alltrista Plastics,
LLC v. Rockline Indus., Inc., 2013 WL 5210255, at *11 (Del. Super. Ct. Sept. 4, 2013).
249
See Defs./Countercl. Pls.’ Reply to Pls.’/Countercl. Defs.’ Propsed Findings of Fact and
Conclusions of Law ¶ 71 (Super Ct. D.I. 166).
250
NCA § 2.1.

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in this action that revealed such information.251 This is a breach of the NCA. But

Octo Consulting hasn’t demonstrated to the Court what damages resulted from this

breach.

Again, “[e]ven if compensatory damages cannot be or have not been

demonstrated, the breach of a contractual obligation often warrants an award of

nominal damages.”252 Since there has been this specific breach of the NCA, Octo

Consulting is entitled to nominal damages therefor.

On the other hand, Octo Consulting has failed to demonstrate that Mr. Kakar

breached the NCA by encouraging Corey Ferris to leave Octo Consulting. There is

simply no evidence that Mr. Kakar did encourage Mr. Ferris to leave Octo

Consulting.253 And Mr. Kakar testified that he didn’t know Mr. Ferris planned to

leave, he only congratulated Mr. Ferris after Mr. Ferris had already accepted another

position.254 Sharing congratulatory remarks after an employee has already left isn’t

encouraging that employee to leave. And neither the NCA, nor the EA, require

Mr. Kakar to actively discourage employees from leaving Octo Consulting. As a

251
See Compl., ¶¶ 65–67 (discussions on potential separation agreement with Mr. Kakar); ¶ 81
(mentioning the CALM project); ¶¶ 26–47 (Octo’s acquisition of Sevatec and related agreements).
252
Ivize of Milwaukee, 2009 WL 1111179, at *12 (citing Palmer, 2004 WL 397051, at *4).
253
See Singh Tr. 69–72 (no testimony that Mr. Kakar was actively helping Mr. Ferris obtain new
employment); see also Ferris Tr. at 6–9 (only testifying that Mr. Kakar called him after he accepted
a new role with a new company and stating that Mr. Kakar congratulated him on his career move).
254
9/8 Kakar Tr. 274–78.

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result, Mr. Kakar didn’t breach the NCA or EA through his interaction with

Mr. Ferris. Judgment is entered in Octo’s favor on Superior Court Counterclaim II,

but only as to Mr. Kakar’s public filing of the complaint without properly

safeguarding Confidential Information.

J. DECLARATORY JUDGMENTS

The parties each seek declaratory judgments pertaining to their continuing

rights under their agreements. The Kakar Parties seek a declaration that the Octo

Parties have materially breached the agreements, so Mr. Kakar isn’t bound by the

EA and NCA. For their part, the Octo Parties seek a declaration that Mr. Kakar is

still bound by the EA and NCA, and that the Kakar Parties materially breached the

SPA.

Again, “‘[i]t is a basic tenet of contract law that a party is excused from

performance under a contract if the other party is in material breach thereof.’”255

“‘The converse of this principal is that a slight breach by one party, while giving rise

to an action for damages, will not necessarily terminate the obligations of the injured

party to perform under the contract.’”256

To quickly recap the breaches: the Octo Parties breached the SPA by failing

255
Daystar Const. Mgmt., Inc. v. Mitchell, 2006 WL 2053649, at *7 (Del. Super. Ct. July 12, 2006)
(quoting Word v. Johnson, 2005 WL 2899684, at *4 (Del. Ch. Oct. 28, 2005)).
256
Id. (quoting BioLife Sols., Inc. v. Endocare, Inc., 838 A.2d 268, 278 (Del. Ch. 2003), as revised
(Oct. 6, 2003)).

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to pay the agreed purchase price and for failing to release the escrowed funds;

Mr. Kakar breached the EA and the NCA; and, the Kakar Parties breached the SPA

by failing to pay the Post-Closing Retention Bonuses.

The issue of the enforceability of the EA’s and NCA’s restrictive covenants

is mostly moot since the restrictive period in both agreements has ended. The EA’s

non-compete and non-solicitation covenants expired December 11, 2022, and are no

longer enforceable.257 And the NCA’s restrictive covenants expire on December 11,

2025, and are no longer enforceable as of that date.258 As well, Octo Consulting

didn’t breach the EA or NCA, and there is no language in the EA or NCA that

provides for a condition precedent for performance. With that, the Court finds it

unnecessary to conduct a breach-materiality analysis relating to the EA and NCA.

Mr. Kakar is no longer bound by the provisions he resists since they have expired;

judgment is entered in his favor on Superior Court Count VI and Counterclaim V.

K. INTEREST

“In Delaware, prejudgment interest is awarded as a matter of right.”259 “It is

not a matter of judicial discretion.”260 The rate will be based on the “legal rate” of

257
EA § 9(a).
258
NCA § 2.2.
259
Citadel Holding Corp. v. Roven, 603 A.2d 818, 826 (Del. 1992).
260
Fortis Advisors, LLC v. Dematic Corp., 2023 WL 2967781, at *1 (Del. Super. Ct. Apr. 13,
2023) (citing Moskowitz v. Mayor and City Council of Wilmington, 391 A.2d 209, 210 (Del. 1978)).

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interest described in 6 Del. C. § 2301, since there is no specific interest rate within

the Transaction Agreements.261 “The general rule is that prejudgment interest

accrues from the date payment was due to the [successful litigant] because ‘full

compensation requires an allowance for the detention of the compensation awarded

and interest is used as a basis for measuring that allowance.’”262

Here, the SPA lays out the dates when certain payments were due. The net

working capital amount and Adjustment Escrow were due upon Mr. Kakar’s

acceptance on April 21, 2021.263 So the prejudgment interest starts from that date

for those amounts. The first $512,500 of the Indemnification Escrow was due on

December 11, 2021,264 and the second $512,500 became due on June 11, 2022.265

Thus, prejudgment interest accrues on those from those respective dates.

Octo Consulting was due the Post-Closing Retention Bonus Payment on June

11, 2022, 18 months after Closing.266 Octo Consulting is entitled to prejudgment

interest at the legal rate accruing from that date.

261
See Rollins Envtl. Servs., Inc. v. WSMW Indus., Inc., 426 A.2d 1363, 1367 (Del. Super. Ct.
1980).
262
Fortis Advisors, 2023 WL 2967781, at *2 (citing Moskowitz, 391 A.2d at 210).
263
SPA § 1.3(b)(iii).
264
Id. at § 9.11(a).
265
Id.
266
Id. at § 8.6(e).

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VII. CONCLUSION AND VERDICT

For the reasons explained above, the Court enters its verdict and judgments as

follows:

Court of Chancery Action

• Judgment is entered in Octo’s favor on Counts II, IV, V, VI, and VII.

Superior Court Action

• Judgment is entered in the Kakar Parties’ favor on Counts IV and VI; and
on Counterclaim Counts IV and V.

• Judgment is entered in Octo’s favor on Count III; and on Counterclaim
Counts I, II, and III.

Chancery Relief

Octo Platform shall distribute the Reserved Funds from the Chancery action

under the terms of the IBM Transaction.

Superior Court Damages

Octo Consulting shall pay Seva the net working capital amount of

$233,535.39 plus properly calculated prejudgment267 and post-judgment interest at

the legal rate. Octo Consulting shall pay Seva the Indemnification Escrow amount

of $1.025 million with properly calculated prejudgment and post-judgment interest

267
The Kakar Parties’ expert David Rudman calculated the then-to-date prejudgment interest due
for these amounts using the correct dates under the SPA’s terms and the correct legal rate. PM 9/9
Rudman Tr. 130–37. The Court found Mr. Rudman’s calculations to be accurate and credible and
suggests them and his methodology as an appropriate starting point for the parties as they compose
the proposed final order of judgement.

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at the legal rate. Octo Consulting shall pay Seva the Adjustment Escrow amount of

$1.5 million plus properly calculated prejudgment and post-judgment interest at the

legal rate.

The Kakar Parties shall pay Octo Consulting the Post-Closing Retention

Bonus Payment of $260,000 with prejudgment interest accruing from June 11, 2022,

and post judgment interest at the legal rate through the date of payment.

Mr. Kakar shall pay Octo Consulting $2 in damages for Mr. Kakar’s breaches

of the EA and NCA. Octo Consulting is also entitled to reasonable attorney’s fees

and costs arising from litigating the EA counterclaim. If the parties are unable to

agree on an amount, Octo Consulting may move to quantify the fees and costs award.

The final order of judgment entered in these matters shall include a declaration

that Mr. Kakar is no longer bound by the EA’s and NCA’s restrictive covenants.

The parties are instructed to confer and prepare a form of order of final

judgment consistent with this decision and submit such on or before April 21, 2026.

IT IS SO ORDERED.

/s/ Paul R. Wallace
_______________________
Paul R. Wallace, Judge

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