IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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` C.A. No.: 2024-0019-MTZ
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`DARREN NOLL,
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` Plaintiff,
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`v.
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`GUMTAP, INC.,
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`
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`Defendant.
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`DEFENDANTS’ ANSWER TO THE VERIFIED PETITION FOR
`APPRAISAL OF GUMTAP, INC. COMMON STOCK
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`Defendant Gumtap, Inc. (“Gumtap”) responds to the Verified Complaint (the
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`“Complaint”) of Darren Noll (“Noll”) as follows:
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`Expect as otherwise expressly admitted herein, Defendants deny each and
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`every allegation contained in the Complaint. The headings and subheadings used in
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`the complaint are not well-pled allegations of fact and therefore require no response.
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`To the extent a response is required, the allegations of the headings and subheadings
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`in the Complaint are denied. The Defendant expressly reserves the right to seek to
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`amend and/or supplement their Answer.
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`The Parties
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`1.
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`Petitioner Darren Noll (“Petitioner”) was at all times relevant hereto a
`record holder owner of 5,892,857 shares of Class B common stock of
`Gumtap, Inc. (“Old Gumtap”). Old Gumtap was a Delaware corporation.
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`ANSWER: Admitted.
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`EFiled: Feb 15 2024 02:42PM EST
`Transaction ID 72051072
`Case No. 2024-0019-MTZ
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` C.A. No.: 2024-0019-MTZ
`
`
`DARREN NOLL,
`
` Plaintiff,
`
`v.
`
`GUMTAP, INC.,
`
`
`
`
`
`Defendant.
`
`DEFENDANTS’ ANSWER TO THE VERIFIED PETITION FOR
`APPRAISAL OF GUMTAP, INC. COMMON STOCK
`
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`
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`Defendant Gumtap, Inc. (“Gumtap”) responds to the Verified Complaint (the
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`“Complaint”) of Darren Noll (“Noll”) as follows:
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`
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`Expect as otherwise expressly admitted herein, Defendants deny each and
`
`every allegation contained in the Complaint. The headings and subheadings used in
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`the complaint are not well-pled allegations of fact and therefore require no response.
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`To the extent a response is required, the allegations of the headings and subheadings
`
`in the Complaint are denied. The Defendant expressly reserves the right to seek to
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`amend and/or supplement their Answer.
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`The Parties
`
`1.
`
`Petitioner Darren Noll (“Petitioner”) was at all times relevant hereto a
`record holder owner of 5,892,857 shares of Class B common stock of
`Gumtap, Inc. (“Old Gumtap”). Old Gumtap was a Delaware corporation.
`
`
`ANSWER: Admitted.
`
`EFiled: Feb 15 2024 02:42PM EST
`Transaction ID 72051072
`Case No. 2024-0019-MTZ
`
`
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`
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`2.
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`Respondent Gumtap, Inc. (“Respondent” or “Gumtap”) is a Delaware
`corporation. Gumtap was incorporated on September 5, 2023, as Gumtap
`Acquisition Corp. in order to engage in a short-form merger with Old
`Gumtap. Upon the merger, Gumtap Acquisition Corp. changed its name
`to Gumtap, Inc.
`
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`ANSWER: Admitted.
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`
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`Factual Background
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`3. On September 11, 2023, Old Gumtap merged with and into Gumtap
`pursuant to Section 253 of the Delaware General Corporation Law (the
`“Merger”). Prior to the Merger, Gumtap, then named Gumtap
`Acquisition Corp., owned all of the outstanding shares of Class A
`common stock of Old Gumtap and more than ninety percent of the
`outstanding shares of Class B common stock of Old Gumtap. Gumtap
`was the surviving company in the Merger.
`
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`ANSWER: Admitted.
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`4. On September 13, 2023, Gumtap provided notice to the stockholders of
`Old Gumtap that, pursuant to Sections 253(d) and 262(d)(2) of the
`Delaware General Corporation Law, a short-form merger between
`Gumtap and Old Gumtap became effective as of September 11, 2023.
`
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`ANSWER: Admitted.
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`5.
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`The notice stated that, as a result of the Merger, each share of common
`stock of Old Gumtap owned by stockholders was converted into the right
`to receive $0.02 per Share in cash, without interest. The Merger gave rise
`to appraisal rights under Section 262 of the DGCL.
`
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`ANSWER: This paragraph consists of legal conclusions that can neither be
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`admitted. To the extent there are factual allegations, those allegations are Denied.
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`6.
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`The notice contained no information relevant to minority stockholders’
`decision whether to accept the short-form merger consideration or to
`seek an appraisal.
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`ANSWER: This paragraph consists of legal conclusions that can neither be
`admitted. To the extent there are factual allegations, those allegations are Denied.
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`Petitioner’s Appraisal Demand
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`7. On October 2, 2023, Petitioner, through counsel, demanded appraisal of
`his 5,892,857 shares of Old Gumtap Class B common stock owned by him
`(the “Appraisal Demand”). The Appraisal Demand is attached hereto as
`Exhibit A.
`
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`ANSWER: Admitted.
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`8.
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`The Appraisal Demand complied in all respects with Section 262 of the
`DGCL.
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`ANSWER: This paragraph consists of legal conclusions that can neither be
`admitted. To the extent there are factual allegations, those allegations are Denied.
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`9.
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`Pursuant to the Appraisal Demand, Petitioner properly demanded
`appraisal of his shares of Old Gumtap common stock in accordance with
`Section 262 of the DGCL.
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`ANSWER: This paragraph consists of legal conclusions that can neither be
`admitted. To the extent there are factual allegations, those allegations are Denied.
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`10. Petitioner has not withdrawn the Appraisal Demand.
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`ANSWER: This paragraph consists of legal conclusions that can neither be
`admitted. To the extent there are factual allegations, those allegations are Denied.
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`11. This petition for appraisal is being filed within 120 days after the effective
`date of the Merger.
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`ANSWER: Admitted.
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`12. As a result of the foregoing, Petitioner is entitled to appraisal by this
`Court, pursuant to Section 262 of the DGCL, determining the “fair
`value” of his shares of Old Gumtap common stock.
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`ANSWER: This paragraph consists of legal conclusions that can neither be
`admitted. To the extent there are factual allegations, those allegations are Denied.
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`AFFIRMATIVE DEFENSES
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`FIRST AFFIRMATIVE DEFENSE
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`The Complaint fails to state a claim against Defendants upon which relief may
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`be granted.
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`SECOND AFFIRMATIVE DEFENSE
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`Plaintiff’s claims are barred by the Merger Agreement, in whole or in part,
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`because Defendants have complied in all material respects with its representations
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`and warranties, covenants, and agreements under the Merger Agreement.
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`THIRD AFFIRMATIVE DEFENSE
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`Plaintiff’s claims are barred, in whole or in part, by the doctrines of waiver,
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`estoppel, ratification, and acquiescence. Plaintiff has acted inconsistently with its
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`contractual obligations to Defendants, including but not limited to Plaintiff’s
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`obligations to fulfill its representations, warranties, and covenants.
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`FOURTH AFFIRMATIVE DEFENSE
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`Plaintiff has brought this action for an improper purpose.
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`Defendant reserves the right to assert additional defenses as discovery
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`proceeds in this case.
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`WHEREFORE, Defendant respectfully request that this Court grant the
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`following relief:
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`A. Dismissing the Complaint with prejudice;
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`B. Awarding Defendants their attorneys’ fees and expenses; and
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`C. Granting such other and further relief as the Court may deem appropriate and
`just.
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`Dated: February 15, 2024
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`STAMOULIS & WEINBLATT LLC
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`/s/ Stamatios Stamoulis
`Stamatios Stamoulis #4606
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`stamoulis@swdelaw.com
`800 N. West Street, Third Floor
`Wilmington, DE 19801
`Telephone: (302) 999-1540
`Facsimile: (302) 762-1688
`Attorneys for Defendant
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`CERTIFICATE OF SERVICE
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`I, Stamatios Stamoulis, hereby certify that a true and correct copy of the
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`foregoing Defendant’s Answer to the Verified Petition for Appraisal of Gumtap, Inc.
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`Common Stock on Behalf of Defendant Gumtap, Inc. and this Certificate of Service
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`were served upon the following in the manner and date described below:
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`VIA FILE AND SERVEXPRESS ON FEBRUARY 15, 2024
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`Joseph B. Cicero
`Ryan M. Lindsay
`Chipman Brown Cicero & Cole LLP
`Hercules Plaza
`1313 North Market Street, Suite 5400
`Wilmington, DE 19801
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`Attorney for Plaintiff
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`Dated: February 15, 2024
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`STAMOULIS & WEINBLATT LLC
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`/s/ Stamatios Stamoulis
`Stamatios Stamoulis #4606
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`stamoulis@swdelaw.com
`800 N. West Street, Third Floor
`Wilmington, DE 19801
`Telephone: (302) 999-1540
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`Attorneys for Defendants
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