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United States Bankruptcy Court Eastern District of Michigan
United States Bankruptcy Court Eastern District of Michigan
United States Bankruptcy Court Eastern District of Michigan
In re Chapter 11
(Jointly Administered)
Plaintiff, COMPLAINT
-against-
Defendants.
“Trust”), by its attorneys Honigman Miller Schwartz and Cohn LLP and Quinn Emanuel
Urquhart & Sullivan, LLP, brings this complaint against defendants OVONYX, INC., TYLER
1. This is a case of the Trust vindicating its valuable contractual rights to technology
that, without embellishment, could easily revolutionize the way data is stored, secured,
computed, and organized in computers, smart phones, data centers and virtually any other
consumer or commercial electronic product that needs to store and use large amounts of data
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learning. This technology fills the speed gap between memory technologies known as DRAM
sought to undermine these contractual rights. Thus, the Trust must seek this Court’s intervention
(“ECD”), which filed for bankruptcy in 2012. ECD is the brainchild of Stan Ovshinsky, a
renowned Michigan inventor and scientist who invented numerous technologies in the area of
energy and information and was granted over 400 patents. Beginning in the 1960s, Mr.
Ovshinsky, and then ECD, obtained patents and developed devices concerning, among other
things, “phase-change” memory, a form of nonvolatile memory that is far superior to other forms
of memory.
with its joint venture partner Intel Corporation, the commercial development of “3D XPoint,”
which, on information and belief, employs the intellectual property and device that ECD
invented.
that came from ECD and Ovonyx, is to Micron and the computer and memory industry. Micron's
and Intel’s own words on July 28, 2015, the day of the 3D XPoint announcement, sum it up:
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The explosion of connected devices and digital services is generating massive
amounts of new data. To make this data useful, it must be stored and analyzed
very quickly, creating challenges for service providers and system builders who
must balance cost, power and performance trade-offs when they design memory
and storage solutions. 3D XPoint technology combines the performance, density,
power, non-volatility and cost advantages of all available memory technologies
on the market today. The technology is up to 1,000 times faster and has up to
1,000 times greater endurance than NAND, and is 10 times denser than
conventional memory.
6. The Trust has valuable contractual rights relating to the technology powering 3D
XPoint, which rights have been breached and interfered with by the Defendants. Specifically,
under the 1999 Agreement (defined below), the Trust is entitled to payment of royalties by
Defendant Ovonyx, Inc. (“Ovonyx”) and to rights of first refusal over sales of Ovonyx stock or
transfers of assets of Ovonyx. The Defendants have sought to destroy these valuable rights.
7. In 1998, ECD and Defendant Tyler Lowrey (a former senior officer of Micron)
entered in the 1998 Agreement (defined below) that, among other things, called for the formation
of Defendant Ovonyx, which would be jointly owned by ECD, Lowrey and one additional
investor. Defendant Lowrey would later become president and CEO of Defendant Ovonyx and
would remain in these important decision-making positions until July 31, 2015. Lowrey
promised to cause Ovonyx to pay to ECD 0.5% of all Ovonyx’s revenues (the “Royalty”).
Further, Lowrey and ECD promised each other that any time Ovonyx sold any stock or assets, or
if either of them sold any stock of Ovonyx, each would have a right of first refusal in connection
8. In 1999, Defendant Ovonyx, Lowrey, and ECD entered in the 1999 Agreement
pursuant to which Ovonyx agreed to perform the obligations set forth in the 1998 Agreement,
including paying the Royalty and being subject to the right of first refusal. For years after,
Ovonyx did in fact perform its obligations by paying the Royalty when due and Lowrey
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9. ECD filed for bankruptcy in 2012, and sold its stock interests in Ovonyx to
Micron, but retained all the rights under the 1998 Agreement and 1999 Agreement, which rights
have been transferred to the Plaintiff. Thus, the Plaintiff should have benefitted from payment of
the Royalty and, if Ovonyx ever sold assets or stock of Ovonyx, or if Lowrey sold any of his
Ovonyx stock, it would benefit from the option it had under the right of first refusal provision.
10. But the Defendants ensured that the Plaintiff was denied its valuable contractual
rights. First, Ovonyx has never paid the Royalty since the bankruptcy sale, in breach of
Ovonyx’s obligations under the 1999 Agreement and Lowrey’s obligations under the 1998
Agreement. This failure to pay the Royalty is intentional; Lowrey for the first time disclosed to
owned a majority of the stock in Ovonyx and appointed a majority of the members of the board
of directors.
12. No notice was provided to the Trust so that the Trust could determine whether to
exercise its right of first refusal. On information and belief, the value of stock in Ovonyx that
Micron acquired, amounting to more than 60% of the stock, was far more valuable than what
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Micron paid, and had the Trust been informed of the proposed sale, it could have exercised its
13. Third, on July 31, 2015, Ovonyx transferred a majority of its valuable intellectual
could determine whether to exercise its right of first refusal in respect of this transfer to OMT.
14. The Defendants thus breached, and/or tortuously interfered with, the 1998
Agreement and 1999 Agreement. The Trust was substantially damaged by the Defendants.
15. On behalf of ECD and its creditors, who were left being owed in excess of $120
million, the Trust seeks compensation for losses incurred as the result of the Defendants’
misconduct.
16. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 157, 1334
and 1367 because involves state-law claims that relate to the ECD chapter 11 case. The Plan
provides that this Court retains such jurisdiction. Venue is proper in this district under 28 U.S.C.
§ 1409 as this proceeding arises in or is related to the ECD case under Title 11 of the United
States Code. Venue is also proper in this district under 28 U.S.C. § 1391 because a substantial
part of the events giving rise to the claim occurred in this district.
17. Claims 1 to 5 are non-core matters pursuant to 28 U.S.C. §157 (c)(1). However,
any matters concerning or relating to interpretation of the Plan or the Bankruptcy Sale (as each is
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18. Plaintiff consents to entry of a final order on these claims by this Court.
PROCEDURAL BACKGROUND
19. On February 14, 2012, ECD filed a voluntary petition for relief under chapter 11
of the Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of
20. On June 20, 2012, ECD and its affiliate filed a Second Amended Joint Chapter 11
Plan of Reorganization (the “Plan”) that, among other things, would establish the Trust for the
21. The Plan was confirmed on July 30, 2012 and became effective on August 28,
22. On December 21, 2017, the Plaintiff filed a motion in this Court requesting
authority to serve subpoenas under Rule 2004 of the Federal Rules of Bankruptcy Procedure on
Lowrey, Ovonyx, Micron, and OMT (each a “Rule 2004 Subpoena”). This Court granted such
23. The Plaintiff served each Rule 2004 Subpoena. Each of Lowrey, Ovonyx,
Micron, and OMT produced some, but not all, of the requested documents.
24. In accordance with the Rule 2004 Subpoena, on May 24, 2017, the Plaintiff
deposed Lowrey.
25. On information and belief, documents responsive to the Rule 2004 Subpoenas
were not preserved by some or all the Defendants. Indeed, on information and belief, numerous
THE PARTIES
26. Plaintiff, the Energy Conversion Devices Liquidation Trust (“Plaintiff” or the
“Trust”), is a trust created and formed under the laws of the State of Michigan by the August 28,
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2012 Trust Agreement. John Madden has been appointed and serves as the Trustee. The Trust
beneficiaries are former creditors of ECD. The Trust is the successor to all assets of ECD,
and belief, its principal executive offices located at 8000 S. Federal Way, in Boise, Idaho. On
Henderson, Nevada.
29. Defendant Micron Technology, Inc. (“Micron”) is a Delaware corporation with its
30. Ovonyx Memory Technology, Inc. (f/k/a Carlow Innovations LLC) (“OMT”) is a
Virginia corporation with its principal executive offices located at 1940 Duke Street, Suite 200,
in Alexandria, Virginia.
FACTUAL BACKGROUND
31. Founded in 1961 in Detroit, Michigan, and until it filed for bankruptcy, ECD had
been at the forefront of materials science and renewable energy technology for over 50 years.
ECD’s achievements in the laboratory are well documented, having been granted over 100 U.S.
32. ECD had been a publicly traded company listed on the NASDAQ Global Select
Market under the ticker symbol “ENER.” ECD was primarily a holding company that operated
through its various business segments. One such business segment was Ovonyx, a joint venture
formed to commercialize ECD’s proprietary non-volatile phase change random access memory
microelectronics.
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The 1998 Agreement
33. In 1998, Lowrey and ECD entered into that certain “Ovonic Information Handling
the 1998 Agreement, ECD and Lowrey agreed to jointly pursue the evaluation, development,
Devices. The term “Ovonic” is a term of art that combines Stan Ovshinsky’s last name and the
word electronics.
34. Lowrey entered into the 1998 Agreement because he believed that ECD had
interesting technology for making memory circuits, and Lowrey was expert in commercialization
35. The 1998 Agreement contemplated the formation of an entity that would be co-
owned by ECD and Lowrey. The initial board members of the Entity were Stan Ovshinsky and
Lowrey.
36. Upon formation of the Entity, until termination of the 1998 Agreement ECD
agreed to grant to the Entity an exclusive license in “the field,” which the agreement defined to
Ovonic Information Handling Devices such as those that are Chalcogenide based including the
electronic Ovonic threshold thyrister-like power switch, Ovonic encryption, Ovonic neural
and products.”
37. Upon formation of the Entity, until termination of the 1998 Agreement, Lowrey
agreed to assign his rights in intellectual property in “the field” to the Entity without any
encumbrances.
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38. Section 10 of the 1998 Agreement provided that upon ECD’s written request, “the
Entity shall thereafter pay every three months 0.5% of the Entity’s subsequent revenues to ECD”
(the “Royalty”). The Royalty was material to ECD and specifically requested by ECD.
39. Section 11 contained a Right of First Refusal (the “First Refusal Right”).
Pursuant to the First Refusal Right, Lowrey and ECD granted to each other “a right of first
refusal on the other’s sale of stock in the Entity, intellectual property in the field, and any stock
or asset sales by the Entity, a right exercisable only within thirty days of notice and promptly
40. The First Refusal Right was material to ECD because, among other things, it
ensured that if the Entity attempted to transfer assets, ECD would have the option to purchase the
assets itself. This provision was particularly important if Ovonyx transferred a majority of its
assets that produced (or were likely to produce) revenue subject to the Royalty.
41. Shortly after execution of the 1998 Agreement, in June 1999, ECD and Lowrey
formed Ovonyx, which is the “Entity” within the meaning of the 1998 Agreement.
42. Section 16 of the 1998 Agreement contained the provisions for terminating the
43. The 1998 Agreement governs, among other things, intellectual property
phases (i.e., from one form of matter to another) and that transition can be used to store memory.
information that is retained even when the power to a device (such as a computer) is turned off.
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While there are other forms of non-volatile memory, phase-change memory has several superior
aspects, including writing data at faster speeds and having greater endurance.
45. Phase-change memory can be, and recently has been, used in a wide array of
products, including computers, cell phones, smart phones, and many other consumer and
46. The 1998 Agreement also referenced the electronic Ovonic threshold thyrister-
like power switch (the “Ovonic Switch”). This switch was a device developed by ECD that
would switch from a non-conducting “off” state to a highly conductive “on” state with the
that, on information and belief, are the critical technology used in Micron’s 3D XPoint
based.
48. The 1998 Agreement remained in effect and has never been terminated.
Defendant Lowrey understood that its terms bound him, including providing a written consent
49. On August 2, 1999, ECD, Lowrey and Ovonyx entered into that certain “License
50. The 1999 Agreement expressly referenced the 1998 Agreement, and, pursuant to
the terms and conditions of the 1998 Agreement, Ovonyx desired to acquire intellectual property
1
The term Chalcogenide refers to compounds using elements on the Periodic Table
vertically below Oxygen: Sulfur, Selenium, Tellurium, and Polonium.
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51. Under the 1999 Agreement, ECD granted to Ovonyx a royalty-bearing,
worldwide, exclusive right and license to ECD’s “IP” (as defined in the 1998 Agreement).
52. Lowrey assigned, without encumbrance, to Ovonyx all rights, title and interest in
53. Lowrey benefitted from entering into the 1999 Agreement because he was a
partial owner of Ovonyx, and Ovonyx would benefit from the transfer of intellectual property
54. Section 5 of the 1999 Agreement expressly provided that “[a]ll terms and
conditions and rights and obligations of the 1998 Agreement remain in full force and effect.”
This provision obligated Ovonyx to undertake the obligations of the 1998 Agreement that ECD
and Lowrey had intended for the “entity” under the 1998 Agreement to undertake.
55. Consistent with the provision of Section 5, ECD provided notice to Ovonyx to
pay a quarterly Royalty equal to 0.5% of Ovonyx’s revenues. Ovonyx paid this Royalty for at
least a decade. In 2008, Lowrey also provided consent to ECD transferring patents to Ovonyx as
required under the 1998 Agreement, consistent with the provisions of Section 5 of the 1999
Agreement that incorporated the 1998 Agreement into the 1999 Agreement.
56. Ovonyx attracted several investors in addition to Lowrey and ECD, including
Intel Corporation (“Intel”), which in February 2000 acquired preferred stock issued by Ovonyx.
On information and belief, two of the original investors in Micron and a senior Micron employee
57. ECD ultimately held 35.2% of the fully-diluted shares of common stock of
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59. After execution of the 1999 Agreement, Ovonyx engaged in efforts to develop
and license the technology it gained from ECD and Lowrey. Over the course of a decade,
Ovonyx entered into at least twelve licensing and/or joint development agreements. Ovonyx
received significant license fees through these agreements. Ovonyx also received royalties from
several of its counter-parties and fees for providing clean-room and other intellectual property
related services.
60. From June 1999 to May 2012, Ovonyx received over $58 million in revenues. As
required under the 1999 Agreement, Ovonyx paid to ECD approximately 0.5% of this amount to
ECD.
61.
62. After 1999 and through 2011, Ovonyx actively worked on developing new
63.
Ovonyx by ECD and contributed to Ovonyx by Lowrey, had substantial potential value. For
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example, in one 2007 presentation Ovonyx prepared for ECD, Ovonyx provided projections that
the available market for Ovonyx products in 2009 would be $224 billion, and phase-change
memory was well placed to compete with, and even replace, other forms of non-volatile memory
devices.
65. ECD and Ovonyx also entered into a separate license agreement in September
2002 (the “2002 License Agreement”) concerning, among other things, cognitive computing, and
formed Ovonyx Cognitive Computer, Inc. (“OCCI”), which is 95% owned by the Trust and, on
information and belief, 5% owned by Ovonyx. Pursuant to the 2002 License Agreement,
Ovonyx granted to OCCI certain world-wide licenses to intellectual property owned by Ovonyx.
66. The 2002 License Agreement made express reference to the 1998 Agreement.
67. On the Petition Date, ECD commenced its chapter 11 case. Among other assets,
68. Micron was selected as the winning bidder. Pursuant to that certain Equity
Purchase Agreement dated as of August 3, 2012, Micron acquired all of ECD’s stock in Ovonyx
and ECD’s rights under a 2000 stockholder agreement, which agreement was assumed by ECD
69. Micron paid $12 million. This purchase price suggested an equity valuation of
70. Micron did not take assignment of either the 1998 Agreement or the 1999
Agreement. Micron had the opportunity to do so because the first draft of a sale agreement
provided by the Trust to Micron for the stock of Ovonyx owned by ECD included the
assumption and assignment of each agreement but, on information and belief, Micron declined to
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71. This Court conducted a hearing on approval of the Bankruptcy Sale on August 22,
2012. At the hearing, which was attended by counsel representing Micron, ECD provided a
proffer of its investment banker, which included a representation that ECD was informed that
Micron had not communicated with any other equity security holders of Ovonyx and had not had
72.
73.
74. ECD assumed the 1999 Agreement pursuant to a motion filed on July 16, 2012
that this Court approved. By virtue of the assumption of the 1999 Agreement, Ovonyx remained
obligated to pay the Royalty and honor the First Refusal Right.
75. After the sale of ECD’s stock in Ovonyx, Ovonyx continued to operate, receiving
76. For at least a year after the Bankruptcy Sale, Ovonyx continued to represent in its
financial statements that it was obligated to pay the 0.5% Royalty as required under the 1998
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77. However, Ovonyx failed to pay any Royalties after the Bankruptcy Sale closed.
78.
79. On information and belief, Ovonyx has received additional revenues after May
80.
81.
82. On information and belief, Intel never exercised its first refusal rights which
allowed Micron, a competitor, to control much of the critical technology associated with 3D
XPoint, or its first offer rights, which allowed OMT to acquire significant rights concerning 3D
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83. In July 2015, Ovonyx and Micron entered into a merger transaction pursuant to
which Micron would acquire all of the outstanding shares of Ovonyx, pursuant to a document
84.
85. The D&P Valuation was purportedly based on Micron management’s belief that
“an 8 year life is a reasonable estimate of the remaining economic life of the acquired license,
with the expectation that the % of revenue attributable to the acquired license will start to decline
in approximately 3 years.”
86. On August 14, 2015, only two weeks after the Merger
Mark Durcan, the then CEO of Micron, hosted Micron’s 2015 Summer Analyst
Conference. In response to a question from the investment community, Durcan discussed the
sales potential of 3D XPoint for Micron stating, “In the 2018 timeframe [Micron’s 3D Point
business] could easily be of the same order of magnitude as our DRAM businesses in that
timeframe. So maybe not the same size maybe half the size in 2018 but it will be a significant
additive revenue stream to Micron at the time”. Whereas Durcan projected 3D XPoint as
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87. Given the size of Micron’s existing DRAM business and the typical Ovonyx
88.
89. The Trust, had it been notified, could have exercised its First Refusal Right to
acquire the stock Micron was acquiring at what amounted to a lowball price.
91.
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92.
93. On information and belief, Ovonyx and Lowrey made no effort to market the
94. Neither Lowrey nor Ovonyx provided notice to ECD that the stock of Ovonyx
would be sold. As set forth above, under the 1998 Agreement and the 1999 Agreement, ECD
95.
96.
97.
98.
99.
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100. Ovonyx did not undertake any analysis to determine whether the consideration
provided by OMT was fair value for the assets Ovonyx was transferring to OMT.
101.
102.
103. On information and belief, OMT is a company that has no operations and no
104. OMT was on notice of the existence of at least the 1998 Agreement by virtue of
105.
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106.
107. The OMT Agreement was not arms-length, commercially reasonable transaction
108. Neither Ovonyx nor Lowrey provided any notice to ECD that Ovonyx would be
entering into the OMT Agreement. Thus, ECD was deprived of the right to exercise the First
Refusal Right, and easily could have matched the de minimis consideration that OMT “paid”
Ovonyx.
109.
110.
111.
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112. In July 2015, Micron announced the development of 3D XPoint, which is a
technology for making memory circuits that is being jointly developed by Micron and Intel. This
technology permits the vertical stacking of memory elements, which means more memory can be
stored in a given area of the surface of a memory circuit. A representative of IM Flash, an Intel
and Micron joint venture, was quoted as stating that the technology’s “magic parts” were
Chalcogenide material and an “Ovonyx switch” that, on information and belief, is the Ovonic
Switch.
113.
114. On June 6, 2018, the Trust made demand on Ovonyx to pay all owed Royalties
and to confirm that Ovonyx will pay future Royalties. Ovonyx has refused to pay the Royalty.
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CAUSES OF ACTION
115. The Trust repeats and realleges the foregoing allegations as though they were
116. The 1999 Agreement valid and enforceable contractual relationship existed (and
still exists) between the Plaintiff (as the successor in interest to ECD), on the one hand, and
117. The terms of the 1998 Agreement are incorporated into the 1999 Agreement, and
ECD, Lowrey, and Ovonyx’s conduct subsequent to execution of the 1999 Agreement confirms
the parties’ intention that Ovonyx was obligated under the 1999 Agreement to perform
118. It is a breach of the 1998 Agreement if Lowrey did not provide notice of the First
119. It is a breach of the 1999 Agreement if Ovonyx did not pay the Royalty or provide
notice to ECD so that ECD could exercise the First Refusal Right.
121. Since the consummation of the Bankruptcy Sale, Ovonyx has not paid any
Royalty.
122. Neither Lowrey nor Ovonyx provided any notice of the July 2015 Transactions,
including the Merger Document and the OMT Agreement. Thus, the Trust was denied the
123. Lowrey has materially breached both the 1998 Agreement and the 1999
Agreement.
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124. Ovonyx has materially breached the 1999 Agreement.
125. As a direct, proximate, and foreseeable result of the breaches, the Plaintiff was
126. The Trust repeats and realleges the foregoing allegations as though they were
127. The 1999 Agreement valid and enforceable contractual relationship existed (and
still exists) between the Plaintiff (as the successor in interest to ECD), on the one hand, and
128. It is a breach of the 1999 Agreement if Ovonyx did not pay the Royalty or provide
notice to ECD so that ECD could exercise the First Refusal Right.
129. Since the consummation of the Bankruptcy Sale, Ovonyx has not paid any
Royalty.
130. Ovonyx did not provide any notice of the July 2015 Transactions, including the
Merger Document and the OMT Agreement. Thus, the Trust was denied the opportunity to
132. Micron acquired all of the stock of Ovonyx in July 2015. By acquiring such
133. Micron abused the corporate form of Ovonyx by causing Ovonyx to enter into the
OMT Agreement and to orchestrate transactions by which Micron and its joint venture partner
Intel would receive the benefit of a royalty free license for Ovonyx’s technology relating to 3D
XPoint without complying with the 1998 Agreement and 1999 Agreement.
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134. Micron, as alter ego of Ovonyx, is responsible for the obligations of Ovonyx
135. The Trust repeats and realleges the foregoing allegations as though they were
136. The 1999 Agreement valid and enforceable contractual relationship existed (and
still exists) between the Plaintiff (as the successor in interest to ECD), on the one hand, and
137. It is a breach of the 1998 Agreement if Lowrey did not provide notice of the First
138. It is a breach of the 1999 Agreement if Ovonyx did not pay the Royalty or provide
notice to ECD so that ECD could exercise the First Refusal Right.
139. Since the consummation of the Bankruptcy Sale, Ovonyx has not paid any
Royalty.
140. Neither Lowrey nor Ovonyx provided any notice of the July 2015 Transactions,
including the Merger Document and the OMT Agreement. Thus, the Trust was denied the
141. Lowrey has materially breached both the 1998 Agreement and the 1999
Agreement.
143. With respect to the breaches, Micron had actual knowledge of the obligations
owed to ECD under the 1998 Agreement and 1999 Agreement. Among other things, Micron
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could have, but chose not to, take assignment of the 1998 Agreement and 1999 Agreement in
144. On information and belief, Micron understood that acquiring Ovonyx’s stock,
including Lowrey’s shares, without providing the Trust notice to exercise the First Refusal Right
145. Micron acted with an improper purpose by ensuring that Ovonyx would never
provide notice to the Trust. Micron knew that the effect of the agreement it designed, drafted,
and negotiated with Ovonyx would result in a breach of the 1998 Agreement and the 1999
Agreement, and allow Micron to acquire Ovonyx, the phase-change technology and the Ovonic
146. The Trust repeats and realleges the foregoing allegations as though they were
147. The 1999 Agreement valid and enforceable contractual relationship existed (and
still exists) between the Plaintiff (as the successor in interest to ECD), on the one hand, and
148. It is a breach of the 1998 Agreement if Lowrey did not provide notice of the First
149. It is a breach of the 1999 Agreement if Ovonyx did not pay the Royalty or provide
notice to ECD so that ECD could exercise the First Refusal Right.
150. Since the consummation of the Bankruptcy Sale, Ovonyx has not paid any
Royalty.
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151. Neither Lowrey nor Ovonyx provided any notice of the July 2015 Transactions,
including the Merger Document and the OMT Agreement. Thus, the Trust was denied the
152. Lowrey has materially breached both the 1998 Agreement and the 1999
Agreement.
154. With respect to the breaches, based on existing license agreements Ovonyx had
entered into that were being assigned to OMT, OMT had actual knowledge of the obligations
155. On information and belief, OMT understood that acquiring Ovonyx’s intellectual
property, without providing the Trust notice to exercise the First Refusal Right, would cause a
156. OMT acted with an improper purpose by ensuring that Ovonyx would never
provide notice to the Trust. On information and belief, OMT entered into the OMT Agreement
to facilitate Micron’s acquisition of Ovonyx and would acquire rights to intellectual property for
157. The Trust repeats and realleges the foregoing allegations as though they were
158. In July 2015, Ovonyx entered into the OMT Agreement which constituted a
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159. The OMT Agreement was entered into with the intent to hinder, delay, or defraud
a.
b. Ovonyx intentionally hid the OMT Agreement from the Plaintiff, including for
months afterwards even though the Plaintiff had been requesting information from
Ovonyx;
consideration OMT was paying for substantially all of Ovonyx’s assets was fair;
and
d. The transaction materially benefitted Micron, which at the time owned in excess
of 35% of the stock of Ovonyx, had the right to appoint two board members, and
161. The Plaintiff, as a creditor of Ovonyx, was harmed as a result of Ovonyx entered
162. Pursuant to Michigan Uniform Voidable Transfers Act § 566.31 et seq., the Trust
is entitled to a judgment (a) avoiding the OMT Agreement; (b) directing that the OMT
Agreement be set aside, and (c) recovering any property transferred to OMT under the OMT
Agreement.
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PRAYER FOR RELIEF
WHEREFORE, the Trust respectfully requests that this Court enter judgment in favor of
b. avoiding the OMT Agreement, directing the OMT Agreement be set aside and
recovering all property transferred to OMT under the OMT Agreement;
c. awarding reasonable costs and expenses incurred in this action, including, to the
extent applicable, attorneys’ fees; and
d. granting such other relief as the Court deems just and proper.
-and-
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