Decco U.S. Post-Harvest, Inc. v. Mirtech, Inc. ( 2018 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
DECCO U.S. POST-HARVEST, INC., )
)
Petitioner, )
)
v. ) C.A. No. 2018–0100–JTL
)
MIRTECH, INC., )
)
Respondent, )
)
and )
)
ESSENTIV LLC, )
)
Nominal defendant. )
MEMORANDUM OPINION
Date Submitted: September 11, 2018
Date Decided: November 28, 2018
Brock E. Czeschin, Sara C. Hunter, Angela Lam, RICHARDS, LAYTON & FINGER,
P.A., Wilmington, Delaware; John M. Williamson, Rajeev Gupta, Karthik Kumar,
FINNEGAN, HENDERSON, FARABOW, GARRET & DUNNER, LLP, Washington,
D.C.; Counsel for Petitioner.
Glenn A. Brown, REAL WORLD LAW, P.C., Wilmington, Delaware; Counsel for
Respondent.
LASTER, V.C.
1-Methylcyclopropene (“1-MCP”) is a gas used to delay the ripening of fruit and
other produce. MirTech, Inc. claimed to own intellectual property rights in 1-MCP.
In April 2016, MirTech and Decco U.S. Post-Harvest, Inc. (“Decco”) established a
joint venture to commercialize products based on 1-MCP. As the vehicle for their venture,
they formed a Delaware limited liability company called Essentiv LLC (the “Company”).
As part of the business arrangement, MirTech granted the Company a license to use its
intellectual property rights in 1-MCP.
Non-party AgroFresh Inc. disputed whether MirTech owned any intellectual
property rights in 1-MCP. In September 2017, MirTech settled litigation brought by
AgroFresh. In the settlement agreement, MirTech agreed that AgroFresh owned the
intellectual property rights which MirTech had licensed to the Company.
After learning of this development, Decco brought this proceeding to dissolve the
Company. Decco proved at trial that it is not reasonably practicable for the Company to
carry on its business given that MirTech has agreed that it does not own the intellectual
property rights the Company was created to commercialize.
Based on the evidence presented at trial, the Company is dissolved. Francois Girin
is appointed as receiver to wind up the Company’s affairs.
I. FACTUAL BACKGROUND
The factual record in this case is mercifully sparse. Trial lasted only one day. The
parties submitted just eleven joint exhibits. They presented live testimony from two fact
witnesses, lodged two depositions, and consented to the use of one affidavit. The parties
proved the following facts by a preponderance of the evidence.
1
A. Mir And AgroFresh Develop 1-MCP Technologies.
In 1996, Edward Sisler and Sylvia Blankenship patented 1-MCP.1 At the time, Nazir
Mir was studying how to extend the shelf life of apples using modified atmosphere
packaging.2 As part of his research, he began experimenting with 1-MCP technologies.3
In late 2009, Mir entered into discussions with AgroFresh about using 1-MCP in
modified atmosphere packaging.4 One of Mir’s contacts at AgroFresh was Lynn Oakes,
who will re-emerge in the story later after moving over to Decco.5
Through his entity, MirTech, Mir entered into an interim consulting services
agreement with AgroFresh dated January 1, 2010. The agreement called for joint
ownership of “any and all inventions conceived or reduced to practice jointly by the
[p]arties.”6
1
See U.S. Patent No. 5,518,988 (filed June 3, 1994); JX 8 at 17. Citations in the
format “[Name] Dep.” refer to witness testimony from a deposition transcript. Citations in
the form “[Name] Tr.” refer to witness testimony from the trial transcript. Citations in this
format “PTO ¶ —” are stipulated facts in the pre-trial order. Citations in the form “JX –––
at ––––” refer to trial exhibits using the JX-based page numbers generated for trial.
2
Mir Dep. 15–17.
3
Id. at 17–18.
4
JX 9 at 4; see Mir Dep. 29–30.
5
Mir Dep. 30–33.
6
JX 9 at 5 (internal quotation marks omitted).
2
In May 2011, MirTech and AgroFresh replaced the interim agreement with a
commercial agreement and a consulting agreement. These agreements granted AgroFresh
sole ownership over the parties’ joint inventions.7
While working with AgroFresh, Mir developed “RipeLock,” a modified atmosphere
package that used 1-MCP.8 Mir also developed technology underlying what became U.S.
Patent Numbers 8822382, 8802140, 9394216, and 9561894.9 This decision refers to this
intellectual property collectively as the “RipeLock Patents.”
B. The Letter Of Intent
By October 2014, Oakes had moved to Decco from AgroFresh. Decco’s primary
business involves the post-harvest treatment and packaging of produce.10 Decco hired
Oakes to develop its apple storage business.11
7
Id. at 5–7.
8
See Mir Dep. 41–43, 53–54.
9
See JX 11 ¶¶ 4(a), 7(a) (Final Consent Judgment where Mir acknowledges and
consents to a judgment establishing AgroFresh’s ownership of the listed patents). The Final
Consent Judgment uses the former title of the ‘894 patent, U.S. Patent Publication Number
2014/0326620. See Public Patent Application Information Retrieval,
https://portal.uspto.gov/pair/PublicPair (last visited Nov. 26, 2018) (search application
number 13969393).
10
See Girin Tr. 6.
11
Girin Dep. 15.
3
On October 18, 2014, Oakes met with Mir during a meeting of the Produce
Marketing Association in Anaheim, California.12 Oakes discussed Decco’s interest in using
1-MCP for the long-term storage of produce.13 Within a few days, Mir had entered into a
confidentiality agreement with Decco.14
Over the next several weeks, Mir had a series of meetings with members of Decco
management including Francois Girin, Decco’s Chief Executive Officer.15 The discussions
revolved around a potential partnership between MirTech and Decco that would develop
post-harvest packaging solutions using 1-MCP.16 During their initial meeting, Mir
informed Girin that MirTech had partnered with AgroFresh to produce RipeLock.17 Mir
did not provide Decco with, and Decco did not ask to see, any of the agreements that Mir
or MirTech had with AgroFresh.18
On November 30, 2014, Decco and MirTech executed a letter of intent for a joint
venture involving the ‘382 Patent, the ‘140 Patent, their child applications, and US
12
Mir Dep. 32, 36–38; see Girin Tr. 6–7, 42; Mir Tr. 73.
13
Mir Dep. 37–39 (“Q. What did he explain that Decco was looking for? A. 1-
MCP.”); Mir Tr. 73.
14
See Mir Dep. 39–40.
15
Mir Tr. 73; Girin Tr. 42; Mir Dep. 45–46; see Girin Dep. 12–16.
16
Mir Dep. 40, 46, 49, 52; Mir Tr. 73.
17
Girin Dep. 16–17; see Dkt. 46 at 5. Cf. Mir Dep. at 41–43, 53–54.
18
Mir Tr. 74 (“Q. [Y]ou did not provide Decco with a copy of your agreement with
Agrofresh, did you? A. That’s correct.”); see Mir Dep. 54–58.
4
Provisional Patent Application 32077867.19 The ‘382 Patent and the ‘140 Patent were part
of the RipeLock Patents.20 Although Provisional Patent Application ‘867 was not
specifically identified as a RipeLock Patent, Mir testified that this patent application related
to the ‘216 Patent, which was one of the RipeLock Patents.21 The letter of intent
documented the parties’ plan “to collaborate in the assessment of the right to practice,
ability to register, biological performance, manufacturing cost and commercialization
potential of MirTech’s 1-MCP ‘MPM’ technology . . . and other related technologies.”22
The letter of intent identified three overarching tasks for the joint venture: (i) secure
the legal rights of the listed patents; (ii) coordinate research, regulatory approvals, and other
pre-commercial activity; and (iii) commercialize the developed technology.23 To facilitate
JX 1; Mir Dep. 53 (“Q. And do you recall when [you signed a letter of intent with
19
Decco]? A. N[ove]mber 30-2014.”). The letter of intent was subtitled “Strategic Alliance
and Commercialization of MirTech Technologies as Embodied by US 8822382 and US
8802140 Patents, their Child Applications and US Provisional Patent Application
62077867.” JX 1 at 1.
20
See JX 11 ¶¶ 4(a), 7(a).
21
Mir Dep. 60, 101 Provisional Patent Application ‘867 later expired. See Public
Patent Application Information Retrieval, https://portal.uspto.gov/pair/PublicPair (last
visited Nov. 26, 2018) (search application number 62077867).
22
JX 1 § 1. Mir testified that “MPM” meant “MirTech proprietary materials.” Mir
Dep. 61.
23
See JX 1 § 1.
5
the third task, MirTech would “grant [an] exclusive license to NewCo to use its patents
related to 1-MCP technologies and operate as an independent entity.”24
C. The Company And Its Governing Documents
On April 19, 2016, Decco and MirTech formed the Company.25 Its operating
agreement became effective on June 30, 2016 (the “LLC Agreement”).26 Decco and
MirTech were the only two members of the Company. Each held a 50% member interest.27
The LLC Agreement established a manager-managed structure under which
management of the Company was “vested in a Management Committee composed of two
members, each of whom shall be a ‘Manager.’”28 The LLC Agreement specified that one
manager would be Decco’s CEO and the other would be MirTech’s President.29 The only
individuals who ever held these positions were Girin and Mir. 30 The LLC Agreement
required both managers to be present for a quorum to exist and the consent of both
managers for any action that required manager approval.31
24
Id.; see also id. § 7.B. (“MirTech in turn agrees to provide NewCo with exclusive
rights to practice [the listed patents].”).
25
PTO ¶ 1.
26
Id.; JX 6.
27
PTO ¶ 2.
28
JX 6 § 9.1(a).
29
PTO ¶ 2; JX 6 § 9.1(a)(1).
30
PTO ¶ 3.
31
JX 6 §§ 9.1(b) & (c).
6
Section 3.1 of the LLC Agreement identified the Company’s purpose (the “Purpose
Clause”). It provided as follows:
The intention of the Members in forming the Company is to conduct and
coordinate all activities related to chemistry and biology R&D, collaboration
with universities and government researchers, regulatory support and
registration filings, manufacturing, supply chain activities, strategic
marketing and marketing communications related to 1-MCP Products (the
“1-MCP Business”). . . .
The 1-MCP Business does not include, and Decco and the Company
acknowledge and agree that MirTech may independently pursue, any
technology and business related to flexible packaging for, or in combination
with, 1-MCP or relating to microwavable cooking or both (“MirTech
Excluded Business”).
In addition to the 1-MCP Business, Decco and MirTech intend for the
Company to be the vehicle for development of other technologies proposed
by MirTech as well as possibly by Decco . . . from time to time as set forth
in Section 6 [(the “Non-1-MCP Business”)] below.32
The Purpose Clause thus specified that the Company would be pursuing the 1-MCP
Business and not the MirTech Excluded Business. At the same time, the Purpose Clause
held out the possibility that the Company might in the future pursue a Non-1-MCP
Business.
To facilitate the Company’s potential pursuit of a Non-1-MCP Business, Section 6
of the LLC Agreement gave Decco a right of first refusal over any non-1-MCP products
that MirTech developed, other than the MirTech Excluded Business.33 In Section 6.1,
MirTech agreed to provide Decco with written notice of any technology that MirTech
32
JX 6 § 3.1 (formatting altered for legibility).
33
Id. § 6.1; Mir Dep. 93–94.
7
developed. After receiving notice, Decco had sixty days to determine whether it wanted to
pursue commercialization of the technology through the Company. If Decco exercised its
option, then the parties would have 120 days to negotiate a definitive agreement. If Decco
did not exercise its right of first refusal, or if the parties could not reach a definitive
agreement, then MirTech and Mir would be “free to contract with one or more third parties
to license or otherwise commercialize the new technology.”34
To ensure that the Company could pursue the 1-MCP Business, the LLC Agreement
required that MirTech develop and license exclusively to the Company all of the “Licensed
Technology.”35 The LLC Agreement defined “Licensed Technology” as
(i) “patents US 8822382 and US 880140, its child applications, and
patents which may be granted from United States Patent Application
13/969,393, filed August 16, 2013, Provisional Patent application
62077867 dated November 10, 2014, and Non-provisional patent
application 1476004 dated May 29, 2015, and all technologies
described in such patents and patent applications,”
(ii) the “know-how and trade secrets for processing and forming products
incorporating 1-MCP that meet the impurity standards of US EPA,”
and
(iii) “all rights granted in the License Agreement as it may be amended
from time to time.”36
34
JX 6 § 6.1.
35
See id. § 4.2(a).
36
Id. App. A at 2.
8
Patents ‘382 and ‘140 were RipeLock Patents.37 Patent Application ‘393 became Patent
‘894, which was a RipeLock Patent.38 Patent Application ‘004 became the ‘216 Patent,
which was a RipeLock Patent.39 Provisional Patent ‘867 related to the ‘216 Patent, bringing
it within the ambit of a RipeLock Patent.40
In the LLC Agreement, however, MirTech represented that it owned the Licensed
Technology and that “neither Rutgers University nor any other person has any right, title
or interest in the Licensed Technology.”41 MirTech further represented that it “owns the
Licensed Technology free and clear of all claims, mortgages, leases, loans and
encumbrances.”42 MirTech made additional representations regarding its ownership of the
Licensed Technology in the Licensing Agreement, which the LLC Agreement incorporated
37
See JX 11 ¶¶ 4(a), 7(a).
38
See id.; Public Patent Application Information Retrieval,
https://portal.uspto.gov/pair/PublicPair (last visited Nov. 26, 2018) (search application
number 13969393).
39
See JX 11 ¶¶ 4(a), 7(a); Public Patent Application Information Retrieval,
https://portal.uspto.gov/pair/PublicPair (last visited Oct. 31, 2018) (search application
number 14726004).
40
See Mir Dep. 60, 101. Provisional Patent Application ‘867 later expired. Public
Patent Application Information Retrieval, https://portal.uspto.gov/pair/PublicPair (last
visited Oct. 31, 2018) (search application number 62077867). See generally Dkt. 46 App.
A.
41
JX 6 § 19.1.
42
Id. § 19.2.
9
by reference “for the benefit of Decco.”43 The LLC Agreement provided that MirTech’s
representations “shall survive the execution, delivery, and performance of this Agreement
and shall in no way be affected by any investigation of the subject matter thereof.”44
D. The AgroFresh Litigation
In the summer of 2016, the Company began selling TruPick, a product that utilized
metal organic framework technology to deliver 1-MCP gas to fruit. The Company never
commercialized any other product.45
On August 3, 2016, AgroFresh filed suit in the United States District Court for the
District of Delaware against Mir, MirTech, Decco, the Company, and their affiliates. In its
complaint, AgroFresh claimed to own the RipeLock Patents, which the Company had used
to develop TruPick.46 The District Court bifurcated the case so it could first determine who
owned the ‘216 Patent.47
On June 30, 2017, the District Court ruled that AgroFresh was the sole owner of the
‘216 patent.48 Put differently, the TruPick technology belonged to AgroFresh.49 A few days
43
Id. § 19.1.
44
Id. § 21.1.
45
Girin Dep. 25, 33–34.
46
See JX 8 at 24, 30, 44–50.
47
JX 9 at 2.
48
Id. at 34–35.
49
Id. at 32–34.
10
later, Mir and Girin agreed on behalf of the Company as its managers to stop all commercial
activity related to TruPick.50
On September 15, 2017, Mir entered into a settlement agreement with AgroFresh,
which called for entry of a final judgment by consent (the “Final Consent Judgment”).51 In
the Final Consent Judgment, Mir and MirTech agreed to the entry of judgment against
them on twenty different counts of wrongdoing, including claims for fraud, fraudulent
inducement, constructive fraud, unfair competition, willful infringement of patent, and
misappropriation of trade secrets.52 Mir and MirTech “agreed to disclose to AgroFresh all
inventions, discoveries, or improvements (whether patentable or not) related to [1-MCP] .
. . , along with all lab books and other documents concerning such inventions, discoveries
or improvements.”53 Mir and MirTech formally acknowledged and agreed that “all such
inventions, discoveries, and/or improvements have been automatically assigned to
AgroFresh.”54
50
Girin Dep. 33–37.
51
Mir Dep. 123–25; see Mir Tr. 114–15.
52
See JX 11 ¶¶ 3–7.
53
Id. ¶ 7(q).
54
Id.
11
On September 18, the District Court approved the Final Consent Judgment and
entered it as an order.55 The Final Consent Judgment established that AgroFresh owned the
RipeLock Patents that constituted the Licensed Technology under the LLC Agreement.56
In early 2018, Girin contacted Mir. He pointed out that “Essentiv has lost [its] ability
to operate, has lost its technology.”57 He suggested that the Company be dissolved. Mir
refused.58
E. This Litigation
On February 12, 2018, Decco filed this action. Decco sought an order (i) dissolving
the Company and (ii) appointing Girin as receiver to wind up the Company’s affairs.59
MirTech answered and asserted a two paragraph counterclaim seeking payment of Mir’s
salary under a consulting agreement and compensation for the development of “QMS
technology.”60 Decco moved to strike the counterclaim, and I granted the motion.61 The
case proceeded to trial on the dissolution claim.62
55
Id.
56
See id. ¶¶ 4(a), 7(a).
57
Girin Dep. 26.
58
Girin Tr. 31, 37.
59
Dkt. 1.
60
Dkt. 13 at 4.
61
Dkt. 27.
62
MirTech now contends that the Company is actually in deadlock. Therefore,
Decco’s petition for dissolution should be mediated under Section 11 of the LLC
12
II. LEGAL ANALYSIS
Section 18-802 of the Delaware Limited Liability Company Act states: “On
application by or for a member or manager the Court of Chancery may decree dissolution
of a limited liability company whenever it is not reasonably practicable to carry on the
business in conformity with a limited liability company agreement.”63 A party may obtain
dissolution by showing that “the defined purpose of the entity has become impossible to
fulfill.”64
“[T]his court must look to the operating agreement of the LLC to determine the
purpose for which it was formed . . . .”65 “[T]he purpose clause is of primary importance,
but other evidence of purpose may be helpful as long as the Court is not asked to engage
in speculation.”66
Agreement. Dkt. 51 at 10; see JX 6 § 11. Because there is another basis for dissolution, the
parties are not obligated to resort to the mediation mechanism. Furthermore, MirTech
waived this argument by raising it five months into the litigation. See, e.g., Nutzz.com, LLC
v. Vertrue Inc., 2006 WL 2220971, at *8–9 (Del. Ch. July 25, 2006) (finding plaintiff
waived right to arbitration by actively participating in litigation before filing notice of
arbitration).
63
6 Del. C. § 18-802.
64
In re Arrow Inv. Advisors, LLC, 2009 WL 1101682, at *2 (Del. Ch. April 23,
2009) (Strine, V.C.); see Fisk Ventures, LLC v. Segal, 2009 WL 73957, at *3 (Del. Ch. Jan.
13, 2009) (“[C]ourts have historically looked to the ‘business of the partnership and the
general partner’s ability to achieve that purpose in conformity with the partnership
agreement.’” (quoting PC Tower Ctr., Inc. v. Tower Ctr. Dev. Assocs., 1989 WL 63901, at
*6 (Del. Ch. June 8, 1989))), aff’d, 984 A.2d 124 (Del. 2009) (TABLE).
65
Arrow, 2009 WL 1101682, at *1.
66
Meyer, 2015 WL 3746283, at *4; see also In re Seneca Invs. LLC, 970 A.2d 259,
263–64 (Del. Ch. 2008) (“This Court will also not attempt to divine some other business
13
The Company’s stated purpose is to (i) “conduct and coordinate all activities” of the
1-MCP Business and (ii) serve as the vehicle for any Non-1-MCP Business if Decco
exercises its right of first refusal on new technologies developed by Mir or MirTech.67 The
record establishes that the Company no longer has any 1-MCP Business and will never
have any Non-1-MCP Business.
A. The 1-MCP Business
The LLC Agreement defines the 1-MCP Business as the business activities “related
to the 1-MCP Products.”68 The “1-MCP Products” are “any products or delivery systems
that incorporate or deliver 1-MCP.”69
purpose by interpreting provisions of the governing documents other than the purpose
clause.”); Cincinnati Bell Cellular Sys. Co. v. Ameritech Mobile Phone Serv. of Cincinnati,
Inc., 1996 WL 506906, at *7 (Del. Ch. Sept. 3, 1996) (refusing to read a non-compete into
the purpose of the partnership agreement), aff’d, 692 A.2d 411 (Del. 1997) (TABLE).
67
JX 6 § 3.1.
68
Id. As noted, the definition carves out the “MirTech Excluded Business.” Id.
MirTech disputes the meaning of the “MirTech Excluded Business” and contends that it
extended to “whatever [Mir] did for AgroFresh.” Mir Dep. 41; see id. at 182. That is not a
credible assertion. The LLC Agreement defines “MirTech Excluded Business” as “any
technology and business related to flexible packaging for, or in combination with, 1-MCP
or relating to microwavable cooking or both.” JX 6 § 3.1. It is true that the definition of
MirTech Excluded Business refers to 1-MCP, but giving meaning to this language would
conflict with the definition of the 1-MCP Business and the scope of the Licensed
Technology. Using functionally equivalent definitions for both the 1-MCP Business and
the MirTech Excluded Business makes no sense. The LLC Agreement is not particularly
well drafted, and the stray reference to 1-MCP in the definition of MirTech Excluded
Business is an example of an occasion where the parties could have been more precise.
69
JX 6 App. A at 1.
14
To date, the Company’s only product is TruPick, which is a 1-MCP Product. The
Company’s five-year operating budget, approved by MirTech, identified revenue only
from TruPick.70 The Company has no plans to develop any other products.
The Final Consent Judgment prevents the Company from continuing to sell
TruPick.71 Therefore, the Company has no 1-MCP Business.
To avoid this conclusion, MirTech argues that the Company can still use MirTech’s
“know-how” and “trade secrets” to conduct a 1-MCP Business. As an example, Mir
suggested at trial that he could use his know-how to build a 1-MCP Business based on a
patent that expired in August 2018.72
The evidence does not support Mir’s assertion. In the Final Consent Judgment, Mir
and MirTech assigned their “know-how” to AgroFresh. Mir and MirTech also agreed that
70
See id. § 4.1(d); id. Ex. 4.1(d) (identifying revenue from only “MOF MCP”); Mir
Dep. 99 (“Q. And TruPick is the only product listed on the five-year budget; right? A. The
commercial plan, yes. . . . Q. Right. All of the sales revenue would come from TruPick. A.
Yes.”). Before trial, Mir testified that the budget inaccurately accounted for Essentiv’s
revenue allocation, claiming that “MCP represents 25 percent of the potential revenue . . .
75 percent from non-MCP.” Mir Dep. 120. Mir supported his position with no evidence,
but only the claim that “Essentiv was created to be a technology incubator.” Id. at 121. This
decision does not credit Mir’s testimony.
71
See Mir Dep. 164–65; JX 9 at 34–35. At trial, MirTech suggested that Essentiv
may still sell TruPick in countries “not controlled by U.S. intellectual property laws.” Girin
Tr. 34–36; see Mir Dep. 165. That is not a viable avenue. The Final Consent Judgment
provides AgroFresh with all ownership rights of the RipeLock Patents “along with all
associated technology and related United States, foreign, and international patents and
patent applications.” JX 11 ¶ 4(a).
72
See Mir Tr. 105.
15
Agrofresh had “helped Mir set up his laboratory to measure 1-MCP accurately and
provided him [with] equipment to assist in this effort” and that Mir misappropriated
AgroFresh’s trade secret information, including “information concerning how to
synthesize and measure 1-MCP and how to use a gas chromatograph.”73 At trial, Mir
admitted his proposed 1-MCP Business required measuring 1-MCP.74 Mir did not posit
any way to measure 1-MCP without relying on the know-how and trade secrets assigned
to AgroFresh.
The evidence establishes that there is no viable 1-MCP Business. It is not reasonably
practicable for the Company to carry out this aspect of its business.
B. The Non-1-MCP Business
The other element of the Company’s purpose was to act as a vehicle for potential
Non-1-MCP Businesses.75 Under the LLC Agreement, a Non-1-MCP Business can exist
only if Decco exercises its right of first refusal to partner with MirTech in developing a
new non-1-MCP product.76
It is not reasonably practicable for the Company to pursue a Non-1-MCP Business.
Girin made clear at trial that Decco does not trust Mir and will not do business with him in
73
JX 10 ¶¶ 43, 60.
74
Mir Tr. 121.
75
JX 6 § 3.1.
76
See id. § 6.1; see also Mir Tr. 78–79.
16
the future.77 Given the seriousness of the claims to which MirTech admitted,78 Decco’s
position is understandable.
MirTech contends that a Non-1-MCP Business exists for two non-1-MCP
technologies: “in-transit ripening” and “nano-absorbent films.”79 The only support for this
claim is Mir’s testimony about discussions he had with individuals at Decco who did not
have decision-making authority.80 Mir conceded that the parties had “never signed any
definitive agreements with respect to any non-1-MCP technology.”81
The evidence establishes that there is no viable Non-1-MCP Business. It is not
reasonably practicable for the Company to carry out this aspect of its business.
III. CONCLUSION
Decco proved at trial that it is not reasonably practicable for the Company to carry
on its business. The Company is therefore dissolved. The only candidate to serve as
77
See Girin Tr. 17–18, 70.
78
See JX 11 ¶¶ 3–7.
79
Mir Tr. 79.
80
See Mir Tr. 85–86. The LLC Agreement states that Decco must agree to pursue
any technology. See JX 6 § 6.1. Neither of the individuals whom Mir identified had the
authority to commit Decco to a Non-1-MCP Business. Mir Tr. 116, 124.
81
Mir Tr. 79; see also Girin Tr. 15–16; Mir Dep 93, 181. Mir testified that before
the LLC Agreement was executed, Decco provided two letters of support in connection
with MirTech’s application for research grants related to the technologies. See Mir Tr. 85–
86, 90; see also Girin Tr. 43, 45. No evidence was submitted to support the testimony or
their relationship to a definitive agreement.
17
receiver is Girin. The parties shall submit a form of order implementing this decision that
has been agreed as to form.
18