EFiled: Aug 19 2016 03:00PM EDT Transaction ID 59446618 Case No. 12663-CB IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE OCI SOLAR POWER LLC, v. Plaintiff, BUENAVISTA RENEWABLES LTD., Defendant. C.A. No. 12663-CB - PUBLIC VERSION FILED AUGUST 19, 2016 VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff OCI Solar Power LLC ( Plaintiff or OCI, by and through its undersigned counsel, for its complaint against Defendant Buenavista Renewables Ltd. ( Defendant or BVR, alleges as follows: 1. OCI brings this action to resolve a dispute regarding OCI s termination of a term sheet between OCI and BVR dated April 21, 2016 (the Term Sheet. The parties intended for and agreed that the Term Sheet would serve as a non-binding letter of intent to assist in drafting other agreements that would memorialize the parties rights, responsibilities and obligations 2. The Term Sheet unambiguously states that it does not constitute a binding contract and may be canceled at any time by either party by written notice to the other party. In accordance with those terms, OCR terminated the Term Sheet.
3. Incredibly, BVR now seeks to enforce the Term Sheet s non-binding provisions. 4. BVR s interpretation of the Term Sheet is plainly incorrect. OCI is entitled to a declaration that, consistent with the agreement s unambiguous language and purpose, the Term Sheet is in fact non-binding and was properly terminated. PARTIES 5. OCI is a Delaware limited liability company with its principal place of business located at 300 Convent St., Suite 1900, San Antonio, Texas, 78205. OCI is a leader in the solar power industry, providing innovation and development for solar power plants in communities across North America. 6. BVR is a British Virgin Islands company with its principal place of business located at Road Reef Marina, Rodus Building, Road Town, Tortula VG 11110. BVR is a renewable energy project developer in emerging markets and select island economies. JURISDICTION 7. This Court has jurisdiction to declare, pursuant to 10 Del. C. 6501, the rights, statuses and other legal relations of the parties to this action. Pursuant to 10 Del. C. 341, this Court also has jurisdiction over this action to the extent that Plaintiff seeks equitable relief. An actual and justiciable controversy has arisen
and now exists relating the parties respective rights, duties, and obligations under the agreement in question. 8. This Court has jurisdiction over Defendant pursuant to 10 Del. C. 3104(c(1,(2. Moreover, Defendant is subject to general jurisdiction in Delaware because of its contacts here, including its formation of multiple subsidiaries and other steps to avail itself of the benefits of Delaware as a forum. FACTUAL BACKGROUND A. BVR Solicits OCI In BVR 9. In late November 2015, BVR and OCI began discussions regarding the possibility of OCI (or one of its affiliates Over the course of January 2016 through April 2016, BVR and OCI exchanged numerous drafts of a term sheet and OCI conducted its preliminary due diligence review of BVR. B. The Term Sheet 10. On April 25, 2016, Dean Hull, the Chairman and Chief Financial Officer of BVR, sent OCI a copy of the finalized Term Sheet signed by Mr. Hull on behalf of BVR. On April 26, 2016, John Huffaker, a Vice President of OCI, signed and returned a counterpart of the Term Sheet. A true and correct copy of the fully executed Term Sheet is attached hereto as Exhibit A.
document: 11. The introduction of the Term Sheet explains the purpose of the 12. Thus, the Term Sheet is designed to act as the parties letter of intent to enter into subsequent agreements 13. Section 26 of the Term Sheet, entitled Non-Binding, confirms that the document does not establish any binding obligations by OCI or BVR to consummate the transaction described therein: The [Term Sheet] expresses only the current intentions of the Parties and is not an offer capable of acceptance, and likewise does not constitute a binding contract. Until the actual execution of only sections 22 through 25 are binding on the Parties upon the execution of the [Term Sheet]. (emphasis added. 14. Sections 22-25 of the Term Sheet, which are the only binding provisions of the document, describe the parties (i obligations to fund their own expenses in connection with the negotiation, preparation and execution of the Term
Sheet (Section 22, entitled Costs, Advisors, (ii rights to execute counterparts that together would constitute an original version of the Term Sheet (Section 23, entitled Counterparts ; and (iii restrictions against assignment without written agreement of the other party (Section 24, entitled Assignments. 15. Section 25 of the Term Sheet, entitled Cancelation and Termination, states that [t]his [Term Sheet] may be canceled at any time by either Party by written notice to the other Party. Section 25 further provides that [t]his [Term Sheet] shall expire 24 months after execution of this [Term Sheet] or upon the execution of, whichever comes first. Ex. A. 16. OCI does not dispute that Sections 22-25 of the Term Sheet are binding on the parties. 17. By contrast, Sections 1-21 of the Term Sheet are unambiguously nonbinding. They describe the various proposed rights and obligations of the parties in connection with OCI s C. OCI Terminates The Term Sheet 18. On June 29, 2016, Mr. Huffaker contacted Jose Ruiz, Chief Executive Officer of BVR, to provide oral notification that OCI had terminated the Term
Sheet. On July 6, 2016, OCI s counsel provided written notice of the termination. See Ex. B. 19. OCI has fully complied with the termination procedures contemplated by Section 25 of the Term Sheet: the parties have not executed ; and OCI provided written notice of termination well within its 24- month window. See Ex. A. 20. After OCI asserted its right to terminate the Term Sheet, BVR alleged that the termination was improper. 21. BVR, apparently regretting the agreement that it struck, now seeks to enforce non-binding provisions in the Term Sheet. CLAIM FOR RELIEF (Declaratory Judgment 22. Plaintiff repeats and realleges each of the allegations set forth in the preceding paragraphs as if fully set forth herein. 23. A current and actual controversy exists between OCI and BVR regarding their respective rights and obligations arising under the Term Sheet. Specifically, a dispute exists regarding (i whether the Term Sheet creates any binding obligations for OCI (other than any obligations included in Sections 22 through 25, and (ii whether OCI validly terminated the Term Sheet.
24. Under the Delaware Declaratory Judgment Act (the Act, 10 Del. C. 6501, et seq., Delaware courts have the power to declare rights, status and other legal relations, whether or not further relief is or could be claimed. 10 Del. C. 6501. Under the Act, [a] person whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. Id. 6502. A contract may be construed either before or after there has been a breach thereof. Id. 6503. The power of Delaware courts to grant declaratory relief is to be liberally construed and administered. Id. 6512. 25. Pursuant to Rule 57 of the Court of Chancery of the State of Delaware, [t]he existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. 26. Based on the above alleged facts, OCI seeks a judicial declaration of its rights and obligations under the Term Sheet.
PRAYER FOR RELIEF WHEREFORE OCI demands the following relief: A. For a declaration that (i the Term Sheet did not create any binding obligations for OCI (other than any obligations included in Sections 22 through 25, and (ii OCI validly terminated the Term Sheet; B. Awarding OCI its costs, fees and expenses, including reasonable attorneys fees; and C. Such other and further relief as the Court deems is just and proper. Of Counsel: Christopher Groves MILLER,EGAN,MOLTER &NELSON LLP 2911 Turtle Creek Blvd., Suite 1100 Dallas, Texas 75219 (214 628-9526 Dated: August 16, 2016 /s/ Adam K. Schulman A. Thompson Bayliss (#4379 Adam K. Schulman (#5700 ABRAMS &BAYLISS LLP 20 Montchanin Road, Suite 200 Wilmington, Delaware 19807 (302 778-1000 Attorneys for Plaintiff OCI Solar Power LLC