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Hearing Date: November 13, 2019 at 11:00 a.m. (ET)
Objections Due: November 12, 2019 at 12:00 p.m. (ET) MCDERMOTT WILL & EMERY LLP
Timothy W. Walsh
Darren Azman
Evan Belosa
Ravi Vohra
340 Madison Avenue
New York, New York 10173
Telephone: (212) 547-5400
Facsimile: (212) 547-5444
Proposed Counsel to the Debtors
and Debtors in Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
)
In re: ) Chapter 11
)
AGERA ENERGY LLC, et al.,1 )
)
Case No. 19-23802 (RDD)
Debtors. )
)
(Jointly Administered)
)
AGERA ENERGY LLC, )
)
Plaintiff, )
v. ) Adv. Proc. No. 19-08554 (RDD)
)
SUNWAVE USA HOLDINGS, INC., )
)
Defendant.
)
)
NOTICE OF HEARING ON DEBTORS’ EMERGENCY MOTION FOR A
TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, AND
EXPEDITED DISCOVERY
1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera Energy
LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988); Utility
Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate headquarters and the
service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.
2
PLEASE TAKE NOTICE that on November 8, 2019, the above-captioned debtors and
debtors in possession (collectively, the “Debtors”), filed the Debtors’ Emergency Motion for a
Temporary Restraining Order, Preliminary Injunction, and Expedited Discovery (the
“Emergency Motion”). A hearing (the “Hearing”) on the Emergency Motion will be held before
the Honorable Robert D. Drain, United States Bankruptcy Judge, in the United States
Bankruptcy Court for the Southern District of New York, 300 Quarropas Street, White Plains,
New York 10601, on November 13, 2019 at 11:00 a.m. (Prevailing Eastern Time).
PLEASE TAKE FURTHER NOTICE that objections, if any, to the Emergency Motion
must comply with the Federal Rules of Bankruptcy Procedure and the Local Bankruptcy Rules,
and be filed with the Bankruptcy Court (a) by attorneys practicing in the bankruptcy court,
including attorneys admitted pro hac vice, electronically in accordance with General Order M-399
(which can be found at www.nysb.uscourts.gov), and (b) by all other parties in interest, on a CD-
ROM, in text searchable portable document format (PDF) (with a hard copy delivered directly to
Chambers), in accordance with the customary practices of the Bankruptcy Court and General
Order M-399, to the extent applicable, and served in accordance with the Order (A) Establishing
Certain Notice, Case Management, and Administrative Procedures and (B) Granting Related
Relief [Docket No. 96] (the “Case Management Procedures Order”). Objections, if any, to the
Emergency Motion shall be filed and served, with a copy to the Court’s chambers, in a manner
consistent with the Case Management Procedures Order by November 12, 2019 at 12:00 p.m.
(Prevailing Eastern Time) (the “Objection Deadline”).
PLEASE TAKE FURTHER NOTICE that if no objections are timely filed and served
with respect to the Emergency Motion, the Debtors shall, on or after the Objection Deadline,
3
submit to the Court an order substantially in the form as Exhibit A to the Emergency Motion,
which order the Court may enter with no further notice or opportunity to be heard.
PLEASE TAKE FURTHER NOTICE that the Hearing may be continued or adjourned
thereafter from time to time without further notice other than an announcement of the adjourned
date or dates at the Hearing.
PLEASE TAKE FURTHER NOTICE that copies of the Emergency Motion may be
obtained free of charge by visiting the website of Stretto at http://cases.stretto.com/agera. You
may also obtain copies of any pleadings by visiting the Court’s website at
http://www.nysb.uscourts.gov in accordance with the procedures and fees set forth therein.
Dated: November 8, 2019 MCDERMOTT WILL & EMERY LLP
New York, NY
/s/ Darren Azman
Timothy W. Walsh
Darren Azman
Ravi Vohra
340 Madison Avenue
New York, NY 10173
Telephone: (212) 547-5615
Facsimile: (212) 547-5444
Email: [email protected]
Proposed Counsel to the Debtors
and Debtors in Possession
Hearing Date: November 13, 2019 at 11:00 a.m. (ET)
Objections Due: November 12, 2019 at 12:00 p.m. (ET) MCDERMOTT WILL & EMERY LLP
Timothy W. Walsh
Darren Azman
Evan Belosa
Ravi Vohra
340 Madison Avenue
New York, New York 10173
Telephone: (212) 547-5400
Facsimile: (212) 547-5444
Proposed Counsel to the Debtors
and Debtors in Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
)
In re: ) Chapter 11
)
AGERA ENERGY LLC, et al.,1 )
)
Case No. 19-23802 (RDD)
Debtors. )
)
(Jointly Administered)
)
AGERA ENERGY LLC, )
)
Plaintiff, )
v. ) Adv. Proc. No. 19-08554 (RDD)
)
SUNWAVE USA HOLDINGS, INC., )
)
Defendant. )
)
DEBTOR’S EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION, AND EXPEDITED DISCOVERY
1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera
Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988);
Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate
headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.
2
Agera Energy LLC (“Agera” or “Debtor”), one of the debtors and debtors in possession
(collectively, the “Debtors”) in these chapter 11 cases (these “Chapter 11 Cases”) submits this
motion (the “Motion”), pursuant to sections 105(a) of title 11 of the United States Code (the
“Bankruptcy Code”), Rules 26 and 65 of the Federal Rules of Civil Procedure, made applicable
to this adversary proceeding by Rules 7026 and 7065 of the Federal Rules of Bankruptcy
Procedure (the “Bankruptcy Rules”), respectively, Rule 9077-1 of the Local Rules of the
Bankruptcy Court for the Southern District of New York (the “Local Rules”), and this Court’s
Order (A) Establishing Certain Notice, Case Management, and Administrative Procedures and
(B) Granting Related Relief [Docket No. 96] (the “Case Management Procedures Order”) for
entry of two orders: (i) first—on an emergency basis—an order to show cause with temporary
restraining order and order granting expedited discovery (the “Emergency Order”), substantially
in the form of the proposed order attached hereto as Exhibit A, (A) ordering Defendant Sunwave
USA Holdings, Inc. (“Sunwave”) to cease and desist from violating the Non-Solicitation Clause
(as defined below) and withdraw certain outstanding offers of employment, if any such offers are
currently in existence, (B) granting the Debtor expedited discovery, and (C) ordering Sunwave to
show cause at a hearing why the Debtor should not be granted a preliminary injunction; and (ii)
second, after expedited notice and a hearing, an order (the “Provisional Order”), substantially in
the form of the proposed order attached hereto as Exhibit B, granting the Debtor a preliminary
injunction. In support of the Motion, the Debtor respectfully refers the Court to the
contemporaneously filed Affidavit of Todd Sandford in Support of the Debtor’s Emergency
Motion for a Temporary Restraining Order, Preliminary Injunction, and Expedited Discovery
(the “Sandford Affidavit”), attached hereto as Exhibit C, and the Declaration of Todd Sandford
Pursuant to Rule 1007-2 of the Local Bankruptcy Rules for the Southern District of New York in
3
Support of the Debtors’ Chapter 11 Petitions and First Day Pleadings [Docket No. 3] (the “First
Day Declaration”).2 In further support of the Motion, the Debtor respectfully states the
following:
PRELIMINARY STATEMENT
Agera has brought this action to address the breach by Sunwave of a non-solicitation and
non-hire clause (collectively, the “Non-Solicitation Clause”) contained in a June 13, 2019 non-
disclosure agreement (the “Agreement”). Agera required, and Sunwave agreed to, the
Agreement as part of a process to gain access to confidential information of Agera for the
purpose of assessing a potential transaction between the parties. In spite of the Non-Solicitation
Clause, Sunwave now employs four ex-Agera employees solicited and hired since the signing of
the Agreement just over four months ago. Any action by Sunwave to continue soliciting and
hiring Agera employees in violation of the Non-Solicitation Clause threatens irreparable and
permanent harm to Agera’s ongoing operations and, therefore, the success of these Chapter 11
Cases. Agera has no choice but to seek this Court’s intervention by way of a temporary
restraining order and preliminary injunction to prevent Sunwave’s actions in breach of the Non-
Solicitation Clause.
JURISDICTION AND VENUE
1. The United States Bankruptcy Court for the Southern District of New York (the
“Court”) has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the
Amended Standing Order of Reference from the United States District Court for the Southern
2 Capitalized terms used but not defined herein have the meanings ascribed to such terms in the First Day
Declaration.
4
District of New York, dated January 31, 2012. This is a core proceeding pursuant to 28 U.S.C.
§ 157(b).
2. Venue is proper before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.
3. The bases for the relief requested herein are sections 105(a) of the Bankruptcy
Code, Bankruptcy Rules 7001(7), 7026, and 7065, and Local Rule 9077-1.
4. The Debtor confirms its consent, pursuant to Rule 7008 of the Bankruptcy Rules,
to entry of a final order by this Court in connection with this Motion to the extent that it is later
determined that this Court, absent consent of the parties, cannot enter final orders or judgments
in connection herewith consistent with Article III of the United States Constitution.
BACKGROUND
5. On October 4, 2019 (the “Petition Date”), each of the Debtors filed a voluntary
petition for relief under chapter 11 of the Bankruptcy Code.
6. The Debtors continue to operate their businesses and manage their properties as
debtors in possession pursuant to Bankruptcy Code sections 1107(a) and 1108.
7. On October 11, 2019, the United States Trustee for the Southern District of New
York (the “U.S. Trustee”) appointed an official committee of unsecured creditors pursuant to
section 1102 of the Bankruptcy Code (the “Committee”) [Docket No. 61]. No trustee, examiner,
or other official committee has been appointed in these Chapter 11 Cases.
8. The factual background regarding the Debtors, including a description of the
Debtors’ business, capital structure, and the circumstances leading to these Chapter 11 Cases, is
set forth in the First Day Declaration, which is incorporated herein by reference.
9. The facts supporting this Motion are drawn from the First Day Declaration and
Sandford Affidavit.
5
10. The Debtors commenced these Chapter 11 Cases to sell their assets and wind
down the remaining portions of the Debtors’ operations through a liquidating chapter 11 plan. In
May, 2019, the Debtors began to run a thorough sale process and engaged with various creditor
constituencies to negotiate a consensual wind down as expeditiously as possible in order to attain
the maximum value in a sale of the Debtors’ assets
11. Agera is a Delaware limited liability Company headquartered in Briarcliff Manor,
New York.
12. Agera provides retail electricity and natural gas to commercial, industrial, and
residential customers. Agera services distinct utility regions—87 as of the Petition Date—and
provides services to customers—approximately 35,000 as of the Petition Date. As of the Petition
Date, approximately 75% of these accounts were commercial and 25% were residential.
13. Agera reaches those customers through a variety of sales channels, including an
internal sales team. Agera employs various individuals who are part of a dedicated sales team
based in their various operating regions who service existing customers and seek to acquire new
customers both directly and through third party sales channels.
14. As of this writing, Agera has approximately 54 employees.
15. In May 2019, Agera engaged Stifel, Nicolaus & Co., Inc. and Miller Buckfire &
Co., LLC (collectively, “Miller Buckfire”) as investment banker to explore strategic alternatives,
including conducting a marketing process for the sale of Agera, as either a going concern or an
asset sale.
16. Miller Buckfire contacted 207 parties, comprised of 121 strategic investors and 86
financial investors. Each party was provided with a teaser document and was invited to execute a
confidentiality agreement in order to receive a confidential information memorandum and access
6
to a virtual data room. Twenty parties showed sufficient interest in further participating in the
process and were provided access to the virtual data room.
17. Sunwave is a competitor of Agera. Like Agera, Sunwave provides retail
electricity to thousands of homeowners and business consumers across North America,
according to its website.3
18. A number of former Agera executives now work for Sunwave. Sunwave’s Chief
Executive Officer, Steven Laker (“Laker”), is a former Agera COO.
19. Sunwave signed the Agreement, created by Miller Buckfire, on June 13, 2019.
Laker signed on behalf of Sunwave. A true and correct copy of the Agreement is attached hereto
as Exhibit D.
20. To protect itself from the loss of its employee base, Agera required, and Sunwave
agreed to, the Non-Solicitation Clause, which states as follows:
In consideration of the Evaluation Material being furnished to you, you
agree that, without the prior written consent of the Company, for a period
of two years from the date hereof you will not, directly or indirectly, (i)
solicit any person or employee whom you know or have a reasonable basis
to know is an employee of the Company; or (ii) solicit for employment or
employ any person employed by the Company with whom you had contact
or who became known to you during your evaluation of the Company;
provided, however, that the foregoing provision will not prevent you from
employing any such person who contacts you on his or her own initiative
without any direct or indirect solicitation by or encouragement from you,
and provided further that general advertisements and other similar broad
forms of solicitation shall not constitute direct or indirect solicitation
hereunder.
See Exhibit D at 4.
3 See https://gosunwave.com
7
21. To enforce its rights, the Agreement provides that Agera is “entitled to equitable
relief, including injunction and specific performance, as a remedy for” Sunwave’s breach of this
Agreement. Id. at 5.
22. Sunwave neither objected to nor negotiated the terms of the Non-Solicitation
Clause.
23. The Non-Solicitation Clause was critical to Agera. Agera was well aware that its
experienced personnel, in particular its sales personnel, were the lifeblood of its business. Agera
thus knew that if a proposed transaction was not consummated, it would need to protect its
personnel from being picked off by a potential buyer.
24. Sunwave gained access to the virtual data room and confidential information
memorandum. However, it never put in a bid of any kind.
25. Despite the clear language of the Agreement, Sunwave has, upon information and
belief, solicited and hired no fewer than four Agera employees since June 13, 2019.
26. Sunwave’s pilfered employees include: Agera office manager Jenna Christy,
Hydrocarbon Accountant Anna Angelova, and Business Development Managers Tom DeFeudis
and Kandi Perry.
27. DeFeudis and Perry each resigned on September 5, 2019, and upon information
and belief, began working for Sunwave immediately thereinafter.
28. Angelova resigned her full-time employment on August 31, 2019, and upon
information and belief, began working part-time for Sunwave immediately thereafter.
29. Christy resigned on August 23, 2019, and upon information and belief, began
working for Sunwave immediately thereafter.
8
30. As salespeople, DeFeudis and Perry had access to and responsibility for a book of
Agera customers. Since DeFeudis and Perry resigned, 212 accounts associated with DeFeudis
and Perry dropped from Agera’s book of business.
31. Sunwave was only given access to confidential, proprietary, and critically
valuable information of Agera because of its purported interest in a transaction. If Sunwave is
permitted to solicit and/or hire Agera’s employees, it could gain information about the client
base maintained by the sales employees, as well as a continued direct conduit to continued hiring
of Agera’s employees. Successful solicitation of Agera’s customers, enabled by the hiring of
Agera employees, can have a material, adverse impact to the final purchase price of Agera’s
assets through the bankruptcy proceedings.
ARGUMENT
I. Agera Meets the Requirements for Injunctive Relief
32. The purpose of a temporary restraining order “is to protect a party from
irreparable harm until more lasting relief, such as a preliminary injunction, can be sought.”
HarperCollins Publishers L.L.C. v. Gawker Media LLC, 721 F. Supp. 2d 303, 305 (S.D.N.Y.
2010) (internal citations omitted). To prevail on a motion for a temporary restraining order
and/or a preliminary injunction in the Second Circuit, a plaintiff must demonstrate both (1)
irreparable harm in the absence of the injunction, and (2) either (a) a likelihood that it will
succeed on the merits of the action, or (b) a sufficiently serious question going to the merits
combined with a balance of hardships that tips decidedly in the former employer’s favor.
Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1038 (2d Cir. 1992). Motions
for a TRO are subject to the same analysis: the “standards which govern consideration of an
application for a temporary restraining order . . . are the same standards as those which govern a
9
preliminary injunction.” Local 1814, Int’l Longshoremen’s Ass’n v. N.Y. Shipping Ass’n, Inc.,
965 F.2d 1224, 1228 (2d Cir. 1992).
A. Agera is Likely to Succeed on the Merits of Its Claims for Breach of Contract
i. New York Law Governs
33. The Agreement contains a New York choice of law provision, and New York
courts “apply the law selected in the contract as long as the state selected has sufficient contacts
with the transaction.” Int’l Bus. Mack Corp. v. Muller, No. 14-CV-9221, 2017 WL 4326114, at
*4 (S.D.N.Y. Sept. 27, 2017) (quoting Hartford Fire Ins. Co. v. Orient Overseas Containers
Lines (UK) Ltd., 230 F.3d 549, 556 (2d Cir. 2000)); see also Zerman v. Ball, 735 F.2d 15, 20 (2d
Cir. 1984) (“Under New York law, great deference is to be given a contract’s designation of the
law that is to govern disputes arising from the contract . . . and that designation is determinative
if the state selected has sufficient contacts with the transaction.”) (internal citations omitted); Aon
Risk Serv. Northeast, Inc. v. Cusack, 958 N.Y.S.2d 114 (1st Dept. 2013) (upholding preliminary
injunction against former employee) (“New York courts are willing to enforce parties’ choice of
law provisions.”). In this case, Sunwave’s “contacts”—hiring New York-based employees for
employment within New York, in breach of an Agreement signed in New York with a New York
based entity—with New York are sufficient to honor the New York choice of law provisions.
ii. Sunwave Breached the Agreement
34. A breach of contract claim requires proof of “(1) an agreement, (2) adequate
performance by the plaintiff, (3) breach by the defendant, and (4) damages.” Antares Mgmt.
LLC v. Galt Global Capital, Inc., No. 12-CV-6075 (TPG), 2013 WL 1209799, at *18 (S.D.N.Y.
Mar. 22, 2013) (internal citations omitted). Each of these elements is satisfied here.
10
35. First, the parties entered into the Agreement on June 13, 2019. Steven Laker,
Sunwave’s CEO, signed the Agreement on behalf of Sunwave. Second, Agera performed its
obligations pursuant to the Agreement. Sunwave was given access to a confidential information
memorandum and had full authority to access the data room. Third, Sunwave has breached the
Agreement by breaching the Non-Solicitation Clause. Sunwave has solicited and/or hired, as
previously delineated, no fewer than four Agera employees in the past few months, each hired
subsequent to the signing of the Non-Solicitation Agreement. And finally, Agera has suffered
damage by the loss of these valuable employees, each of whom played a key role within Agera.
iii. The Non-Solicitation Clause is Reasonable and Enforceable
36. Under New York law, a restrictive covenant is enforceable if it is reasonable. See
Renaissance Nutrition, Inc. v. Jarrett & Kurtz, No. 08-CV-800S, 2012 WL 42171, at *8
(W.D.N.Y. Jan. 9, 2012) (internal citations omitted). Under New York’s reasonableness
standard, courts generally apply a three-prong test where the restraint must (1) be no greater than
what is required for the protection of the legitimate interest of a company, (2) not impose undue
hardship on the employee, and (3) not injure the public. Id. The courts have found consistently
that a non-solicitation clause of employees, like the one at issue in this case, is enforceable. See
OTG Mgmt., LLC v. Konstantinidis, 967 N.Y.S.2d 823 (N.Y. Sup. Ct. 2013) (non-recruitment
clause held enforceable on a preliminary injunction motion); Jarrett, supra, at *7 (holding that
“this Court finds that the non-recruitment covenant is valid and binding”); Evolution Mkts., Inc.
v. Penny, 23 Misc.3d 1131(A), 889 N.Y.S.2d 882, 2009 WL 1470451 (N.Y. Sup. Ct. 2009)
(same). Given Agera’s legitimate business interests and the absence of any meaningful hardship
on Sunwave, it is respectfully submitted that this Court should rule similarly.
11
37. The Non-Solicitation Clause protects Agera’s legitimate interest. A cognizable
business interest exists when the covenant operates to protect “against misappropriation of the
employer’s trade secret or confidential customer list, or protection from competition by a former
employee whose services are unique or extraordinary.” See OTG Mgmt., LLC, 967 N.Y.S.2d at
825. Courts have also recognized a legitimate business interest in preventing former employees
from “resigning and encouraging their co-workers to join them in a competitive business.” See
Jarrett, 2012 WL 42171 at *14, 21-22 (upholding a non-solicitation clause that prevented two
former “top-level” employees from recruiting plaintiff’s employees to join a newly-formed rival
company); Master Card Int’l Inc. v. Nike, Inc., 164 F. Supp. 3d 592, 602 (S.D.N.Y. 2016)
(enforcing non-solicitation of employees or no-hire provisions that prevented competitors from
poaching employees with access to confidential information or from targeting employees with
unique personal relationships with the employer’s clients).
38. Similarly, the Non-Solictiation Clause is reasonable. Firstly, the type of
restriction is inherently reasonable. See Genesee Val. Trust Co. v. Waterford Grp., LLC, 130
A.D.3d 1555, 1558 (4th Dep’t 2015) (“A covenant not to solicit employees is ‘inherently more
reasonable and less restrictive’ than a covenant not to compete[.]”). Secondly, the period of time-
two years- has often been held to be reasonable as a matter of law. See, e.g., Ikon Office
Solutions, Inc. v. Usherwood Office Tech., Inc., No. 9202-08, 2008 WL 5206291, at *1, 54 (N.Y.
Sup. Ct. Dec. 12, 2008) (preliminarily enjoining defendants for period of two years from
“soliciting, recruiting or hiring any of plaintiff’s employees to leave employment” with plaintiff);
USI Inc. Services LLC v. Miner, 801 F.Supp. 2d 175 (S.D.N.Y. 2011) (upholding two year
nonrecruitment restriction); Frantic, LLC v. Konfino, No. 13 Civ. 4516 (AT), 2013 WL 5870211,
12
at *3 n.3 (S.D.N.Y. Oct. 30, 2013) (holding that 18-month duration of no-hire clause “appear[ed]
to be reasonable”).
39. Finally, there is no undue hardship imposed on Sunwave. Sunwave can solicit
and hire virtually anyone in the world. But as a condition of contemplating a transaction with
Agera, it agreed not to solicit nor hire Agera employees. Abiding by such a restriction cannot be
a hardship.
B. Agera Will Be Irreparably Harmed Absent Injunctive Relief
40. Agera will be irreparably harmed absent this Court’s intervention. “Irreparable
harm can be found where there is a continuing wrong which cannot be adequately redressed by
final relief on the merits. Such harm often resides where money damages cannot provide
adequate compensation.” New York Pathological & X-Ray Labs., Inc. v. INS, 523 F.2d 79, 81
(2d Cir. 1975). Agera’s remaining employee base is critical to its survival and eventual return to
profitability. Many of those employees hold confidential information and client relationships
which will be lost forever to Agera if Sunwave is permitted to continue hiring Agera employees
in violation of the Non-Solicitation Clause. Where there exists a risk of the kind Agera is now
exposed to, courts regularly find irreparable harm. See, e.g., Global Telesystems, Inc. v.
KPNQwest, N. V., 151 F. Supp. 2d 478, 482 (S.D.N.Y. 2001) (finding irreparable harm if
defendant were allowed to hire a plaintiff’s former executive); see also Estee Lauder Cos. Inc v.
Batra, 430 F. Supp. 2d. 158, 182 (S.D.N.Y. 2006) (granting preliminary injunction barring
defendant from working for plaintiff’s competitor and enjoining defendant from violating non-
solicitation provisions). Courts have also reasoned that breaches of non-compete or non-
recruitment provisions cause irreparable harm because the companies “will likely sustain a loss
of business that is not readily quantifiable.” Evolution Mkts., Inc., 2009 WL 1470451, at *16.
13
41. Moreover, the Agreement itself specifically acknowledges that irreparable harm
shall result from its breach. The Agreement specifies that:
It is further understood and agreed that money damages would not be a sufficient
remedy for any breach of this letter agreement by you or any of your
Representatives and that the Company shall be entitled to equitable relief, including
injunction and specific performance, as a remedy for such breach. Such remedies
shall not be deemed to be the exclusive remedies for a breach by you of this letter
agreement, but shall be in addition to all other remedies available at law or equity
to the Company.
See Exhibit D at 5.
42. Such provision is an implicit admission by defendants as to the effect of their
violations of the non-compete and confidentiality covenants. See Ticor Title Ins. Co. v. Cohen,
173 F.3d 63, 69 (2d Cir. 1999) (contract provision providing that breach of non-competition
provision would cause irreparable injury “might arguably be viewed as an admission” that
plaintiff will suffer irreparable harm); North Atlantic Instruments, Inc. v. Haber, 188 F.3d 38, 49
(2d Cir. 1999) (relying on similar clause in determining irreparable injury). Accordingly,
Sunwave itself has acknowledged that its material breach will cause irreparable harm to Agera.
C. The Balance of the Equities and Public Interest Favors Agera
43. Balancing the equities “simply requires the court to look to the relative prejudice
to each party accruing from a grant or a denial of the requisite relief.” Sau Thi Ma v. Xuan T.
Lien, 198 A.D.2d 186, 187 (N.Y. Sup. Ct. 1993). Further, before issuing a preliminary
injunction, an issuing court must ensure that “the public interest would not be disserved.” Rex
Med. L.P. v. Angiotech Pharm. (US), Inc., 754 F. Supp. 2d 616, 620 (S.D.N.Y. 2010) (internal
citations omitted). In this case, the public interest would be served by ordering a restraining
order and preliminary injunction, and the equities more than tip in Agera’s favor.
14
44. First, the Court is being asked simply to ensure that these parties abide by their
freely negotiated and agreed contractual arrangements. Certainly, the public interest is served by
ensuring parties are not free to breach agreements at their leisure. Further, the balance of the
equities tips in favor of Agera. If the Court elects not to act, Agera’s remaining employee base,
and the clientele who depend on them, may well fall further prey to Sunwave’s predations. On
the other hand, the only prejudice suffered by Sunwave is that it must abide by its restrictions.
Ceratinly this is no hardship.
II. Expedited Discovery is Appropriate
45. Agera also asks the Court to authorize limited expedited discovery pursuant to
Rule 26(d)(1) of the Federal Rules of Civil Procedure so that Agera can determine the extent of
Sunwave’s misconduct. If granted, Agera intends to seek limited document and interrogatory
discovery detailing (a) efforts to solicit and/or hire Agera employees by Sunwave or Sunwave
agents; (b) the hire of the four ex-Agera employees and the contacts which led to same; and (c)
current efforts to exploit the information maintained by the ex-Agera employees with Agera
clientele or current Agera employees.
46. Expedited discovery is common in cases involving preliminary injunction
hearings. See, e.g., Tetra Sales (U.S.A.) v. T.F.H. Publ’n, Inc., 839 F.2d 881, 882 (2d Cir. 1988)
(parties entered into expedited discovery in preparation for hearing on the plaintiff’s motion for a
preliminary injunction). In order to obtain expedited discovery, a party must demonstrate: (i)
irreparable injury; (ii) some probability of success on the merits; (iii) some connection between
expedited discovery and the avoidance of the irreparable injury; and (iv) some evidence that the
injury to plaintiff without expedited discovery is greater than the injury the defendant will suffer
if the expedited relief is granted. See Advanced Portfolio Techs., Inc. v. Advanced Portfolio
15
Techs. Ltd., No. 94 CIV. 5620 (JFK), 1994 WL 719696, at *2–4 (S.D.N.Y. Dec. 28, 1994)
(motion for expedited discovery granted where plaintiff intended to seek a preliminary
injunction); Twentieth Century Fox Film Corp. v. Mow Trading Corp., 749 F. Supp. 473, 475
(S.D.N.Y. 1990).
47. Agera has established those elements. First, as detailed above, Agera is likely to
succeed on the merits and will suffer irreparable harm absent injunctive relief. Second, there is
ample connection between expedited discovery and avoidance of irreparable injury because the
targeted discovery sought by Agera will enable Agera and the Court to determine the extent of
Sunwave’s misconduct (something that is currently known only to Sunwave). Third, Sunwave
will suffer no prejudice nor injury that would result if discovery is opened in this case on an
expedited basis. Limited expedited discovery will not be unduly burdensome; all Sunwave seeks
is facts concerning protection of its own clientele and employee base. Rule 26(d) of the Federal
Rules of Civil Procedure permits parties to seek discovery prior to the Rule 26(f) conference
with leave of the Court. Disclosure of information regarding Sunwave’s actions will aid in the
administration of justice, the underlying purpose of Rule 26.
MOTION PRACTICE
48. This Motion includes citations to the application rules and statutory authorities
upon which the relief requested herein is predicated and a discussion of its application to this
Motion. Accordingly, the Debtor submits that this Motion satisfies Local Rule 9013-1(a).
NOTICE
49. Agera has provided notice of this Motion to: (1) Lawrence R. Gelber, by
telephone at (718) 638-2383 and (917) 992-3596, by electronic mail to [email protected], by
fax to (718) 857-9339, and by overnight mail, Saturday a.m. delivery to Lawrence R. Gelber,
16
The Vanderbilt Plaza, 34 Plaza Street, Brooklyn, New York 11238; (2) Sunwave, by electronic
mail to [email protected], by fax to (888) 979-8410, and by overnight mail,
Saturday a.m. delivery to Sunwave USA Holdings, Inc., 100 Cambridge Street, 14th Floor,
Boston, MA 02114; (3) the entities listed on the Master Service List (as defined in paragraph 12
of the Case Management Procedures Order) via electronic mail and first class mail postage
prepaid; and (4) the 2002 List (as defined in paragraph 12 of the Case Management Procedures
Order) via electronic mail and first class mail postage prepaid.
NO PRIOR REQUEST
50. No previous request for the relief sought herein has been made by the Debtors to
this or any other Court.
17
WHEREFORE, Agera respectfully requests: (i) entry of the Emergency Order,
substantially in the form attached hereto as Exhibit A, (A) ordering Sunwave to cease and desist
from violating the Non-Solicitation Clause and withdraw certain outstanding offers of
employment, (B) granting the Debtor expedited discovery, and (C) ordering Sunwave to show
cause at a hearing why the Debtor should not be granted a preliminary injunction; and (ii) entry
of the Provisional Order, substantially in the form attached hereto as Exhibit B, granting the
Debtor a preliminary injunction; and (iii) any further relief that the Court deems necessary or
appropriate.
Dated: November 8, 2019 Respectfully submitted,
New York, NY
MCDERMOTT WILL & EMERY LLP
/s/ Darren Azman
Timothy W. Walsh
Darren Azman
Ravi Vohra
340 Madison Avenue
New York, NY 10173
Telephone: (212) 547-5615
Facsimile: (212) 547-5444
Email: [email protected]
Proposed Counsel to the Debtors
and Debtors in Possession
Exhibit A
Emergency Order
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
)
In re: ) Chapter 11
)
AGERA ENERGY LLC, et al.,1 )
)
Case No. 19-23802 (RDD)
Debtors. )
)
(Jointly Administered)
)
AGERA ENERGY LLC, )
)
Plaintiff, )
v. ) Adv. Proc. No. 19-08554 (RDD)
)
SUNWAVE USA HOLDINGS, INC., )
)
Defendant. )
)
ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINING ORDER AND
ORDER GRANTING EXPEDITED DISCOVERY
Upon the Debtor’s Emergency Motion for a Temporary Restraining Order, Preliminary
Injunction, and Expedited Discovery (the “Motion”)2 filed by debtor Agera Energy LLC (the
“Debtor” or “Agera”) pursuant to Section 105(a) of Title 11 of the United States Code (the
“Bankruptcy Code”), Rules 26 and 65 of the Federal Rules of Civil Procedure, made applicable
to this adversary proceeding by Rules 7026 and 7065 of the Federal Rules of Bankruptcy
Procedure (the “Bankruptcy Rules”), respectively, and Rule 9077-1 of the Local Rules of the
Bankruptcy Court for the Southern District of New York (the “Local Rules”); and upon this
Court’s review and consideration of: (i) the Motion; and (ii) the Sandford Affidavit;
1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera
Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988);
Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate
headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion.
2
IT IS HEREBY FOUND AND DETERMINED THAT:
A. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a)(b)
and 1334(b) and the Amended Standing Order of Reference from the United States District Court
for the Southern District of New York, dated January 31, 2012, and that this Court may enter a
final order consistent with Article III of the United States Constitution;
B. Venue for the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and
1409;
C. This is a core proceeding pursuant to 28 U.S.C. § 157(b); and
D. The legal and factual bases set forth in the Motion establish good and sufficient
cause for granting the relief provided herein because the Debtor has demonstrated that: there
exists a substantial likelihood of success on the merits of its claims against Sunwave; the Debtor
and its estate and creditors will suffer irreparable harm if a temporary restraining order (“TRO”)
is not granted; the serious and irreparable harm to the Debtor from failure to issue a TRO far
outweighs any harm to Sunwave; and an issuance of a TRO is in the public interest by
preventing harm to the Debtors’ reorganization efforts and their estates.
IT IS HEREBY ORDERED THAT:
1. The Motion is granted as set forth herein.
2. Sunwave and all those acting in concert with Sunwave shall immediately:
a. cease and desist from directly or indirectly soliciting any person or employee who
Sunwave knows or has reasonable basis to know is an employee of Agera or was
an employee of Agera subsequent to the June 13, 2019 execution of the
Agreement;
b. cease and desist from directly or indirectly soliciting for employment or
employing any person who is employed by Agera or was employed by Agera
subsequent to the June 13, 2019 execution of the Agreement and with whom
3
Sunwave had contact or who became known to Sunwave during its evaluation of
Agera; and
c. withdraw any outstanding offers of employment to any individual detailed in
subparagraph (b).
3. Sunwave shall (a) cause a copy of this Order to Show Cause with Temporary
Restraining Order and Order Granting Expedited Discovery (this “Order”) to be immediately
delivered to every employee of Sunwave; and (b) direct all such employees that they are to: (i)
cease and desist from directly or indirectly soliciting any person or employee who Sunwave
knows or has reasonable basis to know is an employee of Agera or was an employee of Agera
subsequent to the June 13, 2019 execution of the Agreement; (ii) cease and desist from directly
or indirectly soliciting for employment or employing any person who is employed by Agera or
was employed by Agera subsequent to the June 13, 2019 execution of the Agreement and with
whom Sunwave had contact or who became known to Sunwave during its evaluation of Agera;
and (iii) withdraw any outstanding offers of employment to any individual detailed in (ii), above.
4. Pursuant to Bankruptcy Rule 7065, the security provisions of Rule 65(c) of the
Federal Rules of Civil Procedure are waived.
5. To the extent unresolved objections to the preliminary injunction requested in the
Motion exist, Sunwave and all parties in interest must show cause at a hearing to be held in this
Court before the Honorable Robert D. Drain, United States Bankruptcy Judge of the United
States Bankruptcy Court for the Southern District of New York, 300 Quarropas Street,
Courtroom 118, White Plains, NY 10601 on November 13, 2019, at 11:00 a.m. (prevailing
Eastern Time), or as soon thereafter as the Court is available why an order should not be entered
granting the Debtor a preliminary injunction:
4
a. ordering Sunwave and all those acting in concert with Sunwave to cease and
desist from directly or indirectly soliciting any person or employee who Sunwave
knows or has reasonable basis to know is an employee of Agera or was an
employee of Agera subsequent to the June 13, 2019 execution of the Agreement;
b. ordering Sunwave and all those acting in concert with Sunwave to cease and
desist from directly or indirectly soliciting for employment or employing any
person who is employed by Agera or was employed by Agera subsequent to the
June 13, 2019 execution of the Agreement and with whom Sunwave had contact
or who became known to Sunwave during its evaluation of Agera;
c. directing Sunwave and all those acting in concert with Sunwave to withdraw any
outstanding offers of employment to any individual detailed in subparagraph (b);
and
d. granting such other and further relief as the Court may deem just and proper.
6. Sufficient cause having been shown, the Debtor is granted expedited discovery
pursuant to Rule 26(d)(1) of the Federal Rules of Civil Procedure.
7. Good and sufficient cause exists such that this Order shall remain in full force and
effect pending the conclusion of the hearing on the Debtor’s request for a preliminary injunction.
8. The hearing on the Motion may be adjourned from time to time without notice
other than an announcement in open court at the hearing or the adjourned date of the hearing.
9. Sufficient cause having been shown, (a) any papers to be submitted in opposition
to the Motion shall be filed, delivered to the Court’s chambers, and served upon McDermott Will
& Emery LLP (Attn: Darren Azman, Esq.), proposed counsel to the Debtors, 340 Madison
Avenue, New York, New York 10173-1922, by Federal Express and electronic mail to
[email protected] on or before _____________________, 2019; and (b) any reply papers to be
submitted in further support of the Motion shall be filed, delivered to the Court’s chambers, and
served upon Sunwave directly at Sunwave’s headquarters at 100 Cambridge Street, 14th Floor,
Boston, MA 02114.
5
10. Good and sufficient service of this Order and the Motion upon which it is based
shall be made if the Debtors have, on or before _______________________, 2019, sent this
Order, signed by the Court, together with the Motion and Sandford Affidavit, by hand-delivery
or e-mail to (a) Sunwave and (b) any person or entity with a particularized interest in the subject
matter of this Order, such that the papers are actually received by no later than ______________,
2019.
Dated: _______________, 2019
White Plains, New York
___________________________________
THE HONORABLE ROBERT D. DRAIN
UNITED STATES BANKRUPTCY JUDGE
Exhibit B
Provisional Order
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
)
In re: ) Chapter 11
)
AGERA ENERGY LLC, et al.,1 )
)
Case No. 19-23802 (RDD)
Debtors. )
)
(Jointly Administered)
)
AGERA ENERGY LLC, )
)
Plaintiff, )
v. ) Adv. Proc. No. 19-08554 (RDD)
)
SUNWAVE USA HOLDINGS, INC., )
)
Defendant. )
)
ORDER GRANTING PRELIMINARY INJUNCTION
Upon the Emergency Motion for a Temporary Restraining Order, Preliminary Injunction,
and Expedited Discovery (the “Motion”)2 filed by debtor Agera Energy LLC (the “Debtor” or
“Agera”), pursuant to Section 105(a) of Title 11 of the United States Code (as amended, the
“Bankruptcy Code”), Rule 65 of the Federal Rules of Civil Procedure, made applicable to this
adversary proceeding by Rule 7065 of the Federal Rules of Bankruptcy Procedure (the
“Bankruptcy Rules”), and Rule 9077-1 of the Local Rules of the Bankruptcy Court for the
Southern District of New York (the “Local Rules”); and upon this Court’s review and
consideration of (i) the Motion and (ii) the Sandford Affidavit; and upon the record of the
1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera
Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988);
Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate
headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510. 2 Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Motion.
2
hearing held by the Court on the Motion on November 11, 2019 (the “Hearing”); and, after due
deliberation and for the reasons stated by the Court in its bench ruling at the hearing;
IT IS HEREBY FOUND AND DETERMINED THAT:
A. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a)(b)
and 1334(b) and the Amended Standing Order of Reference from the United States District Court
for the Southern District of New York, dated February 1, 2012, and that this Court may enter a
final order consistent with Article III of the United States Constitution.
B. Venue for the Motion in this district is proper pursuant to 28 U.S.C. §§ 1408 and
1409.
C. This is a core proceeding pursuant to 28 U.S.C. § 157(b).
D. The legal and factual bases set forth in the Motion and at the Hearing establish
good and sufficient cause for granting the relief provided herein because the Debtors have
demonstrated that: there exists a substantial likelihood of success on the merits of its claims
against Sunwave; the Debtor and its estate and creditors will suffer irreparable harm if a
preliminary injunction is not granted; the serious and irreparable harm to the Debtor from failure
to issue a preliminary injunction far outweighs any harm to Sunwave; and an issuance of a
preliminary injunction is in the public interest by preventing harm to the Debtors’ reorganization
efforts and their estates.
IT IS HEREBY ORDERED THAT:
1. Sunwave and all those acting in concert with Sunwave shall immediately:
a. cease and desist from directly or indirectly soliciting any person or employee who
Sunwave knows or has reasonable basis to know is an employee of Agera or was
an employee of Agera subsequent to the June 13, 2019 execution of the
Agreement;
3
b. cease and desist from directly or indirectly soliciting for employment or
employing any person who is employed by Agera or was employed by Agera
subsequent to the June 13, 2019 execution of the Agreement and with whom
Sunwave had contact or who became known to Sunwave during its evaluation of
Agera;
c. withdraw any outstanding offers of employment to any individual detailed in
subparagraph (b).
2. Sunwave shall (a) cause a copy of this Order Granting Preliminary Injunction
(this “Order”) to be immediately delivered to every employee of Sunwave; and (b) direct all such
employees that they are to: (i) cease and desist from directly or indirectly soliciting any person or
employee who Sunwave knows or has reasonable basis to know is an employee of Agera or was
an employee of Agera subsequent to the June 13, 2019 execution of the Agreement; (ii) cease
and desist from directly or indirectly soliciting for employment or employing any person who is
employed by Agera or was employed by Agera subsequent to the June 13, 2019 execution of the
Agreement and with whom Sunwave had contact or who became known to Sunwave during its
evaluation of Agera; and (iii) withdraw any outstanding offers of employment to any individual
detailed in (ii), above.
3. Pursuant to Bankruptcy Rule 7065, the security provisions of Rule 65(c) of the
Federal Rules of Civil Procedure are waived.
4. Notwithstanding Bankruptcy Rule 6004(h), the terms and conditions of this
preliminary injunction are immediately effective and enforceable upon its entry. The Debtor is
authorized to take all actions necessary to effectuate the relief granted in this preliminary
injunction.
5. Good and sufficient cause exists such that this Order shall remain in full force and
effect until the conclusion of this Adversary Proceeding.
4
6. Good and sufficient service of this Order and the Motion upon which it is based
shall be made if the Debtors have, on or before _________________, 2019, sent this Order,
signed by the Court, together with the Motion and Sandford Affidavit, by hand-delivery or e-
mail to (a) Sunwave and (b) any person or entity with a particularized interest in the subject
matter of this Order, such that the papers are actually received by no later than ______________,
2019.
7. This Court retains exclusive jurisdiction with respect to all matters arising from or
related to the implementation, interpretation, and enforcement of this Order.
Dated: _______________, 2019
White Plains, New York
___________________________________
THE HONORABLE ROBERT D. DRAIN
UNITED STATES BANKRUPTCY JUDGE
Exhibit C
Sandford Affidavit
MCDERMOTT WILL & EMERY LLP
Timothy W. Walsh
Darren Azman
Evan Belosa
Ravi Vohra
340 Madison Avenue
New York, New York 10173
Telephone: (212) 547-5400
Facsimile: (212) 547-5444
Proposed Counsel to the Debtors
and Debtors in Possession
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
)
In re: ) Chapter 11
)
AGERA ENERGY LLC, et al.,1 )
)
Case No. 19-23802 (RDD)
Debtors. )
)
(Jointly Administered)
)
AGERA ENERGY LLC, )
)
Plaintiff, )
v. ) Adv. Proc. No. 19-08554 (RDD)
)
SUNWAVE USA HOLDINGS, INC., )
)
Defendant. )
)
AFFIDAVIT OF TODD SANDFORD IN SUPPORT OF DEBTOR’S
EMERGENCY MOTION FOR A TEMPORARY RESTRAINING ORDER,
PRELIMINARY INJUNCTION, AND EXPEDITED DISCOVERY
1 The Debtors, together with the last four digits of each Debtor’s federal tax identification number, are: Agera
Energy LLC (8122); Agera Holdings, LLC (3335); energy.me midwest llc (9484); Aequitas Energy, Inc. (7988);
Utility Recovery LLC (4351); and Agera Solutions LLC (8749). The location of the Debtors’ corporate
headquarters and the service address for all Debtors is 555 Pleasantville Road, S-107, Briarcliff Manor, NY 10510.
2
Pursuant to 28 U.S.C. § 1746, Todd Sandford declares as follows:
1. I am the Chief Operating Officer of Debtor Agera Energy LLC (the “Debtor” or
“Agera”), one of the debtors and debtors in possession (collectively, the “Debtors”) in these
chapter 11 cases (these “Chapter 11 Cases”) and the Plaintiff in this adversary proceeding.
2. I have served in such capacity since August 2018. As such, I am familiar with the
Debtor’s day-to-day operations, businesses, and financial affairs.
3. Prior to my current role with Agera, I had a 15-year career with one of North
America’s largest retail providers of electricity, natural gas, and home and business energy-
related services. During that period of time, I held numerous leadership roles, including
customer operations, finance, and sales functions, culminating in general management over two
separate business units.
4. I submit this affidavit in support of the Debtor’s Emergency Motion for a
Temporary Restraining Order, Preliminary Injunction, and Expedited Discovery (the
“Motion”).2 No previous application for similar relief to that requested in the Motion has been
made. The statements made herein are based on my personal knowledge, my review of the
exhibits attached hereto and, where stated, upon information and belief.
5. Except as otherwise specified herein, all the facts set forth in this Declaration are
based upon my personal knowledge, my discussions with members of the Debtors’ management
team and the Debtors’ other advisors, my review of relevant documents and information
concerning the Debtors’ operations, financial affairs, and restructuring initiatives, or my opinions
based upon my experience and knowledge. If called as a witness, I could and would testify
2 Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Motion.
3
competently to the facts set forth in this Declaration. I am authorized to submit this Declaration
on behalf of the Debtors.
6. The Debtors commenced these Chapter 11 Cases to sell their assets and wind
down the remaining portions of the Debtors’ operations through a liquidating chapter 11 plan.
7. Agera is a Delaware limited liability Company headquartered in Briarcliff Manor,
New York.
8. Agera provides retail electricity and natural gas to commercial, industrial, and
residential customers. Agera services distinct utility regions—87 as of the Petition Date—and
provides services to customers—approximately 35,000 as of the Petition Date. As of the Petition
Date, approximately 75% of these accounts were commercial and 25% were residential.
9. Agera reaches those customers through a variety of sales channels, including an
internal sales team. Agera employs various individuals who are part of a dedicated sales team
based in their various operating regions who service existing customers and seek to acquire new
customers, both directly and through third party sales channels.
10. As of this writing, Agera has approximately 54 employees.
11. In May, 2019, Agera engaged Stifel, Nicolaus & Co., Inc. and Miller Buckfire &
Co., LLC (collectively, “Miller Buckfire”) as investment banker to explore strategic alternatives,
including conducting a marketing process for the sale of the Agera, as either a going concern or
an asset sale.
12. Miller Buckfire contacted 207 parties, comprised of 121 strategic investors and 86
financial investors. Each party was provided with a teaser document and was invited to execute a
confidentiality agreement in order to receive a confidential information memorandum and access
4
to a virtual data room. Twenty parties showed sufficient interest in further participating in the
process and were provided access to a virtual data room.
13. Sunwave is a competitor of Agera. Like Agera, Sunwave provides retail
electricity to thousands of homeowners and business consumers across North America,
according to its website. See https://gosunwave.com/.
14. A number of former Agera executives now work for Sunwave. Sunwave’s Chief
Executive Officer, Steven Laker (“Laker”), is a former Agera COO.
15. Sunwave signed an agreement created by Miller Buckfire on June 13, 2019 (the
“Agreement”). Laker signed on behalf of Sunwave. A true and correct copy of the Agreement is
attached hereto as Exhibit A.
16. To protect itself from raiding of its employee base, Agera required, and Sunwave
agreed to, a non-solicitation and non-hire provision (collectively, the “Non-Solicitation Clause”)
which states as follows:
In consideration of the Evaluation Material being furnished to you, you agree that,
without the prior written consent of the Company, for a period of two years from
the date hereof you will not, directly or indirectly, (i) solicit any person or
employee whom you know or have a reasonable basis to know is an employee of
the Company; or (ii) solicit for employment or employ any person employed by
the Company with whom you had contact or who became known to you during
your evaluation of the Company; provided, however, that the foregoing provision
will not prevent you from employing any such person who contacts you on his or
her own initiative without any direct or indirect solicitation by or encouragement
from you, and provided further that general advertisements and other similar
broad forms of solicitation shall not constitute direct or indirect solicitation
hereunder.
See Exhibit A at 4.
5
17. To enforce its rights, the Agreement provides that Agera is “entitled to equitable
relief, including injunction and specific performance, as a remedy for” Sunwave’s breach of this
Agreement. Id. at 5.
18. Sunwave neither objected to nor negotiated the terms of the Non-Solicitation
Clause.
19. The Non-Solicitation Clause was critical to Agera. Agera was well aware that its
experienced personnel, in particular its sales personnel, were the lifeblood of its business. Agera
thus knew that if a proposed transaction was not consummated, it would need to protect its
personnel from being picked off by a potential buyer.
20. Sunwave gained access to the virtual data room and confidential information
memorandum. However, it never put in a bid of any kind.
21. Despite the clear language of the Agreement, Sunwave has, upon information and
belief, hired no fewer than four Agera employees since June 13, 2019.
22. Sunwave’s pilfered employees include: Agera office manager Jenna Christy,
Hydrocarbon Accountant Anna Angelova, and Business Development Managers Tom DeFeudis
and Kandi Perry.
23. DeFeudis and Perry each resigned on September 5, 2019, and upon information
and belief, began working for Sunwave immediately thereinafter.
24. Angelova resigned her full-time employment on August 31, 2019, and upon
information and belief, began working part-time for Sunwave immediately thereafter.
25. Christy resigned on August 23, 2019, and upon information and belief, began
working for Sunwave immediately thereafter.
Exhibit D
Agreement
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