`
`
`EX. A
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`

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`Case 2019CV003118
`
`Document 1
`
`Filed 04-19-2019
`
`Page 1 of 15
`
`FILED
`04-19-2019
`John Barrett
`Clerk of Circuit Court
`2019CV003118
`Honorable William S.
`Pocan-26
`Branch 26
`
`STATE OF WISCONSIN
`
`CIRCUIT COURT
`
`MILWAUKEE COUNTY
`
`37CELSIUS CAPITAL PARTNERS, L.P.,
`309 North Water Street
`Milwaukee, WI 53202,
`
`and
`
`37CELSIUS CAPITAL PARTNERS, LLC,
`309 North Water Street
`Milwaukee, WI 53202,
`
`Plaintiffs,
`
`v.
`
`INTEL CORPORATION
`1209 Orange Street
`Wilmington, DE 19801,
`
`and
`
`CARE INNOVATIONS, LLC,
`1209 Orange Street
`Wilmington, DE 19801,
`
`Defendants.
`
`Case No.
`Case Code: 30303
`Other - Contracts
`
`SUMMONS
`
`THE STATE OF WISCONSIN, to the above-named defendants:
`
`You are hereby notified that the plaintiffs named above have filed a lawsuit or other legal
`
`action against you. The complaint, which is attached, states the nature and basis of the legal
`
`action.
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`Case 2019CV003118
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`Document 1
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`Filed 04-19-2019
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`Page 2 of 15
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`Within 45 days of receiving this summons, you must respond with a written answer, as
`
`that term is used in chapter 802 of the Wisconsin Statutes, to the complaint. The court may
`
`reject or disregard an answer that does not follow the requirements of the statutes. The answer
`
`must be sent or delivered to the court, whose address is Milwaukee County Courthouse, 901
`
`North Ninth Street, Milwaukee, Wisconsin 53233, with a copy to Joseph D. Newbold of O'Neil,
`
`Cannon, Hollman, DeJong & Laing S.C., the plaintiffs’ attorney, whose address is 111 East
`
`Wisconsin Avenue, Suite 1400, Milwaukee, Wisconsin 53202-4803. You may have an attorney
`
`help or represent you.
`
`If you do not provide a proper answer within 45 days, the court may grant judgment
`
`against you for the award of money or other legal action requested in the complaint, and you may
`
`lose your right to object to anything that is or may be incorrect in the complaint. A judgment
`
`may be enforced as provided by law. A judgment awarding money may become a lien against
`
`any real estate you own now or in the future, and may also be enforced by garnishment or seizure
`
`of property.
`
`Dated: April 19, 2019.
`
`O’NEIL, CANNON, HOLLMAN, DeJONG
`& LAING S.C.
`Counsel for Plaintiffs
`
`By: Electronically signed by Joseph D. Newbold
`Joseph D. Newbold (SBN 1085294)
`111 East Wisconsin Avenue, Suite 1400
`Milwaukee, Wisconsin 53202
`Telephone: 414.276.5000
`E-mail: joe.newbold@wilaw.com
`
`2
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`

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`Case 2019CV003118
`
`Document 1
`
`Filed 04-19-2019
`
`STATE OF WISCONSIN
`
`CIRCUIT COURT
`
`37CELSIUS CAPITAL PARTNERS, L.P. and
`37CELSIUS CAPITAL PARTNERS, LLC,
`
`Page 3 of 15
`
`FILED
`04-19-2019
`John Barrett
`Clerk of Circuit Court
`2019CV003118
`Honorable William S.
`Pocan-26
`Branch 26
`MILWAUKEE COUNTY
`
`Plaintiffs,
`
`v.
`
`INTEL CORPORATION and
`CARE INNOVATIONS, LLC,
`
`Defendants.
`
`Case No.
`Case Code: 30303
`Other - Contracts
`
`COMPLAINT
`
`The plaintiffs, 37Celsius Capital Partners, L.P., and 37Celsius Capital Partners, LLC, by
`
`their attorneys, O’Neil, Cannon, Hollman, DeJong & Laing S.C., hereby file this complaint
`
`against the defendant and allege as follows:
`
`THE PARTIES
`
`1.
`
`Plaintiff 37Celsius Capital Partners, L.P. (“37Celsius Limited Partners”), is a
`
`Delaware limited partnership with its primary business headquarters located at 309 N. Water St.,
`
`Milwaukee, WI 53202.
`
`2.
`
`Plaintiff 37Celsius Capital Partners, L.L.C. (“37Celsius Limited”),
`
`is a
`
`Delaware limited liability company with its primary business headquarters located at 309 N.
`
`Water St., Milwaukee, WI 53202. (37Celsius Limited Partners and 37Celsius Limited are
`
`referred to collectively as “Plaintiffs”.)
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`Page 4 of 15
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`3.
`
`Defendant Intel Corporation (“Intel”) is a Delaware corporation. Intel maintains
`
`offices in the state of Wisconsin at 1825 N. Clairemont Avenue, Eau Claire, Wisconsin, 54703.
`
`4.
`
`Defendant Care Innovations, LLC (“Care”), is a Delaware limited liability
`
`company. From approximately 2015 until March 1, 2017, Care was owned or controlled by Intel.
`
`(Intel and Care are collectively referred to as “Defendants.”)
`
`JURISDICTION AND VENUE
`
`5.
`
`This Court has jurisdiction over the parties pursuant to Wisconsin Statute
`
`§ 801.05 because the injuries to Plaintiffs were sustained in Wisconsin and arise out of acts in
`
`Wisconsin by Defendants. Employees or agents from the Defendants personally visited the state
`
`of the Wisconsin as part of the wrongful acts committed by Defendants as described herein,
`
`reached out to Plaintiff and solicited business from Plaintiff in the State of Wisconsin in relation
`
`to the wrongful acts committed by Defendants as described herein, and the injury sustained by
`
`the Plaintiffs were sustained in the State of Wisconsin.
`
`6.
`
`Venue is proper in this Court pursuant to Wisconsin Statute § 801.50(2)(a)
`
`because Milwaukee County is the County where the claim arose, where employees or agents
`
`from the Defendant personally visited as part of the wrongful acts described herein, where the
`
`Defendant reached out to Plaintiff and solicited Plaintiff’s business, and where a substantial
`
`portion of the documents related to this case are likely to be located.
`
`GENERAL ALLEGATIONS
`
`7.
`
`Plaintiffs are two entities that are part of an investment firm focused on making
`
`equity investments into product and service companies. Plaintiffs focus on investing in
`
`companies that specialize in technology that allows healthcare providers to provide healthcare
`
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`remotely or improve the healthcare they are providing through remote access technology. This
`
`industry is known as the “connected healthcare” industry.
`
`8.
`
`Plaintiffs are managed by a team of individuals with experience in the connected
`
`healthcare industry, including Alexander Kempe, a former executive from General Electric
`
`Healthcare (“GE Health”). Plaintiffs specialize in developing technologies in the connected
`
`health industry.
`
`9.
`
`While an employee at GE Health, Kempe was involved with a partnership
`
`between GE Health and Intel to create Defendant Care.
`
`10.
`
`Care is a technology company focused on creating platforms that simplify remote
`
`patient monitoring by providing technology that enable patients, clinicians, care providers, and
`
`family caregivers to collaborate for better care in the home and within normal daily routines of
`
`patient care.
`
`11.
`
`In or around the fall of 2014, Kempe left GE Health. He later founded 37Celsius
`
`Limited Partners in 2016.
`
`12.
`
`Upon information and belief, in or around 2016, Intel became the sole owner of
`
`Care.
`
`13.
`
`In or around the summer of 2016, Defendants began soliciting offers to sell a
`
`controlling interest in Care.
`
`14.
`
`Defendants engaged in a campaign to generate interest in Care. As part of this
`
`campaign, Defendants sent several representatives to Wisconsin in or around August of 2016 to
`
`discuss the potential acquisition.
`
`15.
`
`Defendants met with Plaintiffs to give a presentation in Milwaukee County,
`
`Wisconsin to sell Plaintiffs on the value of acquiring an interest in Care. During that meeting the
`
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`parties discussed the potential price of acquiring a controlling interest in Care, the strategic plan
`
`for Care going forward, and why Plaintiffs could expect a profitable return on an investment in
`
`Care.
`
`16.
`
`Around that time, Defendants also met with competitors of Plaintiffs that were
`
`also interested in acquiring a controlling interest in Care. These competitors included iSeed
`
`Ventures, LLC, (which, upon information and belief, is owned or controlled by Andon Health,
`
`Co., Ltd., a Chinese corporation) or an entity associated with iSeed Ventures, LLC and
`
`controlled by Andon Health, Co., Ltd. (“iSeed”).
`
`17.
`
`Upon information and belief, between November of 2016 and December of 2016,
`
`Defendants attempted to sell a controlling interest in Care to iSeed.
`
`18.
`
`In December of 2016, Defendants stated to Plaintiffs that a competitor of
`
`Plaintiffs was unable to close on a purchase of a controlling interest in Care. Defendants reached
`
`out and contacted Kempe in Wisconsin and asked if 37Celsius Partners was thus interested in
`
`acquiring all or a portion of Care.
`
`19.
`
`Unbeknownst to Plaintiffs, Defendants were simply contacting Plaintiffs in order
`
`to get a higher price for selling a controlling interest in Care or to induce iSeed to consummate
`
`the sale of a controlling interest in Care.
`
`20. Without knowledge of Defendants’ true intentions, Plaintiffs agreed to and
`
`entered into a term sheet (the “Term Sheet”) which outlined the terms of a sale of a controlling
`
`interest in Care to Plaintiffs.
`
`21.
`
`The Term Sheet specifically states that certain provisions are binding on the
`
`parties. Further, the Term Sheet states that an agreement to provide for a transaction will exist
`
`when a final definitive agreement has been executed and delivered.
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`Page 7 of 15
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`This Term Sheet reflects the intention of the parties, but, for the
`avoidance of doubt, neither this Term Sheet nor its acceptance
`shall give rise to any legally binding or enforceable obligation on
`any party, except with regard to the sections hereof entitled
`"Confidentiality", "Exclusivity", "Governing Law", and "Third
`Party Beneficiaries". No contract or agreement providing for any
`transaction involving Care Innovations shall be deemed to exist
`between 37c and any of its affiliates and Intel unless and until a
`final definitive agreement has been executed and delivered.
`
`22.
`
`The binding provision labeled “Exclusivity” states as follows:
`
`In consideration of the expenses that 37c has incurred and will
`incur in connection with the Transaction, Intel agrees that until
`such time as this Term Sheet has terminated (such period, the
`"Exclusivity Period"), neither Care Innovations nor any of its
`representatives,
`officers,
`employees,
`directors,
`agents,
`equityholders or affiliates nor Intel shall (a) initiate, solicit,
`entertain, negotiate, accept or discuss, directly or indirectly, any
`proposal or offer from any person or group of persons (other than
`37c and its affiliates) to acquire all or any significant part of the
`business and properties, equity interests of Care Innovations
`and/or its subsidiaries, whether by merger, purchase of equity,
`purchase of assets or otherwise (an "Acquisition Proposal"), (b)
`provide any non-public information to any third party in
`connection with an Acquisition Proposal or (c) enter into any
`agreement, arrangement or understanding requiring it to abandon,
`terminate or fail to consummate the Transaction with 37c.
`
`23.
`
`Further, prior to entering into the Term Sheet, Plaintiffs impressed upon
`
`Defendants the importance of having exclusivity as Plaintiffs were incurring significant costs.
`
`24.
`
`Prior to the creation of the final version of the Term Sheet, Intel reviewed and
`
`made specific changes to the Term Sheet. Intel then sent the final version of the Term Sheet to
`
`Plaintiffs with the following statement:
`
`Attached are the clean and redline copies of the term sheet. These
`are reflective of the conversation we had this afternoon. Please let
`me know if you have any questions, and if you are in agreement
`with the final changes, we will get a final version stamped.
`
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`25. When Plaintiffs agreed to the proposed changes, Intel sent a follow-up email
`
`stating “Attached is the clean and final copy of the agreed term sheet between Intel and 37c. It is
`
`marked Final for reference.”
`
`26.
`
`27.
`
`Accordingly, Defendants acquiesced and agreed to be bound by the Term Sheet.
`
`Plaintiffs retained two premier law firms to assist with the acquisition of Care—
`
`Foley & Lardner, LLP and Paul Hastings, LLP. In order to complete the transaction, Plaintiffs
`
`incurred hundreds of thousands of dollars in legal fees and other costs pursuing the potential
`
`acquisition of a controlling interest in Care.
`
`28.
`
`In addition, Plaintiffs incurred numerous additional expenses to facilitate the
`
`acquisition of Care. These expenses included travel expenses, loan fees, tax and accounting
`
`services, and market and financial consulting services.
`
`29.
`
`Plaintiffs would not have incurred these fees without
`
`the legally binding
`
`exclusivity provision.
`
`30.
`
`The Term Sheet contained a suggested closing date of February 14, 2017.
`
`However, Defendants agreed, under the Term Sheet, that the closing date was not a legally
`
`binding provision in the Term Sheet.
`
`31.
`
`In pursuit of the transaction, Plaintiffs reached out and obtained sufficient funding
`
`for the transaction from investors. Sufficient investors confirmed, committed or transferred funds
`
`that they were willing to provide in order for Plaintiffs to close on the transaction. However,
`
`Plaintiffs were not able to complete all of the paperwork required for the transaction by the
`
`suggested closing date.
`
`32. When Plaintiffs informed Defendants that they were not able to close by the
`
`suggested closing date, Defendants chose not to terminate the Term Sheet.
`
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`33.
`
`Specifically, the Term Sheet contains the following provision regarding
`
`termination:
`
`This Term Sheet will automatically terminate and be of no further
`force and effect upon the earlier of (a) the execution of a definitive
`purchase agreement by 37c and Intel, (b) mutual agreement of 37c
`and Intel and (c) written notice of termination of this Term Sheet
`by Intel, provided such termination notice shall be effective no
`earlier than February 2, 2017.
`
`34.
`
`Defendants never provided any form of written notice or even suggested that they
`
`were interested in terminating the Term Sheet.
`
`35.
`
`As a result, Defendants were still bound by the exclusivity provision and
`
`Plaintiffs rightfully believed that they had an exclusive right to purchase a controlling interest in
`
`Care. Accordingly, Plaintiffs continued to perform the work necessary and continued to incur
`
`legal fees and other costs to push the deal closer to a consummation.
`
`36.
`
`However, Defendants completely ignored and directly breached the exclusivity
`
`provision in the Term Sheet. Specifically, Defendants secretly initiated, solicited, entertained,
`
`and negotiated the potential sale of Care to iSeed during the entire time that Defendants were
`
`bound by the exclusivity provision in the Term Sheet.
`
`37.
`
`Plaintiffs, though, continued to act in good faith and continued to work under
`
`what they believed was a valid Term Sheet within the binding exclusivity provision.
`
`38. Most importantly, Defendants and Plaintiffs negotiated and agreed upon final
`
`documents, including a signed operating agreement (the “Operating Agreement”) and a signed
`
`contribution agreement (the “Contribution Agreement”),
`
`to effectuate the transaction for
`
`Plaintiffs to acquire a majority interest in Care. Further, Defendants and Plaintiffs fully executed
`
`and delivered the Operating Agreement and Contribution Agreement to be held in escrow.
`
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`39.
`
`Specifically, signatures for the Operating Agreement and Contribution Agreement
`
`were exchanged pursuant to a letter agreement executed between the parties (the “Letter
`
`Agreement”). Under the Letter Agreement, signatures were exchanged in advance of the closing.
`
`Plaintiffs were then to provide confirmation by February 14, 2017, that Plaintiffs were able to
`
`meet their financial obligations under the Operating Agreement and Contribution Agreement.
`
`40.
`
`Under the Operating Agreement and Contribution Agreement, Plaintiffs had an
`
`additional 30 days to provide funds to effectuate a closing of the transaction.
`
`41.
`
`Defendants did not find the information provided by Plaintiffs under the Letter
`
`Agreement sufficient to convince Defendants that Plaintiffs were able to meet their financial
`
`obligations under the Operating Agreement and Contribution Agreement. As a result, the parties
`
`requested that the signature pages be held in escrow or returned. But, the material terms of the
`
`Operating Agreement and Contribution Agreement never changed after signatures were
`
`exchanged.
`
`42.
`
`Even though the closing did not occur on February 14, 2017, Defendants still did
`
`not terminate the Term Sheet and the parties remained bound by the exclusivity provision in the
`
`Term Sheet.
`
`43.
`
`As a result, Plaintiffs continued to incur costs and legal fees and continued to
`
`make efforts to obtain the funding from investors necessary to close the transaction.
`
`44.
`
`Up until February 28, 2017, Defendants continued to communicate with Plaintiffs
`
`as if Plaintiffs were still the exclusive party with a right to acquire Care and as if the agreement
`
`was final and the only steps necessary were the delivery of funds from Plaintiffs.
`
`45.
`
`Further, on February 28, 2017, Plaintiffs confirmed that they were in the process
`
`of gathering the necessary documents to close on the transaction.
`
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`46.
`
`At no point did Defendants suggest that the transaction was in danger, that they
`
`were considering terminating the Term Sheet, or that they were no longer willing to abide by the
`
`terms of the final executed documents for the transaction.
`
`47.
`
`As a result, on February 28, 2017, Plaintiffs fully believed that they would shortly
`
`be providing funds and acquiring a controlling interest in Care.
`
`48.
`
`On March 1, 2017, Plaintiffs learned that Defendants had been in breach of the
`
`Term Sheet for weeks. Specifically, while Plaintiffs were relying upon the binding exclusivity
`
`provision in the Term Sheet, Defendants had been lying in the weeds and secretly using their
`
`agreement with Plaintiffs to negotiate a better deal with iSeed.
`
`49.
`
`Specifically, on March 1, 2017, Defendants secretly closed on an agreement or
`
`agreements with iSeed and sold a controlling interest in Care to iSeed. Under the agreement or
`
`agreements between Defendants and iSeed, Defendants were paid $6 million more than
`
`Defendants had agreed to accept from Plaintiffs under the Term Sheet, Operating Agreement and
`
`Contribution Agreement.
`
`50.
`
`Defendants presented several excuses for breaching the Term Sheet. Specifically,
`
`Defendants claimed that Plaintiffs took too long to close the transaction, and that a suggestion by
`
`Plaintiffs to restructure a portion of the debt related to the deal was not acceptable. However,
`
`Defendants still acknowledged in writing on March 1, 2017 that the ultimate reason they
`
`breached the Term Sheet was because they were able to get more money from iSeed than they
`
`would have received under the signed Operating Agreement and Contribution Agreement.
`
`51.
`
`At no point did Plaintiffs ever state that they were not willing to abide by the
`
`terms of the Term Sheet or the signed Operating Agreement and Contribution Agreement.
`
`Further, Defendants never provided any notice that they were terminating the Term Sheet.
`
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`Defendants thus consummated a complete transaction with iSeed to sell a controlling interest in
`
`Care in breach of the Term Sheet.
`
`52.
`
`As a result, Plaintiffs sustained damages in the form of expenses and legal fees
`
`from pursuing the acquisition of Care and from the lost profits from the lost value that Plaintiffs
`
`would have acquired in Care if Defendants had not breached the Term Sheet. Namely, by
`
`Defendants breaching the Term Sheet and selling Care to a competitor, Plaintiffs lost $6 million
`
`in value that they would have acquired in Care on the day of the transaction.
`
`COUNT ONE
`BREACH OF CONTRACT
`
`53.
`
`54.
`
`All preceding and following paragraphs are incorporated herein by reference.
`
`Plaintiffs and Defendants entered into legally binding provisions in the Term
`
`Sheet under which Plaintiffs were to have an exclusive right to acquire a controlling interest in
`
`Care.
`
`55.
`
`Defendants breached the Term Sheet by initiating, soliciting, entertaining,
`
`negotiating, and accepting an offer from iSeed to acquire a controlling interest in Care.
`
`56.
`
`As a direct and proximate result of Defendants’ breach, Plaintiffs sustained
`
`damages in an amount to be determined at trial, including but not limited to attorneys’ fees and
`
`costs incurred by Plaintiffs, lost profits and value from the lost acquisition of Care, and damage
`
`to Plaintiffs’ reputation among investors in the connected healthcare industry.
`
`COUNT TWO
`BREACH OF THE DUTY OF GOOD FAITH AND FAIR DEALING
`
`57.
`
`58.
`
`All preceding and following paragraphs are incorporated herein by reference.
`
`Under the Term Sheet, Defendants owed Plaintiffs a duty to act in good faith.
`
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`59.
`
`Under these agreements, the mutually anticipated result was that Plaintiffs would
`
`acquire a controlling interest in Care.
`
`60.
`
`That mutually anticipated result was intentionally frustrated by the Defendants
`
`initiating, soliciting, entertaining, negotiating, and accepting an offer from iSeed to acquire a
`
`controlling interest in Care.
`
`61.
`
`As a direct and proximate result of Defendants’ breaches of the duty of good faith
`
`and fair dealing, Plaintiffs sustained damages in an amount to be determined at trial, including
`
`but not limited to attorneys’ fees and costs incurred by Plaintiffs, lost profits and value from the
`
`lost acquisition of Care, and damage to Plaintiffs’ reputation among investors in the connected
`
`healthcare industry.
`
`COUNT THREE
`UNJUST ENRICHMENT
`
`62.
`
`63.
`
`All preceding and following paragraphs are incorporated herein by reference.
`
`In the alternative to Counts One and Two, Plaintiffs plead and allege this Count
`
`Three for Unjust Enrichment.
`
`64.
`
`If this Court finds that Plaintiffs and Defendants did not enter or are not bound by
`
`any applicable agreement, Plaintiffs are still entitled to a recovery.
`
`65.
`
`Plaintiffs conferred a benefit on Defendants by providing a competitive bidder for
`
`Care which allowed Defendants to sell a controlling interest to iSeed for more than Defendants
`
`otherwise would have been able to obtain.
`
`66.
`
`Defendants accepted and retained the benefit conferred by Plaintiffs under
`
`circumstances that it would be inequitable for Defendants to retain said benefit.
`
`67.
`
`As a direct and proximate result, Defendants have been unjustly enriched by the
`
`larger payment that Defendants received from iSeed.
`
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`COUNT FOUR
`PROMISSORY ESTOPPEL
`
`68.
`
`69.
`
`All preceding and following paragraphs are incorporated herein by reference.
`
`In the alternative to Counts One and Two, Plaintiffs plead and allege this Count
`
`Four for Promissory Estoppel.
`
`70.
`
`If this Court finds that Plaintiffs and Defendants did not enter or are not bound by
`
`any applicable agreement, Plaintiffs are still entitled to a recovery.
`
`71.
`
`Defendants promised, either implicitly or explicitly, that Plaintiffs would be
`
`provided an exclusive right to solicit and negotiate an agreement to acquire a controlling interest
`
`in Care.
`
`72.
`
`Defendants reasonably should have expected that their promise would induce
`
`Plaintiffs to incur legal fees and other administrative costs.
`
`73.
`
`Plaintiffs reasonably relied on Defendants promise and incurred significant legal
`
`fees and other administrative costs.
`
`74.
`
`As a result of Defendants conduct, Plaintiffs suffered damages in an amount to be
`
`determined at trial.
`
`WHEREFORE, Plaintiffs demand judgment against the Defendants as follows:
`
`A.
`
`For compensatory damages in excess of $6 million in an amount to be
`
`determined at trial;
`
`B.
`
`C.
`
`For taxable costs; and
`
`For such other and further relief as the Court deems appropriate.
`
`A TRIAL BY A TWELVE PERSON JURY HEREBY IS DEMANDED
`
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`Case 2019CV003118
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`Document 1
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`Filed 04-19-2019
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`Page 15 of 15
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`Dated: April 19, 2019.
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`O’NEIL, CANNON, HOLLMAN, DeJONG
`& LAING S.C.
`Counsel for Plaintiffs
`
`By: Electronically signed by Joseph D. Newbold
`Joseph D. Newbold (SBN 1085294)
`111 East Wisconsin Avenue, Suite 1400
`Milwaukee, Wisconsin 53202
`Telephone: 414.276.5000
`E-mail: joe.newbold@wilaw.com
`
`13
`Case 2:20-cv-00621-WED Filed 04/16/20 Page 16 of 16 Document 1-1
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