KOGENT HOLDCO LLC AND KATALYST HOLDCO LLC v. CARL ZEISS MEDITEC INC (2026)

Opinion

This appeal stems from the St. Louis County circuit court dismissing a petition due to a forum selection clause. The dispute arose after Respondent Carl Zeiss Meditec, Inc. (Zeiss) acquired two St. Louis County medical device research and development companies, Kogent Surgical and Katalyst Surgical. Appellants Kogent Surgical and Katalyst Surgical filed their petition against Zeiss claiming two counts of breach of contract, two counts of fraud and two counts of tortious interference. The circuit court dismissed the action based on a forum selection clause in the acquisition contracts. However, the court also included language in the order dismissing the case for ‘every other reason set forth in [Zeiss’] Motion to Dismiss,” as well as sua sponte invoking the doctrine of comity to support dismissal.

Kogent brings eight points on appeal. First, Kogent alleges that the circuit court improperly rewrote the inapplicable forum selection clause to include a Delaware court of general jurisdiction when the clause only identified courts of limited jurisdiction. Second, the court erred by dismissing the case based on forum non conveniens principles. Third, the circuit court erred in dismissing the case based on comity principles. Fourth, the circuit court relinquished its jurisdiction after deciding the case based on the forum selection clause and therefore lacked the authority to dismiss the case based on any other grounds raised in Zeiss’ motion. In points five through eight, Kogent takes aim at each of the remaining grounds asserted in Zeiss’ motion to dismiss but not specifically addressed by the circuit court: point five – ripeness; points six through eight – failure to state a claim for breach of contract, fraud, and tortious interference.

We reverse. In point one, the forum selection clause only identified two courts of limited jurisdiction, neither of which had authority to hear Kogent's claims, making the clause inapplicable and allowing Kogent to file in any proper venue. For point two, St. Louis is the most appropriate forum. For point three, comity does not support dismissal as Delaware is not a more convenient forum. Point four is moot because we reverse the circuit court's dismissal based on the forum selection clause. For point five, we find that Kogent has alleged concrete damages which make the case ripe. For points six through eight, Kogent's pleadings sufficiently stated claims for which relief could be granted.

Background

Kogent Surgical and Katalyst Surgical were two St. Louis based medical research and development companies focused on developing devices for use in advanced neuro and retinal surgeries as well as other ophthalmic medical procedures. Starting in 2020, the success of the two companies attracted the attention of larger companies that wanted to acquire them. Subsequently, Kogent entered into a letter of intent with one company that is a direct competitor of Zeiss.¹ Katalyst was not a participant in this agreement.

After Kogent entered into this letter of intent, Zeiss representatives expressed interest in acquiring both companies and made representations intended to induce Kogent into entering into a deal with Zeiss instead. For example, Zeiss represented that it would make a better offer than the one in the competitor's letter of intent and would utilize its staff in Germany to acquire regulatory approval, a process necessary to begin selling products in Europe. Zeiss also created multiple ‘post-merger integration’ activity plans, presented Kogent with itemized actions that Zeiss needed to take in order to successfully merge the companies and even specified the timelines for completing those actions.² Through the activity plans, Zeiss represented to Kogent that all action items would be completed within seven months of closing the deal.

On March 22, 2022, Zeiss executed separate but substantially similar agreements for the purchase of Kogent and Katalyst. The purchase agreement specified that Zeiss pay approximately one-half of the purchase price at closing with the balance provided through contingency payments after four of Kogent/Katalyst's upcoming medical device innovations reached developmental milestones.

The agreements required Zeiss and all its affiliated companies to “use Commercially Reasonable Efforts to Develop and Commercialize the Company Products.” The agreements specifically defined ‘commercially reasonable efforts’ but importantly required Zeiss to expend the resources consistent with its business practices to commercialize these products. The agreements also required Zeiss to refrain from taking any action to avoid its contingent payment obligation.

Kogent filed its petition against Zeiss alleging two counts of breach of contract, one for each of the agreements, one count of fraudulent inducement, one count of fraud, one count of tortious interference with a contract and one count of tortious interference with a business expectancy. Kogent alleged that Zeiss breached the contract by taking action to avoid making future contingent milestone payments and by failing to use commercially reasonable efforts to develop the four products. Kogent alleged that the staff executive Zeiss installed after the merger “voiced his desire to impede any actions that would give more money to Kogent, and he took actions to prevent funding and staffing for product research and development.” Further, Kogent pled that Zeiss failed to take the actions outlined in the activity plans. Kogent argued that due to this failure, only 3% of the contingent milestone disbursements have been paid when 90% would have been paid had Zeiss followed the activity plans.

Zeiss filed a motion to dismiss arguing that the agreements’ forum selection clause mandated that Kogent bring its lawsuit in Delaware.³ Zeiss also argued that Kogent's claims were not ripe, the case should be dismissed under the doctrine of forum non conveniens and that all of Kogent's counts failed to state a claim for which relief could be granted. When ruling on March 24, 2025, the circuit court explained that the agreement was “a Delaware deal,” with the parties choosing Delaware law and isolating their venue selection to state and federal courts in Delaware, not St. Louis. “For this, and every other reason set forth in [Zeiss's] Motion to Dismiss,” the court granted the motion.

After the case was dismissed, a different circuit court judge heard Kogent's subsequent motion to reconsider, where Plaintiffs requested the court remove the order's language dismissing its petition for “every other reason set forth in Defendant's Motion.” Additionally, Kogent filed a substantially similar suit in a Delaware court of general jurisdiction recognizing that its lawsuit could be threatened by a statute of limitations issue. On June 20, the new circuit judge denied the request stating that the prior order “was expressly based on all the reasons set forth in the motion to dismiss.” This appeal follows.

Point One - The Forum Selection Clause Is Inapplicable Because It Identifies Courts Lacking Jurisdiction

Kogent argues that the circuit court erred in dismissing the case because the forum selection clause was inapplicable. Specifically, Kogent states that the circuit court impermissibly inserted additional language into the forum selection clause by inferring the parties intended to include a Delaware court of general jurisdiction despite unambiguous language identifying only two courts of limited jurisdiction. We reverse. Courts are not permitted to rewrite unambiguous contracts as the circuit court did here. The forum selection clause only referred to courts that lacked jurisdiction, allowing Kogent to file in any appropriate venue.

Standard of Review

We review a motion to dismiss de novo. Opioid Master Disbursement Trust II v. ACE Am. Ins., 688 S.W.3d 690, 694 (Mo. App. E.D. 2024) (citing Amalaco, LLC v. Butero, 593 S.W.3d 647, 650 (Mo. App. E.D. 2019)). Matters of contract interpretation are also reviewed de novo. Cheek v. Cheek, 669 S.W.3d 155, 159 (Mo. App. E.D. 2023) (citing Caldwell v. Heritage House Realty, Inc., 32 S.W.3d 773, 775-76 (Mo. App. W.D. 2000)). Forum selection clauses are procedural in nature; therefore, Missouri law applies. Corel Corp. v. Ferrellgas Partners, L.P., 633 S.W.3d 849, 853 n.1 (Mo. App. E.D. 2021) (citations omitted).

Analysis

The court may not supply additional terms in an unambiguous contract and instead must “apply the agreement as written.” Id. A forum selection clause that identifies only invalid forums is inapplicable. See Jitterswing, Inc. v. Francorp, Inc., 311 S.W.3d 828, 831 (Mo. App. E.D. 2010) (refusing to enforce a forum selection clause because Illinois courts did not have jurisdiction to rule on a tort claim created by a Missouri statute). When a forum selection clause identifies only courts which lack jurisdiction, the plaintiff retains their agency to bring claims in any proper venue. U.C.C. § 5-116 Comment 5 (2022).

Considering Kogent did not contract to litigate in a Delaware court of general jurisdiction, we hold that it would be unreasonable to force them to do so. This multi-million-dollar deal was negotiated then memorialized in merger agreements exceeding 100 pages. The agreements specify the Court of Chancery in Dover as the preferred forum and the United States District Court in Wilmington, Delaware as an alternative. Both are courts of limited jurisdiction unable to hear this case.⁴ Thus, the court erred by rewriting the unambiguous forum selection clause to include a Delaware court of general jurisdiction when the forum selection clause specified only two courts of limited jurisdiction. Cheek, 669 S.W.3d at 159. Since the specified courts within the agreements lacked jurisdiction, the clause did not apply and Kogent was allowed to file the case in any proper venue, including St. Louis County. Point granted.

Point Two – St Louis Is a More Convenient Forum than Delaware

Zeiss also argued to the circuit court that the case should be dismissed under the principles of forum non conveniens. Zeiss limited their arguments to the presence of the Delaware forum selection clause, the presence of a Delaware choice of law clause and a ‘special interest’ Delaware has in analyzing the “commercially reasonable efforts” provisions in contracts. We reverse. Based on the record before us, St. Louis County is a more appropriate venue. Even if we agreed that St. Louis is an inconvenient forum, which we expressly do not, Zeiss failed to provide ‘weighty reasons’ demonstrating Delaware as a more appropriate forum. State ex rel. Wyeth v. Grady, 262 S.W.3d 216, 220 (Mo. banc 2008) (quoting Anglim v. Mo. Pac. R. Co., 832 S.W.2d 298, 302 (Mo. banc 1992)).

Standard of Review

We will reverse a dismissal for forum non conveniens based on abuse of discretion, however, the circuit court's discretion “must be applied with control.” Anglim, 832 S.W.2d at 303. “An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to indicate a lack of careful consideration.” Adkins v. Hontz, 280 S.W.3d 672, 675 (Mo. App. W.D. 2009) (citing Campbell v. Francis, 258 S.W.3d 94, 96 (Mo. App. W.D. 2008)).

Analysis

A trial court is empowered to dismiss a case even “when the jurisdiction and venue are otherwise proper,” but only “if the forum is seriously inconvenient for trial․ and a more appropriate forum is available to the plaintiff.” Adkins, 280 S. W.3d at 676 (citing Campbell, 258 S.W.3d at 96). Though not an exclusive list, Missouri courts analyze and weigh six factors in determining whether the doctrine of forum non conveniens should be applied: the place where the cause of action accrued, the witnesses’ locations, the parties’ residences, any nexus with the place of the lawsuit, the public factor of the convenience to and burden on the court and the plaintiff's availability to another court with jurisdiction over the cause of action that affords plaintiff a forum for the remedy. Id (citing Grady, 262 S.W.3d at 220). “[A] plaintiff's choice of forum is not to be disturbed except for ‘weighty reasons’ and the case should be dismissed only if the ‘balance is strongly in favor’ of the defendant.” Grady, 262 S.W.3d at 220 (quoting Anglim, 832 S.W.2d at 302).

To the extent the lower court based its dismissal on the doctrine of forum non conveniens, we hold that such a dismissal constitutes an abuse of discretion. Kogent correctly argues that St. Louis is “ground zero for this dispute” while “nothing occurred in Delaware.” Zeiss claims that Delaware courts have authored contradictory decisions governing commercially reasonable efforts provisions giving Delaware a ‘particular interest’ in this case, but our review of those cases does not identify any contradiction. Compare Himawan v. Cephalon, Inc. et al., 2024 WL 1885560 (Del. Ch. Apr. 30, 2024) with S'holder Representative Serv. LLC v. Alexion Pharm., Inc., 2024 WL 4052343 (Del. Ch. Sept. 5, 2024). This attempt to cast St. Louis as an inconvenient forum does not rise to the level of “substantial inconvenience” which is required before usurping Kogent's right to choose an appropriate forum. Rabago v. Ks. City S., Inc., 589 S.W.3d 97, 101 (Mo. App. E.D. 2019).

Further, we reiterate the message emphasized in Grady, where the Missouri Supreme Court observed that the defendant pharmaceutical company “targeted Missouri citizens for business․ and profit but shun Missouri justice.” Grady, 262 S.W.3d at 227 (Clark, Sr. J. concurring.) If the safety and well-being of Missouri citizens do not warrant judicial protection, “then what does?” Id. Here, the petition infers that Zeiss targeted [Kogent and Katalyst] for business.” Id. In fact, Kogent alleges that it was on the verge of doing business with a competitor when Zeiss interceded, presented more appealing alternatives and persuaded the Missouri businesses to reverse their intentions and engage their business interests with it instead. If Zeiss finds Missouri entities appealing to its economic appetite then Missouri courts can fulfill its legal tastes as well. Point granted.

Point Three – Principles of Comity Do Not Support Dismissal

Though never argued by the parties below, the circuit court stated “that dismissal without prejudice of plaintiffs’ petition in this action would be proper under principles of comity” because Kogent filed their ‘safety suit’ in Delaware. Zeiss asserts that the same forum non conveniens analysis applies to comity, and therefore the case should be dismissed. We reverse.

Standard of Review

We review a dismissal based on comity for abuse of discretion. Fin. Credit Invs. II, Tr. E v. Est. of Towers, 718 S.W.3d 92, 99 (Mo. App. W.D. 2025).

Analysis

“[C]onsiderations governing the application of the comity doctrine are similar to those considered in the application of forum non conveniens.” Id. at 99 (citations omitted). Applying the law, we hold the court abused its discretion when dismissing the case based on principles of comity. As analyzed in the forum non conveniens point above, the principles of comity weigh in favor of litigating in Missouri. Point granted.

We Reverse the Circuit Court's Decision in Points One through Three, Rendering Kogent's Point Four Moot

Kogent's point four requests alternative relief should this court affirm the circuit court's decisions involving points one through three. As we reverse, Kogent's point four is inapplicable and does not require analysis. See Chesterfield Spine Ctr., LLC v. Best Buy Co., 617 S.W.3d 450, 463 (Mo. App. W.D. 2021) (‘ “A court may not issue advisory opinions.’ ” (quoting Dunn v. Dunn, 53 6 S.W.3d 304, 311 (Mo. App. W.D. 2017)). Point Dismissed.

Point Five – Kogent's Alleged Damages Were Not Speculative

Kogent also claims the circuit court erred by dismissing the case based on the ripeness doctrine. Zeiss argues that Kogent's claims cannot be properly evaluated until after the deadline for any potential contingent payments have passed, as Zeiss still has the opportunity to use commercially reasonable efforts to meet those milestones. Conversely, Kogent argues that Zeiss failed to use commercially reasonable efforts to develop and commercialize its four products, instead it took action to deliberately sabotage activity leading to payment. It further argues that if Zeiss had fulfilled its obligations and pursued regulatory approval, then 90% of the payments would have been due and owing before Kogent filed its petition. Kogent also argues that Zeiss acted with the intent to withhold any further payments to Kogent by forestalling the future milestones which violates the agreements. We reverse. Kogent's pleadings are based on Zeiss’ actions up to this point and do not require speculation over future events to adjudicate the case.

Standard of Review

We review a dismissal on ripeness grounds de novo. Iseman v. Mo. Dep't of Corr., 660 S.W.3d 684, 688 (Mo. App. W.D. 2023) (citing Foster v. State, 352 S.W.3d 357, 359 (Mo. banc 2011)).

Analysis

A claim is ripe for adjudication when it is “developed sufficiently to allow the court to make an accurate determination of the facts, to resolve a conflict that is presently existing, and to grant specific relief.” Geier v. Mo. Ethics Common, 474 S.W.3d 560, 569 (Mo. banc 2015) (citing Schweich v. Nixon, 408 S.W.3d 769, 773-74 (Mo. banc 2013)). If a claim “rests upon contingent future events that may not occur as anticipated” the claim is not ripe. Id (quoting Texas v. United States, 523 U.S. 296, 300 (1998)).

We hold that Kogent's claims are ripe for review. Zeiss’ assertion does not address Kogent's central claim that 90% of the contingent milestones would already have been met absent Zeiss’ intentional interference and failure to take commercially reasonable efforts in breach of the agreements. Kogent is not alleging that the upcoming 2028 and 2030 contingent payments will not be met. Rather it asserts Zeiss was obligated to commercially develop Kogent's four products from the beginning. Zeiss was responsible for making the contingent payments at specified times coinciding with targeted events - or milestones – surrounding the development of these Kogent products. Despite this, Kogent alleges that Zeiss deliberately sabotaged the activities that would lead to making those contingent payments at the agreed times. By cross referencing the post-merger integration activity plans against the contingent milestone payments’ requirements, Kogent may be able to prove that Zeiss was supposed to have made 90% of the required payments at the time Kogent filed suit. These claims are based solely on Zeiss’ past actions which are separate and independent of any fixture efforts to develop the products. As pled, if Kogent can develop evidence demonstrating they would already be entitled to contingent payments absent the breach of contract, the alleged damages would be concrete and not speculative. As such, the claim is ripe for review. Point granted.

Standard of Review for Points Six Through Eight

Kogent's points six through eight all allege the circuit court erred in dismissing for failure to state a claim upon which relief can be granted; thus, all are subject to de novo review. Iseman, 660 S.W.3d at 688 (citing Foster, 352 S.W.3d at 359). When determining whether Kogent has failed to state a claim, this court “must accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and construe all allegations favorably to” Kogent. Mo. State Conf. of NAACP v. State, 601 S.W.3d 241, 246 (Mo. banc 2020) (citing Mitchell v. Phillips, 596 S.W.3d 120, 122 (Mo. banc 2020)).

Point Six – Kogent's Breach of Contract Pleadings Sufficiently Stated a Claim

Kogent brings two claims for breach of contract based on the agreements. In support of its motion to dismiss, Zeiss argued both that Kogent's alleged damages were too speculative and that Kogent used documents not integrated into the agreements to improperly modify them. We reverse. As explained above, Kogent's alleged damages are concrete and stand independently of any future actions taken by Zeiss. Zeiss’ argument that Kogent is attempting to improperly modify the terms of the contract is similarly without merit. Kogent's use of the post-merger integration activity plans were not attempts to modify the agreements but rather were evidence of breach based on the contractual provisions as written.

Analysis

Under Delaware law, a breach of contract claim requires the existence of a contract, the breach of one or more of the contract's obligations and damages resulting from the breach. VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 612 (Del. 2003) (citations omitted).

In the present case, both parties acknowledge that a contract exists. Zeiss argues that Kogent alleged only speculative damages and potential future breaches. As explained above, Kogent's alleged damages are not speculative. Kogent alleges Zeiss breached the contract by taking action to avoid making future contingent milestone payments. As such, Kogent has properly pled breach and damages sufficient to survive a motion to dismiss. Point granted.

Point Seven – Kogent's Fraud Pleadings Sufficiently Stated a Claim

In its petition, Kogent alleges both fraud and fraudulent inducement. Here, Zeiss again limits its arguments to claims that Kogent is only alleging damages that are speculative and therefore insufficient to state a claim upon which relief can be granted. We reverse. As explained in the two points above, Kogent alleged sufficient damages to survive a motion to dismiss.

Analysis

To state a claim for fraud or for fraudulent inducement, pleadings must include facts establishing seven elements: a false material representation; the speaker's knowledge of its falsity, or his ignorance of its truth; the speaker's intent that it should be acted on by the person and in the manner reasonably contemplated; the hearer's ignorance of the falsity of the representation; the hearer's reliance on the representation being true; the hearer's right to rely on the representation; and the hearer's consequent and proximately caused injury.⁵ Compare Borgschulte v. Bonnot, 285 S.W.3d 345, 348 (Mo. App. S.D. 2009) with Dean v. Noble, 477 S.W.3d 197, 204 (Mo. App. W.D. 2015).

Here, Kogent pled that Zeiss made several specific false representations, that Zeiss knew those representations were false, that Zeiss made the representations in order to induce Kogent into entering the agreements, that Kogent was ignorant of the falsity of those representations, that Kogent relied on the representations when entering into the deal, that Kogent had a right to rely on the representations, and that the false representations proximately caused Kogent damages. Zeiss only disputes the element of damages, claiming that they are based on speculative future harm. As previously explained, we disagree. Point granted.

Point Eight – Kogent's Tortious Interference Pleadings Sufficiently Stated a Claim Upon Which Relief Can Be Granted

Kogent brings two claims for tortious interference - interference with a contract and interference with a business expectancy. Zeiss raises two new arguments opposed to these claims. First, Zeiss claims that Kogent failed to establish the existence of a contract or a breach of that contract to support their tortious interference with a contract claim. Second, Zeiss alleges that Kogent did not allege facts sufficient to establish Zeiss’ interference as anything other than “lawful and legitimate competition.” We reverse. Kogent alleged the existence of a letter of intent and Missouri law has recognized the existence of contracts based on this written format. Further, Kogent pled that Zeiss committed fraud when interfering with the business expectancy at issue, which is incompatible with lawful and legitimate competition.

Analysis

In order to bring a claim of tortious interference in Missouri, pleadings must allege: a contract or valid business expectancy; the defendant's knowledge of the contract or relationship, a breach induced or caused by defendant's intentional interference, absence of justification, and damages. Bishop & Assocs., LLC v. Ameren Corp., 520 S.W.3d 463, 472 (Mo. banc 2017) (citing Rice v. Hodapp, 919 S.W.2d 240, 245 (Mo. banc 1996)). When a party has a legitimate interest in the contract or business expectancy, that party is entitled to interfere so long as they do not act improperly such as misrepresenting fact. Id. (citing W. Blue Print Co. v. Roberts, 367 S.W.3d 7, 20 (Mo. banc 2012)).

We hold Kogent made sufficient pleadings to state a claim for tortious interference, both with a contract and with a business expectancy. Zeiss only brings forth two new arguments. First, Zeiss claims that Kogent failed to identify a contract linked to its tortious interference claim. It may be true that Kogent did not identify any explicit contract, but Missouri courts have previously recognized letters of intent as contracts. See Davis v. Baylor Univ., 976 S.W.2d 5, 13 (Mo. App. W.D. 1998) (“Baylor's recruitment efforts by agents dispatched to Missouri were instrumental in the formation of an agreement—the National Letter of Intent․”). While Kogent did not specifically plead that terminating its letter of intent with the Zeiss competitor constituted a breach, it definitely is implied. Within two numbered paragraphs appearing in the tortious interference claim, Kogent asserts that Zeiss caused Kogent to terminate the letter of intent with the Zeiss competitor when Zeiss fraudulently induced Kogent to enter into a separate agreement instead of remaining in the letter of intent with the Zeiss competitor. The law requires the court give pleadings “their broadest inten[t]” when interpreting a termination as a breach. Mo. State Conf. of NAACP, 601 S.W.3d at 246. Pursuant to this mandate, we interpret the assertion that Kogent terminated its letter of intent with the Zeiss competitor as a sufficient breach allegation. Finally, Zeiss’ allegation that it was entitled to interfere with Kogent's contract/business expectancy rings hollow. Certainly, Missouri law allows Zeiss to interfere due to their business interests, but it does not permit Zeiss to misrepresent facts as Kogent alleges. Bishop & Assocs., LLC, 520 S.W.3d at 472. As such, Kogent has sufficiently alleged facts that, when taken as true, state claims for tortious interference both with a contract and a business expectancy. We reverse. Point granted.

Conclusion

We reverse the circuit court and remand for further proceedings consistent with this opinion.

FOOTNOTES

1.   The identity of this competitor is confidential and is omitted from this opinion.

2.   The plans included the timeline for Zeiss to develop a business model, the timeline to introduce the four products for marketing purposes and the schedule to fill several staff positions including one described as ‘most critical.’

3.   The forum selection clause required the parties to file suit in two Delaware courts of limited jurisdiction but did not include a court of general jurisdiction.

4.   The court of chancery cannot hear the case because Kogent's claims are not equitable in nature, and the federal district court cannot hear the claims because it lacks subject matter jurisdiction. See Crown Castle Fiber LLC v. City of Wilmington, No. 2019-0656-MTZ, 2021 WL 2838425, at *1 (Del. Ch. July 8, 2021); Johnson v. Oishi, 362 F.Supp.3d 843, 847 (E.D. Cal. 2019).

5.   Missouri law applies because the choice of law provisions only extend to the contents of the agreements themselves, and Missouri's ‘most significant relationship’ test for tort claims largely mirrors the court's analysis in point two. Compare Thompson by Thompson v. Crawford, 833 S.W.2d 868 870 (Mo. banc 1992) with Adkins, 280 S.W.3d at 676.

THOMAS C. CLARK II, J.

Renée D. Hardin-Tammons, P.J. and Angela T. Quigless, J., concur.