IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 88,582
J. THOMAS BURCHAM; JOHN D. HUNKELER, M.D.; J. PETER
GATTERMEIR, as Trustee of the J. Peter Gattermeir
Revocable Trust, Laura C. Gattermeir Revocable Trust, and
Amy S. Gattermeir Revocable Trust; BARBARA J.
GATTERMEIR, as Trustee of the Barbara J. Gattermeir
Revocable Trust; THOMAS A. MCDONNELL; and JEAN
WEITKAMP MCDONNELL,
Appellants,
v.
UNISON BANCORP, INC.;
and STEPHEN D. BUNTEN,
Appellees.
SYLLABUS BY THE COURT
1. Under K.S.A. 2002 Supp. 60-252(a) and Supreme Court Rule 165 (2002 Kan. Ct. R. Annot. 200), a judge ruling on a motion for summary judgment is required to state the facts and legal principles that control the decision.
2. A litigant must object to inadequate findings of fact and conclusions of law in order to give the trial court an opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal.
3. Summary judgment should not be granted if there is a genuine issue as to any fact that is material to the conclusive issues in the case. Trial and appellate courts must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact.
4. The legal effect of a written instrument is a question of law for the court to decide.
5. Reasonable restrictions upon a stockholder's right to transfer corporate stock may be imposed by the articles of incorporation or by the agreement of the stockholders. Such provisions are generally regarded with disfavor and are strictly construed.
6. An offer to perform in accordance with the promisor's interpretation of the contract although erroneous, if made in good faith, is not such a clear and unequivocal refusal to perform as amounts to a renunciation giving rise to an anticipatory breach.
7. On appeal, a party cannot be permitted to change its theory or present issues which were not raised before the trial court.
8. When conduct could satisfy the elements of either a breach of contract or an independent tort, a plaintiff may pursue both remedies unless the duties and liabilities are expressly negated or the conduct expressly permitted by provisions of the contract.
9. Officers and directors of a corporation have a strict fiduciary duty to act in the best interests of the corporation and its stockholders.
10. Liability for breach of corporate officers' and directors' fiduciary obligation does not run against the corporation itself.
11. The business judgment rule is a presumption that, in making business decisions not involving direct self-interest or self-dealing, corporate directors act on an informed basis, in good faith, and in the honest belief that their actions are in the corporation's best interest.
12. When the business judgment rule applies to actions taken by a corporation's board of directors as a defense to takeover attempts, enhanced scrutiny is required. Directors have the burden to satisfy two tests: (1) a reasonableness test, which is satisfied by demonstrating that the directors had reasonable grounds for believing that a danger to corporate policy and effectiveness existed, and (2) a proportionality test, which is satisfied by demonstrating that the directors' defensive response was reasonable in relation to the threat posed.
13. One factor for consideration in evaluating the reasonableness test is whether the board of directors acted independently. The decision will not be viewed as independent if the decision- making process was dominated by an inside director.
14. The elements essential to recovery for tortious interference with a contract are: (1) the contract; (2) the wrongdoer's knowledge thereof; (3) wrongdoer's intentional procurement of the contract's breach; (4) the absence of justification; and (5) damages resulting therefrom.
15. The elements of tortious interference with a prospective business advantage or relationship are: (1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) a reasonable certainty that, except for the conduct of the defendant, plaintiff would have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) incurrence of damages by plaintiff as a direct or proximate result of defendant's misconduct.
16. A person may be privileged or justified to interfere with contractual relations. The factors to be considered in determining if a defendant's conduct is proper are: (1) the nature of the defendant's conduct; (2) the defendant's motive; (3) the interests of the other with which the defendant's conduct interferes; (4) the interests sought to be advanced by the defendant; (5) the social interests in protecting the freedom of action of the defendant and the contractual interests of the other; (6) the proximity or remoteness of the defendant's conduct to the interference; and (7) the relations between the parties.
Appeal from Johnson district court, WILLIAM O. ISENHOUR, JR., judge. Opinion filed September 26, 2003. Affirmed in part, reversed in part, and remanded for further proceedings.
John L. Vratil, of Lathrop & Gage, L.C., of Overland Park, argued the cause, and C. David Barrier, was with him on the briefs for appellants.
Michael E. Waldeck, of Niewald, Waldeck & Brown, P.C., of Kansas City, Missouri, argued the cause, and Laura T. Goettsch, of the same firm, was with him on the brief for appellee Unison Bancorp, Inc.
Spencer J. Brown, of Deacy & Deacy, L.L.P., of Kansas City, Missouri, argued the cause, and Dale L. Beckerman, of the same firm, was with him on the brief for appellee Stephen D. Bunten.
The opinion of the court was delivered by
LUCKERT, J.: Plaintiffs, minority stockholders of Unison Bancorp, Inc. (Unison), filed a four-count petition alleging that Unison breached a Stockholders' Agreement; that Unison and Stephen D. Bunten, Unison's president and a member of the board of directors, tortiously interfered with a contract for sale of plaintiffs' Unison shares to Gold Banc, Inc. (Gold); that Unison and Bunten tortiously interfered with plaintiffs' business expectancy in that sale; and that Unison and Bunten breached a fiduciary duty owed to plaintiffs. Plaintiffs appeal from the district court's order denying them summary judgment on the first count and granting summary judgment in favor of the defendants on all four counts.
We affirm the trial court's decision to grant defendants' and deny plaintiffs' motions for summary judgment on Count I, breach of contract, and to grant defendants' motion for summary judgment on Count II, tortious interference with a contract. We also affirm the trial court's decision to grant summary judgment in favor of Unison on the breach of fiduciary duty claim, Count IV. However, we reverse the granting of defendants' motion for summary judgment on the claim of interference with plaintiff's business expectancy, Count III, and on the breach of fiduciary duty claim against Bunten, Count IV.
FACTS
Plaintiffs J. Thomas Burcham, Dr. John Hunkeler, Peter and Barbara Gattermeir (as trustees), and Tom and Jean McDonnell are minority stockholders of defendant Unison Bancorp, Inc., collectively owning a total of 8.07% of Unison's shares of common stock. Burcham also holds an option to purchase an additional 2,500 shares. Unison is a bank holding company which owns all the outstanding shares of stock of Western National Bank. Defendant Stephen D. Bunten is president and chief executive officer of Unison and Western National Bank.
Malcolm Aslin was instrumental in the formation of Unison. Aslin was initially chairman of the board of Unison, but left that position in 1999 to serve as president of another holding company, Gold Banc, Inc. Aslin owns 2.75% of Unison's outstanding stock.
Gold became a Unison stockholder in 1998 when Unison obtained financing from Gold in order to acquire the Burlington Bank. Gold owns 4.62% of Unison's outstanding stock.
All of the plaintiffs are parties to a Stockholders' Agreement with Unison. The Stockholders' Agreement and Offering Circular describing it explain the restrictions on a stockholder's transfer of shares. Additionally, the Stockholders' Agreement requires a stockholder who plans to transfer stock to notify Unison and the other stockholders. Upon receipt of the notice the company has the option to purchase the shares. If the company does not exercise the option, the other stockholders may exercise their options. There are further restrictions if the sale results in change of control.
The Stockholders' Agreement defines a "change of control" as any person or group of persons acquiring 35% or more of the outstanding shares of Unison. Under section 2.7(b) of the Stockholders' Agreement, if a proposed sale involves a change of control, all of the other stockholders must be given the opportunity to sell their shares at the same price and pursuant to the same terms and conditions or a majority of the stockholders must approve the sale.
Since its formation in 1995, several offers have been made to purchase Unison. Plaintiff Burcham, who controls Missouri Bank and Trust, made two offers to purchase Unison before 1998, but both offers were refused. Gold also made two offers to purchase Unison, one in 1998 while Aslin was on the Unison board and one in 1999 after Aslin had left Unison to join Gold. The Unison board unanimously rejected both offers. According to Aslin, after one of the offers from Unison, Bunten met with Aslin and requested a 5-year personal compensation package from Gold if there was an acquisition by Gold. Aslin declined the proposal.
In 1999, after Unison had rejected Gold's second offer, plaintiff Burcham contacted Aslin to see if Gold would be interested in purchasing his Unison shares. After Burcham and Aslin reached an agreement, the other plaintiffs who were friends of Burcham asked to be included in the deal, and Aslin agreed. By letter dated September 17, 1999, Aslin offered $21 per share for all of plaintiffs' Unison stock including the 2,500 shares on which Burcham held an option.
In the letter, Gold confirmed that the purchase of plaintiffs' shares would not result in a "change of control" as defined in the Unison Stockholders' Agreement. The letter also provided that the sale was subject to several conditions including that (1) Unison and its other stockholders did not exercise their rights to purchase the stock as provided in the Stockholders' Agreement, (2) Gold obtained approval of the Federal Reserve for the acquisition of the Unison shares, (3) the representations and warranties made by the plaintiffs remained true and correct at the closing date, and (4) no material adverse change in Unison or Western National Bank occurred.
The plaintiffs notified Unison and provided written copies of their letter agreements to sell their Unison stock to Gold. Neither plaintiffs nor Unison ever notified the other stockholders of the proposed sale.
Unison's counsel Edward Dolson responded to plaintiffs by letter, informing them that Unison had no obligation to exercise its right to purchase their shares because Gold's offer was not a "fixed, unconditional offer." Dolson stated that Unison would not consider whether to exercise its right of first refusal until Gold had obtained Federal Reserve approval and had waived the "material adverse change" condition of the agreement.
The minutes of the November 1999 board meeting show that Bunten reported on Gold's conditional offer to buy plaintiffs' shares. Bunten informed the board that, because the offer was conditioned upon Federal Reserve approval, no action by Unison was required. The January 2000 board minutes show that Bunten reported Gold's application to the Federal Reserve for approval of its purchase of the Unison shares. Bunten recommended that if the Federal Reserve approved the transaction and Unison was faced with the decision whether to buy the shares that Unison not do so. The board unanimously agreed to adopt that policy. In general, the board believed the $21 price per share to be too high.
Shortly after receiving notice from the plaintiffs of the proposed sale of their shares to Gold, Dolson contacted a St. Louis attorney to draft a stockholders' rights plan or "poison pill." According to the summary of the plan, the purpose was to protect the company and its stockholders from unwanted takeover bids. When the plan's provisions are triggered, all of the stockholders, other than the takeover bidder, are issued rights to acquire additional stock for nominal consideration. This has the effect of shifting negotiations regarding the transaction from the individual stockholders to the board. Under the plan adopted by Unison, the triggering event was a person acquiring or agreeing to acquire 20% ownership of the company. According to Dolson, the board intentionally set the trigger point high enough so that the plan's provisions would not be triggered by the proposed sale to Gold of the plaintiffs' 8% ownership.
Unison adopted its Stockholder Rights Plan (Rights Plan), or poison pill, on December 16, 1999. Shortly thereafter, Unison informed its stockholders of the new Rights Plan by letter. Several Unison directors testified in their discovery depositions that the board adopted the Rights Plan, in part, because of a perception that Gold intended a hostile takeover of Unison. At least one director believed Gold was planning to file an application for Federal Reserve approval which would involve a change of control of Unison. However, according to the deposition testimony of the directors, the Rights Plan was not intended or expected to frustrate Gold's purchase of only the plaintiffs' 8% ownership.
On January 12, 2000, Gold filed an application for Federal Reserve approval of a proposal to acquire at least 33.33% of Unison's outstanding stock. The application also stated that Gold was seeking approval of "the acquisition by [Gold] of direct ownership to vote 100% of the voting shares" of Western National Bank and Unison. However, the notice published in the Federal Register stated that Gold had applied to acquire 33.33% of the voting shares of Unison and thereby to acquire indirect control of Western National Bank.
Former Gold board member, Keith Bouchey, testified in his deposition that Gold applied for 33 1/3% so that Gold would not have to file another application if Unison stockholders other than plaintiffs were willing to sell. Aslin had prepared a list of other Unison stockholders from whom more stock might be acquired. The list was shared with the Federal Reserve but kept confidential because none of the stockholders had been contacted.
Bunten interpreted Gold's application as showing Gold's intent to take control of Unison and believed Gold's purchase of plaintiffs' 8% was only the first step toward taking control. Dolson also believed that Gold had hostile motives toward Unison for a variety of reasons including: Aslin's comment to Bunten that Gold was going to make a market in Unison's stock; Gold's action of acquiring banks on a regular basis; Gold's two previous offers to acquire Unison; and plaintiff Burcham's statement to Dolson that Gold was going to acquire Unison. Dolson also reviewed the letter agreement between Burcham and Gold which provided that, if Gold were to acquire all of the remaining Unison shares within a specified time period, plaintiffs would be entitled to the difference between the average price per share paid for the remaining shares and the $21 price paid to plaintiffs. When Gold filed its application for Federal Reserve approval to purchase at least 33.33% of Unison's shares, with a reference to acquisition of 100% of the shares, that confirmed Dolson's earlier belief that Gold had hostile intentions.
On February 2, 2000, Dolson sent a letter to Aslin indicating that the Unison board intended to file a protest with the Federal Reserve and would "strongly oppose any attempt by Gold to acquire any further shares of Unison" unless "certain agreements" could be reached between Unison and Gold. The letter stated that Unison's Rights Plan would be triggered "in the event Gold attempts to acquire more than 20% of Unison's outstanding stock."
The letter went on:
"Further, certain rights of Unison and stockholders under the Kansas Control Share Acquisition Act (the 'Act') are triggered in the event Gold has plans, as stated in its recent Application to the Federal Reserve, to purchase up to 33.3% of the outstanding stock of Unison. If Gold persists with this plan, Unison will invoke all of the protective measures available to it under the Rights Agreement and Kansas Control Share Acquisition Act. Further, even if the Federal Reserve approves Gold's Application over Unison's Protest, such approval would not affect Unison's rights under the Rights Agreement or applicability of the Act. Further, Unison would have the right to take the position that no signatory to the Unison Stockholders Agreement could transfer his/her shares to Gold inasmuch as such purchase would be the first 'step' in a plan as enunciated to the Federal Reserve, by which Gold and its affiliates and principals holders would own more than 35% of the outstanding stock of Unison." (Emphasis added.)
Finally, the letter stated that Unison representatives were willing to meet with Aslin to discuss the following points:
"1. Gold's entering into a standstill agreement with Unison as to further attempts to acquire Unison stock;
2. Gold's agreement to establish a voting trust for any shares of Unison owned by it;
3. Consideration of Unison's repurchase of shares of Unison currently held by Gold and its principals and affiliates; and
4. Withdrawal of Unison position [regarding] Gold Application with Federal Reserve."
On February 8, 2000, Bunten filed a letter on behalf of Unison asking the Federal Reserve to deny Gold's application.
On February 9, 2000, after several telephone conversations with Dolson, Gold's counsel Michael Lochmann responded in writing to Dolson's letter. Lochmann's letter stated that Gold considered Unison's protest letter to be libelous and that Gold believed the Unison board had breached its fiduciary duty to its stockholders by adopting the Rights Plan. Gold cited Bunten's desire for self-enrichment as the true reason that Unison had rejected its previous offer to purchase Unison. Gold refused to enter into a standstill agreement, to establish a voting trust, or to sell its Unison stock. The letter also mentioned that, in addition to plaintiffs, other Unison stockholders had approached Gold seeking to sell their Unison shares.
That same day, Gold withdrew its application for Federal Reserve approval of its purchase of Unison shares. On February 15, 2000, Gold notified plaintiffs that it would not purchase plaintiffs' shares. Aslin's letter stated that the Unison board's adoption of a Rights Plan constituted a "material adverse change" in Unison; therefore, the conditions of closing could not be met. Aslin also cited Dolson's letter threatening to refuse to transfer any Unison stock to Gold.
In April 2000, plaintiffs filed suit against Unison and Bunten. Count I of the petition alleged that Unison breached the Stockholders' Agreement. Count II alleged that Unison and Bunten tortiously interfered with plaintiffs' contracts to sell their shares to Gold by breaching the Stockholders' Agreement, adopting the Rights Plan, and making unauthorized threats and demands against Gold in connection with its Federal Reserve application. Count III alleged that Unison and Bunten tortiously interfered with plaintiffs' business expectancy based upon the same conduct. Count IV alleged that Unison and Bunten breached their fiduciary duty to plaintiffs.
The plaintiffs filed a motion for partial summary judgment on Count I. After discovery, Bunten and Unison each filed motions for summary judgment. The district court denied plaintiffs' motion. The court then granted defendants' motions for summary judgment on all four counts. The court found that Unison had not breached the Stockholders' Agreement and that any interference with plaintiffs' planned sale of stock to Gold was not tortious interference and was not a breach of fiduciary duty. The court also found that the actions of Bunten and Unison "all bore a relationship to a legitimate business purpose." Plaintiffs timely appealed. Pursuant to K.S.A. 20-3018(c), the appeal was transferred to this court on our motion.
Issue 1: Did the District Court Make Sufficient Findings of Fact
and Conclusions of Law as Required by
K.S.A. 2002 Supp. 60-252(a) and Rule 165?
Plaintiffs' first argument on appeal is that the district court's summary judgment rulings should be reversed because the court failed to make specific findings of fact and conclusions of law as required by K.S.A. 2002 Supp. 60-252(a) and Supreme Court Rule 165 (2002 Kan. Ct. R. Annot. 200). K.S.A. 2002 Supp. 60-252(a) requires the court to find and state, either orally or in writing, the controlling facts and conclusions of law. Rule 165 provides in relevant part: "In all contested matters submitted to a judge without a jury including motions for summary judgment, the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision." (2002 Kan. Ct. R. Annot. 200.)
Although the journal entry itself contains minimal findings, the court's ruling from the bench does clarify some of the reasons for the court's decision. Essentially, where the district court addressed an issue, its findings are adequate; however, on some issues, the court made no findings at all.
However, plaintiffs made no objection to the trial court's findings. "[A] litigant must object to inadequate findings of fact and conclusions of law in order to give the trial court an opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal." Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998). Plaintiffs could have filed a motion pursuant to K.S.A. 2002 Supp. 60-252(b) for additional findings, and they could have objected to the journal entry pursuant to Supreme Court Rule 170 (2002 Kan. Ct. R. Annot. 205); they did neither.
Furthermore, because this court reviews summary judgment de novo, the inadequacy of some of the trial court's findings does not preclude effective appellate review.
Issue 2: Did the District Court Err in Granting Summary Judgment in Favor of Unison on Count I Alleging Unison's Breach of the Stockholders' Agreement?
Plaintiffs argue that the district court erred in denying them summary judgment and in granting summary judgment in favor of Unison on Count I. In Count I, plaintiffs alleged that Unison breached the Stockholders' Agreement (1) by failing to exercise its option to purchase plaintiffs' shares or to notify other stockholders of their right to purchase the plaintiffs' shares, (2) by stating in a letter of February 2, 2000, from attorney Dolson that "Unison would have the right to take the position that no signatory to the Unison Stockholders Agreement could transfer his/her shares to Gold inasmuch as such purchase would be the first 'step' . . . by which Gold and its affiliates and principal holders would own more than 35% of the outstanding stock of Unison"; and (3) by adopting the Rights Plan with the intent to preclude plaintiffs' sale of their shares to Gold.
In denying plaintiffs' motion for summary judgment, the district court found that plaintiffs' agreement to sell their shares to Gold was conditioned upon Federal Reserve approval; therefore, Unison had no obligation under the Stockholders' Agreement to exercise its right to purchase the plaintiffs' shares at that time. Nor did Unison have any obligation to notify other stockholders of their right to purchase plaintiffs' shares.
In granting Unison's motion for summary judgment on Count I, the district court ruled that there was "no genuine dispute as to the breach of the contract by the defendant as pertains to Article II of the stockholders' agreement" and that "there was, in fact, no breach . . . ." The court made no specific finding or ruling regarding plaintiffs' contention that Unison's adoption of the Rights Plan, or "poison pill," constituted a breach of the Stockholders' Agreement.
Standard of Review
The standards governing the consideration of summary judgment motions are well developed and require no elaborate restatement. Essentially, summary judgment should not be granted if there is a genuine issue as to any fact that is material to the conclusive issues in the case. In making this assessment, the trial and appellate courts must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. "'When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact.'" Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000) (quoting Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 [1999]).
The Stockholders' Agreement
Plaintiffs first argue that the district court's ruling that Unison had no obligation under the Stockholders' Agreement to act upon its first right to purchase plaintiffs' shares until the Federal Reserve approved plaintiffs' sales to Gold was erroneous as a matter of law. Unison contends their first right to purchase was not triggered because Gold's offer was conditional and could have been withdrawn.
This issue involves interpretation of the Stockholders' Agreement. "The legal effect of a written instrument is a question of law for the court to decide. On appeal, a written instrument or contract may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court. [Citation omitted.]" Dougan v. Rossville Drainage Dist., 270 Kan. 468, 486, 15 P.3d 338 (2000).
This court previously recognized the validity of stockholders' agreements, but stated that restrictions on transfer are looked upon with disfavor and are to be strictly construed.
"We have recognized the general rule that reasonable restrictions upon a stockholder's right to transfer his corporate stock may be imposed by the articles of incorporation or by the agreement of the stockholders themselves. [Citation omitted.] The purpose of a first-option provision is to prevent or discourage a sale of stock to outsiders so as to preserve the continuity of management. Such provisions, however, are generally regarded with disfavor and are strictly construed." Thompson v. Anderson, 209 Kan. 547, 555, 498 P.2d 1 (1972).
It is within this context that we consider the provisions of the Unison Stockholders' Agreement. The Stockholders' Agreement provides:
"§ 2.1 Options of the Company and Other Stockholders. In the event a Stockholder proposes a Transfer [of] all or any part of the shares then owned by such Stockholder (a 'Disposing Stockholder'), including shares now owned or hereafter acquired or re-acquired (the 'Subject Shares'), the Disposing Stockholder shall notify the Company and the other Stockholders party to this Agreement (the 'Other Stockholders') of such proposed transfer pursuant to § 2.3 hereof (the 'Transfer Notice').
"Upon receipt of the Transfer Notice (or immediately upon the occurrence of an attempted Transfer), the Company and the Other Stockholders shall have the option to purchase the 'Subject Shares' in the following order of priority: (i) the Company shall have the first option to purchase all or any portion of the Subject Shares; and (ii) in the event the Company does not exercise its option under this section or exercises its option as to less than all of the Subject Shares, the Other Stockholders shall have the option to purchase all or any portion of the Subject Shares not purchased by the Company. . . . Notwithstanding anything herein to the contrary, a sale of shares to the Company or to stockholders of the Company, (whether or not a party to this Agreement) which results in a Change of Control shall not be effective unless made in compliance with §2.7(b) hereof.
. . . .
"§ 2.3 Disposing Stockholder's Notice. The Transfer Notice shall notify the Company and the Other Stockholders of any proposed Transfer, and shall state the number of Subject Shares to be transferred, the terms and conditions of the sale, the name of the transferee . . . and copy of any bona fide offer made by a third party purchaser."
Under § 2.4 of the Stockholders' Agreement, Unison had 20 days after receipt of the Transfer Notice to exercise its option to purchase the shares. If it chose not to exercise its option, it was then required to notify the other stockholders so that they could decide whether to purchase the shares.
The Stockholders' Agreement also contains the following provision regarding Federal Reserve approval of stock transfers:
"§ 4.15 Regulatory Approval. Notwithstanding anything herein to the contrary, during the period that the Company is registered as a bank holding company with the Board of Governors of the Federal Reserve System ('FRB'), no sale or transfer of shares shall be effective until approval of the FRB, if applicable, has been obtained. All time limits herein regarding notice, response, closing and the like shall be equitably adjusted pending such approval so as to give effect to the purposes of this Agreement."
When plaintiffs notified Unison of the proposed sales and provided copies of their letter agreements with Gold, Unison adopted the position that it had no obligation to exercise its right to purchase their shares because Gold's offer was not a "fixed, unconditional offer." Dolson, Unison's counsel, told plaintiffs that Unison would not consider whether to exercise its right of first refusal until Gold