Fix, Robert L. v. Quantum Indus , 374 F.3d 549 ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3967
ROGER L. FIX,
Plaintiff-Appellee,
v.
QUANTUM INDUSTRIAL PARTNERS LDC,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 0328—Amy J. St. Eve, Judge.
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ARGUED MAY 24, 2004—DECIDED JULY 6, 2004
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Before RIPPLE, MANION, and EVANS, Circuit Judges.
EVANS, Circuit Judge. As his name implies, Roger Fix
had the reputation of a man who could fix things. In this
case, Outboard Marine Corporation (OMC) (of which the
defendant Quantum was controlling investor) hired Fix in
an effort to save its fledgling business. Fix could not, how-
ever, turn the company around. Shortly after Fix began,
Quantum discontinued its investment, and OMC declared
bankruptcy. After its assets were sold, OMC fired Fix. In
response, Fix filed suit in the Northern District of Illinois
seeking payment under a clause in his employment agree-
ment which requires Quantum to pay him $5 million in the
2 No. 03-3967
event of a “Change in Control of the Company.” Quantum
refused, contending that the sale in connection with a
bankruptcy does not trigger the clause. The district court
granted Fix summary judgment, 2003 WL 21439982 (N.D.
Ill. June 18, 2003), and Quantum appeals.
OMC is a manufacturer of boats and boat engines.
Quantum, a private equity fund managed by Soros Private
Equity Partners, L.L.C., owned a controlling interest in
OMC. At the beginning of 2000, Quantum had invested over
$200 million in OMC. By May 2000, the company had
pumped an additional $85 million into OMC. See Gregory
Zuckerman, Capsizing of Outboard Marine Shows How
Soros Took a Bath in Private Equity, Wall St. J., Jan 12,
2001, at C1. Nevertheless, OMC continued to lose hundreds
of millions of dollars.
Beginning in February 2000, OMC recruited Fix to try
to save the company. Fix was chief executive of John Crane
Inc., where he had been since 1996 and where he had pen-
sion benefits, stock options, long-term deferred compensa-
tion benefits, and long-term security. In March or April,
Frank Sica, a Quantum representative and a member of
OMC’s board of directors, met with Fix to discuss potential
employment. Over the next several months, OMC, Fix,
Quantum, and their lawyers1 negotiated details of an em-
ployment agreement. On May 26, 2000, OMC, Quantum,
and Fix finalized and executed the agreement. Fix began
work as the company’s chief operating officer in June 2000;
about 2 months later he gained the title of chief executive
officer.
1
Matkov Salzman Madoff & Gunn represented Fix. OMC was
represented by its general counsel and by attorneys from the law
firm of Kirkland & Ellis. Quantum was represented by its cor-
porate counsel.
No. 03-3967 3
Relevant to this appeal, Fix’s employment agreement re-
quires OMC to make certain financial payments to him in
the event of a “Change in Control of the Company.” Section
7(b) provides:
Upon the occurrence of a “Change in Control” (as de-
fined under PROP [The Personal Rewards and
Opportunities Program], but also including any sale to
a person who is not otherwise an affiliate of the Com-
pany of more than 50% of the property, assets or
business of the Company and its subsidiaries and affil-
iates, taken as a whole) (i) all Fix Options which have
not theretofore vested shall immediately vest and (ii)
the Company will make a cash payment (the “Make-up
Payment”) to Employee in an amount equal to the
positive difference, if any, of (A) $5 million, less (B) the
“Exercise Value of the Fix Options.”
As the above provision states, the clause incorporates the
“Change in Control” definition under PROP. PROP states:
[A] “Change in Control of the Company” occurs if:
(3) the Board of Directors approves the sale of all
or substantially all of the property or assets of
the Company;
****
provided, however, that (i) a Change in Control of the
Company shall not include an initial public offering of
the Company and (ii) the occurrence of any specific
event as described in this paragraph shall not consti-
tute a Change in Control of the Company if during the
30-day period immediately preceding the date of the
Change in Control of the Company the Board of Direc-
tors, by a majority vote, deems that the occurrence of
such specific event does not constitute a Change in
Control of the Company.
4 No. 03-3967
Finally, as part of the agreement, Quantum guaranteed the
payment of Fix’s salary, bonuses, and benefits, including
any payments in the event of a “Change in Control.”
Quantum decided, in November 2000, not to provide
any further financial support to OMC. As a result, it be-
came almost impossible for the company to turn around.
Thus, in December 2000, the board of directors approved
the “sale of all or substantially all of the assets of [OMC].”
That approval expressly included the approval of a sale in
or outside of bankruptcy. The board of directors did not,
however, pass a resolution indicating that its approval of
the sale would not constitute a “Change in Control.”
On December 22, 2000, OMC filed for Chapter 11 bank-
ruptcy in the bankruptcy court for the Northern District of
Illinois. Before and after the filing, Fix worked to sell
substantially all of the assets of OMC as approved and
directed by the board of directors. By February 5, 2001, he
negotiated the sale of substantially all assets for approxi-
mately $90 million, which the bankruptcy court approved
on February 9, 2001. One week later, on February 16, the
board of directors fired him.
Fix requested that Quantum pay his severance, vacation
pay, and “Change in Control” payment pursuant to the
guarantee under the employment agreement. Quantum
refused and this litigation followed.2 We review the district
court’s grant of summary judgment for Fix de novo. This is
a diversity case, and because the agreement contains a
Delaware choice-of-law provision, we apply Delaware law.
This case turns on the interpretation of the “Change in
Control” definitions in the employment agreement. Initially,
2
Prior to the district court’s summary judgment decision,
Quantum agreed to pay the vacation and severance pay to Fix. As
for the $5 million, if the payment obligation is triggered, Quantum
does not dispute the amount owed.
No. 03-3967 5
we must ask whether the language of the contract is clear
and unambiguous. If it is, Delaware law dictates that we
may not look to extrinsic evidence to interpret the contract.
See, e.g., O’Brien v. Progressive Northern Ins. Co., 785 A.2d
281, 289 (Del. 2001) (“Delaware courts are obligated to
confine themselves to the language of the document and not
to look to extrinsic evidence to find ambiguity.”); E.I. du
Pont de Nemours & Co. v. Allstate Ins. Co., 693 A.2d 1059,
1061 (Del. 1997) (“Extrinsic evidence is not used to inter-
pret contract language where that language is ‘plain and
clear on its face.’ ”); Citadel Holding Corp. v. Roven, 603
A.2d 818, 822 (Del. 1992) (“It is an elementary canon of
contract construction that the intent of the parties must be
ascertained from the language of the contract.”).
Reviewing the employment agreement, we agree with
the district court that the “Change in Control” language
is clear and unambiguous. The agreement states that a
“Change in Control” occurs if “the Board of Directors ap-
proves the sale of all or substantially all of the assets of
[OMC].” That occurred in December 2000. The agreement
also declares that a “Change in Control” payment is trig-
gered after “any sale” of more than 50 percent of the assets
of OMC. That occurred on February 9, 2001, when the
bankruptcy court approved the sale of assets. Contrary to
Quantum’s argument, the language of the contract is not
susceptible to different interpretations. Moreover, the
language contains no exclusion or limitation that might ex-
clude a sale of assets in connection with bankruptcy liqui-
dation. Absent such a limitation, we will not read one into
Fix’s employment agreement. See Rhone-Poulenc Basic
Chems. Co. v. American Motorists Ins. Co., 616 A.2d 1192,
1196 (Del. 1992) (“Courts will not torture contractual terms
to impart ambiguity where ordinary meaning leaves no
room for uncertainty.”).
In making this conclusion, we emphasize that the parties,
which were all represented by accomplished legal counsel,
6 No. 03-3967
easily could have included specific language excluding any
sale of assets in connection with bankruptcy from the
definition of a “Change in Control” (indeed, it is somewhat
remarkable that before the agreement was executed neither
party considered the issue, considering that Fix was
brought in specifically to save a sinking ship). Moreover,
when the parties wanted to limit the definition of “Change
in Control,” they certainly knew how to do so. Indeed, the
PROP definition for “Change in Control” includes an
exclusion for an initial public offering and for any event
that the board of directors deems does not constitute a
“Change of Control.” There is a strong presumption against
reading into contracts provisions that easily could have
been included but were not. Courts will not, absent circum-
stances not present here, insert a contract term when the
agreement itself is silent. See In re Marriage of Sweders,
695 N.E.2d 526, 529 (Ill. App. Ct. 1998) (“A strong presump-
tion exists against provisions that could easily have been
included in the agreement but were not.”), and H-M
Wexford LLC v. Encorp, Inc., 832 A.2d 129, 141 (Del. Ch.
2003) (“If the parties had agreed that the defendants should
warrant the unaudited financials statements through
November 30, 2000, . . . they could easily have done so.
They did not.”).
Nevertheless, Quantum argues that the agreement is
ambiguous. First, it contends that the definition of “Change
in Control” incorporates the purpose and intent of
PROP—which is to create an incentive to build value in
OMC.3 By incorporating this purpose into the definition of
“Change and Control,” Quantum argues, Fix is entitled to
payment only if the company grows and succeeds.
3
PROP specifically states that it is an “exciting, new partnership
between the Company’s key employees and shareholders to
ambitiously and dramatically grow and develop the value of the
underlying businesses of the Company, and to mutually share in
the success of those efforts.”
No. 03-3967 7
The “Change in Control” provision, however, expressly
incorporates only the PROP definition of “Change in Con-
trol.” It does not incorporate the alleged purpose and intent.
And we will not read such an incorporation into the con-
tract. As the Supreme Court has noted, “a reference by the
contracting parties to an extraneous writing for a particular
purpose makes it a part of their agreement only for the
purpose specified.” Guerini Stone Co. v. P.J. Carlin Constr.
Co., 240 U.S. 264, 277 (1916). See also State ex rel. Hirst v.
Black, 83 A.2d 678, 681 (Del. Super. Ct. 1951) (“[A]n
agreement will not be deemed to incorporate matter in some
other instrument or writing except to the extent that the
same is specifically set forth or identified by reference.”); 11
Williston on Contracts § 30.25, p. 238 (4th ed. 2003) (“[I]t is
important to note that where incorporated matter is
referred to for a specific purpose only, it becomes a part of
the contract for such purpose only, and should be treated as
irrelevant for all other purposes.”). Finally, although the
language of the agreement is clear and we therefore do not
examine extrinsic evidence, we note that OMC’s general
counsel, who drafted, negotiated, and finalized the employ-
ment agreement, admitted that OMC did not intend to
incorporate PROP’s purpose into the “Change in Control”
provision.
Next, Quantum argues that the definitions for a “Change
in Control” does not include a sale in bankruptcy because
the formula for determining the amount of the “Change in
Control” payment assumes that the OMC stock have value.
This argument ignores the plain language of the agreement.
Fix is entitled to the immediate vesting of all his stock
options and the difference, “if any,” of $5 million less the
“Exercise Value of the Fix Options.” If the exercise value of
Fix’s options is zero, as here, Fix is entitled to $5 million.
Because the language of the employment agreement is
clear and unambiguous, there is no need for us to examine
8 No. 03-3967
any extrinsic evidence. Finally, we have considered Quan-
tum’s remaining arguments and deem them without merit.
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-6-04