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Kern v. Rosin

MARCH 15, 1972.

CORALEE KERN, PLAINTIFF-APPELLANT,

v.

JOSEPH A. ROSIN ET AL., DEFENDANTS-APPELLEE — (HAROLD Z. KAPLAN, DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE N. LEIGHTON, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Plaintiff, Coralee Kern, appeals from an order allowing the motion of the defendants Joseph Rosin, Harold Kaplan and Coralee, Inc., (now known as Key Systems, Inc.) for summary judgment. The suit revolves around the defendant's refusal to turn over one-third of the shares of stock in defendant corporation to the plaintiff pursuant to a written agreement entered into prior to the formation of the corporation. The plaintiff contends: (1) In equity the tender to the sole stockholder of a corporation by an employee of that corporation, of sums due that employee from that corporation, is sufficient to exercise an option to purchase stock of that corporation pursuant to a written agreement; and (2) There is a genuine issue of material fact which precludes summary judgment. No evidence was taken in the trial court and the case was submitted on the pleadings, motions and supporting affidavits.

Plaintiff, in her complaint, alleged that defendant, Joseph Rosin, on January 31, 1969, without just cause terminated the plaintiff's employment and that Coralee, Inc., owes her $7,200. Plaintiff further alleged that she exercised her option under the employment agreement to purchase one-third of Coralee Inc.'s stock.

The February 10, 1967, employment agreement between the plaintiff and defendants provided in part:

"Cora Lee Kern is hereby granted the option to purchase one-third of the total stock issued from said Harold Z. Kaplan and Joseph A. Rosin upon payment to them of the sum of $6,666.66 within two years from date hereof."

The plaintiff's letter of January 31, 1969, to defendant Rosin which allegedly exercised the option provided:

"Pursuant to our shareholders pre-subscription agreement, I am hereby exercising my option to purchase one-third of the total stock issued from Harold Z. Kaplan and Joseph A. Rosin in accordance with the provision of said option and shareholders pre-subscription agreement.

Inasmuch as the corporation, according to my calculations, owes me in excess of said $6,666.66 (said purchase price of stock), please credit that amount against my back salary and please remit the balance to me.

In the event the back salary due me is different from my calculations and less than $6,666.66, please consider that amount as a purchase of the proportionate shares of stock that that amount bears to $6,666.66.

Accordingly, please issue me my appropriate shares of stock."

Defendants, in their answer, denied that they owed plaintiff $7,200 and that they forced the plaintiff out of Coralee, Inc. Defendants allege that the plaintiff voluntarily terminated her employment relationship with Coralee, Inc. and that the defendant corporation owed plaintiff $1,510.34 at most. Finally, the defendants denied that the plaintiff exercised her option because she had not tendered the $6,666.66 due.

• 1-4 The plaintiff's first contention was that in equity the tender to the sole stockholder of a corporation by an employee of that corporation, of sums due that employee from that corporation is sufficient to exercise an option to purchase stock of that corporation pursuant to a written agreement. The plaintiff could have exercised the option to purchase one-third of Corelee, Inc.'s stock of if she complied with the express condition that payment of $6,666.66 be made within two years of February 10, 1967.

"When the optionee decides to exercise his option he must act unconditionally and precisely according to the terms of the option. When the acceptance is so made the optioner becomes bound. Nothing less will suffice unless the optioner waives one or more of the terms of the option. Thus, if payment by the optionee is required before the termination date of the option, exercise of the ...


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