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Roth v. Opiela

June 17, 2004

[5] MARTIN ROTH ET AL., APPELLEES,
v.
GERALD J. OPIELA ET AL., APPELLANTS.



[6] The opinion of the court was delivered by: Chief Justice McMORROW

[7]  Docket No. 96862-Agenda 8-March 2004.

[8]  This case concerns the proper interpretation of a stock purchase agreement between a closely held corporation and its shareholders. The stock purchase agreement at issue contains a mandatory buy-sell provision which provides that, upon the death of a shareholder in the corporation, the shareholder's estate must sell the shareholder's stock back to the corporation. An amendment to the agreement further provides, however, that if the shareholder has "specifically bequeathed or otherwise given" the stock to a direct descendant or descendants, then the mandatory buy-sell provision will not apply. The question regarding the stock purchase agreement which we must decide is this: When a shareholder of the corporation dies without a will, and his descendants inherit by intestate succession, can it be said that the shareholder "gave" his descendants their inheritance so as to fall within the exception to the mandatory buy-sell provision of the stock purchase agreement? The appellate court concluded that the answer to this question is "yes," if it is proven that the shareholder was aware of the laws of intestacy. No. 5-02-0492 (unpublished order under Supreme Court Rule 23). We conclude that the correct answer to the question is "no" and, for that reason, reverse the judgment of the appellate court.

[9]  BACKGROUND

[10]   The following facts, which are not in dispute, are taken from the pleadings and other materials of record. Great Southwest Oil & Gas Corporation (Great Southwest) is a Nebraska corporation doing business in Illinois. At the time of its incorporation, Great Southwest had three shareholders, Richard Roth, Gerald J. Opiela and Frank J. Weber. Each shareholder owned 1,000 shares of stock.

[11]   On May 9, 1989, the three shareholders entered into a stock purchase agreement with Great Southwest. In this agreement, the shareholders and the corporation expressed a desire to have the stock of Great Southwest "remain closely held in order to promote harmonious management of the Corporation's affairs." To this end, the agreement included a mandatory buy-sell provision which provides that, "[u]pon the death of a shareholder, his estate shall sell and the Corporation shall purchase the shares which were owned by the deceased Shareholder at his death."

[12]   On March 18, 1997, Gerald J. Opiela conveyed his shares of Great Southwest stock to a qualified terminable interest property trust.

[13]   On December 22, 1997, Great Southwest and the three shareholders adopted a five-paragraph amendment to the stock purchase agreement. The majority of this amendment relates to the creation of a right on the behalf of the original stockholders to transfer stock to a direct descendant without the approval of the other shareholders. Paragraph one of the amendment expressly authorizes the original shareholders to "make a transfer, by gift or otherwise,"of Great Southwest stock to a direct descendant, provided that the aggregate number of shares so given does not exceed 249. Paragraphs two and three of the amendment set forth optional buy-sell provisions which, in the event of certain triggering events, give an original shareholder the first option to buy back stock that has been given to a direct descendant.

[14]   The fourth paragraph of the amendment to the stock purchase agreement, which is the provision at issue in this case, sets forth an exception to the mandatory buy-sell provision of the stock purchase agreement. Paragraph four states that the buy-sell provision will not take effect if an original shareholder dies "having specifically bequeathed or otherwise given" his shares of Great Southwest stock to a direct descendant or descendants. Paragraph five of the amendment states that no transfer made pursuant to the amendment will be effective until the transferee agrees, in writing, to be bound by the terms of the stock purchase agreement.

[15]   On December 24, 1997, Frank Weber transferred 100 shares of Great Southwest stock to each of his two sons. That same day, Richard Roth also transferred 100 shares of Great Southwest stock to each of his two children, Martin Roth and Kerry Roth Zerla. All the children signed statements indicating their agreement to be bound by the terms of the stock purchase agreement.

[16]   Richard Roth died intestate on February 4, 2001. Under Illinois' statute of descent (755 ILCS 5/2-1(a) (West 2000)), 50% of Richard's estate was inherited by his widow, Rebecca Roth. The remaining 50% of Richard's estate went to his children, with each child receiving 25%. On April 7, 2001, Rebecca executed a disclaimer to any interest in her husband's Great Southwest stock, pursuant to section 2-7 of the Probate Act of 1975 (755 ILCS 5/2-7 (West 2000)). Because of the disclaimer, the 400 shares of Great Southwest stock that would have passed by intestate succession to Rebecca went, instead, to the children, with each child receiving 50%. Thus, in total, each child was to inherit 400 shares of the 800 shares of stock owned by Richard at the time of his death. Together with the previous 100 shares of Great Southwest stock which they had received, the children were to own 500 shares of stock each, or a combined one-third of the corporation's outstanding shares.

[17]   On April 18, 2001, Richard Roth's children, the plaintiffs in this case, filed a complaint for declaratory judgment in the circuit court of Crawford County. Plaintiffs sought a declaration that they had the right to inherit the 800 shares of Great Southwest stock which were owned by Richard at the time of his death. The complaint named as defendants Gerald J. Opiela, both individually and as trustee of the qualified terminable interest property trust dated March 18, 1997, Frank J. Weber and Great Southwest.

[18]   Plaintiffs and defendants filed cross-motions for summary judgment. In support of their motion, plaintiffs contended that the mandatory buy-sell provision of the stock-purchase agreement was not applicable to the 800 shares of Great Southwest stock owned by Richard Roth. According to plaintiffs, the fact that Richard died intestate and that Rebecca Roth issued the disclaimer meant that the 800 shares of stock had been "otherwise given" to them as described in the amendment to the stock purchase agreement. Therefore, plaintiffs alleged, the exception to the mandatory buy-sell provision applied and Richard's estate was under no obligation to sell the shares of stock to the corporation.

[19]   Defendants disagreed. Defendants argued that, under the law of Illinois, intestacy does not constitute an affirmative act of giving and, therefore, that Richard had not "otherwise given" the 800 shares of stock to plaintiffs. Thus, in defendants' view, the exception to the mandatory buy-sell provision did not apply and Richard's estate was required to sell the shares of stock to ...


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