The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs Gerhard Von Der Ruhr ("GVDR") and his son Mark
("MVDR"), and Septech, Inc., have brought a five count amended
complaint against defendants Immtech International, Inc., T.
Stephen Thompson, Gary C. Parks and Eric L. Sorkin. Counts I and
II, brought by GVDR against Immtech seeks damages for a breach of
a stock "lock-up" agreement, and a stock option agreement,
respectively. Count III, also seeks damages on behalf of GVDR for
breach of a separate stock option agreement allegedly expiring on
April 14, 1992. In Count IV, both GVDR and MVDR charge Parks,
Thompson and Sorkin with tortiously interfering with the VDRs'
contracts with Immtech. Count V is brought by Septech and GVDR
against Immtech for breach of a licence agreement. Defendants
have moved for partial summary judgment on Counts III, IV and V.
For the reasons set forth below the motion is granted in part and
denied in part. FACTS
Defendant Immtech is a bio-pharmaceutical company focused on
the discovery and commercialization of therapeutic treatments for
patients afflicted with opportunistic infectious diseases,
cancers or compromised immune systems. Plaintiff GVDR was a
founder of Immtech and former Chairman of the Board. He is a
shareholder of Immtech stock and holds various stock options.
MVDR is GVDR's son and also an Immtech shareholder. Prior to an
initial public offering of Immtech's stock, it financed
operations through private placements of securities and cash
contributions by shareholders. One of Immtech's major security
holders was Criticare Systems, Inc. ("Criticare"), another
company founded by GVDR. In a June 25, 1998, Letter Agreement
(the "Letter Agreement"), Immtech agreed to sell to Criticare
certain of Immtech's intangible assets. Under that agreement,
Criticare paid $150,000 to Immtech in exchange of 86,207 shares
of Immtech stock and, among other things not related to the
instant action, an exclusive royalty free worldwide license for
patent no. 5,404,832 (granted to Immtech employee Dr. Lawrence
Potempa) to utilize mCRP for the treatment of septicema as set
forth in a separate license agreement ("the License Agreement")
attached to the Letter Agreement. mCRP is a blood protein which
increases the body's ability to resist a variety of diseases.
Under the terms of the Letter Agreement, Criticare was to
receive the right to Potempa's services in the development of
mCRP, and the right to purchase mCRP from Immtech at cost. The
Letter Agreement provided that it "shall not be assignable by
either party without prior written consent of the other." The
License Agreement also provided that it "may not be assigned, in
whole or in part, by either party without the prior written
consent of the other party, which consent shall not be
unreasonably withheld." In November 1998 GVDR resigned as President and Chairman of the
Board of Criticare. Under his severance agreement, GVDR received
the right to purchase from Criticare the shares of Immtech stock
and the mCRP technology received by Criticare from Immtech
pursuant to the Letter Agreement. GVDR gave the shares of Immtech
stock to MVDR.
In late 1998 and early 1999 Immtech contemplated an initial
public offering ("IPO") to raise funds. Immtech requested that
both GVDR and MVDR enter into long term lock-up agreements that
would restrict their ability to sell their shares after the IPO.
GVDR objected and on March 13, 1999, resigned as Chairman of
Immtech. Ultimately both GVDR and MVDR each signed a modified
lock-up agreement dated March 29, 1999.
In June 1999, pursuant to his severance agreement with
Criticare, GVDR arranged for Criticare to assign the rights to
the mCRP technology to Septech, a company he founded to
commercialize the septice technology.
In Count III, GVDR alleges that Immtech breached an option
agreement "ending on April 14, 2002." GVDR attempted to exercise
that option on May 12, 2002, to purchase 7,839 shares at $.34 per
share by sending a check for $2,605.26. On February 20, 2002,
defendant Parks, Immtech's CFO, informed GVDR that he had failed
to exercise the option by the September 27, 2001, expiration
date. As explained in this court's earlier opinion denying
defendants' motion to dismiss Count III, the complaint is careful
to avoid pleading the existence of an actual written option
agreement, instead alleging a breach of an agreement as set forth
in a footnote in Immtech's registration statement under the
Securities Act of 1933 (the "SB-2/A"). Von Der Ruhr v. Immtech, Inc., 326 F. Supp.2d 922, 926-27 (N.D.
Ill. 2004). Because the complaint did not reference the actual
written contract, the court could not consider, on a motion to
dismiss under Fed.R.Civ.P. 12(b)(6), the actual contract
submitted by defendants in support of their motion. Id.
The court can, of course, consider the written contract in
deciding the current motion for summary judgment. Fed.R.Civ.P.
56. The actual option agreement at issue in Count III was granted
to GVDR by Immtech's Board of Directors on September 27, 1991,
and memorialized in a written contract dated April 14, 1992. That
agreement specifically provides:
This Option, or any portion thereof, must be
exercised within ten (10) years of the date of grant
(September 27, 1991), or it shall lapse.
It is undisputed that GVDR did not attempt to exercise the
option until February 12, 2002, over four months after the option
lapsed by its own terms. It is also undisputed that GVDR
possessed the agreement, knew what it said, and knew that the
footnote in the SB-2/A was inconsistent with the explicit terms
of that agreement. There is also evidence in the record that GVDR
was advised in advance of the expiration date in writing that the
option expired on September 27, 2001.
Unable to dispute the indisputable, GVDR argues that the
written option agreement is ambiguous because, due to various
corporate actions, the number and price of the shares subject to
the option was reduced. Even if GVDR is correct, any ambiguity
created would concern the number of shares and price only, not
the expiration date, the agreement clearly and unambiguously sets
forth. An unequivocal statement that is not contradicted by any
other provision in the contract cannot be deemed ambiguous.
Miller & Co. v. China Nat'l Minerals Import and Export Corp., 1991 WL 171268 at *7 (N.D. Ill. 1991)
(quoting Lyons Savings & Loan Association v. Geode Co.,
641 F. Supp. 1313, 1332 (N.D. Ill. 1986). Accordingly, summary judgment
is granted to defendant Immtech on Count III.
In Count IV, GVDR and MVDR allege that defendants Parks,
Thompson and Sorkin tortiously interfered with the lock-up
agreement and other option agreements. Because Parks, Thompson
and Sorkin were all corporate officers and/or directors of
Immtech, their conduct is privileged unless unjustified or
malicious. George A. Fuller Co. v. Chicago College of
Osteopathic Medicine, 719 F.2d 1326, 1330 (7th Cir. 1980).
To overcome this privilege, plaintiffs must establish that these
defendants induced the breach "to further their personal goals or
injure the other party to the contract, and acted contrary to
the best interest of the corporation." Id. at 1333 (emphasis in
original). Defendants argue that plaintiffs have no evidence to
support a claim that they acted to further their own goals or
injure plaintiffs, or that any of their actions were contrary to
the best interest of the company. Plaintiffs respond, however,
that these defendants' actions in refusing to honor the
agreements, instructing Dr. Potempa to refuse to respond to
GVDR's request for help and refusing to remove restrictive
legends on the stock until April 26, 2004, were done in
retaliation for GVDR's decision to resign from the board in lieu
of supporting a long term lock-up agreement to which these
defendants had already committed.
Although plaintiffs' evidence is slim, particularly as to
whether these defendants' actions were not in the best interest
of the corporation, it is nonetheless sufficient to defeat
summary judgment. There is some evidence that defendants were
acting with malice toward GVDR as a result of his unwillingness
to go along with their plans and his decision to resign from the
board immediately prior to the IPO. On summary judgment the court must
read all facts in the light most favorable to the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
(1986). This standard is applied with added rigor where issues of
motive and intent are ...