enforcing legal provisions of a corporate shareholder agreement containing illegal provisionsSummary of this case from Beth Israel Med. v. Hori. Blue Cross
Argued November 30, 1978
Decided December 27, 1978
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, HARRY T. NUSBAUM, J.
Thomas D. Green for appellant. William G. O'Donnell for respondent.
That an agreement between corporate shareholders includes illegal provisions with respect to the election of corporate officers and the fixation of their compensation does not preclude enforcement of the provision for a stock purchase option contained in the same agreement where it has been found that over the seven-year life of their agreement there was in fact no intrusion on the unfettered management of corporate affairs by the board of directors because the parties ignored and made no attempt to enforce the illegal portions of their agreement and there the evidence does not show that the parties themselves considered that enforcement of the stock purchase option was contingent on observance of the illegal portions of the agreement.
After a trial without a jury the court granted respondent specific performance of the stock purchase option. A majority at the Appellate Division agreed, and we now affirm. The pertinent facts are recited in the dissenting opinion.
The appellant executor presses one question of law to which no reference was made by either the majority or the dissenters at the Appellate Division; he urges that the agreement of March 19, 1963 was illegal and is thus unenforceable. This contention was advanced on a motion to dismiss the complaint on the ground of illegality, made on the eve of trial and summarily denied by the court at the opening of trial. Although the contention was not expressly addressed at the Appellate Division it must be deemed to have been implicitly rejected in that court as well.
Appellant contends that because the March 19, 1963 agreement was not executed or approved by all of the corporate shareholders, its provisions requiring the election of respondent and his father as officers and fixing their compensation constituted an impermissible restriction of the rights and obligations of the board of directors to manage the business of the corporation under the doctrine of Manson v Curtis ( 223 N.Y. 313) and related cases (see 3 White, New York Corporations [13th ed], par 620.03, subd ). No argument is made that the stock purchase option, standing alone would be invalid; the assertion is that the agreement must be read as a whole and that it must be invalidated in its entirety. The critical issue is whether, because of the initial inclusion of provisions which could have been said to fetter the authority of the board to select corporate officers and to fix their compensation, the stock purchase provision is now unenforceable.
The Business Corporation Law did not become effective until September 1, 1963, and accordingly its provisions, e.g., section 620, are not applicable to the March 19, 1963 agreement.
The uncontroverted evidence is that in the years following the signing of the agreement, the assertedly illegal provisions of the agreement were ignored; no attempt was made to observe or enforce them and the management of corporate affairs was in no way restricted in consequence of the 1963 agreement. The evil to which the cited rule of law is addressed was never sought to be achieved nor was it realized. Although Triggs, Sr., and Ransford continued to serve as directors, the record discloses there were also three or four other, independent directors. That Triggs, Sr., continued to be elected chairman of the board (he was also elected corporate treasurer) and Ransford, corporate president and that for several years their salaries were fixed by the board at the figures stated in the March 19, 1963 agreement was in consequence of action freely taken by the entire board of directors and cannot be attributed to the sanction of the March 19, 1963 agreement of which the other directors, constituting a majority of the board, were wholly unaware. Indeed Triggs, Sr., took no exception when, on May 11, 1965, the board reduced his salary from $20,000 (the agreement figure) to $10,800, and when the board later entirely eliminated his salary his complaint in April of 1969 was predicated on the departure from the board's action of May 11, 1965 rather than on any asserted violation of the provisions of the March 19, 1963 agreement.
The legal issue here, too, depends on what is now an affirmed factual determination. The claim of illegality, raised for the first time some 13 years after the agreement had been signed, must fail because, as the trial court concluded, the March 19, 1963 agreement "did not in any way sufficiently stultify the Board of Directors in the operations of this business" within the doctrine on which appellant would rely.
Analytically we are presented with an agreement which in a single document deals with two different sets of obligations. On the one hand, the agreement contains the stock purchase option exercisable on the death of the father as to which, standing alone, there is no claim of illegality. On the other, there are the provisions with respect to the election of corporate officers and the fixation of their salaries, which are of questionable legality. Any illegality exists, however, only to the extent that the agreement operated to restrict the freedom of the board of directors to manage corporate affairs. There was nothing illegal per se in the election of Triggs, Sr., as chairman of the board or his son Ransford as corporate president or in fixing their annual salaries at $20,000 and $18,000, respectively. There would have been illegality only if the election of those officers or the determination of their compensation had been in consequence of the prior agreement and thus in constraint of the freedom of the board of directors to exercise their responsibilities of management. The finding below, however, was that there had been no such stultification. In that circumstance, the fact that the second portion of the 1963 agreement, if it had been enforced, might have involved illegality provides no compulsion not to enforce the other, legal portion of the agreement where, as here, there has been no factual determination that enforcement of the stock purchase option was dependent on enforcement of the terms with respect to corporate management. The fact is that the courts below have enforced only the stock option provisions of the March 19, 1963 agreement.
That on the cross claim the trial court granted judgment in favor of the father's estate for some $16,200 for back salary cannot accurately be said to have been in enforcement of the provisions of the March 19, 1963 agreement. The judgment was against the corporation, which was not a part to or in any way obligated under the terms of that agreement, and was not against Ransford Triggs, the only party to the agreement other than his father. Additionally the amount of the judgment was computed on the basis of the $10,800 annual salary set in the corporate resolution of May 11, 1965 and not on the $20,000 figure in the March 19, 1963 agreement.
As to the other issue, on which there was a division at the Appellate Division, there must be an affirmance. Whether the option granted respondent in the agreement dated March 19, 1963 to purchase the shares in Triggs Color Printing Corporation owned by his father on the latter's death survived the execution and subsequent cancellation of the agreement with the corporation for repurchase by the latter of the stock depended on the intention of the parties, father and son, as manifested in their agreement and by their subsequent conduct in its performance. Consistent with the trial court's finding that the stock purchase option did survive is its additional conclusion that when the corporation was experiencing economic difficulty, respondent loaned it $43,000 in the belief "that the operation and control of the business was and would remain in his hands pursuant to the terms of his contract with his father". The issue of survival, an issue of fact or at least a mixed issue of fact and law, having been determined in favor of respondent in the trial court and then affirmed at the Appellate Division, is now beyond the scope of our review.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
I respectfully dissent. Defendant executor appeals from an order of the Appellate Division which affirmed a judgment of Supreme Court, following a nonjury trial, which granted plaintiff specific performance of an option to purchase certain stock from the estate of his deceased father. The order appealed from should be reversed since the underlying agreement is unenforceable in that it improperly sought to limit the powers of the board of directors to manage the corporation. Moreover, even were the agreement itself valid, the option was terminated in accord with its own provisions some time prior to decedent's death.
The bone of contention in this case is control of Triggs Color Printing Corporation, a small firm founded by decedent in 1925. The firm appears to have prospered for some years and, with the passage of time, decedent's three sons became involved in the business to varying degrees. As of 1963, the corporation had issued some 254 shares of voting stock. Of these, decedent personally owned 149 shares and the remainder were distributed equally between his three sons, with each son owning 35 shares. At that time, decedent apparently selected his son Ransford, the plaintiff in this action, as the one he deemed best suited to control the business following decedent's death. To that end, decedent transferred 36 of his shares to plaintiff. Thus, out of the 254 voting shares, decedent owned 113 shares, plaintiff owned 71 shares, and each of the other two sons owned 35 shares.
Shortly thereafter, plaintiff and decedent entered into the written agreement at issue in this case. The two agreed to vote their shares together so as not only to elect both of them as directors, but also to elect decedent chairman of the board at a guaranteed annual salary, and to appoint plaintiff president of the corporation at a guaranteed annual salary. Additionally, the agreement contained the following provision: "It is the present contemplation of Frederick Triggs, Sr. to execute an agreement with the Corporation for the Corporation to repurchase his stock in the event of his death. In the event for any reason that such agreement has not been executed between the said Frederick Triggs, Sr. and the Corporation, then, in that event, the remaining Stockholder, to wit: Ransford D. Triggs, shall have the right and option to purchase the said stock of Frederick Triggs, Sr. for a period of sixty (60) days following the death of Frederick Triggs, Sr."
A few months later, decedent did enter into a repurchase agreement with the corporation. One year later, in 1964, the repurchase agreement with the corporation was canceled by consent of both decedent and the corporation. During the next few years, plaintiff gradually assumed an ever greater role in corporate affairs, and decedent's influence waned. Eventually the two had a falling out, and decedent appears to have begun to regret his choice of plaintiff as his successor. The corporation experienced some financial difficulties under plaintiff's management, and the salary paid to decedent was decreased, at first with his consent and later over his objections. Finally, in February, 1970, decedent executed a codicil to his will by which he bequeathed his 113 shares of voting stock to his other two sons, and declared the 1963 agreement with plaintiff to be null and void. In April, 1970, decedent died.
Following decedent's death, plaintiff sought to exercise the option to purchase the 113 shares from the estate, but the estate refused to transfer the stock. Some four years later, in September, 1974, plaintiff commenced this action seeking to compel the estate to honor the option. Defendant executor submitted an answer in which he questioned the continuing validity of the option, alleged that even if the option were valid plaintiff was not entitled to specific performance since he had breached that part of the agreement calling for payment of a guaranteed salary to decedent, and counterclaimed for the amount of unpaid salary should the court find that the agreement was valid. Following service of an answer, but some time prior to trial, defendant moved to dismiss the complaint for failure to state a cause of action, alleging for the first time that the agreement was illegal. The court denied that motion on the merits at the beginning of the trial, declaring that the agreement "did not in any way sufficiently stultify the Board of Directors in the operation of this business as to be [illegal]".
At the conclusion of trial, the court ruled in favor of the plaintiff to the extent of granting him specific performance of the option and ordering the estate to transfer the stock to him upon tender of payment. As to the counterclaim, the court held in favor of defendant, awarding the estate judgment for the amount of unpaid salary owed to decedent. Defendant executor alone appealed, and the Appellate Division affirmed on the opinion by Mr. Justice NUSBAUM at Supreme Court. Two Justices dissented, stating that the option had been extinguished by its own terms when decedent entered into the repurchase agreement with the corporation. Defendant now appeals to this court as of right, pursuant to CPLR 5601 (subd [a], par [i]). There should be a reversal.
It has long been the law in this State that a corporation must be managed by the board of directors (Business Corporation Law, § 701) who serve as trustees for the benefit of the corporation and all its shareholders (see, e.g., Billings v Shaw, 209 N.Y. 265). To prevent control of the corporation from being diverted into the hands of individuals or groups who in some cases might not be subject to quite the same fiduciary obligations as are imposed upon directors as a matter of course, the courts have always looked unfavorably towards attempts to circumvent the discretionary authority given the board of directors by law (Manson v Curtis, 223 N.Y. 313; McQuade v Stoneham, 263 N.Y. 323; Long Park, Inc. v Trenton-New Brunswick Theatres Co., 297 N.Y. 174; see, also, Matter of Hirshon, 13 N.Y.2d 787; cf. Matter of Glekel [Gluck], 30 N.Y.2d 93). Such matters normally arise in the context of an agreement between shareholders to utilize their shares so as to force the board of directors to take certain actions. Unless in accord with some statutorily approved mechanism for shifting power from the board of directors to other parties (e.g., Business Corporation Law, § 620, subd [b]), such agreements have been found valid only where the proponent of the agreement can prove that the violation of the statutory mandate is minimal and, more importantly, that there is no danger of harm either to the general public or to other shareholders (see Clark v Dodge, 269 N.Y. 410).
It is, of course, proper for shareholders to combine in order to elect directors whom they believe will manage the corporation in accord with what those shareholders perceive to be the best interests of the corporation. Thus, an agreement between two shareholders to vote for a particular director or directors is not illegal and may be enforceable in an appropriate case (see Manson v Curtis, supra, pp 319-320; Business Corporation Law, § 620, subd [a]). If some shareholders seek to go beyond this, however, if they agree to vote their shares so as to impose their decisions upon the board of directors, such an agreement will normally be unenforceable. The agreement sought to be enforced in this case is just such an agreement.
In essence, the agreement between decedent and plaintiff consisted of three fundamental provisions: first, decedent promised to vote his shares so as to ensure the election of plaintiff as a director and his appointment as president for a 10-year period at a given salary; second, plaintiff promised to vote his shares so as to ensure the continuation of decedent as chairman of the board at a given salary for at least 10 years; and, third, decedent gave plaintiff a conditional option to purchase decedent's voting shares after his death. It is beyond dispute that the promises to secure the appointment of each party at a specific position other than director at a guaranteed annual salary are illegal. Plaintiff contends that the agreement is nonetheless enforceable by analogy to our decision in Clark v Dodge ( 269 N.Y. 410, supra), in which we sustained an agreement between two shareholders who together owned all of the shares in the corporation. This argument is based on a fundamental misinterpretation of the significance of our decision in that case. Rather than illustrating any divergence from the great body of other cases which have found such agreements to be illegal and unenforceable, the Clark decision reflects a reasoned and flexible application of the principles which are in fact common to all such cases.
The dispositive consideration must always be the possibility of harm to either the other shareholders or to the general public either prospectively at the time the agreement was entered into or at the time it is sought to be enforced. In those cases in which the agreement is made by less than all the shareholders, almost any attempt to reduce the authority granted to the board by law will create a significant potential for harm to other shareholders even if the potential for harm to the general public is minimal. This is so because the effect of such an agreement is to deprive the other shareholders of the benefits and protections which the law perceives to exist when the corporation is managed by an independent board of directors, free to use its own business judgment in the best interest of the corporation.
In Clark, the possibility of harm to other shareholders was nonexistent, for in fact there were no other shareholders. In the instant case, in contradistinction, there were and are two other shareholders, not privy to the agreement between plaintiff and decedent. Moreover, the instant agreement for the continuation of plaintiff and decedent in their respective positions is in no way dependent on their performances in those positions, whereas the agreement in Clark provided that Clark was to be continued as manager "so long as he proved faithful, efficient and competent" (Clark v Dodge, 269 N.Y. 410, 417, supra).
It has been suggested that even if the agreement is indeed illegal on its face, the defendant, in order to successfully assert the defense of illegality, must prove that the other shareholders did not know of and acquiesce in the agreement. This contention is illogical, and is at any rate inapplicable to the instant case. In this as in all actions the burden of proof is in the first instance always on the plaintiff who must prove his cause of action. Here, plaintiff seeks to meet that burden by proffering the contract itself as the basis for his claim. As is discussed above, however, that contract is illegal on its face and is thus unenforceable. If it is contended there exist circumstances which might prove that an agreement illegal on its face is in fact legal, the burden of proof as to these extrinsic facts must be placed upon the party who asserts the validity of the facially illegal agreement. In the instant case, plaintiff has neither alleged nor introduced any evidence to indicate that the other shareholders either knew of or ratified the agreement between plaintiff and decedent. Indeed, what little evidence does exist on this question would indicate to the contrary. David Triggs, the executor of decedent's estate and himself a shareholder, testified that he first learned of the agreement around the time of his father's death. Plaintiff himself testified that he did not know whether David Triggs was aware of the agreement prior to their father's death. Finally, another director of the corporation, one Bannon, testified that he first became aware of the agreement after decedent's death. In short, even were the burden with respect to this issue to be improperly placed upon defendant, that burden has been met.
It has also been suggested that the option should be severed from the other provisions of the agreement and separately enforced since it alone would not be illegal. The flaw in this argument is that it improperly assumes that decedent would have given plaintiff this option by itself, without the other parts of their agreement. This assumption is one in which we may not indulge. Indeed, it appears that the illegal parts of the agreement were an intrinsic part of the covenant between these parties. While decedent apparently did wish to allow plaintiff to purchase the stock after his death if certain other possibilities did not eventuate, it is quite clear that decedent also wanted to protect his own position within the corporation from any challenge by plaintiff. Thus, the agreement was comprised of several component factors, and was motivated by complex and potentially conflicting objectives. The parties were concerned not only with control of the corporation following decedent's demise, but also with the corporate power structure during the remainder of decedent's life. To conclude that the option alone would have been entered into by the parties would be to engage in untoward speculation. As we have held in another case where a similar argument was made, "[t]he contract was single and indivisible and the illegal part cannot be expunged" (Manson v Curtis, 223 N.Y. 313, 324, supra).
It should also be noted, that plaintiff did not fulfill his obligations under the agreement with decedent. That agreement required that decedent be paid a certain minimum salary for at least the first 10 years following the making of the agreement. By deciding the counterclaim in favor of defendant, the trial court necessarily concluded that plaintiff had not performed his part of the bargain. That conclusion is of course binding on plaintiff in the context of this appeal. Since plaintiff did not perform, decedent was justified in repudiating the agreement, which he did by means of the codicil to his will. Accordingly, plaintiff is not entitled to enforce the agreement.
Even were the agreement a legally enforceable one, however, the order appealed from should still be reversed, for the option was in fact extinguished in accord with its own terms. The option was to become effective only "[i]n the event for any reason that [a repurchase agreement with the corporation] has not been executed" at the time of decedent's death. Such an agreement was executed, however, several months after the agreement between plaintiff and decedent was entered into. Thus, the option, the very existence of which was conditioned upon the nonoccurrence of the specified event, never came into existence for the simple and indisputable reason that the specified event did occur.
The courts below avoided this result by concluding that the option was so ambiguous as to permit consideration of extrinsic evidence concerning the parties' intent. The perceived ambiguity was that the option did not specify the result if the repurchase agreement with the corporation were to be first entered into and later canceled, as did happen. The problem with this analysis is that it equates silence with ambiguity. The option was phrased in clear and lucid language; it provided plaintiff with an option if and only if decedent failed to enter into a repurchase agreement with the corporation. Once that repurchase agreement was entered into, the option became a nullity, and decedent was free to do whatever he wished with his shares, subject to the contract with the corporation. When that contract was canceled, even that limitation was removed. There is no basis, however, for concluding that the cancellation of the repurchase agreement revived the option. The option was conditioned not on the lack of an enforceable repurchase agreement at the time of decedent's death, but rather on the nonexecution of such an agreement. Had the parties wished to agree otherwise, they were free to do so. They did not do so, and the courts may not now rewrite the contract.
Accordingly, I vote to reverse the order appealed from and to dismiss the complaint.
My vote too is for reversal. However, the decisional path that I would take differs appreciably not only from that of the majority but from that of my fellow dissenters as well.
Specifically, unlike the other dissenters, I am of the opinion that the parties entered into an enforceable agreement. But, for the reasons well stated both in Judge GABRIELLI'S alternative rationale and in Mr. Justice LUPIANO'S dissenting memorandum at the Appellate Division ( 61 A.D.2d 911), I conclude that we are required to find that the agreement was not ambiguous and that, as a matter of law, it terminated in accordance with its terms during the father's lifetime. (See Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41 N.Y.2d 397; Mallad Constr. Corp. v County Fed. Sav. Loan Assn., 32 N.Y.2d 285, 291.)
I also take issue with the majority's reasoning that the option was enforceable only because it was separable from an otherwise illegal contract. In my view, the entire agreement is lawful qua agreement, and since it is one entered into between the controlling stockholders of a small, nonpublic corporation, it is not to be scrutinized by a rigid, hypertechnical reading of section 27 of the General Corporation Law, now part of section 701 of the Business Corporation Law.
Small, closely held corporations whose operation is dominated, as its stockholders and creditors usually are aware, by a particular individual or small group of individuals, must be distinguished, legally and pragmatically, from large corporations whose stock is traded on a public securities exchange and where the normal stockholders' relationship to those managing the corporation is bound to be impersonal and remote. Obviously, the latter's operations are rarely, if ever, covered by stockholders' agreements, and the Business Corporation Law itself is the sole restriction on their management.
In the close corporation, investors who themselves are not part of the dominant group commonly rely on the identities of the individuals who run the business and on the likelihood of their continuance in power. As a practical matter, these individuals will be expected to exercise a broad discretion and considerable informality in carrying out their management functions; this flexibility may be regarded as one of the strengths of a smaller organization. Indeed, faith in the integrity and ability of the managers is what usually motivates the investment. Looked at realistically, such corporations, often organized solely to obtain the advantage of limited personal liability for their principals, to qualify for a particular tax classification, or for some similar reason, are frequently "little more * * * than charter partnerships" (Ripin v United States Woven Label Co., 205 N.Y. 442, 447). Control of such matters as choice of officers and directors, amounts of executive salaries, and options to buy or sell each other's stock — exactly the sort of things with which the agreement before us dealt — is usually mapped out by agreements among stockholders. (See, generally, Israels, The Close Corporation and the Law, 33 Corn LQ 488.)
In short, so long as an agreement between stockholders relating to the management of the corporation bears no evidence of an intent to defraud other stockholders or creditors, deviations from precise formalities should not automatically call for a slavish enforcement of the statute. For this is the "governing criteri[on]" by which to test "the validity of a stockholders' agreement" (Delaney, The Corporate Director: Can His Hands Be Tied in Advance, 50 Colum L Rev 52, 61; see, also, 1 O'Neal, Close Corporations, § 5.08). This would not leave without remedy those minority stockholders in close corporations whose interests may be abused. Available to them and at least equally effective are the equitable remedies by which officers and directors can be made to respond for violations of their trust obligations (Meinhard v Salmon, 249 N.Y. 458).
Analysis of the agreement and its surrounding circumstances here illustrates the wisdom of this approach. The corporation had for a long time been a one-man business in every sense, the man being Triggs, the father. Until he gave a minority interest to each of his sons, he was the owner of all the voting stock; afterwards, it was all owned by the father and his sons, who were preparing to succeed him. At the time of the agreement, the father, together with the son who was the other party to the disputed writing, held the majority of this stock. Given their service in the business, their stockholding, and their relationship to each other and to the history of the corporation, it was to be expected — and not at all extraordinary — that an arrangement for their continuance in office and their compensation would be executed. There is not the slightest indication that, had the parties gone through the routine of presenting the contract to duly called stockholders' and directors' meetings, it would not have been rubber-stamped as a matter of course. It is significant that no other stockholder challenged the agreement during the father's lifetime and that the dispute since then has gravitated only around the son's insistence that the option to purchase his father's shares had not expired, a term which in any event, though it found its way into the stockholders' agreement, related to an essentially personal matter distinct from any corporate management obligations as such.
In sum, given that no other shareholder or member of the general public has been harmed, there is no good reason to measure the agreement by the less sophisticated standards of yesteryear. Tellingly, the often conflicting and unpatterned holdings that characterized our varied decisions on this point in the past (see 3 White, New York Corporations [13th ed], par 620.03; compare Clark v Dodge, 269 N.Y. 410, with Manson v Curtis, 223 N.Y. 313; McQuade v Stoneham, 263 N.Y. 323; and Long Park, Inc. v Trenton-New Brunswick Theatres Co., 297 N.Y. 174) have been overshadowed by the enactment of subdivision (b) of section 620 of the Business Corporation Law. At that time, the Legislature expressly indicated that it intended to overrule, at least in part, many of those decisions that struck down shareholders' agreements (Legislative Studies and Reports, McKinney's Cons Laws of NY, Book 6, Business Corporation Law, § 620, p 418). In doing so, it made clear its purpose to approve and expand the ruling in Clark v Dodge ( 269 N.Y. 410, supra), which upheld a controverted stockholders' agreement in a close corporation context.
Chief Judge BREITEL and Judges JASEN and WACHTLER concur with Judge JONES; Judge GABRIELLI dissents and votes to reverse in an opinion in which Judge COOKE concurs; Judge FUCHSBERG dissents and votes to reverse in a separate dissenting opinion.