and the strong factual arguments on both sides go to mr pope's knowledge and intent when signing that document and of course the potential waiver therefrom but that's exactly what these are these are factual arguments they're factual arguments and inferences that agreement as well as the underlying facts of the language behind that so if we're looking at the parties that agreement that's between the shareholders as you said the shareholders after ireland and the end credits right which is the foreign third party end he worked there until two thousand and eleven yes beyond the specific the testimony of the other side was it expired after five years right yes or on two thousand and four and they gave that up right the option because the contract expired in two thousand and four but for purposes of summary judgment per well that that's right but they said they spent twenty five pages of their brief talking about fact that the got if he got any options as part of his compensation what would what would the records of the company reflect if they'd been company if the options are reflected on or that's exactly not right your honor you did it exactly on the head well i never gave him those options so again he's been here go ahead i'm sorry but don't you don't you kind of run into a brick wall with the two thousand and ten notice of option exercise when he exercised his right to the twenty one hundred sixty eight shares and he said apart from the option and one hundred shares which i am the legal and beneficial earner i have no other rights or entitlements in respective shares he said i don't have any other right in two thousand and ten and now is saying look so i do you know i don't know how to get around that there's a two part answer that question the first is that in two thousand and they still never would have that notice so by the they never would have provided him that notice so if you go back to the book but i'm saying he said he had no one title and the burden is on the company to inform him that he has options available under the contract the year it's pacifically says the employee will be granted options they never informed of that right you never knew he had options if he ever asked you the burden is on the company you're on well it's that's one of the inconsisten asking for something under a contract then he has to show that he his rights were violated and if the contract does not specify the procedure for ascertaining the profit level of company why is he just kind of sit back there and do nothing and then years later say oh i was so this money with due respect to the contract does testify how the amount would be determined when he gets these options as a met a metric called average turnover and essentially that's and he had access he did have access but it's important to keep in mind that the actual number of the average turnover was never calculated it would not have appeared to any company document and mr cole would not pass with doing that it would like the exercise that released he didn't he was never informed so it's a twelve year time period and the burden is on the company to inform him when he's hit the average turnover and provide him the options the company never did that they would the notice that he was supposed to get was the option agreement i to my knowledge the last breach of the contract answered just a question earlier was two thousand and eleven so he would have had a full crew of options since the two thousand and ten option agreement that he sighed so after two thousand and five i believe the no consideration for that agreement as well as the extent you're trying to construe that as an agreement between the two companies he wouldn't say i'm not saying it's an agreement it's just his declaration that he just doesn't add any outstanding interest at the end of the day we have to be controlled by contract here though so to the extent that he's under the standard under the summary judgment do a light most favorable to you want to have a look at that you look at it as a factual dispute right now you're on we him of his rights under the p i c p so it's not just i forgot about the p c p or the contract here he may very well have forgotten about that but it's the rights under the option agreement why we're here today he was owed rights and the burden was on the company to give him those rights control limited that's correct you are right and i also represent would also be the employer then of the point technically the employer was accurate the united states subsidiary of actor ireland woods which mr cole became the president treasurer and secretary so he would have gotten a w two from the united states come before the p i c p a as it's been referred to i think was irish company which would be issuing shares mr cole the agreement was with of the company were ever made to reflect that they are not an option that's also correct or are there there is no question here however that summary judgment is appropriate the cases cited of page twenty eight of our i don't know in whatever genya but i'm from west virginia and i know in west virginia and came out of the coal mine history employers that don't pay the employer always it commits a crime for the employer not to pay what they agree to parity in merits of west virginia law i think in maryland if an employer does not pay an employee wages as fined by the maryland wage law it's it gives rise to a civil action which could give employee i think can waive any any claim to any wages or benefit if done so in writing and i think that happens all the time where there's dispute as to whether or not if observers here there are a key to documents and the documents related to that agreement in which mr cole irrevocably waived any claim against what was defined in the agreement as a rip in the group companies included the apple lease here and in the share purchase agreement he represented that all material contracts were disclosed there were no arrangements there were no share of the road or no option arrangement there was no factor circumstance which could give rise to a curtis wright accepted those and paid mr to him at the time he signed it and his decision to join after usa and he signed and the focus here on whether the triggering event is what he may have been aware of is misplace the focus is on the entitlement he had in the contract that he knew about it least in one thousand nine hundred nine when he signed that and mr hope can't run away from the knowledge of the contract right that if any that he was entitled to understood the contract under the under on this record right whatever the use as it expired in two thousand or he said he didn't understand it don't remember if i'll concede if  he was ignorant of whether the triggering of the the reaching of the a t o which is a simple calculation of averaging two numbers two years sales rep is incredible and light of the fact minimum of five years during the course of a boy meant that any use employed until two thousand and eleven i think that is i think that is more a right to be got as each interpretation sounds pretty incredible i think the language about term of the agreement couldn't you give a buffer get in and put or point six million dollars in the pockets with the other terrible he can give them up because there was a contract in that contract gave him an entitlement to whatever it was and when he signed option exercise make any difference your analysis i think it's an important fact to understand that he's he's telling acar ireland that he has no additional claims i'm not sure it's as relevant your honor as the letter he addressed to the directors of akamai only told them that he had no other claims at the same time that he was exercising his right to get the twenty one hundred some shares right into the two thousand and ten option agreement that's right and you're saying that's no not at again irrevocably waive any claims to the extent he had importantly considering whether to sanction mr cope's ignorance argument this court must consider the pandora's box that will be open to contracting parties cl forgot with respect to contract rights or any rights not only in a merger and acquisition transaction with the corporate buyers here are owned by a public company price the total acquisition price for the whole company after significant due diligence and rightfully thought it was on one hundred percent of the stock of the company only to later learn than a minority shareholder claims to own even more stock and wanted to be and wants now to be paid for it from the buyer but also on case a contract between a third party and a creditor extinguished an obligation and then a later action by the creditor against the debtor the debtor was permitted to raise the extinguishment of the dead as a defense to the as explained by the district court and in our brief irish courts apply the objective law contracts in construing contracts as the and i'm referring obviously to the share purchase agreement irish courts do not consider parties subjective understand rather they assessed what a reasonable person would have understood the contract could mean under the facts and circumstances surrounding when the contract the share purchase agreement was entered into as an overriding objective in the field of commerce irish  seek to construe contracts in accordance with business common sense here it can only be said that the parties to the share purchase agreement must have understood must have understood the curtis right was by and a ireland shareholders were selling all of the equity interests in that company whether they're characterized as options shares or other ones and after that deal no one of the sellers would later say hold on to have to pay mr cole so the fact that you can you can argue comes out of curtis rights aka those it's wholly owned subsidiary would lose the value of whatever is seeking in this case when had he spoken up earlier the share price the forty two million dollar the answer the forty two million in europe would have just been divided it been allocated difference between actor ireland existing shareholders at the time if the result mr kolb seeks were permitted i do not that it can be reasonably argued that such a result would conform to business commonsense in the light of the claims i'm not going to later sue your wholly owned subsidiary the only commonsense result here is that pursuant to section five point six of the share purchase agreement july twenty eighth eleven letter  that mr cold waive any rights under his p r c whatever they were at the time he saw in the share purchase or great our expert mr macdonald an irish law explained that if faced with this do his contractual undertake and affirm the district court's order granting summary judgment and all rest on the argument on the motion for leave to a man to last or has any questions thank you thank you s thank you honest to address just the skins on again your question about whether the letter itself could be construed as an agreement between acra ireland and mr cole here and the consideration that would be in conjunction with the s b a he gave them that letter and he got nothing in return act rylan to that point owed him four point six million dollars and he got nothing it's a one way letter right now we have a situation where a ireland's trying to retain the benefits of mr cole work as president c e o of its subsidiary where he surpassed all revenue expectation and retain all of the shares  risk law but it's very interesting to note that irish law precludes a third party not like the american system where you can have a third party beneficiary it precludes a third party who is not in contractual privity take advantage of that consideration from those contracts is akron ireland now a end to that point akron ireland here is essentially as i just said essentially trying to parlay this into a win they view they receive the benefits and now they're going back in trying to keep the benefits from that without providing him the option they're under they he performs he should get the benefit of that agreement and there's a there are two other quick point i'd like to touch on regarding you know a lot of this report from the decision on unilateral waiver not a mutual waiver because waivers and possible because both parties got a benefit we have first the language of the p c p says it continues unless it's mutually agreed in writing and more importantly the stock options cost ten ten irish pounds each so irish ireland when mr cole executes the agreement and exercise the option it's one hundred thousand irish pounds that's a pretty significant benefit and to quote the district court from that they said it cannot be said that any other party would benefit if mr cole purchased shares and we need to look at that sense literally and it's saying that if one party purchased something from another the other doesn't benefit to respect the district court that's that's just not true when transaction both sides get something a benefit and in this case got the benefit of an irish pounds per share one hundred thousand irish pounds versus mr cole getting his portion of the stake that he sought in the beginning so there's these  language of mutual benefit and even to the extent we're construing the mystical somehow had knowledge which it's hard to see how he possibly could have even if that's possible he couldn't have waived it unilaterally because the agreement was only with the shareholders and curtis right so that language essentially preclude unilateral waiver which was the very basis the district court rendered spending so if we if we look at that it makes that renders it essentially impossible and just the back up and the one other point about we can start looking at subsidies there and then seeing who's on the hook this contract with mr cole and they didn't for fill their contract it's regardless of who owes that he has a breach claim against them and i think that's almost dispositive on that issue and just in my from a hundred years ago and essentially what they said there is the father paid the sons and you know they may take reduced amount but here no one paid mr kolb's that he never received any consideration for the amount that he was in this case it's