again with counsel and miller against mecurio energy the court has held time and again the contracts must not be construed in ways that render any of their terms to perk loise are meaningless or that would alter the terms of the bargain of the contracting parties by granting the motion to dismiss here the district court effectively erased essential contract terms and destroyed the value of the contract for geoffrey miller the plaintiff and this was reversible error for four distinct reasons the district court's st error was to ignore the plain line of the separation agreement which maintains mr miller has carried interest rights jeffrey miller who's in the courtroom today separated from mercurial in two thousand and twelve after four and a half years of service they negotiated a separation agreement that being referred to in the agreement and that also the agreement does indicate that it may not take place that's exactly right your honor your client was clearly on notice before signing agreement that it might not take place that's exactly right your honor and that's why it's important to point out that the contract serves two functions and the st is that it affirms mr miller's general contract right that preexisted and was  phoenix and ninety nine ninety six percent of the stock of us lay all of them are curious holdings went to phoenix point four percent is left in you l a that's mr miller's share question as to the contract protect him again that's exactly right so that's the question your honor and all of course the roche transaction is described and there is conditional language that may happen but there are no guarantees with the contract also says separately is mr miller curia have these this relationship and in fact what the separation agreement says that is that in consideration for your work former kuria not for you l a you currently hold the glasgow shares which grant you the right to receive a preferred liquidation quota and you have a pre determined redemption right if certain reorganizations happen and it does not say that should the roche transaction not close those rights evaporate and the district court's interpretation affectively erase mr miller contract strictly according to its terms leaves the rights in place granted because there was this other transaction it's trips he has no that they have no value now but i don't know that s uncertain about how the contract protection will you honor we would not agree respectfully that we're asking for equity relief we would say that this contract signed by the mercury entities is that they are incorporation fully of the obligations of u lay and the district court grappled with that question but ultimately concluded no it's not a full incorporation it's a limited incorporation of you as rights relying on the progressive case from this court we believe that was entirely incorrect the progressive case is a case in which the parties were deemed to have consented to arbitration based on their contracts single reference in a single clause to a twelve year old prior contract that had an arbitration clause and that was deemed enough to incorporate all of the obligations of that prior contract here the separation agreement insists in five different places that you always articles of the association bind here and that mr miller's rights are subject to them which means that murch curia has repeatedly five times over acknowledged mr miller's rights and adopted them as its own because this contract exists to quote maintain those rights and because it is in consideration for the work mr miller did for mercurial now there is this contract is not a model of clarity i think we would we would not be candid if we said it were but there is also the point that should be deemed it should have been deemed ambiguous and the district court erred also in ruling that an imbued asli destroyed mr miller's contract right it is this court's familiar doctrine in many cases including all and in two thousand and seventeen the contract terms are ambiguous if they are capable of more than one meaning when viewed object of leave by a reasonably intelligent person examining the entire integrated agreement in the context of industry custom and practice and here the idea that mr miller gave away a valuable one hundred percent vested carried interest right in an oil field project he'd worked on for years affectively for nothing because if a particular transaction didn't close in a way that only mercurial unilaterally controlled the idea that that's what those clauses mean we would argue with not a reasonable interpretation and that ignored to this limited incorporation concept which we believe was clearly error under progressive three the error of ruling that the contract was unambiguous where the language is truly complex and a interpreted in understanding reasonably what it means and what industry custom and practice was and then for deeming the defendant's multiple of most of the defendants you l a phoenix the other more curious signator ninety nine point nine six percent owned by mercurial until its value was transferred to phoenix the separation agreement releases cover all of them are kuria entities and their affiliates the separation agreement disclaimer  so the idea that these entities are too distant from the transaction or didn't play an active role in the transaction is incorrect again probably the most important two portions of the contract that make mr miller's rights clear are on page eight thousand seven hundred and sixty four which is the preamble to the agreement which states that the agreement has been reached between mercurial and miller as to resolution of various issues related to the carried interest rights you maintain in certain investments involving mercurian and its affiliates that is the very beginning of the contract and it sets out the purpose which is for mr miller to leave the company with his that's right your honor and that's key if we were to ruin your favor we would have to have we would have to find that mercurial recognized adopted and acknowledged mr miller's rights in the glasgow oil field and that's the preamble your honor and then section five a roman five days at seven hundred and seventy one dollars that's the beginning of the section that discusses glasgow and says that in consideration for mr miller's work former curia he has the redemption rights in the oil field let me ask you  usa was created by the head of mercury selling personally to mr miller his shares of ul a it is a shell holding company constructed to own these assets so formally it is in spain but it was created by mercurial toehold this asset and to give them a free pass here is entirely unfair and fails to recognize how closely related they are to mercurial it isn't in separate and existing entity other than to hold the gla in new york much more from far less again mercurial owns all of eighty percent of phoenix and it was brought into existence to effectuate the deal so if you look at the separation agreement and recognize that it must be interpreted here in new york then the fact that phoenix was created in part to strip assets away from mr miller makes it sufficiently closely related to them are curia entities that signed the separation agreement cases are that an anon signatory for example can be bound if the matter if the entity is either incorporated by reference where there's agency or assumption they'll piercing or alter ego there's a number of standards we have your honor in recognition that there are numerous factors that may make that the more reasonable and free and frankly avoid the consequences of a case like this where you have all these closely related entities and they're trying to slip out of overall and so i would lean toward saying new york state law but i do not want to speak with certainty your honor we'd be happy to brief that if it would be of benefit to the court you know th read to apply only to the roche merger as the district court properly concluded that mr miller is somehow being stripped of all of his vested carried interest rights and left with nothing now that is simply not true and it's not a position th taken in this litigation and the separation agreement speaks clearly to this and i want to direct your honour's attention very quickly to page eight thousand seven hundred and seventy seven of the record its little roman seven intitled limitation on redemption of preferred shares and this is a key provision because what it says seven hundred and seventy seven and its little roman seven again and it says explicitly for the avoidance of doubt and not withstanding anything to the contrary expressed here in your right mr miller's right to be issued shares in the hold co which is a defined term and i'm going to come back to that later because it's important but to be issued shares in the hold co shall arise only if either of the two redemption events another defined term a kurds barring either one of the redemption of events occurring your preferred shares will at all times be dealt with pursu to and in accordance with us articles of association and as a place of all the laws of spain or the relevant jurisdiction but your right to be issued shares in the hold co shall not be deemed to have arisen at any time whatsoever this could not be more clear and what it is saying is that if either of the two defined redemption of vents in the agreement don't occur which the agreement expressly does not guarantee they ever will then mr miller keeps the ul a shares that he already had and they continue to be governed by the usa articles of association as they always work and the fact is mr miller does have recourse if he now believes that the phoenix transaction entitle him to redemption on those shares he could bring that claim in spain against you l a under the ul articles that still govern those shares he hasn't done this he has chosen not to what he cannot do is try to bring that claim in this court in new york against them or curia parties who are not signatories to or bound by you as articles of association and try to disguise it as a claim arising under the separation agreement and this actually makes perfect commercial sense in the context of this agreement because what this agreement did is it gave mr miller the option of participating in the potential upside of the specific new transaction that he was working on at the time the separation agreement was signed and that's the roche merger and they plea that an admitted and it did that by offering him the option of exchanging h existing ul a shares that he already held for shares in the new york your ia roche company before that company underwent a value creating event an i p o event or an equity sale and if that never happened which it didn't hear then he simply retains the ul a shares that he already had and they continue to be governed by the usa articles and that's precisely what's happened here there is absolutely no one fairness to it and you can see that very clearly in the plain text of the contract which the district court properly found and i know my time is running a little short but i do want to point your honour's to the specific definitions because the fact is that the parties specifically and precisely defined the term that would give rise to a redemption event under this specific agreement and as the district court properly found every single defined term in this agreement is expressly premised on the existence of the roche merger and if you'll look very quickly to page seven hundred and seventy three in the record it's under little romanesque three intitled redemption events and this defines the redemption of ants that give rise to the rights in this contract as number one the equity sale defined term and number two the i p o event another defined term now both equity sale and i p o event themselves rely on an underlying defined term which is the hold co we've seen that before and if you look right above in that same provision you'll see that the hope that the equity sale is defined as the sale of the equity of the hol this is still an seven hundred and seventy three a little romanesque three and if you flip back just one page then to seven hundred and seventy two you'll see that down at the bottom of the very st full paragraph on the page right above the section for agreed terms it defines i p l event in quotes and it defines it as when the hold co may be taken public so the hold cose an important term here and they define that right above in the same paragraph and they  mean a holding company for the mark euro roche newco that's a defined term and that defined term is defined in the beginning of this paragraph and it's defined to mean more curia and roach are intending to merge interests owned by each of them including ul a quote into either roche or a new entity to be formed by mark your ia and roche and that is defined as the mercur roche new couple there is another definition that echoes this on page seven hundred and seventy four of the record in the middle of the page it defines merger with a capital m to mean the formation of the roche newco and implementation of the more curia roche newco documents another defined term and the fact is there is only one way to read this agreement and you can not get to a redemption event under this agreement without starting with them or curia roche newco and to read the contract in the way that mr miller suggests this court would need to disregard not just one or two discrete definitions but multiple explicit definitions and provisions in this contract that repeatedly expressed lee limit his rights here under only to the roche merger thank you your hon may please the court randall rayner for apple as you well and phoenix global is your honour's or where the sole basis upon which the judge below held you all a and phoenix global dismissed was on jurisdictional grounds although it also stated it would be dismissed in its global on the merits on the success or liability theory is or you're aware from the papers that the plaintiff abandoned its new york contacts argument in pivoted to this closely related doctrine argument of the form clause as to us the way the analysis is very simple the plain language of the form selection cause it does not cover the one claim in this case against you away which is a claim for a claim a rising from the separation agreement or a connection relating to the separation agreement and under the inri optimal case the relating to test means with reference to the separation agreement if your honour's look at count one as alleged it alleges soley breaches of obligations under the articles of association of u l a there is zero enforcement of the separation agreement agreement much less a reference to it and as you all have seen from the separation agreement itself that nothing in it is to disturb the rights and obligations preexisting under the usa articles of association therefore that claim against you l a stands alone with no relation or dependency upon the separation agreement as to phoenix your honour's the this english holding company is being pulled into this case soley on the theory that is supposedly closely related to the parties to the separation agreement the ten there are two tests in this district there is the active involvement test and there is also the the dependency and derivative miss test either the non signatory must have been actively involved in the subject transaction of the agreement that has the form cause this being the separation between miller and his former employer in two thousand and twelve phoenix global had no involvement much less no active involvement in that tw thousand and twelve transaction also the rights of u l a which are dealing or argued rather to give rise to phoenix's liability on a successor theory also are not interests the derivative of the separation agreement the separation agreement emphasizes u l a's liability if any is decided in the articles it's not decided under separation agreement if you can just by  describing the transaction that issue here judge recovered concluded that phoenix was not sufficiently transaction right correct and what is the transaction which is relevant here paration agreement so the transaction is the big o'shea to terms of departure of mr miller from which area and how are phoenix involved in the transaction phoenix is not involved in that transaction your honor there's no involvement but soever phoenix comes into the picture in two thousand and seventeen as part of the share exchange transaction which was happening at the parent levels well above you l under that transaction which has been significantly missed described to this court ul ways assets were not sure that it was an exchange of shares between andy's and upstream capital and is the parent of you l a affectively the structure of true for oil on down was moved from underneath materia to underneath andy's energya a preexisting active well capitalized mining company based in london with substantial mining activities in argentina it was then renamed phoenix council said at least twice it was a shell created for the transaction phoenix well that was a name change  long standing operating parent company called andy's in that transaction u s assets were not it u s assets are pets of the subsidiary it owns which holds the glasgow and other mining rights assets were not touched by this transaction the phoenix school will transaction which transpired by a mere exchange of shares two or three levels above it in the organizational structure final your honor there is no basis for success or liability against phoenix global in this case because that transaction was a share exchange the law is clear on this under ghaleb vs kidder b p body that wants in and any share exchange rather than an asset exchange there is no such liability you have a view on where the real of the federal or new york are in the in the interpretation of the closely related doctrine the theory thank your honour's in many ways mercurial as argument from our perspective is beside the point we do not disagree that the roche transaction was described in detail we do not disagree that it contemplated a particular series of outcomes and that redemption events were described there in where we disagree is that if that deal doesn't close then mercurial has no obligations to mr miller and that he needs to go to spain our view is mr miller left the employment of mercurial he signed a separation agreement with mercurial and that detailed in various places in very specific language that in consideration for his work for mercurial he had obligation so citing to a subsection that refers again to ul a's articles of association that only bolsters mr miller's argument that the ul a obligations were fully incorporated into this separation agreement why were they named over and over five times because miller and mercury agreed that those obligations were assumed by mercurial he would not it is not reasonable to conclude that his separation agreement with his employer i did not in compass the value of this asset that he simply left it on the table to go sue in spain and to the extent that there is an issue of fact about whether or not ul a's shares still have value that is a basis for denial a motion to dismiss remembered we are not of the summary judgment stage we are only at the motion to dismiss stage mr miller's only obligation is to plead a plausible claim that mercurial adopted the articles of association and those obligations and at that low level of burden on mr miller we think the district court erred in finding that he had not met the remedy you see reversal and permission to proceed with discovery and litigating the case normally or should the court somehow deem the complaint insufficient leave to replayed to remedy those errors were about one hundred dollars how would you side of the debate that we have among ourselves over whether it should be that the banana