thank you your honor may please a court this is a contract was unusual in that my client you see and i b m agreed to transfer technology under specific and unequivocal clear conditions in the p r c the people's republic of china those conditions were one that a subsidiary be formed which had a sixty percent ownership that those things must happen for any of our obligations to arise i think is their language like that in the agreement you know the answer is the word condition precedent is not used but the context of all of the provisions make clear that that's exactly what was talked about and all you have to do is look at two way to a was interesting because to a is entitle payment and notification it's not just payment and this is the men amendment that was added to the twenty thirteen agreement and it's this specifically that any time between january one twenty fifteen and december thirty one twenty fifteen inclusive u n c will pay i b m the fee set forth in section for dot one and simultaneously there with provide notice for dot one for dot one a yes sorry there are and provide notice and then but the noticed they were being provided was also anything you know i have my argument is that if there was such an allegation and there is not that would give rise to a factual question which would result in discovery in the normal process would apply as it does every breach of contract case because what you anything that said we did anything wrong in connection with the creation of the subsidiary or the license facility that happened it didn't happen now there are reasons it was breached no no it didn't happen because of other facts which were not pleaded we said you have to show a breach the breach had to do with whether or not there was the appropriate facility and whether or not there was the appropriate subsidiary and under and we had no control over what the chinese government was going to do in this case the scenario is  unlike the united states of america which seems to have no difficulty telling the chinese government what to do in terms of their current debate somehow you him see would have control over the chinese government convince it that it would agree to a forty percent share ownership share in this and this of citi didn't i'm sorry but they didn't that's correct both sides both sides entered into it but more importantly both sides said under section four under section four one day that the licenses other rights granted for the named facility it doesn't say for it just anything it says for the name facility which was defined into a payable anytime between january one and fifteen and december fifteenth but it's for the named facility there was no name facility but more importantly i b m never alleged that we somehow did anything wrong by not having one and the reason that's important is the real essence of this agreement had to do with i b m making sure that he did not risk having its technology transferred to to it a chinese t and having that entity do something inappropriate with it and the only way to prevent that was to have a majority owned subsidiary controlling things and what happened here is there was no majority own facility there could be no  payment under for one but more importantly under two way it's it prove there was a requirement and that requirement is consistent with everything i'm saying and that is that there had to be a simultaneous giving of notice to i b m of what of the existence of the subsidiary and the license facility before payment was made the reason that was they didn't give them the name of a felony and they didn't say that and they'll babe they did not breach because the condition precedent or that the tipping points as you call it or as they refer to it is correct and the point is because both parties had an understanding that there were things they could not control namely what the people's republic of china was going to do and that's why they set up the simultaneous notice it's  it in effect what you have is a situation where both parties wanted to do a thing namely establish this subsidiary in the facility in the foundry in china but were unable to do so and critical is the allegations in the complaint nowhere in the complaint is i b m allege that we did anything wrong other than make pain was going to be your it was going to be your wholly owned subsidiary correct but not i b m sa but that's but that's right be here's the point let's say we had it the best we knew the best deal we could get from the chinese was a subsidiary that instead of being sixty forty was fifty five forty five i b m had the absolute ability to walk away why because they set the terms you can't and the reason they set the terms they were trying to protect themselves from improprieties by the chinese government so you can't turn around and tell me well wait a minute if you  that goes for both parties the both parties had the same expectation there is nothing in there that says we can guarantee what the people's republic of china is going to do all that says is the parties agree this is the deal we have to have before there can be a transfer there was no deal because we couldn't get one and therefore there was no transfer and the notion that i b m would articulate is oh i'm sorry i'm out of time you have the we would somehow have the ability to control the chinese government that makes no sense because i b m was being protected by the very provision which they want to ignore they could just ask one more question it seemed to agree that no side is responsible for drafting this agreement right both sides are equally responsible for drafting it correct right and it looks like the earlier agreement was just kind of cut and pasted is that my right but actually i think i don't what i think happened your honor is that the twenty twelve agreement covered four countries and ever and and the and the technology and when they added china to when they had the four countries they have to worry about a notice problem they were dealing with any governmental entities looks like they took it in and pasted in some well you know i don't know if i use the word stuck in your honor but i would agree with you they were added to twenty thirteen precisely the cover of the china deal and the per and i will tell you that the record would be that the parties who did that draft was i because i b m needed that protection and so now what they want to do is to say hey you sue wall the risk of getting something from the chinese government but it's got to be sixty forty or your previous ten million dollars there's a nothing in an agreement which would it would permit that outcome wants there is an unbridgeable gap between the lawyers theories that you've just heard and the terms of the contract and to the attempt in the to the extent in the their briefs they attempt to appeal to extrinsic evidence which wouldn't be admissible in any event those arguments only confirm that the gap between their defense and the contractual reality can never be bridged units the payment obligation in provision four point one a is an ambiguous and unconditional c admits on the reply brief that the two thousand and twelve payment obligation under old section four point one is unconditional and they admit that they agreed to pay forty five million dollars for the original license when knowing that it might never use that license and effect they admit at ca seven that it never has used that license for which it paid forty five million dollars now look at section four point one and section four point one a side by side leaving out the fact that the looking leaving aside the fact that the amount is obviously changed and the due date is changed the payment obligation under new section four point one a states the new payment obligation in virtually identical it's totally ministerial there's not any evidence whatsoever that there was a deliberative process or negotiation as to which provisions would be changed and which provisions wouldn't be changed it's a drafting glitch and there are other glitches in this contract as as has as the trial court recognized that might be a literal meaning i think you could also clearly interpret four point one a coming in directly after four point one as a subsection but let's assume that that sorry your honor  you you know probably better than i do it's nine point three your iran or the purpose of section nine point three in the original agreement was to make clear that the purchase price breach of the purchase price provision is not subject to a two million dollar damage cap it would be absurd to conclude that these parties intended it through leaving out a single a single letter aid from a single section designation in a single provision to change this contract from territorial provisions of the license for example there are countless provisions is a very technical license to pay for it exactly but but the purpose of section one point three in the original agreement was to make clear the purchase price is the purchase price you don't set a two million dollar damage limitation for breach of a forty five million dollars purchase price or for breach of a tumor a ten million dollars purchase price it's inconceivable your honor and it's not a basis that the evidence they have of those track changes pa if you read all the provisions together the parties in print do that how do you do that you how do you read one four point one nine point three is judge who has just pointed out unless you unless you conclude was taken out for a reason which is and this could be the reason which is at least with the prior deal the forty five million dollars deal they got something no there was nothing exchanged there was no technology exchange there was technology loss other workplaces right as i understand it but here there was nothing exchanged so why should they get ten million dollars when under a standard breach of contract remedy you might get maybe two million no your honor that because they're the because you can't read section nine point three as kaptur addicting the un can unconditional obligation to pay ten million dollars that would be irrational and except it doesn't say what four point one  ok but another reason for the court to be confident that this is a mistake is that there would be no rational basis for the contract to refer to section four point one it will mistake the contract  intent was that the court can make this kind of conforming change and can add or subtract language as needed to effectuate the clear contractual intention of the parties and it is it is so clear that these parties intended for payment to be unconditional sections five point three and sections twelve point five squarely address what opposing counsel referred to they address the risk of governmental restrictions in three ways they gave two point five years for this to be for form they they made clear that if the government little interference prevented performance that that would not be a breach so long as they pay the amount set forth and defects in four point one a and they also made clear that if they couldn't comply with the notice provision that the that would not be a breach so long as they paid so every five point three which just references specifically four point one but nine point three does not but you say that doesn't matter it's over so i think the only complete only rational way to read this contract and make make every provision function as the parties clearly intended is to read the reference section one point three to section four point one as intended to encompass section four point one one a otherwise the reference to section four point one would be completely superfluous and the court is required to a trip were point one four point three or if this was an option where there was supposed to be a two million dollar strike pretty price that would not happen without leaving a paper trail and if they wanted to oppose summary judgment to resist summary judgment based on the clear in princes of what the parties meant looking at the contract as a whole they would have come forward with a declarant who was part of that negotiating team and who had said of course this was a very important point to us and we agreed to it that does not happen in a vacuum they have full access to the documentary record to show that their argument which which you've been probing me on has factual probability it's so implausible that it would serve no purpose whatsoever to remand for further proceedings on that because if there were any evidence to support it at all it would already be before the ward it's a pure draft english and it cannot reasonably be read as anything else and under the court of appeals a new york court of appeals and new york appellate division authority the court had the power to conform the contract to reflect that obvious contractual intent i see that my time was up thank you your honor  don't believe they've ever alleged a breach the only breach they claim is nonpayment but the requirement includes more than that as well yes but you had the question that was correctly asked was what did my client get in return there was no transfer of technology and there could not be because under two way there had to be certain conditions met so in effect what i b m is saying yeah we argument he just made about if they had evidence they should produce it that best made add a child certainly not on summary judgment where they are now arguing this agreement says only one thing when we obviously can tell it says and reads completely differently than that they can't explain away the omission of the a b of the section by simply saying they should it should have been well i b m let's just assume that they still the same big company they always were they knew what they were doing when they did it and they did not include the link when they were left out the have to fall well if they left out the air four point one or if they understood that they could not include for one day because this agreement required additional actions concerning the subsidiary and the the license in it that's what makes it so unique because we are again we are dealing with a chinese a partially chinese it and both parties had concerns and they they struggled in my opinion to try to accomplish a result that ultimately was not attained and anybody raise ambiguity in the summary judgment aspect of this case in other words that anybody say your honor we can't figure this out we argued that if there wasn't we'd like to put on evidence of what the drafters meant when they had when they put together this this document we argued there was ambiguity the court said i can reform this agreement and simply ignored our arguments to that effect the whole country is now before us which is surprising in view of the fact that we were required to interpret t the sections in question as part of a contract whole country so you decided both parties not to give us the whole contract correct y our honor i'm at a disadvantage tools is to look at the sections in relation to the whole contract and yet we can't do that here correct well right the answer is you are correct but the reason has to do with the fact that the trial judge refused to seal the entire contract so it had to be redacted if the court would prefer and on redacted version we don't have any objection to