15-3233 Oliveira v. Quartet Merger Corp. and Pangaea Logistics Solutions Ltd UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 13 th day of October, two thousand sixteen.
PRESENT: G ERARD E. L YNCH , C HRISTOPHER F. D RONEY , Circuit Judges , C HRISTINA R EISS , Chief District Judge

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---------------------------- ---------------------------- -------------- S TEVEN O LIVEIRA , Plaintiff-Appellee , v. No. 15-3233-cv Q UARTET M ERGER C ORP ., P ANGAEA L OGISTICS S OLUTIONS LTD, Defendants-Appellants.

---------------------------- ---------------------------- -------------- FOR PLAINTIFF-APPELLEE: E UGENE L ICKER (Sara J. Crisafulli, Loeb & Loeb LLP, on the brief ), Ballard Spahr , New York, New York.
FOR DEFENDANTS-APPELLANTS: L EO G. K AILAS , ( Edward Peter Grosz, on the brief ), Reitler Kailas & Rosenblatt LLC, New York, NY.

 Chief Judge Christina Reiss, United States District Court fo r the District of Vermont, sitting by designation.2 Appeal from a September 30, 2015 judgment of the United States District Court for the Southern District of New York (Rakoff, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Defendants-Appellants Quartet Merger Corporation and Pangaea Logistics Solutions Ltd. appeal from an order of th e district court granting Plaintiff-Appellee Steven Oliveira’s motion for summary j udgment and from a final judgment awarding Oliveira damages of $903,910.93. Quartet an d Pangaea contend that the district court erred in concluding that no tender requirement existed for Oliveira to convert his shares of Quartet stock into cash at the time of the merger between th e two companies. We assume the parties’ familiarity with the underlying facts, th e procedural hi story of the case, and the issues on appeal. We review de novo a grant of summary judgment under Rule 56, construing all evidence in the light most favorab le to the non-moving party. See Willey v. Kirkpatrick , 801 F.3d 51, 62 (2d Cir. 2015 ). Summary judgment must be granted if “there is no genuine dispute as to any mate rial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a ). We agree with the district c ourt that there are no genuine disputes of fact in this appeal, only issues of law in interpreting th e contract between the parties. Delaware General Corporatio n Law § 151(a) provides th at every corporation may issue stock in different classes and with di fferent rights and powers. Those classes or series may have “such voting powers, full or limited, or no voting powers, and such3 designations, preferences and relative, particip ating, optional or othe r special rights, and qualifications, limitations or restrictions ther eof, as shall be stated and expressed in the certificate of incorporation or of any amendment thereto.” Del. Code Ann. tit. 8, § 151(a); see also Alta Berkeley VI C.V. v. Omneon, Inc. , 41 A.3d 381, 385 (Del. 2012) (concluding that liquidation preferences “m ust derive from the provisions of the certificate of incorporation that cr eated those preferential rights”). It is well established that “[c]orporate ch arters and bylaws are contracts among a corporation’s shareholders.” Airgas, Inc. v. Air Prods. & Chems., Inc. , 8 A.3d 1182, 1188 (Del. 2010). “Words and phrases used [in charters] are to be given their commonly accepted meaning unless the cont ext clearly requires a diffe rent one or unless legal phrases having a special meaning are used.” Id. (internal quotation marks omitted). The Amended Certificate of Incorporation issued by Quartet provides in Article Sixth, paragraph C that: [A]ny holder of a share of Common St ock sold in the IPO (“IPO Shares”) 1 who voted on the proposal to approve such Business Combination . . . may, contemporaneously with such vote, demand that the Corporation convert his IPO Shares into cash. If so demanded, the Corporation shall, promptly after consummation of the Business Combination . . . , convert such shares into cash. Joint App’x at 94. The Amended Certificate fu rther provides that a holder of Quartet IPO Shares shall be entitled to payment only if “he demands co nversion of his shares in accordance with paragraph C above in connection with any Proxy Solicitation.” Id . at 95.

1 IPO means “initial public offering.” Oliv eira held shares of Quartet stock th at were sold in the Quartet IPO.4 The undisputed facts are the following: Plaintiff Oliv eira owned IPO shares in Quartet, a special purpose acquisition compan y formed to merge with another company. In connection with a proposed merger of Qu artet and Pangaea, Oliveira voted against the merger and exercised his right in the Amended Certificate of Incorporation to convert his shares to cash at a rate of $10.20 per share if the merger were consummated. Oliveira checked the box on his proxy statement exercisi ng that right but did not tender his shares at that time, as the proxy statement require d. The merger was completed on October 2, 2014. Oliveira’s Quartet shares were not conv erted to cash after the merger, but Oliveira was issued Pangaea stock. Oliveira again dema nded that the defendants effect his cash conversion right on October 9; O liveira describes this as an offer to tender his shares, and the defendants dispute that characterization. In any event, Pangaea again refused to convert Oliveira’s shar es to $10.20 per share in cash. Oliveira then so ld his Pangaea shares for less than $10.20 per share to mitigate his damages. Quartet and Pangaea contend that, in order to exercise his cash conversion rights, Oliveira was required to tender his Quartet sh ares before the vote on the merger at the shareholders meeting. The Amended Certific ate issued by Quarte t does not include a tender requirement, however. The district cour t concluded that such a tender requirement is a “qualification[], limitation[], or restri ction[]” under Delaware General Corporation Law § 151 that must be specifi ed in the Amended Certificate, and that Oliveira complied with all of the express requirements in the Am ended Certificate for cash conversion. The district court awarded damages for the diffe rence between the amount Oliveira received5 for selling his Pangaea shares on the open market follo wing the merger and the conversion price. On appeal, Quartet and Pangaea conten d that “a proper interpretation of the contractual relationship between Quartet a nd its shareholders necessarily requires consideration of all relevant contractual documents” including press releases, a Proxy Statement, the corporation’s SEC registration statement, and the final prospectus that allegedly informed plaintiff of the tender requirement and created a parallel contractual obligation. Appellants’ Br. 18-2 2, 32. However, we agree with the district court that such an interpretation contravenes th e text of § 151(a), which make s it clear that requirements affecting the rights of shareholders must be included in the corpor ation’s certificate of incorporation. The Amended Certificate does state that a shareholder will only be paid if “he demands conversion of his shares in accord ance with paragraph C above in connection with any Proxy Solicitation.” Joint App’x at 95. In the Amended Certificate, “Proxy Solicitation” refers not to a published docum ent, but to the process by which “the Corporation shall submit such Business Combination to its holders of Common Stock for approval.” Id. at 94. This reference is not suffi cient to incorporate a later tender requirement—appearing only in material pub lished at the time of the merger—into the Amended Certificate.6 We have considered Quarte t’s and Pangaea’s remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court