Similarly, claim preclusion is inapposite. Indeed, as a practical matter, defendant, who retained his shares, had no reason to invoke shareholder status until the sell-off of the company's assets. Thus, claim preclusion does not bar defendant's counterclaims. We further conclude that the court erred in its alternative holding that defendant is, in fact, no longer a shareholder. The court reasoned that, under paragraph 7 of the parties' agreement, the combination of the involuntary termination of defendant's employment and plaintiff's tender of payment was sufficient to divest defendant of his ownership interest notwithstanding defendant's rejection of the payment and retention of the stock certificate.
Defendant is correct.
Although the parties' agreement contains a buy-sell provision, the agreement does not provide that mere tender of payment, without acceptance, effects a transfer of the shares. Plaintiff could have sought specific performance of defendant's obligations under paragraph 7. But plaintiff failed to do so. So long as the stock certificate remained in defendant's possession, defendant was, and is, a shareholder. Our conclusion concerning defendant's shareholder status is not dispositive.