Shea v. Hambros PLC

244 A.D.2d 39, 673 N.Y.S.2d 369, 1998 N.Y. App. Div. LEXIS 5305
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 7, 1998
StatusPublished
Cited by29 cases

This text of 244 A.D.2d 39 (Shea v. Hambros PLC) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shea v. Hambros PLC, 244 A.D.2d 39, 673 N.Y.S.2d 369, 1998 N.Y. App. Div. LEXIS 5305 (N.Y. Ct. App. 1998).

Opinion

OPINION OF THE COURT

Milonas, J. P.

In 1983, plaintiff Kevin Shea and defendant N. Price Paschall formed an investment banking company. Albert Macchioni joined the business in 1985, after which it was known as Shea, Paschall & Macchioni, Inc. (SPM). The following year, SPM entered into an informal relationship with defendant Hambros PLC, a British holding company, and its American subsidiary, defendant Hambro America Inc. (HAI), pursuant to which SPM provided services to certain clients of these defendants. After several years, the parties decided to formalize their affiliation, and it is the series of agreements executed thereafter to this end and Shea’s ultimate ouster from the business that form the basis of this appeal.

First, in March 1988, a purchase and operating agreement was executed among the following parties: HAI, SPM, Shea, Paschall, Macchioni, and SPM Associates, a partnership formed by SPM’s three partners prior to executing the purchase agreement and the corporate plaintiff in this action. The terms of this purchase agreement provided for HAI to acquire 75 shares, or 50%, of SPM’s stock, with each of the three partners individually holding 25 shares. The purchase price was $1 million, paid by a promissory note dated March 15, 1988 and due March 15, 1991; the note was executed by HAI, guaranteed by defendant Hambros Group Investments Ltd. (HGIL) and held by SPM Associates. The latter was also to hold a call option apparently provided for in the “SPM Stockholders Agreement,” whereby, under certain circumstances, it could buy back HAI’s 75 shares at “book value.” The purchase and operating agreement expressly provided that if Shea “ceases to be a full-time [42]*42employee of [SPM]” before the maturity date for any reason other than his death, “then the Purchase Price shall be zero.” A similar provision in the note stated that in the event that Shea was no longer employed by the company on the maturity date, the note’s principal amount “shall be zero and no sum, whether as principal or accrued interest, shall be payable by [HAI] hereunder.” The note also provided that the principal amount would be reduced by outstanding loans owed to HAI on the maturity date.

According to plaintiffs, the purpose of the provision linking Shea’s employment with payment on the note was to discourage Shea from leaving the company within its first three years. Plaintiffs also contend that Shea agreed to the deal in reliance upon a private agreement between him and Paschall to the effect that neither would vote in any capacity against the other’s interest.

One year after the execution of the 1988 purchase and operating agreement, a further reorganization took place, following SPM’s acquisition of an investment banking concern in 1988 and in furtherance of the acquisition of a private placement financing group consisting of defendants Powell, Lazarus and Shaffer (the Powell Group). There was controversy as to whether SPM or Hambros would acquire the Powell Group, and, according to plaintiffs, and central to their complaint, this dissension led defendants to begin to contemplate taking control away from Shea and to conduct private negotiations with Paschall. Indeed, plaintiffs contend that the May 1989 reorganization, as described below, had Shea’s ultimate removal as its goal.

The reorganization resulted in the following changes among the parties, including Macchioni’s departure from SPM. SPM was renamed SPP Hambros, and SPP Inc. was created as a wholly owned subsidiary of SPP Hambros, which then transferred all its assets and liabilities to SPP Inc. In addition, a partnership named SPP Partners was formed by Shea, Paschall, Powell, Lazarus and Shaffer for the purpose of holding shares in SPP Hambros, which were allotted as follows: SPP Partners held 50 shares (25%); HAI held 100 shares (50%); and Shea and Paschall each held 25 shares (12.5%). The shares allotted to Shea and Paschall were in exchange for their respective 25 shares of SPM, and the SPP Partners’ partnership agreement further provided that, “[u]pon execution of this Agreement, Shea and Paschall shall each contribute the 25 shares each owns in SPP Hambros to the capital of the Partner[43]*43ship. Shea and Paschall each represent and warrant that upon the contribution of such Shares to the Partnership, the Partnership will have all right, title and interest in and to such Shares.” Pursuant to the partnership agreement, therefore, SPP Partners was to hold a total of 100 shares (50 allotted directly to it and 50 contributed by Shea and Paschall as mandated), making it a 50% shareholder with HAI.

Under this reorganization and pursuant to the SPP Ham-bros shareholders’ agreement, Shea was Chairman of the Board and Chief Executive Officer of both SPP Hambros and SPP Inc., while the board of directors of both new entities consisted of Shea, Paschall and Powell and three HAI corporate officers, defendants Goodman, Sporborg and Lewis. The various parties to the 1989 reorganization executed an overarching operating agreement that expressly permitted for the termination of employment of any principal of SPP Inc. and SPP Hambros, with or without cause, by vote of the board of directors. Each principal agreed to serve full time for a period of 10 years, “unless sooner terminated or extended.” Under the operating agreement, five of the six named directors constituted a quorum, and the affirmative vote or written consent of five directors was “necessary for the transaction of any business of the Board of Directors.” The partnership agreement governing SPP Partners provided that its five partners “shall endeavor to achieve unanimity with respect to Partnership decisions,” but permitted action on agreement of “not less than 75% of the interest in the Partnership.” By a “Side Letter of Agreement” dated May 16, 1989, the relevant parties terminated their 1988 SPM stockholders agreement and purchase and operating agreement. It is undisputed that the 1988 promissory note remained in full force and effect.

Following this reorganization, the relationship among the parties worsened. According to Paschall’s deposition, he became so “completely uncomfortable with Mr. Shea’s management” that he believed Shea should be terminated and so informed Powell in early 1990.

On February 26, 1990, a series of acts was taken resulting in Shea’s removal. Four of the five partners of SPP Partners (i.e., all but Shea himself) signed an agreement authorizing Powell to act on behalf of SPP Partners as a 50% shareholder of SPP Hambros, “to effect the removal of Shea as a director of SPP Hambros.” The interest in the company held by the four partners constituted the 75% required by the by-laws to take such action. Then, HAI and SPP Partners, each acting as a [44]*4450% shareholder of SPP Hambros, adopted a unanimous shareholders’ consent removing Shea as director of SPP Ham-bros as of that date. Next, the five remaining directors of SPP Hambros (the necessary quorum) gave unanimous written consent to a resolution by which Shea was immediately terminated from all offices he held with SPP Hambros; by the same directors’ consent, SPP Hambros, as sole shareholder of SPP Inc., approved his removal as a director of SPP Inc. also. Then, with said stockholder termination of Shea as director of that company, the remaining directors of SPP Inc. (the necessary quorum) executed a unanimous directors’ consent terminating him as Chairman of the Board and Chief Executive Officer.

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Bluebook (online)
244 A.D.2d 39, 673 N.Y.S.2d 369, 1998 N.Y. App. Div. LEXIS 5305, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shea-v-hambros-plc-nyappdiv-1998.