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Harris v. Ahtna, Inc. (02/11/2005) sp-5867
Harris v. Ahtna, Inc. (02/11/2005) sp-5867
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD HARRIS, )
) Supreme Court No. S-10960
Appellant, )
) Superior Court No.
v. ) 3AN-01-11346 CI
)
AHTNA, INC., AHTNA ) O P I N I O N
GOVERNMENT SERVICES )
CORPORATION, KEN JOHNS, )
PAUL TONY, and NEIL ANDERSON, )
)
Appellees. ) [No. 5867 - February 11, 2005]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: William G. Royce, Anchorage,
for Appellant. Christopher J. Slottee,
Atkinson, Conway & Gagnon, Anchorage, for
Appellee Ahtna, Inc.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
The main question in this case is whether the superior
court properly ordered specific enforcement of a buy-or-sell
agreement between shareholders. We conclude that the court erred
because the offer that triggered the buy-or-sell process did not
set out a price that was equal regardless of which party bought
or sold, and contained unpermitted conditions.
FACTS AND PROCEEDINGS
In May of 1999 Richard Harris and Ahtna, Inc., formed
Ahtna Government Services Corporation (AGSC). AGSCs primary
business was to perform work for the federal government that is
reserved for minority-owned enterprises. AGSC would qualify for
this work because Ahtna is an Alaska Native regional corporation.
Ahtna owned 5,100 shares, fifty-one percent, while Harris owned
4,900 shares, forty-nine percent. Harris was to manage the
company and to contribute staff and office space from his
company, Pacific Native Development Corporation, while Ahtna
agreed to provide AGSC with working capital and bond guarantees.
Harris and Ahtna executed a shareholders agreement that
contained a buy-or-sell provision described as a put-and-call
option. Under this provision either shareholder could, under
certain conditions, declare an impasse by issuing a declaration
that contains an offer to sell the offerors shares to the other
shareholder. Upon receipt of the declaration, the offeree must
either buy the offerors shares or sell its own shares to the
offeror at the set price.
The AGSC venture started slowly. In 1999 and 2000 it
incurred losses. In May of 2001 the AGSC board of directors
terminated Harris from his position as president of the company.
In 2001 there were net earnings of approximately $160,000 on
gross revenues of about $9,000,000. At the end of 2001 AGSCs
balance sheet showed negative retained earnings of slightly over
$1,000,000. At that point Ahtna had made loans to AGSC in excess
of $1,500,000. The year 2002 was more profitable for AGSC. As
of July 31, 2002, the company had made profits of about $700,000
on predicted annual gross revenues in excess of $12,000,000.
AGSC filed a complaint against Harris on October 19,
2001, claiming that he had breached his fiduciary duty to AGSC
and that he had not paid for his stock. Harris answered, denying
the major allegations of the complaint, counterclaimed against
AGSC, and filed a third-party complaint against Ahtna. In the
latter he alleged that an impasse between shareholders had
arisen.
After the third-party complaint was filed, Ahtna sent a
letter to Harris declaring an impasse under the put-and-call
option of the shareholders agreement. Ahtnas declaration set the
price for the purchase of shares as follows:
A. 6.87 per share;
B. the Continuing Shareholder shall
assume any Company indebtedness or liability
guaranteed by the selling shareholder, and
shall obtain a written release of the selling
shareholder from such guarantees and
liabilities; and
C. the Continuing Shareholder will
cause to be paid in full the valid
indebtedness of the Company to the selling
shareholder. In the case of the Companys
indebtedness to Ahtna, the portion of the
indebtedness represented by management fees
will be waived and relinquished by Ahtna.
Harris responded to the offer contained in the declaration by
agreeing to buy Ahtnas shares for $6.87 per share while rejecting
parts B and C of the offer as invalid under the shareholders
agreement. Ahtna took Harriss response to be a rejection of
Ahtnas offer to sell its shares and thereafter claimed that
Harris was obligated to sell his shares to Ahtna in accordance
with the terms of the declaration.
Both Ahtna and Harris moved for specific performance of
the put-and-call option. The superior court granted Ahtnas
motion, denied Harriss, and ordered Harris to deliver all of his
shares to counsel for Ahtna in exchange for the consideration
specified in Ahtnas declaration. When Harris did not tender his
stock, Ahtna filed a motion for an order holding Harris in
contempt. The court issued an order to show cause. In response,
Harris filed a supplemental brief arguing that the court had
erred in granting Ahtnas motion for specific performance because
Ahtnas declaration contained terms that made its offer invalid.
Harris supported his supplemental brief with an affidavit of
George L. Johnson, CPA, who stated that he had extensive
experience working with put-and-call options, that it was
critical that an offer be symmetrical, and that Ahtnas
declaration lacked symmetry because Ahtna demanded
that Mr. Harris personally repay a corporate
obligation of AGSC and assume a bonding
guarantee of Ahtna. . . . Ahtnas Put Call
offer is equivalent to Mr. Harris offering to
sell his shares to Ahtna if Ahtna also repaid
debt that Mr. Harris owed to a third party.
(Emphasis in original.)
The superior court conducted an evidentiary hearing
with respect to the order to show cause. At the conclusion of
the hearing the superior court reaffirmed its prior ruling
requiring Harris to deliver his stock to Ahtnas counsel. The
court stated, in part:
If somebody wants to sell something,
they can say Ill take this or Ill take that
and thats what Ahtna said. What they wanted
was off the hook and it wanted so many
dollars a share on top of that. They were
extended financially in several ways on
behalf of the company and that was part of
the deal. It certainly makes no sense to
remain extended for the company if theyre not
an owner. It does make sense for the other
shareholder, Mr. Harris, to cover the
extension that . . . theyve made. Thats not
an impossible thing.
These are people in companies involved
in business and business is, to an extent, a
poker game. You have to have enough stakes
to play. Harris could assume the debt, he
could pay the debt, Harris could find
alternate bonding. Harris could do those
things if Harris had a deep enough pocket to
do it and he could pay for the shares as
well. All of that together, of course, was
the total price for the shares.
The superior court subsequently issued a partial final
judgment pursuant to Alaska Civil Rule 54(b) requiring Harris to
deliver his shares to Ahtna in exchange for $6.87 a share,
totaling $33,663 for his 4,900 shares. Harris appeals.
STANDARD OF REVIEW
The question in this case is the meaning of the put-and-
call option in the parties agreement. The goal in interpreting
the meaning of contracts is to give effect to the reasonable
expectation of the parties.1 Reasonable expectations may be
ascertained through the language of the contract, the behavior of
the parties, case law, and any relevant extrinsic evidence.2
Ordinarily the meaning of a contract presents a question of law
for the trial court, reviewable on appeal under the independent
judgment standard unless there is conflicting extrinsic evidence.3
Where there is conflicting extrinsic evidence, findings and
inferences of fact made by the trial court will be reviewed
deferentially under the clearly erroneous standard.4
In the present case there is no evidence as to the
parties intent concerning the put-and-call option at the time of
contract formation or thereafter until this litigation arose, nor
was there conflicting extrinsic evidence. We therefore review
the trial courts interpretation of the put-and-call option under
the independent judgment standard.5
ISSUES ON APPEAL
The issues in this case turn on the meaning of the put-
and-call option in the shareholders agreement. The subparagraphs
of the agreement that are most relevant to this case provide:
5.1 Put and Call Options. Each Shareholder
shall have the right and option upon the
written declaration (a Declaration) by
such Shareholder to the other
Shareholders and the Company of the
occurrence of an impasse (as defined
below) to sell to the Continuing
Shareholders all of his Shares, and the
Continuing Shareholders shall have the
obligation to either (i) purchase all of
such Shares owned by the offering
Shareholder in such proportion as the
Continuing Shareholders may agree upon,
and if they cannot so agree, pro rata in
proportion to their then ownership of
Shares of the Company (excluding the
Offering Shareholders Share) or (ii) if
the Continuing Shareholders are unable
or unwilling to purchase all of the
Shares owned by the Offering
Shareholder, sell all of their Shares to
the Offering Shareholder, and the
Offering Shareholder shall have the
obligation to buy such Shares.
. . . .
5.3 Exercise of Option. The Continuing
Shareholders shall exercise any option
provided for in this Paragraph 5 within
thirty (30) days after receipt of a
declaration. Any closing of the sale of
Shares pursuant to such exercise shall
occur within ninety (90) days after
receipt of a Declaration.
5.4 Purchase Price. Any purchase or sale of
Shares sold pursuant to this Paragraph 5
shall be at the price as set forth in
the Declaration delivered by the
Shareholder exercising his right to sell
his shares and shall be paid for at the
closing of the sale of the Shares. The
purchase price may be amortized, at the
option of the Buyer, for a period of up
to 3 years.
Harris argues that the put-and-call option (1) requires
that the price be stated in monetary terms and precludes
nonmonetary conditions, and (2) requires that the price be the
same whether it is exercised by the offeror or the offeree. He
argues that neither of these requirements was met by Ahtnas
declaration. The price was not stated in monetary terms because
the declaration required the buyer to assume unstated fixed and
contingent liabilities and to obtain written releases of the
seller from sureties of AGSC. The price Harris would be required
to pay Ahtna was not equal to the price that Ahtna would have had
to pay Harris; Harris would have been required to assume
liabilities already incurred by Ahtna, whereas Ahtna had no
similar obligation because Harris had not guaranteed AGSCs bonds
or made loans to AGSC. Harris also contends that since terms B
and C of the declaration were invalid, the court should have
ignored them and enforced his offer to buy Ahtnas shares for the
stated cash price per share.
Ahtna responds to these points as follows. Regarding
Harriss argument that the price under the agreement had to be
expressed in monetary terms, Ahtna argues that the agreement does
not so state. It also argues that nonmonetary terms were
necessary to allow Ahtna to divest itself of AGSC because of the
substantial loans and guarantees it had made to AGSC or for its
benefit. Concerning price equality, Ahtna argues that Ahtnas
offer did not establish a different price per share. But it
continues by stating: If Harris had matched Ahtna and put his own
money at risk by loaning money to AGSC and guaranteeing AGSCs
obligations, then his price per share would be the same.
Concerning Harriss argument that his acceptance of only the cash
price term created a binding contract, Ahtna argues that Harriss
response accepting only part of the offer was a rejection of the
offer and created no contract.
We conclude for the reasons that follow that Harris has
the better argument on his points that the price must be
expressed in money and must be equal regardless of who sells and
who buys. But we conclude that Harriss argument that his
acceptance of only the cash term of Ahtnas offer created an
enforceable contract lacks merit.
Equal Price
We address first Harriss point that the price under the
put-and-call option must be equal regardless of which party buys.
Shareholders enter into buy-or-sell contracts in order to provide
a deadlock-breaking mechanism that is fair to both participants.
The underlying premise of such agreements is that the price
proposed by the offeror will be the same whether the offeror
sells its shares or buys the shares of the other shareholder.
The fact that the offeree is free to buy or sell at the same
price per share is the offerees guarantee of fairness.6 Even
where there is price equality, the contract may prove not to be
fair if one party lacks the financial resources of the other
party.7 But the important point is that price equality is the
basic assumption of agreements of this sort.
Price equality is lacking in Ahtnas declaration. If
Harris decided to buy Ahtnas shares the price that he would have
to pay would be calculated by adding to the $6.87 per share price
his assumption of AGSCs liabilities to Ahtna, his assumption of
Ahtnas guarantees, and whatever cost he would have to incur to
obtain written releases from sureties of Ahtnas continuing
liability. Ahtna has acknowledged that items B and C of its
offer involve sums substantially exceeding $1,000,000.8 Thus
Harris might well have had to pay, as buyer of Ahtnas shares,
$35,037 ($6.87 per share times 5,100), plus an amount
substantially in excess of $1,000,000. By contrast, Ahtna, as
buyer of Harriss shares would have to pay only $33,633, $6.87 per
share.
Ahtnas argument that the price would have been equal if
Harris had matched Ahtna in making loans to AGSC and had been a
co-guarantor of AGSCs bonding seems irrelevant. Those conditions
did not exist, nor, apparently, was Harris obligated to lend
funds to AGSC or act as a guarantor of its bonding. We thus
agree with Harris that the put-and-call option required that the
price to each party be equal and that the Ahtna declaration did
not meet this requirement.
Nonmonetary Terms and Conditions
We also agree with Harriss related point that the price
in the declaration must be stated in money and must not contain
nonmonetary conditions. We reach this conclusion for a number of
reasons. Since the price must be equal regardless of who pays
it, a medium of exchange available to both parties is required.
Nonmonetary conditions often will not burden the parties equally.
Relatedly, if nonmonetary conditions were permitted each party
would have an incentive to declare an impasse before the other
party in order to craft favorable conditions. This would lead to
premature and possibly unnecessary deadlocks.
Further, the option available to the buyer to amortize
the purchase price over three years, set forth in paragraph 5.4,
implies that the price must be a money price. At oral argument
before the superior court, counsel for Ahtna indicated
uncertainty as to how to quantify the price reflected in part C
of the declaration, acknowledging that he was not certain that
this could be done.9 An unquantifiable price, or a price
consisting of contingent liabilities that have been assumed but
not realized, cannot be amortized. The same is true as to a
nonmonetary condition.
Moreover, the language of various other provisions of
the shareholders agreement suggests that the parties intended the
price term to be limited to a monetary price. In paragraph
3.3.3, the agreement states, concerning a shareholders transfer
of shares to the company, that a Shareholder may give, sell,
transfer or otherwise dispose of all or any of its Shares to the
Company at such price and on such terms and conditions as such
Shareholder and the Board of Directors of the Company may agree.
(Emphasis added.) In another section of the agreement,
paragraphs 3.3.4-6, the company and other shareholders are
granted a first right of purchase when a shareholder proposes to
sell to a third party. Paragraph 3.3.7 states that when the
company or a continuing shareholder elects to purchase the shares
from the selling shareholder under these provisions, the Buyer
must elect to purchase all Shares which the Offering Shareholder
proposes to sell for the price and upon the same terms for
payment of the price as are set forth in the Offer. (Emphasis
added.) Finally, in paragraph 4.1 of the agreement, shareholders
are given the right of first refusal to purchase common stock and
options issued by the company, and the agreement requires the
company to offer such securities . . . at a price and on such
other terms as shall have been specified by the Company in
writing delivered to such Shareholder. (Emphasis added.) In
contrast to these sections, the put-and-call option does not
contain language referring to terms and conditions, stating
instead that [a]ny purchase or sale of Shares sold pursuant to
this Paragraph 5 shall be at the price as set forth in the
Declaration delivered by the Shareholder. The coupling of price
with terms or conditions in other portions of the agreement but
not in the put-and-call option suggests that the parties did not
contemplate that the price in the put-and-call option would
include terms and conditions in addition to a monetary price.
Ahtnas argument that nonmonetary conditions were
necessary in order to relieve it of continuing liability to AGSC
and to sureties is understandable, but unpersuasive. While the
argument is relevant to Ahtnas perceived needs, it has little or
no bearing on the meaning of the put-and-call option. The fact
that Ahtna is a creditor of AGSC does not give it special status
as a shareholder. Ahtnas remedies as a creditor of AGSC and as a
guarantor of AGSCs obligations are separate from its rights as a
shareholder. If Ahtna were to sell all of its shares, its
remedies as a creditor and guarantor would still be available.
If it believes that it needs more protection from the risk of
nonpayment, this might logically be a factor when it decides what
price to set under the put-and-call option. Just as buy-or-sell
contracts may provide only illusory fairness when one shareholder
cannot afford to buy out the shares of the other shareholder,10
such agreements also may not function well when one shareholder
does not believe that it can afford to let the other shareholder
buy it out. But these shortcomings are, if anything, an argument
against the use of such agreements rather than an indication of
how they should be interpreted.
The parties have directed our attention to cases from
other jurisdictions involving buy-or-sell agreements in which the
offeror attempted to impose conditions in addition to a monetary
price. In one case, McTeague v. Treibits, the court held that
the conditions were invalid and that the offeree could accept the
cash offer without the conditions.11 In another case, Wyatt v.
Phillips, the court held that the imposition of the conditions
prevented the triggering of the action-forcing aspect of the
agreement, and that the offers as made should be treated under
the common law rules of contract formation.12 In a third case,
Wilcox v. Stiles, the court held that a nonmonetary condition was
valid and the agreement was triggered despite its inclusion.13
Our holding in this case concerning the invalidity of nonmonetary
conditions is consistent with McTeague and Wyatt. We disagree
with the rationale of the third case, Wilcox, insofar as it
approves of an offer that imposed unequal conditions depending on
which party became the buyer.14
Harris Is Not Entitled to Specific Performance
For the above reasons we have concluded that terms B
and C of Ahtnas offer are inconsistent with the put-and-call
option. Harris argues that since these terms are inconsistent
with the put-and-call option, he should be able to purchase
Ahtnas shares under the only valid term of the offer for $6.87
per share. He cites McTeague v. Treibtis15 in support of his
argument.
McTeague involved a shareholders agreement with a buy-
or-sell agreement similar to the put-and-call option in the
present case. Under the McTeague agreement, when one shareholder
(the initiating shareholder) notified the other shareholder (the
responding shareholder) that the initiating shareholder wished to
sell his shares, the responding shareholder would set the price
and terms under which the initiating shareholder could either buy
the responding shareholders shares or sell his shares to the
responding shareholder.16 Treibits initiated the process.
McTeague responded by stating a cash price and conditions,
including payment of an amount claimed to be owing to a
construction company owned by McTeague. Treibits purported to
accept the offer with respect to the monetary price only,
rejecting the additional conditions. The trial court ruled that
the conditions other than the cash price were not in accordance
with the phrase price and terms in the shareholders agreement and
held that Treibits had the right to accept the monetary term and
ignore the other conditions. The court of appeals agreed, noting
that the construction companys claim against the corporation was
currently in litigation and if the construction company prevailed
the objective of the condition imposed by McTeague would be
satisfied. McTeague is arguably distinguishable on the grounds
that the main condition imposed would be independently satisfied
if it was legitimate and, in any event, the condition was
arguably less important than the invalid conditions set by Ahtna
in the present case. Nonetheless, McTeague is fair support for
Harriss position.
But Wyatt v. Phillips17 and Roy Herider Feed Co. v.
Modern Feeds of Nacogdoches, Inc.,18 reach different and, in our
view, more defensible results. In Wyatt the court noted that
where a buy-or-sell clause (referred to there as a shotgun
provision) similar to that in the present case contained a number
of contingencies, or conditions precedent, other than price and
payment terms neither contained nor contemplated by the drafters
of the Shotgun Provision, this would render the offer subject to
ordinary contract principles of offer and acceptance.19 In Roy
Herider Feed the trial court concluded on summary judgment that
the buy or sell agreement was validly invoked despite the
presence of conditions precedent. On appeal the court reversed,
holding that the conditional nature of the offer prevented the
action-forcing aspect of the agreement from being triggered.
Instead, the court invoked customary contract provisions:
[A]cceptance of a proposal to sell, in order
to bind the maker of the proposition and
conclude the contract, must be unconditional
and unqualified. The exact terms of the
proposition, without addition or variation,
must be acceded to before the proposition is
withdrawn; otherwise the maker of the
proposition is not bound by the
acceptance.[20]
We believe that the offer contained in Ahtnas
declaration should be construed as were the conditional offers in
Wyatt and Roy Herider Feed. Since the offer did not comply with
the put-and-call provisions of the shareholders agreement it was
an offer governed by the common law. Under common law rules
acceptance of an offer must be unequivocal and in exact
compliance with the requirements of the offer.21 Where a
purported acceptance qualifies the terms of the original offer,
the result is a counter-offer which may be accepted or rejected
by the party who made the initial offer.22 Here, since Ahtnas
offer failed to trigger the put-and-call option, Harriss partial
acceptance was a counter-offer that Ahtna did not accept. Thus
no contract was formed and Harriss request for specific
performance was properly denied.
For the above reasons, we REVERSE the partial final
judgment and REMAND this case to the superior court for further
proceedings consistent with this opinion.
_______________________________
1 See Keffer v. Keffer, 852 P.2d 394, 397 (Alaska 1993)
(The goal in interpreting a contract is to give effect to the
reasonable expectations of the parties.); Mitford v. de Lasala,
666 P.2d 1000, 1005 (Alaska 1983) (In interpreting a contract, we
seek to give effect to the reasonable expectations of the
parties.); Peterson v. Wirum, 625 P.2d 866, 872 n.10 (Alaska
1981) (In interpreting a contract, the object is to give effect
to the reasonable expectations of the parties.).
2 Jensen v. Ramras, 792 P.2d 668, 670 (Alaska 1990) (The
parties reasonable expectations can be assessed by reviewing the
language of the disputed provision, the language of other
provisions of the contract, relevant extrinsic evidence, and case
law interpreting similar provisions.) (quotation marks omitted);
Smalley v. Juneau Clinic Bldg. Corp., 493 P.2d 1296, 1305 (Alaska
1972) ([W]here uncertainty or ambiguity exists in the language
employed in an agreement, the intent of the parties thereto may
be ascertained from the language and conduct of the parties, the
objects sought to be accomplished and the surrounding
circumstances at the time the contract was negotiated.)
(quotation marks omitted).
3 Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122
(Alaska 1991) (although we will apply our independent judgment to
a trial court's interpretation of a written contract based
exclusively on documentary evidence, we will apply the clearly
erroneous standard when the trial court has relied on extrinsic
testimonial evidence).
4 Rockstad v. Global Fin. & Inv. Co., Inc., 41 P.3d 583,
586 (Alaska 2002) (when the trial court relies on extrinsic
testimonial evidence to provide a factual basis for its
interpretation of a contract, we apply the clearly erroneous
standard in reviewing the court's background findings of fact).
5 When reviewing the interpretation of contracts under
the independent judgment standard, we adopt[] the rule of law
most persuasive in light of precedent, reason, and policy. Casey
v. Semco Energy, Inc., 92 P.3d 379, 382 (Alaska 2004).
6 See Wyatt v. Phillips, 2002 WL 31053832, *3 (Pa. Com.
Pl. Aug 27, 2002), where the court stated concerning a similar
agreement:
the purpose of the Provision was to attempt
to control these contentious parties so that
one could not take advantage of the other.
An offeror could not make the price
inordinately low for fear the other would
counter-offer and purchase [the company] at
the low price. On the other hand, if the
price were too high, the offeror would become
obligated to purchase in excess of the
companys true value.
7 See Fredric D. Tannenbaum, What Every Business Lawyer
and Business Owner Should Know About Buy-Sell Agreements, 1089
PLI/Corp. 441, 485 (Dec. 1998) (Theoretically, the offerees right
to buy out the offeror at the same price offered by the offeror
will incite the offeror to quote a fair price, for fear that if
the price is too low, the offeror will be bought out at that
price. In reality, however, the offeror and offeree do not
always have the same financial resources, and the offerees rights
to match a low offer by the offeror may be illusory.).
8 This statement was made in Ahtnas reply memorandum in
support of its motion for an order holding Harris in contempt.
The full statement was:
Contrary to Harriss repeated assertions,
Ahtnas offer was not a one-part, $33,000
offer. It was instead a three-part offer
which included the requirement that the
selling [sic buying] shareholder assume all
indebtedness guaranteed by the selling
shareholder, obtain a release for the selling
shareholder, and that all valid indebtedness
to the selling shareholder be paid in full.
The latter two elements of Ahtnas offer
involve sums substantially exceeding $1
million.
9 The colloquy between court and counsel was:
THE COURT: Okay. Lets stop right there.
Mr. ODonnell, how can they quantify C?
MR. ODONNELL (Ahtnas counsel): Well, Im not
certain whether they can. The arbitration is
scheduled to . . . . . (Emphasis supplied.)
THE COURT: Well, lets find out. How can he
accept? What would he have to do to properly
accept if there is some vagueness in the
outcome or what it means?
. . . .
MR. ODONNELL: What he would have had to do
was clearly set out in the offer. One, he
would have to pay the amount; two, he would
have to agree to have obtained financing or
take other steps to have removed Ahtna as a
lender to the corporation and as a guarantor
on its bonds and if there was indebtedness
owing to Ahtna from Ahtna Government
Services, make arrangements to get that paid.
He was unwilling to do that.
10 See supra note 7.
11 388 So. 2d 309 (Fla. App. 1980).
12 2002 WL 31053832, *4 (Pa. Com. Pl. Aug. 27, 2002).
13 873 P.2d 1102 (Or. App. 1994).
14 We note however that Wilcox is arguably distinguishable
because both the offeror and the offeree were personally liable
for all the debts of the corporation. Thus the main condition,
release of liability of the seller, was, at least theoretically,
equal regardless of which party became the buyer. But one
shareholder had substantial personal collateral at risk, while
the other did not. Thus the practical risk of loss was
asymmetrical even though the theoretical risk may have been
equal.
15 388 So. 2d 309 (Fla. App. 1980).
16 Id. at 311.
17 2002 WL 31053832 (Pa. Co. Pl. Aug. 27, 2002).
18 468 S.W.2d 554 (Tex. App. 1971).
19 2002 WL 31053832, at *4.
20 468 S.W.2d at 560 (quoting Patton v. Rucker, 29 Tex.
402, 409 (1867)).
21 Thrift Shop, Inc. v. Alaska Mut. Sav. Bank, 398 P.2d
657, 659 (Alaska 1965).
22 See Southwest Marine, Inc. v. State, Dept of Transp. &
Pub. Facilities, Div. of Alaska Marine Highway Sys., 941 P.2d
166, 173 (Alaska 1997); Hall v. Add-Ventures, Ltd., 695 P.2d
1081, 1088-1089 (Alaska 1985) (If the terms suggested by Large
constitute a conditional acceptance, it would be a counter-offer
and thus a rejection of the original offer.); Restatement
(Second) of Contracts 59 (1981) (A reply to an offer which
purports to accept it but is conditional on the offerors assent
to terms additional to or different from those offered is not an
acceptance but is a counter-offer.).
