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Whitacre Partnership v. Biosignia2/6/2004
r their services. All three certificates were signed by T. Nelson Campbell as Secretary/Treasurer of Biomar and by Mark E. Whitacre as President of Biomar.
On 11 February 1997, following his indictment by a federal grand jury and a brief period of hospitalization for what he characterized as "suicidal thoughts and erratic behavior," Whitacre resigned as President and Chief Executive Officer of Biomar. In connection with his resignation, Whitacre accepted a position as an officer of Clintech, a new subsidiary of Biomar. In his letter of resignation to T. Nelson Campbell, Whitacre referred to a "previous understanding" between Campbell and Whitacre whereby Whitacre's resignation would "result in the forfeiture of 500,000 unearned shares of Biomar's common stock." The letter also expressed Whitacre's understanding "that a new certificate will be issued in the amount of 1,250,000 shares," and stated that a "copy of [Whitacre's original] stock certificate" was attached. The letter requested that the new certificate be "issued to [Whitacre's] children" in the name of W.F.P. Management Company (WFP), which Whitacre described as "the company holding my children's estate (via a Family Limited Partnership)." W.F.P. Management, it appears, is simply another name for the Whitacre Family Partnership.
In a letter accepting Whitacre's resignation dated 20 February 1997, T. Colin Campbell invited Whitacre's approval to an expression of the "agreement between [Whitacre] and Biomar concerning [Whitacre's] resignation." The letter stated that "the total number of shares owned by [Whitacre's] family partnership (prior to any share distributions to [Whitacre's] attorneys) is 1,250,000 shares" and requested Whitacre to "indicate approval by signing below." Whitacre did sign the letter, just below Campbell's signature, under the caption "AGREED TO." The date "20 February 1997" also appears on the face of two separate stock certificates issued by Biomar to Whitacre Partnership. Stock certificate number 21, signed by T. Nelson Campbell as Secretary and T. Colin Campbell as President, was issued in the name of "W.F.P. Management Co., Inc." in the amount of 1,000,000 shares. The ledger entry for certificate number 21 indicates that its issuance coincided with the purported surrender of 750,000 shares from certificate number 17, which was originally issued in the amount of 1,750,000 shares in the name of Whitacre Partnership. It is listed as a transfer from "Whitaker Partnership." Stock certificate number 27, also signed by the Campbell defendants, was issued in the name of "Whitacre Partnership, a family partnership" in the amount of 1,000,000 shares. The stock ledger indicates that this was a transfer from WFP. In his 10 May 2001 deposition, Whitacre acknowledged that the date on certificate 21 was written in his own handwriting, and that the certificate "resulted from the discussions that [T. Nelson Campbell] and I had at my termination of employment with Biomar in February `97." Whitacre also acknowledged that he had signed a "contract" on 20 February 1997, under the terms of which he was to "forfeit 750,000 of those shares out of the 2,000,000."
In early 1997, Whitacre and T. Nelson Campbell executed a Restricted Stock Agreement (RSA), the scope and effect of which is crucial to a determination of the ownership of the stock at issue here. Although the agreement is dated 23 October 1995, the parties agree that the RSA was backdated to be given retroactive effect, and was not actually executed on 23 October 1995. The record is unclear, however, as to the actual date of execution.
The RSA purports to be a fully integrated agreement between Whitacre and T. Nelson Campbell, as an officer of FHT
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